[Senate Report 110-483]
[From the U.S. Government Publishing Office]



                                                      Calendar No. 1054
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-483

======================================================================



 
          PERCHLORATE MONITORING AND RIGHT-TO-KNOW ACT OF 2008

                                _______
                                

  September 24 (legislative day, September 17), 2008.--Ordered to be 
                                printed

                                _______
                                

    Mrs. Boxer, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                          [To accompany S. 24]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 24) to amend the Safe Drinking Water Act 
to require a health advisory and monitoring of drinking water 
for perchlorate, reports favorably thereon with an amendment 
and recommends the bill (as amended) do pass.

                 Purpose and Summary of the Legislation

    The purpose of S. 24, the Perchlorate Monitoring and Public 
Right-To-Know Act of 2008 is to require monitoring, a health 
advisory, and public right-to-know for perchlorate in drinking 
water. The bill would require large public water system to 
monitor for the presence of perchlorate in drinking water. It 
would also require consumer confidence reports required under 
the federal Safe Drinking Water Act to include a disclosure of 
any perchlorate in drinking water at the level of detection. 
The bill would require such report to also include a discussion 
of the health impacts of perchlorate on vulnerable persons, 
including pregnant women, infants, and children. The bill would 
also require EPA to create a public health advisory for 
perchlorate that is fully protective, with an adequate margin 
of safety, of the health of vulnerable persons, including 
pregnant women, infants, and children, taking into 
consideration body weight, exposure patterns and all routes of 
exposure.

                Background and Need for the Legislation


                               BACKGROUND

    Perchlorate is a salt used to create flares, fireworks, and 
other items. It also occurs naturally in some areas, including 
in fertilizers imported from Chile. Once released into the 
environment, perchlorate can move through soil, into water, and 
then into food. Peoples' health may be harmed by exposure to 
perchlorate, through eating food or drinking water contaminated 
with this toxic substance. According to the National Academy of 
Sciences (NAS), certain exposure levels of perchlorate can 
affect ``thyroid hormone production by inhibiting the uptake of 
iodine. . ..''\1\ Also, according to the NAS: ``Thyroid 
hormones are critical for normal growth and development of the 
central nervous system of fetuses and infants.'' Vulnerable 
persons, including pregnant women, infants, and children are 
especially vulnerable to perchlorates impact on iodine uptake 
in the body.
---------------------------------------------------------------------------
    \1\National Research Council, National Academy of Sciences, Health 
Implications of Perchlorate Ingestion (2005), available online at 
http://www.nap.edu/catalog.php?record_id=11202
---------------------------------------------------------------------------
    In 2005 the Government Accountability Office (GAO) found 
395 sites in 35 states with more than 4 parts per billion (ppb) 
of perchlorate. The Environmental Protection Agency (EPA) knows 
of 160 serving almost 17 million people in 26 states with 
perchlorate levels of at least 4 ppb. The State of California 
knows of perchlorate contamination in 274 active or standby 
water wells at levels of at least 4 ppb.
    In 2005, the National Academy of Sciences (NAS) report 
found that low levels of perchlorate may pose health risks and 
recommended a safe level of exposure to perchlorate from all 
sources--contaminated drinking water and food.\2\
---------------------------------------------------------------------------
    \2\Ibid.
---------------------------------------------------------------------------
    Since 2005, several studies show widespread perchlorate 
exposure. In October 2006, researchers at the federal Centers 
for Disease Control (CDC) found detectable levels of 
perchlorate in all urine samples taken during the 2001-2002 
National Health and Nutrition Examination Survey (NHANES) of 
U.S. residents age six and older, with significantly higher 
levels found in children than in adults.\3\ In December 2006, 
researchers at the CDC published a follow up study that showed 
that there was a ``significant'' relationship between the 
amount of urinary perchlorate and two different thyroid 
hormones in women. It was the first study to show a 
correlation.\4\
---------------------------------------------------------------------------
    \3\Blount, et al.; Perchlorate Exposure of the U.S. Population, 
2001-2002; Journal of Exposure Science and Environmental Epidemiology 
(2007) 17, 400-407; doi:10.1038/sj.jes.7500535; published online 18 
October 2006.
    \4\Blount, et al.; Urinary Perchlorate and Thyroid Hormone Levels 
in Adolescent and Adult Men and Women Living in the United States; 
Environmental Health Perspectives Volume 114, Number 12, December 2006.
---------------------------------------------------------------------------
    A 2007 study in the Proceedings of the National Academy of 
Sciences found that perchlorate concentrates in breast milk. A 
January 2008 broad study by the U.S. Food and Drug 
Administration found perchlorate in 74% of all foods tested, 
including baby food, and the study found: ``Infants and 
children demonstrated the highest estimated intakes of 
perchlorate on a body weight basis.''
    While science increasingly raises health concerns about 
perchlorate, EPA has not issued a drinking water standard for 
perchlorate and has ended monitoring requirements for 
perchlorate in drinking water, stating that the agency believed 
that it had adequate monitoring data,. In February 2005, EPA 
issued perchlorate drinking water guidance of 24.5 parts per 
billion that failed to account for perchlorate exposures from 
food and water combined, and the guidance failed to lower 
levels of allowed exposure to account for childhood exposures 
or non-drinking water exposures. In August 2006, EPA issued 
perchlorate cleanup guidance, which EPA's Children's Health 
Protection Advisory Committee stated ``is not protective of 
children's health.''
    In 2007, EPA decided not to begin the process to regulate 
perchlorate in public drinking water, and said that in the 
future it would continue to evaluate new scientific information 
and make a final determination at a later date. EPA also ended 
drinking water monitoring requirements for perchlorate, stating 
that the agency believed that it had adequate monitoring data. 
The Agency said that it expected to make an initial 
determination of whether to regulate perchlorate in drinking 
water in 2008.

