[Congressional Record Volume 140, Number 55 (Monday, May 9, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 9, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
               SAFE DRINKING WATER ACT AMENDMENTS OF 1994

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
proceed to the consideration of S. 2019, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 2019) to reauthorize and amend title XIV of the 
     Public Health Service Act (commonly known as the ``Safe 
     Drinking Water Act''), and for other purposes.

  The Senate proceeded to consider the bill.
  Mr. BAUCUS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, as the Senate today begins consideration 
of S. 2019, a bill to reform and reauthorize the Safe Drinking Water 
Act, I would like to basically say a few words about the concept and 
the principle of the bill before I turn to details of the legislation.
  We often spend a lot of time here in this body and in a lot of 
committees talking about abstract issues. Some of them are quite 
arcane, I might add.
  For example, on the Environment and Public Works Committee we spend 
time talking about the standard for developing an effluent guideline 
under section 302(b)(1)(B) of the Clean Water Act. Or the relationship 
between sediment quality criteria and Superfund ``ARAR's.''
  Do not ask me what all that is. On the Finance Committee, we spend 
time talking about amortization schedules or the pros and cons of value 
added taxes. All that gets pretty arcane, pretty complex.
  Today, however, we are not talking about some arcane, abstract issue. 
Rather, we are talking about the public health and safety of the 
Nation's drinking water--the water is our coffee, in our orange juice; 
the water our children drink from the fountains in school corridors; 
the water we drink--straight from the tap, two and a-half quarts a day, 
every day of our lives, water that we drink in one form or another.
  Americans expect to turn on the faucet, fill a glass, and drink the 
water--without getting sick. They expect safe drinking water in their 
homes and in their local communities. They expect safe drinking water 
when they move to a new community, which the average American does 11 
times in a lifetime.
  We Americans expect safe drinking water when we travel. When people 
from Glendive, MT visit Billings, Spokane, or Boston, or when people 
visit their Nation's Capital, they expect to be able to drink the water 
without getting sick or without the worry of getting sick.
  Some might say that we take safe drinking water for granted. Well, I 
might have agreed with that until recently, when vivid evidence--in 
Milwaukee and here in Washington, DC--has demonstrated that we can not 
take safe drinking water for granted. And there continues to be a very 
real need to protect public drinking water supplies.
  The American people want their drinking water to be safe and realize 
that it costs money to make sure that it is safe. In fact, a survey 
conducted by the American Water Works Association--that is the industry 
association--last October found that 82 percent of consumers are 
willing to pay more to ensure that the water they drink meets the 
standards the Environmental Protection Agency [EPA] has determined are 
necessary to protect human health.
  The question is, how do we make sure that the money spent to protect 
drinking water supplies is spent wisely? The fundamental issue here, is 
balance. How do we ensure the public health will be protected while the 
costs of that protection are not prohibitive? Public health protection 
has a cost. It is our responsibility, it is our job, to strike the 
right balance.
  Before Congress passed the Safe Drinking Water Act in 1974, the job 
was not getting done. From 1961 to 1970, there has been 128 outbreaks 
of illness or poisoning attributable to drinking water contamination. 
Eight million Americans were drinking unsafe water. The 1974 act 
created the Public Water System Supervision Program--there is a 
mouthful--and authorized EPA to regulate drinking water contaminants. 
That was back in 1974, just 20 years ago.
  Twelve years later, in 1986, the job still wasn't getting done. EPA 
had identified 700 contaminants in drinking water, but had set 
standards for only 23. The incidence of waterborne disease was rising. 
In response, Congress enacted legislation to correct the major 
deficiencies in the act. The 1986 amendments established schedules of 
standard-setting. It required the simultaneous promulgation of goals 
and standards and based the standards on the best available technology.

  The 1986 act reflected a consensus. The Committee on Environment and 
Public Works reported the bill unanimously, the full Senate approved 
the conference report by a vote of 94-0 and President Ronald Reagan 
signed the bill into law.


