Safe Drinking Water Act Amendments of 1994
Summary of S. 2019, as Passed

Mary Tiemann
Specialist in Environmental Policy

July 28, 1994

94-606 ENR

SUMMARY

On May 19, 1994, the Senate passed, by a vote of 95 to 3, S. 2019, the Safe Drinking Water Act Amendments of 1994, a comprehensive proposal to reauthorize and amend the Safe Drinking Water Act (SDWA). During floor debate on the bill, the Senate considered numerous amendments, many of which were adopted. This report summarizes selected provisions of S. 2019, as passed.

S. 2019 attempts to address many of the issues that have emerged with implementation of the Federal drinking water program, particularly since enactment of the 1986 amendments (P.L. 99-339). The Senate bill incorporates many of EPA's recommendations for SDWA reauthorization, but also includes potentially contentious amendments on risk and cost and benefit analyses, and on takings. S. 2019 has received the qualified endorsement of EPA and of a coalition of Governors, local officials and private and public water suppliers. The House Committee on Energy and Commerce has not taken up a SDWA reauthorization bill, and the outlook for legislation this Congress is uncertain.

The Senate bill establishes a drinking water State revolving loan fund (SRF) program to help finance projects needed to comply with the Act and authorizes appropriations for this program of $600 million for FY 1994 and $1 billion annually for FY 1995 through FY 2000. In other major provisions, the bill eliminates the requirement that EPA regulate 25 additional contaminants every 3 years and directs EPA to select contaminants for regulation based on health risk and occurrence; allows use of a less stringent standard for a contaminant if that standard achieves substantial cost savings and essentially equivalent health protection; authorizes variances for small systems; allows systems to meet an alternative radon standard if an indoor air radon reduction program is in place; promotes restructuring of nonviable systems; authorizes State programs to assist local entities to protect source waters; allows States to develop alternative monitoring programs in lieu of EPA requirements; directs EPA to assess environmental priorities and costs and benefits of regulations; and streamlines enforcement functions.

Perhaps the most contentious among the floor amendments are those that: 1) require EPA to prepare and publish risk, comparative risk, and cost and benefit analyses for regulations having an impact on the economy of more than $100 million; 2) require all Federal agencies to complete private property takings analyses before issuing any policy, regulation, proposed legislation or related agency action which is likely to result in a taking of private property; and 3) elevate EPA to a cabinet-level department.

CONTENTS

BACKGROUND

SUMMARY

SECTION 3. STATE REVOLVING LOAN FUNDS
SECTION 4. NATIONAL DRINKING WATER REGULATIONS
SECTION 5. SMALL SYSTEMS PROGRAMS
SECTION 6. ENFORCEMENT OF DRINKING WATER REGULATIONS
SECTION 7. CONTROL OF LEAD IN DRINKING WATER
SECTION 8. RADON IN DRINKING WATER
SECTION 9. WATER QUALITY PROTECTION PARTNERSHIP
SECTION 10. EMERGENCY POWERS
SECTION 11. DRINKING WATER RESEARCH, EDUCATION, AND CERTIFICATION
SECTION 12. STATE DRINKING WATER PROGRAM FUNDING
SECTION 13. INFORMATION AND INSPECTIONS
SECTION 14. FEDERAL AGENCIES
SECTION 15. ASSESSING ENVIRONMENTAL PRIORITIES, COSTS, AND BENEFITS
SECTION 16. BOTTLED DRINKING WATER STANDARDS
SECTION 17. RESEARCH PLAN FOR HARMFUL SUBSTANCES IN DRINKING WATER
SECTION 18. RISK ASSESSMENT AND COST-BENEFIT ANALYSIS
SECTION 19. PRIVATE PROPERTY RIGHTS
SECTION 20. OTHER AMENDMENTS

TITLE 1- DEPARTMENT OF ENVIRONMENTAL PROTECTION

On May 19, 1994, the Senate passed, by a vote of 95 to 3, S. 2019, the Safe Drinking Water Act Amendments of 1994, a comprehensive bill to reauthorize and amend the Safe Drinking Water Act (SDWA). In April, the Senate Environment and Public Works Committee unanimously reported S. 2019 as a substitute amendment to S. 1547, introduced by Senator Baucus on October 14, 1993. During floor debate on S. 2019, the Senate considered numerous amendments, many of which were adopted. This report summarizes selected provisions of S. 2019, as passed.