                          NEED FOR LEGISLATION

    EPA has known about perchlorate's health risks since before 
2002. Scientific studies since that time have demonstrated that 
perchlorate contamination of drinking water and food sources is 
widespread, and that current levels of exposure in some areas 
are sufficient to affect the hormone system of vulnerable 
persons.
    In the face of this scientific information, States have 
taken action, including California and Massachusetts, to create 
perchlorate drinking water standards. EPA has not taken action 
and eliminated perchlorate monitoring requirements.
    S. 24 will help to ensure that the public is informed about 
perchlorate exposures from drinking water and the potential 
health effects from such exposures.

                Summary of Major Provisions of the Bill

    S. 24, the Perchlorate Monitoring and Public Right-To-Know 
Act of 2008 would require EPA to create a public health 
advisory for perchlorate that is fully protective, with an 
adequate margin of safety, of the health of vulnerable persons, 
including pregnant women, infants, and children, taking into 
consideration body weight, exposure patterns and all routes of 
exposure.
    The bill would require large public water system to 
monitoring for the presence of perchlorate in drinking water. 
S. 24 would also ensure the public is fully informed about 
perchlorate in their drinking water supplies by requiring 
consumer confidence reports issued under the federal safe 
Drinking Water Act to include a disclosure of any perchlorate 
in drinking water at the level of detection. The bill would 
also require such report to also include a discussion of the 
health impacts of perchlorate on vulnerable persons, including 
pregnant women, infants, and children.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 establishes the short title of the Act as the 
``Perchlorate Monitoring and Right-to-know Act of 2008''.

Section 2. Findings

    This section contains findings related to perchlorate 
contamination and health effects.

Section 3. Monitoring and health advisory for perchlorate

    Section 3 amends section 1412 of the Safe Drinking Water 
Act by requiring EPA to create a health advisory for 
perchlorate that is fully protective, with an adequate margin 
of safety, of the health of vulnerable persons, including 
pregnant women, infants, and children, taking into 
consideration body weight, exposure patterns and all routes of 
exposure. This section would also require large public water 
systems to monitor for perchlorate in their drinking water and 
would require sampling of a subset small water systems for 
perchlorate.
    This section would require consumer confidence reports 
issued under the federal safe Drinking Water Act to include a 
disclosure of any perchlorate in drinking water at the level of 
detection. The bill would also require such report to also 
include a discussion of the health impacts of perchlorate on 
vulnerable persons, including pregnant women, infants, and 
children.
    The section also clarifies that perchlorate is not one of 
the three regulated contaminants described in clause (vi) of 
section 1414(c)(4)(B).

