[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.
____________________