                             THE CHALLENGE

  Today we know that, despite our good intentions and the many 
improvements made by the 1986 act, it was flawed. We overreacted. We 
pushed the pendulum too far in the direction of regulation. As a 
result, implementation of the Safe Drinking Water Act has gone awry, 
particularly when it comes to smaller, local communities.
  Local officials who operate drinking water systems are buried under a 
mountain of redtape, particularly those who operate small systems. 
Eighty-seven percent of the nearly 60,000 community water systems in 
this country serve fewer than 3,300 people. The operators of these 
systems are trying to provide a basic public service to their 
neighbors. The job is difficult enough without unnecessary 
recordkeeping and monitoring requirements that the present act, 
particularly the 1986 amendments, impose upon them.
  There is another problem. Current standards do not take into account 
the economic burden on those who operate small systems. Small systems 
have limited economies of scale. They cannot spread the costs of 
treatment across a large number of ratepayers. So, in many cases, 
household rates skyrocket.
  On top of all this, the standards-setting system keeps rolling along, 
with 25 new contaminants regulated every 3 years, whether they are 
needed or not. And, finally, we have not provided the kind of Federal 
financial aid necessary to help communities meet their increased 
obligations.
  Because of all these problems, it seems that the Safe Drinking Water 
Act has become the very symbol of concern about unfunded mandates. But 
we have to get beyond symbolism. We have to solve the problems. We have 
to provide balanced solutions. Otherwise, we may overreact again. We 
may push the pendulum back too far in the other direction. If so, we 
may undermine the protection of public health.


                          STRIKING THE BALANCE

  The legislation I introduced more than 7 months ago began the process 
of trying to strike the balance. Since introduction last fall, I have 
consulted with many other Senators on both sides of the aisle to 
address their concerns about the bill and the drinking water program. 
As a result of those discussions, I believe we have made significant 
improvements in the bill. The bill reported unanimously from the 
Environment and Public Works Committee in March strikes a good balance.
  It creates a new--I underline the word ``new''--State revolving loan 
fund to finance compliance with the act's requirements. It reforms the 
standards-setting process and the monitoring requirements.
  It streamlines the enforcement system, and lightens the burdens on 
small communities while continuing to protect public health. It 
institutes a new program to prevent contamination of water supplies. 
And it encourages States to deal with systems that lack the ability to 
provide safe drinking water over the long term.
  It also addresses the issue of risk. Risk assessment is not a magic 
answer to all our problems. But it is an important tool when applied to 
specific problems. This bill does that. It applies risk-based concepts 
to contaminant selection, radon, small system variances and standard-
setting. In addition, it authorizes a broad-based research program 
directed toward risk assessment.
  It has been a constructive, cooperative process. I am particularly 
grateful to the ranking member, Senator Chafee and his staff and to the 
members of committee, including the present occupant of the chair, for 
their help with this issue. That work is reflected in the bill before 
us today, and in a managers' amendment that will be offered later this 
week.
  I also want to thank two Members not on the committee--Senator 
Hatfield, who has done a very good job working on this bill, and 
Senator Kerrey of Nebraska--for their interest in this issue and their 
tireless efforts on its behalf. I must say, were it not for their 
contribution I am not sure the bill would be up before us today.
  This bill is the result of an extensive consensus-building process--
after all, that is what the legislative process is all about. It 
addresses many of the concerns we have heard from all sides. It is not 
the bill that any single member would write.
  But this bill is on the right track and I am confident that it will 
reduce regulatory burdens while fully protecting public health.
  In addition to the managers' amendment, several Senators will be 
offering amendments that address specific changes to some of the 
provisions of this bill, for instance Senators Kerrey and Hatfield on 
monitoring and viability, and Senators Warner and Conrad on source 
water protection. But first I would like to take a few minutes to 
describe the bill before us and its major provisions.