                     Legislative History and Votes

    On July 31, 2008, the Committee on Environment and Public 
Works held a business meeting to consider S. 24, among other 
pieces of legislation. The Committee on Environment and Public 
Works considered Chairman Boxer's amendment in the nature of a 
substitute to S. 24. The Committee favorably adopted the bill 
by a voice vote, with Senators Inhofe and Alexander both going 
on record as opposing passage of the bill.
    On May 6, 2008, the Committee held a legislative hearing 
titled, ``Perchlorate and TCE in Drinking Water''. On April 29, 
2008 the Committee held a hearing titled, ``Oversight on EPA 
Toxic Chemicals Policies.'' On February 6, 2007, the Committee 
held a hearing titled, ``Oversight on Recent EPA Decisions,'' 
at which perchlorate was discussed.

                             Rollcall Votes

    S. 24 passed the Committee by voice vote on July 31, 2008, 
with Senators Inhofe, Alexander, and Craig recorded as voting 
No.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes evaluation of 
the regulatory impact of the reported bill. Based on 
information from EPA, CBO estimates that the total cost to 
regulated entities for monitoring drinking water and disclosing 
results would be about $1 million annually, and that the bill 
authorizes funding to help cover many of these costs.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4), the Committee finds that, in accordance with 
CBO estimates, the total cost of the requirements to monitor 
drinking water and disclose results would be about $1 million 
annually, which would fall well below the annual thresholds 
established in UMRA for intergovernmental and private-sector 
mandates ($68 million and $136 million in 2008, respectively, 
adjusted annually for inflation). In addition, the bill would 
authorize EPA to provide funding to help cover small system 
costs.

                                                   August 28, 2008.
Hon. Barbara Boxer,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 24, the Perchlorate 
Monitoring and Right-to-Know Act of 2008.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

S. 24--Perchlorate Monitoring and Right-to-Know Act of 2008

    S. 24 would require the Environmental Protection Agency 
(EPA), no later than 90 days after the bill's enactment, to 
issue a health advisory for perchlorate in drinking water that 
fully protects susceptible populations, including pregnant 
women, infants, and children, taking into consideration body 
weight, exposure patterns, and all routes of exposure. 
(Perchlorate is a chemical used in rocket fuel.) EPA also would 
be required to establish a final regulation requiring drinking 
water to be monitored for the presence of perchlorate. Finally, 
this legislation would require that consumer confidence reports 
currently issued by public water suppliers include information 
on the presence of perchlorate in their drinking water and its 
potential health effects.
    Based on information from EPA, CBO estimates that 
implementing S. 24 would cost about $3 million over the 2009-
2011 period, subject to the availability of appropriated funds. 
That funding would be used to support five additional personnel 
as well as contractor costs needed to meet the requirements of 
this legislation.
    Enacting the legislation would not affect direct spending 
or revenues.
    By requiring public water systems serving more than 10,000 
individuals and a representative sample of smaller public water 
systems to monitor for perchlorate, S. 24 would impose 
intergovernmental and private-sector mandates, as defined in 
the Unfunded Mandates Reform Act (UMRA). The bill also would 
require those systems to disclose in their consumer confidence 
reports the presence of perchlorate in drinking water and its 
health risks to vulnerable populations. Based on information 
from EPA, CBO estimates that the total cost of the mandates 
would be about $1 million annually, which would fall well below 
the annual thresholds established in UMRA for intergovernmental 
and private-sector mandates ($68 million and $136 million in 
2008, respectively, adjusted annually for inflation). In 
addition, the bill would authorize EPA to provide funding to 
small systems to cover those costs.
    The CBO staff contacts for this estimate are Susanne S. 
Mehlman (for federal costs), Burke Doherty (for the state and 
local impact), and Amy Petz (for the private-sector impact). 
This estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                             MINORITY VIEWS

