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TESTIMONY OF J. CHARLES FOX
TESTIMONY OF
J. CHARLES FOX
ACTING ASSISTANT ADMINISTRATOR
OFFICE OF WATER
U.S. ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE
SUBCOMMITTEE ON HEALTH AND ENVIRONMENT
OF THE
COMMITTEE ON COMMERCE
U.S. HOUSE OF REPRESENTATIVES
October 8, 1998
Thank you, Mr. Chairman, for the invitation to be here today. I am pleased to have this opportunity to discuss the Environmental Protection Agency's (EPA's) implementation of the Safe Drinking Water Act (SDWA), because I believe that we have a very good story to tell.
Just over two years ago, President Clinton signed into law amendments to the Safe Drinking Water Act passed by Congress. The bipartisan cooperation among this Committee's Members provided critical leadership to enact effective and workable changes to this law. Congress and the Administration agreed to make some significant changes in the Act to increase public health protection, and EPA and its partners in the drinking water community have spent the past two years making those changes a reality. I would like to describe the progress that we have made in carrying out the new amendments, and in changing how we do business. I would also like to highlight the challenges that we face over the next several years.
EPA's SDWA Implementation Activities
The 1996 amendments made significant changes in how the SDWA works, emphasizing comprehensive public health protection through regulatory improvements, increased funding, prevention programs, and public participation. A focus on risk-based priority-setting means that EPA will decide which contaminants to regulate based on data about the adverse health effects of the contaminant, its occurrence in public water systems, and the projected risk reduction. The amendments also expanded the role for consideration of benefits and costs in standard setting and implementation. Also, States now have greater flexibility to implement the Act responsibly to meet their specific needs. Funding is significantly increased through higher State drinking water program grants and a new multi-year, multi-billion dollar Drinking Water State Revolving Fund (DWSRF) for infrastructure improvements for water systems. In addition, new State prevention initiatives were created and funded, including a source water assessment program, which will give States and water suppliers information they need to prevent contamination of a community's drinking water source, thereby better enabling them to add an extra layer of defense to the current treatment options. Finally, the amendments recognize that effective drinking water protection must be founded on a base of government accountability and public understanding and support. Right-to-know provisions, such as the consumer confidence reports, will give consumers the information they need to make their own health decisions. These provisions will also promote accountability in decision-making.
The 1996 amendments also acknowledge that drinking water protection must be a shared effort across the entire drinking water community. EPA has used this concept to guide implementation of the new statute. Through our stakeholder process, the drinking water community has come together to work through a number of issues. We have greatly expanded the SDWA-authorized National Drinking Water Advisory Council (NDWAC) through a series of working groups on issues ranging from small system needs to a new approach to benefits assessment. All participants should be commended for their efforts.
The 1996 amendments established a rigorous implementation schedule for EPA, including over 80 new deadlines. I am proud to say that we have at this time completed every action required of us. These actions have provided a solid foundation of guidance and assistance for States, water suppliers, and the public as they take the next steps in implementation.
The Administration moved quickly after enactment of the amendments to work with Congress to fund the new requirements. I would like to acknowledge your efforts in this regard.
Funding is also necessary for States and water systems, and implementation has been very successful in this regard. I am pleased to announce that all 50 States and Puerto Rico have received their first Drinking Water State Revolving Fund capitalization grants from the FY '97 appropriations, for a total of $1.25 billion dollars. In addition, 28 States have received FY '98 capitalization grants. In order to address important drinking water needs, several States are leveraging their federal grants or considering transfers from their Clean Water State Revolving Funds to increase the amount of funds available to finance needed infrastructure projects. I believe that this is a remarkable achievement. Before passage of the 1996 amendments, there was no drinking water loan infrastructure program at the national level. Now, only two years later, we have a functioning program, as demonstrated by the more than 250 loans that have been made to water systems to improve their ability to provide safe drinking water.
Congress also provided flexibility by allowing States to reserve a portion of their DWSRF grants to fund a number of programmatic set-asides and States have taken advantage of that flexibility. Approximately 20 percent of the States' FY '97 capitalization grants have been used to fund set-aside programs supporting State drinking water programs, source water assessment and protection efforts, and measures to enhance the technical, financial and managerial capacity of drinking water systems.