                                funding

  Funding for States and communities is one of the most critical 
problems with the current program. Many systems, especially small 
systems, do not have the financial resources to comply with the current 
requirements of the act. This bill establishes a State revolving loan 
fund similar to the Clean Water Act revolving fund.
  The funds can be used by all States to help communities comply with 
drinking water standards, restructure their operations, or find 
alternative sources of water. The fund is authorized at a level of $600 
million in fiscal year 1994, money that has already been appropriated, 
and at a level of $1 billion annually through fiscal year 2000.
  States are required to match 20 percent of the Federal grant, as 
under the Clean Water Act, and States can give loan subsidies or 
extended loan terms to systems that the State considers are 
disadvantaged. The fund also includes a 2-percent set-aside to be used 
for technical assistance for small water systems. That is, if they do 
not have the wherewithal to know how to comply, States may set aside 2 
percent for that.
  Initially, grants for the drinking water State revolving funds are 
distributed according to the same formula currently used to allocate 
Federal grants to States for the operation of State drinking water 
oversight programs. Beginning in fiscal year 1988, funds will be 
distributed according to a survey of drinking water treatment needs 
conducted by EPA.
  The drinking water SRF differs from the clean water SRF in two 
important ways. First, States have the flexibility to use a portion of 
their drinking SFR funds to support current and new drinking water 
responsibilities, including assistance to small systems and State-
designed monitoring requirements. Initially, SRF funds can be used to 
meet 50 percent of a State's drinking water program funding shortfall.
  In the second, third, and fourth years, SRF funds can be used to meet 
100 percent of the State's programs shortfall. In the fifth year, after 
States have completed the start-up phase of reforms, funding from the 
SRF can be used to meet 50 percent of the State's funding shortfall.
  This Federal assistance ensures that States have adequate funding to 
take full advantage of new flexibilities in the bill, including special 
programs for small communities, monitoring relief, and source-water 
protection programs. It will also give States time to develop their own 
sources of funding.
  Another flexibility in the SRF provision allows Governors to shift up 
to 50 percent of the funds under the clean water or drinking water 
revolving loan funds between the two SRF's. This bill establishes a 
separate State revolving water fund. This allows Governors to shift 
back and forth according to State-specific needs. Some States may have 
greater clean water, that is, sewage treatment need as opposed to safe 
drinking water need. Some other States may be in the opposite 
situation.
  This will give States added flexibility to address their most 
pressing problems, whether they are drinking water or wastewater.
  This flexibility responds to the growing concerns over unfunded 
burdens being placed on State governments. Not only will the States 
have more flexibility, they will have the funding to tailor State 
programs to the needs of water systems.
  Another way this bill addresses the resource problem is by increasing 
the authorization for State program grants from $40 million to $100 
million annually through fiscal year 2000 and retains the current match 
requirement at 75 percent Federal, 25 percent State.
  If drinking water reforms are going to succeed, it will take a true 
partnership among the Federal and State governments and the water 
systems.


                       health risks and standards

  The bill reflects recommendations from the Clinton administration, 
from industry and State and local governments to overhaul the process 
for selecting future contaminants for regulation. All parties believe 
EPA needs to use the best possible scientific judgment in setting risk-
based priorities.
  The current approach to contaminant selection mandates an outcome--83 
contaminants plus an additional 25 contaminants must be regulated every 
3 years--rather than a process based on good judgment and sound 
science. The bill eliminates this ``25 every 3 years requirement'' and 
replaces it with a new process for listing, researching, and selecting 
contaminants.
  The process would operate on a 5-year cycle, and it would require 
EPA, in consultation with the Centers for Disease Control and 
Prevention, to identify the specific steps necessary to select health 
effects data and complete a risk analysis. After the studies are done, 
EPA would decide whether a contaminant poses a public health threat.
  At the same time, EPA would use the newly established national 
occurrence database to determine if the contaminant was actually 
present in drinking water supplies. If it both appears in drinking 
water and poses a health threat, then it can be regulated as a new 
contaminant. If it does not meet both tests, it will not. This approach 
eliminates the current quota of regulations and ensures that good 
science supports all regulations.
  While the contaminant listing and selection reforms have widespread 
support, there is a related issue that has attracted considerable 
discussion; namely, on what basis should standards be set?
  I have worked extensively with concerned parties on all sides to 
reach an agreement on standard setting that preserves our fundamental 
health protections while avoiding unnecessary costs.
  The proposal in this bill strikes a balance. Combined with the 
provision in the managers' amendment, the Administrator of EPA will 
have additional authority to consider setting the MCL for carcinogens 
and noncarcinogens at a level less stringent than the level that is 
technologically feasible provided that the substantial cost saving does 
not result in increased risk to health and the basis for the decision 
is founded on sound science.
  I will speak in more detail about this provision later in the debate, 
but I believe it presents sound policy. I urge my colleagues to 
consider it carefully.