    Safe and affordable drinking water is a critical component 
for healthy and economically prosperous communities. The Safe 
Drinking Water Act is the legal authority for the Environmental 
Protection Agency (EPA) to ensure that Americans continue to 
receive the safest water in the world for consumption and also 
adequately address new drinking water contaminants and 
concerns. The Safe Drinking Water Act provides significant 
opportunity for transparent scientific review and processes for 
regulatory determinations. S. 150, the Protecting Pregnant 
Women and Children from Perchlorate Act of 2007, disregards 
scientific review, critical drinking water act processes, and 
is misleading in the bill's findings. For these reasons, we 
oppose this legislation.
    The bill's findings are disingenuous and ignore several 
important facts. The findings strongly suggest the Department 
of Defense (DOD) and industry are responsible for any 
perchlorate found in water. Research by the Centers for Disease 
Control (CDC) and others indicates that perchlorate is found as 
a naturally occurring substance and shows up in many areas 
around the country, even where there is no, and never has been, 
a DOD or industrial presence. Further, a recent collaborative 
effort in California found that 100% of DOD sites pose ``No 
Threat'' to drinking water.
    Naturally occurring perchlorate has been found in large 
quantities in West Texas and from unknown sources in Hills, 
Iowa. Perchlorate doesn't only appear in water, but is also 
commonly found in the food supply. A recent Food and Drug 
Administration (FDA) study found that when people with diets 
high in perchlorate were tested, the sensitive subpopulations 
were below the reference dose established by the National 
Academy of Sciences (NAS). The study included sampling 
populations that had high levels of perchlorate in their 
drinking water.
    The Environmental Protection Agency (EPA) knows of 160 
drinking water systems in 26 states with perchlorate levels of 
at least 4 ppb. EPA states: ``There are approximately 156,000 
public drinking water systems,'' and ``perchlorate was detected 
at levels above the minimum reporting level of 4 parts per 
billion (ppb) in approximately 2 percent of the more than 
34,000 samples analyzed.'' Those numbers are very similar to 
the findings in a 2005 GAO report.
    The findings dismiss the National Academy of Sciences' 
recommended daily dosage of perchlorate. The NAS reference dose 
of 24.5 parts per billion (ppb) is fully protective of the most 
sensitive subpopulations and is very conservative as it uses a 
precursor to an adverse health effect as a jumping off point. 
In 2005, a panel of the National Academy of Sciences (NAS) 
concluded that perchlorate caused no observable health effects, 
adverse or otherwise, at levels as high as 0.007 mg/kg/day, 
equivalent to drinking water levels of 245 parts per billion 
(ppb). To ensure an adequate margin of safety for even 
potentially vulnerable subpopulations (e.g., pregnant and 
nursing mothers and their children) the NAS panel applied a 
ten-fold safety factor, resulting in a perchlorate reference 
dose of 0.0007 mg/kg/day, equivalent to a drinking water level 
of 24.5 ppb.
    The CDC does not suggest that people in the United States 
are suffering health consequences at doses lower than the 
current EPA reference dose of 24.5 ppb. The underlying bill's 
findings do not take into account new and ongoing studies of 
perchlorate. Additional work is needed to determine whether 
some unknown factor associated with perchlorate exposure might 
be the cause of the observed changes in thyroid function. In 
addition, the EPA's Children's Health Protection Advisory 
Committee's (CHPAC) August 2006 statement referenced in the 
committee report is not fully inclusive of all current 
scientific findings available. For instance, the CHPAC 
statement was unable to consider the 2007 findings of a study 
that measured perchlorate and iodine levels in the milk of 57 
lactating Boston-area women. No correlation was found between 
breast milk perchlorate and iodine levels. Additionally, the 
lack of correlation between breast milk perchlorate and iodine 
levels seemingly corroborates the Chilean findings which were 
unfortunately discounted in the CHPAC letter.
    According to Jonathan Borak (MD, FACP, FACOEM), Clinical 
Professor of Epidemiology and Public Health at Yale School of 
Medicine, ``The ongoing public debate about environmental 
perchlorate exposure has led to misstatements and 
misinterpretations of the relevant scientific findings. The 
current state of knowledge should be clear. There is no 
evidence of excessive perchlorate in the U.S. diet and little 
likelihood that routine perchlorate ingestion would exceed the 
EPA and NAS Reference Dose. There is no evidence that 
perchlorate is a human carcinogen. There is evidence that the 
U.S. diet contains sufficient iodine, and sufficient iodine 
intake is protective against effects that might result from 
perchlorate excess.''
    The Environmental Protection Agency currently possesses the 
authorities to publish health advisories and/or require 
monitoring of public water systems for perchlorate if the 
agency determines the science justifies such action. Currently, 
EPA is weighing the various scientific studies in accordance 
with the Safe Drinking Water Act to determine whether a health 
advisory or further monitoring and reporting are warranted. We 
do not believe Congress should undermine the sanctity of the 
Safe Drinking Water Act process by politicizing the outcome of 
whether rules and regulations are warranted without allowing an 
agency to adequately reflect on the best available science. 
Safe Drinking Water Act procedures were enacted to discontinue 
this type of Congressional intervention and to base rules and 
regulations on science, not political gains.