BACKGROUND

Congress last reauthorized the Act in 1986 (P.L.99-339). Authorizations for appropriations expired in 1991, and funding has continued through annual appropriations laws. The 1986 amendments attempted to address several concerns involving both the statute and its implementation. A key issue was that the Environmental Protection Agency (EPA) had promulgated regulations for only 23 drinking water contaminants from the time the Safe Drinking Water Act was first enacted in 1974 until 1986. Many Members of Congress and State Governors believed that mandatory deadlines were needed to accelerate EPA's standard-setting process. In the 1986 amendments, Congress directed EPA to issue regulations for 83 contaminants by 1989 and for 25 additional contaminants every three years thereafter. EPA anticipates that the number of regulated contaminants will have grown from 23 in 1986 to 112 in 1995. The implementation of this provision has increased the significance of other SDWA issues and has prompted considerable interest in revising the statute once again.

S. 2019 is the first SDWA reauthorization bill to be reported by a committee since the 1986 amendments, although House and Senate committees have held oversight hearings and legislation has been enacted on specific issues. (1) The Senate bill addresses many of EPA's recommendations for SDWA reauthorization, but also includes a number of potentially contentious amendments. S. 2019 has received the qualified endorsement of EPA and of a coalition of Governors, local officials and private and public water suppliers.

S. 2019 attempts to address many of the issues that have emerged with implementation of the Federal drinking water program, particularly since enactment of the 1986 amendments. Key issues include: 1) the standard-setting method and the risk-reduction costs and benefits of SDWA regulations; 2) the appropriateness of the regulatory schedule mandated in the 1986 amendments; 3) the degree of flexibility allowed States and public water systems in meeting Federal requirements; 4) the Federal role in financing of State and local drinking water requirements; 5) compliance with, and enforcement of, SDWA regulations; 6) small systems' compliance capacity; and 7) the Act's emphasis on pollution prevention and source water protection.

The Senate-passed bill creates a new drinking water State revolving loan fund (SRF) program to provide loans to public water systems for construction projects that facilitate compliance with Federal drinking water regulations. It authorizes grants to States to capitalize their SRFs at a level of $600 million for FY 1994 and $1 billion annually for FY 1995 through FY 2000. The bill also: eliminates the 1986 requirement that EPA regulate an additional 25 contaminants every 3 years and instead directs EPA to select contaminants for regulation based on health risk and occurrence; authorizes EPA to issue a less stringent standard for a contaminant if that standard achieves substantial cost savings and essentially equivalent health protection; authorizes variances that include use of small system technology for systems serving fewer than 10,000 individuals; and promotes consolidation of nonviable systems. In other provisions, S. 2019 authorizes systems to meet a less stringent radon standard if a program is in place to reduce indoor air radon exposures; authorizes State programs under which community water systems or local governments may submit source water quality protection petitions; provides for States to implement alternative monitoring programs in lieu of EPA requirements; directs EPA to assess environmental priorities and costs and benefits of regulations; and streamlines enforcement functions. (2)

Amendments approved during floor debate added provisions that: 1) require EPA to prepare and publish risk, comparative risk, and cost and benefit analyses for regulations having an impact on the economy of more than $100 million; 2) require all Federal agencies to "complete private property takings analyses before issuing any policy, regulation, proposed legislation or related agency action which is likely to result in a taking of private property" (with certain exceptions); and 3) elevate EPA to a cabinet-level department. Other amendments address: the definition of public water system; capital improvements for the Washington, D.C. Aqueduct; bottled drinking water standards; research plans for certain contaminant rules; certification of residential water treatment devices; hardship community demonstration programs; estrogenic substances screening program; and prevention and control of zebra mussels in Lake Champlain.