In the area of new drinking water standards, the Amendments laid out four major areas of work for EPA: completing priority rulemakings for contaminants named in the law; improving the science and data supporting rulemakings and risk management decisions; establishing a new process to make determinations on future standards that includes explicit consideration of the costs and benefits of proposed standards; and, reviewing existing standards. We are moving forward in all of these areas. EPA established a committee through the Federal Advisory Committee Act (FACA) to provide a consensus recommendation on regulations to protect the public from waterborne pathogens such as Cryptosporidium and from the byproducts of disinfection. These two rules, known as the Microbial and Disinfectants/Disinfection Byproducts (M/DBP) rules, will be promulgated in time to meet Congress's deadline of November of this year. These will be the first National Primary Drinking Water Standards issued since 1992.
EPA has also established a new process for standard-setting based on the greatest risks to health. The amendments require EPA to make a regulatory determination on at least 5 contaminants by 2001. Using recommendations from the public, the scientific community, and a NDWAC working group, EPA established its Contaminant Candidate List, to aid in this determination, and to help set priorities for the Agency's drinking water program. In establishing the list, EPA has divided the contaminants among those which are priorities for additional research, those which need additional occurrence data, and those which are priorities for consideration for rulemaking. To provide sound occurrence data, EPA is developing its National Contaminant Occurrence Database, which will provide information on the occurrences in drinking water of specific contaminants. Finally, EPA will begin development of a process for reviewing the current drinking water standards.
At a time of great debate over the right framework for environmental and public health regulation, Congress and the Administration reached agreement on how to strengthen the consideration of cost and benefits in drinking water standards while continuing to ensure that health protection is the paramount consideration. Under the amendments, EPA must conduct more extensive cost-benefit analyses for each regulation, and the Administrator may exercise new flexibility based on these analyses in setting standards. EPA is working with its stakeholders, through a National Drinking Water Advisory Council workgroup, to improve our cost-benefit tools to enable us to carry out this new approach. The first round of rulemakings to which these new provisions will apply are under development. Also, to address the related issue of small system affordability, the amendments require EPA to identify affordable compliance or variance technologies for small systems and to promulgate rules for small system variances and exemptions. EPA finalized the variances and exemptions rule in August and published the list of compliance technologies for existing rules. EPA determined that compliance with existing standards is affordable for all size categories of small systems, but these systems may be eligible for variances under future standards.
The 1996 SDWA Amendments created a new emphasis on prevention, creating three new federal programs -- source water assessment and protection, capacity development, and operator certification. EPA has made great strides in implementing these programs.
Preventing contamination of the source water is the first step in the multiple barrier approach to drinking water protection. Last year EPA issued a source water assessment and protection guidance for States to use to complete source water assessments for their public water systems. This guidance was developed with the recommendations of another NDWAC working group. During the past year States have been working diligently to prepare their assessment programs. We want all States to submit their programs for review by the statutory deadline of February, 1999, and are making a vigorous partnership effort to assist them in meeting this deadline.
Implementation of the source water assessment and protection provisions will also benefit from another Administration initiative, the Clean Water Action Plan. The Clean Water Action Plan brings together a wide range of federal agencies in support of clean water, including drinking water. As part of the Clean Water Action Plan, federal agencies are identifying ways in which they can help States as they conduct source water assessments.
The 1996 amendments also created capacity development tools to support drinking water systems in acquiring and maintaining the technical, financial and managerial capability to plan for, achieve, and maintain compliance with drinking water standards. In August EPA released guidance developed with the assistance of a NDWAC working group to help States work together with water systems to carry out new capacity development provisions of the law, including a requirement that States have authority to prevent the formation of new public water systems that lack the capability to operate and manage a drinking water system that is in compliance. States must also implement a strategy to help existing systems develop the capability to operate and maintain their system and ensure long-term compliance. EPA is providing technical assistance to States to help them implement these provisions.
EPA and its partners have also been working to implement the Operator Certification provisions in the Act. In February 1998, EPA released information for States on recommended operator certification requirements, developed through a partnership with States, water systems, and the public. This partnership has made recommendations to EPA on guidelines for States to use in making changes to their operator certification programs. Draft guidelines were published in March, 1998, and we will release final guidelines by February, 1999.
The 1996 Amendments include a strong and pervasive ethic of public information and involvement. EPA has worked hard to incorporate this ethic by providing stakeholders with multiple opportunities to provide input into our rule development and implementation activities, and we are very proud of our efforts.