                                   Larry E. Craig.
                                   Jim Inhofe.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

           *       *       *       *       *       *       *

                              ----------                              


SAFETY OF PUBLIC WATER SYSTEMS (SAFE DRINKING WATER ACT)

           *       *       *       *       *       *       *


                              SHORT TITLE

  Sec. 1400. This title may be cited as the ``Safe Drinking 
Water Act''.

Part A--* * *

           *       *       *       *       *       *       *


  Sec. 1412. (a)(1) Effective on the enactment of the Safe 
Drinking Water Act Amendments of 1986, each national interim or 
revised primary drinking water regulation promulgated under 
this section before such enactment shall be deemed to be a 
national primary drinking water regulation under subsection 
(b). No such regulation shall be required to comply with the 
standards set forth in subsection (b)(4) unless such regulation 
is amended to establish a different maximum contaminant level 
after the enactment of such amendments.
  (2) * * *

           *       *       *       *       *       *       *

  (b) Standards.--
          (1) Identification of contaminants for listing.--
                  (A) General authority.--* * *

           *       *       *       *       *       *       *

          (12) Certain contaminants.--
                  (A) Arsenic.--
                          (i) Schedule and standard.--* * *

           *       *       *       *       *       *       *

                  (B) Sulfate.--
                          (i) Additional study.--* * *

           *       *       *       *       *       *       *

                  (C) Perchlorate.--
                          (i) Health advisory.--Notwithstanding 
                        any other provision of this section, 
                        not later than 90 days after the date 
                        of enactment of this subparagraph, the 
                        Administrator shall publish a health 
                        advisory for perchlorate that is fully 
                        protective, with an adequate margin of 
                        safety, of the health of vulnerable 
                        persons (including pregnant women, 
                        infants, and children), taking into 
                        consideration body weight, exposure 
                        patterns, and all routes of exposure.
                          (ii) Monitoring regulations.--
                                  (I) In general.--The 
                                Administrator shall propose 
                                (not later than 60 days after 
                                the date of enactment of this 
                                subparagraph) and promulgate 
                                (not later than 120 days after 
                                the date of enactment of this 
                                subparagraph) a final 
                                regulation pursuant to section 
                                1445(a)(2) requiring--
                                          (aa) each public 
                                        water system serving 
                                        more than 10,000 
                                        individuals to monitor 
                                        for perchlorate 
                                        beginning not later 
                                        than 180 days after the 
                                        date of enactment of 
                                        this subparagraph; and
                                          (bb) the collection 
                                        of a representative 
                                        sample of public water 
                                        systems serving 10,000 
                                        individuals or fewer to 
                                        monitor for perchlorate 
                                        in accordance with 
                                        section 1445(a)(2).
                                  (II) Duration.--The 
                                regulation shall be in effect 
                                until monitoring for 
                                perchlorate is required under a 
                                national primary drinking water 
                                regulation for perchlorate.
                          (iii) Consumer confidence reports.--
                                  (I) In general.--Subject to 
                                subclause (II), by regulation 
                                promulgated simultaneously with 
                                the promulgation of the final 
                                regulation under clause (ii), 
                                the Administrator shall require 
                                that each consumer confidence 
                                report issued under section 
                                1414(c)(4) shall disclose the 
                                presence of any perchlorate in 
                                drinking water, and the 
                                potential health risks of 
                                exposure to perchlorate in 
                                drinking water to vulnerable 
                                persons (including pregnant 
                                women, infants, and children), 
                                consistent with regulations 
                                promulgated by the 
                                Administrator.
                                  (II) Exception.--
                                Notwithstanding subclause (I), 
                                perchlorate shall not be 
                                considered to be 1 of the 3 
                                regulated contaminants 
                                described in the matter 
                                following clause (vi) of 
                                section 1414(c)(4)(B).

           *       *       *       *       *       *       *

                              ----------                              




                                  