                               monitoring

  But perhaps the single most costly requirement for most small systems 
under the act is not treatment but monitoring. When a contaminant is 
not found through testing, no treatment should be required and there 
are no further costs. The key is to design water testing requirements 
that reasonably reflect the risk of a contaminant and avoid unnecessary 
and costly monitoring.
  The bill uses risk considerations to modify monitoring requirements 
in three ways: First, EPA is required to look at monitoring 
requirements for no less than 12 contaminants it currently regulates 
and to modify them if monitoring can be reduced.
  Second, States are allowed to completely replace Federal monitoring 
requirements based on local conditions. In areas of low risk--I might 
add, Mr. President, that this country is not homogenous. Some areas of 
the country are at a lot less risk than some others--a State may set 
low-frequency testing requirements or eliminate routine monitoring 
altogether in some instances. EPA is given clear criteria for approving 
State monitoring programs.
  Finally, small systems that test and do not find any problems can 
avoid follow-up or repeat monitoring for many contaminants. These 
approaches can easily reduce water testing costs 50 percent for 
chemical contaminants in a State, and up to 75 percent for individual 
small systems.


                             small systems

  As I mentioned earlier, one of the most critical problems that this 
legislation addresses is the disparity in compliance costs between 
large and small systems. Some 87 percent of the drinking water systems 
in this country are small, serving fewer than 3,300 persons. While they 
serve about 10 percent of the population, they bear about 40 percent of 
the cost of the Safe Drinking Water Act.
  This bill helps small systems that cannot afford to use conventional 
treatment and that can benefit from technologies geared specifically to 
the needs of small systems.
  Here is how it works: Any system serving 10,000 people or less may 
request a variance to install special small system technology 
identified by EPA. This means if a small system cannot afford to comply 
with current regulations through conventional treatment, system 
restructuring or finding an alternative source of water, the system can 
comply with the act by installing affordable small system technology.
  Small systems that seek a variance will be protected from financial 
penalties while their application is being reviewed. If approved, they 
would have 3 years to install the affordable technology. States approve 
the initial variances for a 5-year period and may renew them for 
additional 5-year periods. A variance cannot be approved unless the 
technology provides adequate protection of human health.
  If a system requests a variance but does not get one, either because 
the system can restructure, find a better source of water, or can 
afford to comply with a regulation, the system will have additional 
time to comply with the regulation, with extensions possible if the 
system is in line for SRF money.
  Furthermore, the existing exemption procedure in the act is clarified 
so that disadvantaged communities experiencing economic hardship can be 
granted an additional period of up to 3 years, to come into compliance 
with the act if financial assistance through the SRF or other sources 
is likely to be available. An additional 2-year extension could apply 
to communities serving under 3,300 people.
  But the paramount consideration, however, that underlies the granting 
of a variance or exemption is that there be adequate protection of 
public health.
  Part of the success of the small system program will depend on 
stopping the formation of new systems that are unable to comply with 
the act, and identifying restructuring options for systems that 
currently cannot meet safe drinking water standards.
  In March, the GAO noted that States need to have authorities to deal 
with nonviable systems--that is what they are called--those that really 
cannot comply, those that do not have the ability to comply, and if we 
ever hope to protect the safety of drinking water in every small 
community, we have to give States the opportunity to deal with these 
nonviable systems.
  The amendment to be offered by Senators Hatfield and Kerrey of 
Nebraska requires States to have that legal authority; that is, to 
prevent new, nonviable systems from forming in their States. States 
must also develop a program to encourage existing systems that are not 
in compliance with the act to restructure; that is, to become viable.
  EPA will provide guidance on identifying those systems, including a 
survey of nonviable systems and options on how to restructure them.
  Furthermore, systems may seek protection from enforcement penalties 
for preexisting violations for up to 2 years while they consolidate. 
And as another incentive, States cannot use SRF money to prop up 
nonviable systems.