A major public information product is the Consumer Confidence Report. Consumer confidence reports are the centerpiece of the right-to-know provisions in SDWA. SDWA requires water systems to provide annual reports to their customers on the state of their drinking water supply. The information contained in these reports will enable Americans to make practical, knowledgeable decisions about their health and their environment. The reports also provide a way for the public to get more drinking water information, including the assessments of drinking water source quality.
The Administration believes that every American has the right to know about the source and quality of their drinking water supply, and is working to ensure that the consumer confidence reports are used. In August EPA finalized its rule specifying the requirements of these reports. Recently we formed the Public Right-to-Know working group of the NDWAC to discuss how to increase public knowledge of these reports. We would also like to recognize the efforts of the many water systems who are working to make these reports an important new means to communicate with the public and build partnerships with their consumers.
Implementation Challenges
While I believe that we have been very successful in implementation to date, I realize that we have many challenges as well.
The biggest single challenge over the next 4 to 5 years for the drinking water community as a whole, including EPA, is simply the cumulative number and size of the tasks we face. With greatly heightened efforts internally, with strong financial support from the Administration and Congress, with energetic and extensive cooperation from States and stakeholders, so far EPA has been able to produce -- virtually all on time -- durable and effective implementation products required by the law.
But from here, it gets harder for everyone. The regulatory products required of EPA over the next 4 to 5 years will need not only to continue to address the intent of their respective provisions in the law and the fundamental concerns of stakeholders, they will also need to be supported by a growing base of research and data that will be costly for EPA and demanding of stakeholders. States, water systems and other stakeholders will not only continue their active participation in helping EPA develop these new regulatory products, they will also have the burdens of implementing the new regulations and programs already developed since 1996. EPA in turn will have the additional responsibilities of assisting with and overseeing this implementation as the law specifies.
All of us in the drinking water community, including EPA, will face difficult choices on how to balance our efforts and resources to address all of the requirements under the law.
Other key challenges flow from this most basic challenge. As we face the task of setting new drinking water standards, EPA must make sure we have the science and information we need to make good, well-founded regulatory decisions on these standards. The Administration and the Congress increased funding for drinking water research shortly after passage of the 1996 amendments. Much of the increase for health effects research has supported the M/DBP rules. We have developed a long-term research plan in support of the rules, and are working with many partners, such as the National Institutes of Health and the Centers for Disease Control. To meet the statutory requirements and deadlines for the new rulemakings, we must initiate research and data collection to evaluate the contaminants on the Contaminant Candidate List and to undertake the 6-year review of existing standards. Our challenge is to balance these research needs over the next several years to ensure that we have the science we need to make sound regulatory decisions.
A third challenge is the issue of data quality. Accurate information about the quality of our drinking water and its compliance with drinking water standards is vital to establishing new rules, evaluating the success of our programs, judging compliance trends and establishing priorities, and providing the public with information about drinking water quality.
We have made great progress in making our information about drinking water quality available to the public. We have also found in doing so that the old adage applies: namely, that if you make data widely available, you must be exacting about the quality of that data, and you will inevitably need to improve it. We have recently had that experience with drinking water violations data in our Safe Drinking Water Information System (SDWIS). We have always made the information available upon request. But in observance of the public's right to know, we have recently put the data on the Internet, and we summarized it in the first annual National Public Water System Annual Compliance Report. Both actions substantially widened the number of people who saw and used the data, and pointed out errors in the information.
In response, we have developed a multi-part action plan to correct the data. First, we are taking immediate action to correct data errors that utilities and States have pointed out to us, and publicizing the procedure that others can use to correct erroneous data. Second, we are convening a meeting of major stakeholders, and subsequent meetings in various regions across the country to discuss the problems fully and help us fashion an action plan to address them. Third, we are taking immediate actions on some of the known problems by making fixes to SDWIS, such as ensuring that the information that states send to SDWIS via the electronic data entry process goes into SDWIS without changes, and that the error reports are easy to read and use. Fourth, we are putting in to place a process to define other data quality problems in detail and correct them. With this plan, we and our partners will both correct existing data and put into place a long term process to ensure that data newly entered is correct.
Conclusion
In 1996 the Administration and Congress gave the American people a sensible and comprehensive law to protect public health. The law dramatically increased the effort needed from all members of the drinking water community, and challenged each of them by giving them a key role in ensuring the safety of our nation's drinking water supplies. I am happy to report that all participants have accepted this challenge. Implementation of the Act is moving forward very successfully. In the past two years, EPA and its partners have created a framework that embodies the principles of the 1996 amendments, and developed many of the tools necessary to provide public health protection into the 21st Century.