                 Multimedia and Source Water Protection

  During the Environment and Public Works Committee's ``taking stock'' 
hearings last year, one message we heard loud and clear was that our 
environmental laws need to work better together. The radon provision in 
this bill responds to that message.
  Radon is a difficult problem. As you know, radon is a naturally 
occurring substance. It is also a potent carcinogen--the second leading 
cause of lung cancer. Yet, some 90 percent of our exposure comes not in 
the water but through indoor air.
  In order to avoid spending huge resources controlling radon in 
drinking water, while ignoring the greater threat posed from radon in 
indoor air, the bill proposes a multimedia approach to the radon 
problem. It requires that in addition to a standard published under 
current law, the EPA must propose an alternative standard that is 
equivalent to the risk associated with radon in outdoor air.
  To comply with this alternative standard, a system must be in a State 
that is participating in the radon control program under the Toxic 
Substances Control Act, or implement its own program of public 
education, testing, and radon prevention standards in new construction.
  This provision recognizes two important facts. First, that the 
largest health threat from radon is in the air, and more of our 
resources and attention should go in that direction. Second, that 
controlling radon in water more strictly than the inevitable exposure 
from outdoor air is not a wise use of limited resources.


                        Source Water Protection

  Pollution prevention is an important and cost-effective means of 
ensuring safe drinking water. The current law needs to be expanded to 
encourage more attention to protection of sources before they are 
contaminated. An amendment by Senators Warner and Conrad deals with 
source water protection.
  The provision encourages States to develop a source water protection 
program and provide assistance to local systems requesting their help 
in protecting their drinking water supplies. This assistance can be in 
the form of technical financial aid, including eligibility for grants 
under the nonpoint source program of the Clean Water Act.


                              Enforcement

  The bill also provides more consistent authority to take action 
against violations of the Act, including compliance only administrative 
orders and administrative penalties of up to $10,000 per day. Civil 
enforcement is provided for in key parts of the act, with fines up to 
$25,000 per day. It also streamlines inspection procedures similar to 
other environmental laws and allows the Administrator to respond more 
quickly to emergency situations after notifying State and local 
officials.
  The managers' amendment will also increase public notice requirements 
for violations that may adversely affect people's health, including a 
requirement that customers of a public water system be notified by mail 
if their drinking water supply is in violation of the act.


                            Other Provisions

  The bill also extends and increases authorizations for several 
research and training programs. One of the criticisms of the drinking 
water program is that there is insufficient research on the health 
effects of some contaminants. That complicates the setting of proper 
standards. The provisions in this bill will help alleviate that 
shortcoming.
  The bill also encourages States to adopt certification programs for 
the principal operator of a community water system. The GAO recently 
identified operator certification as an important element in assuring 
safe water supplies. The managers' amendment will require States to 
have an operator certification program in place by 1999 or face the 
loss of a portion of their SRF funds. Some three dozen States currently 
have such programs.
  Finally, let me repeat my thanks for the hard work of several 
Senators, including the ranking member of the committee, Senator 
Chafee, and also Senator Hatfield and Senator Kerrey of Nebraska. They 
have all helped bridge the differences that surrounded this very 
complex issue. Without their assistance, we would not have reached the 
point where we are today.
  Mr. President, I very much urge Senators to take a long, hard look at 
this bill. Under the unanimous-consent agreement reached last Friday, 
we will not probably return to this bill until late Wednesday or early 
Thursday, so I urge Senators in the interim to come to me and to my 
staff with respect to any amendments they may have so we can work out 
those amendments as expeditiously as possible.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  (Mr. BAUCUS assumed the Chair.)
  Mr. METZENBAUM. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________