Various other SDWA proposals are also pending in the 103rd Congress. H.R. 3392, a broad reauthorization bill, has wide support in the House and is favored by many States, local governments and the drinking water industry while being criticized by several environmental groups. This legislation would substantially amend the Act and revise the standard-setting process to require EPA to consider risk reduction benefits and costs. The House Energy and Commerce Committee has not taken up H.R. 3392, but has been working to develop a compromise proposal. The House Committees on Energy and Commerce and on Public Works and Transportation have each reported bills (H.R. 1701 and H.R. 1865, respectively) that authorize a SRF program to finance projects to assist public water systems in complying with Federal drinking water regulations. In EPA's FY 1994 appropriations, P. L. 103-124, conferees noted their intent that $599 million of approved water infrastructure funds be reprogrammed and made available for drinking water SRFs, provided that Congress enacts authorizing legislation for this program. For FY 1995, the appropriations committees have approved the requested $700 million for the SRF program, again provided that the program is authorized. The outlook for legislation this year is uncertain.

SUMMARY

Section 1 is the short title of the bill, the 'Safe Drinking Water Act Amendments of 1994.' Section 2 is the table of contents.

SECTION 3. STATE REVOLVING LOAN FUNDS

This section authorizes grants to States to capitalize revolving loan funds. The State funds may be used to provide financial assistance to public water systems for construction projects needed to comply with SDWA regulations. The program is modelled after the State revolving loan fund program established by Congress in the 1987 amendments to the Clean Water Act (CWA).

Section 3 authorizes EPA to enter into a capitalization grant agreement with a State where a State establishes a loan fund and provides a 20 percent match. The State has the authority to set loan priorities, but must use loans in accordance with an intended use plan and have procedures to ensure that loan recipients are likely to be able to repay a loan. A State may transfer up to 50 percent of funds provided each year under this legislation to the CWA SRF. A State also may transfer an amount equivalent to 50 percent of the drinking water SRF annual allotment from the CWA SRF to the drinking water SRF.

Beginning in FY 1998, EPA is to withhold a percentage of the capitalization grant if a State does not have an approved viability program intended to ensure that public water systems in the State have the capacity to comply with SDWA requirements (see Section 5, Small Systems Programs). The amount to be withheld is 10 percent for FY 1998, and 30 percent for each fiscal year thereafter.

Set-asides. EPA is authorized to reserve 0.5 percent of approved funds to make direct grants to the District of Columbia, the U.S. Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, the Republic of Palau, and Alaska native villages. Additionally, 1.5 percent is authorized to be reserved for grants to Indian tribes to address the greatest public health threats.

Section 3 defines a 'small system' as a public water system serving 10,000 or fewer individuals and authorizes States to reserve up to 2 percent of their capitalization grant or $300,000 for technical assistance to these systems.

States may expend up to 4 percent of their capitalization grants for SRF administration. States also may use a portion of the SRF to implement the public water system supervision (PWSS) program and the source water quality protection petition program established (section 9). Specifically, SRF funds may be used to cover the funding shortfall between the amount a State receives from the PWSS grant and the amount identified as needed to administer the program (based on resource model established under section 1443). The SRF may be used to cover up to 50 percent of shortfall in FY 1995, up to 100 percent in FY 1996 through FY 1998, and up to 50 percent in FY 1999.

Needs Assessment. Within 2 years after enactment and every 4 years thereafter, EPA must submit to Congress a survey and assessment of drinking water facility needs eligible for assistance.

Eligible Assistance and Systems. States may use their SRF for providing assistance for capital expenditures for projects that facilitate compliance, consolidation or providing alternative water sources; purchasing land for treatment facilities; upgrading treatment systems; and replacing private systems with public systems when significant health threats exist. The SRF may not be used for systems for which States determine that consolidation is appropriate. Consolidation costs, however, are eligible for assistance.

A State loan fund may provide assistance only to community water systems and publicly owned and nonprofit noncommunity water systems.

Types of Assistance. The drinking water SRF may be used: 1) to make loans at, less than or equal to, the market rate and with a 20 year repayment period (30 years for disadvantaged communities); 2) to buy or refinance municipal debt incurred after October 1993 or incurred to comply with rules pursuant to the 1986 amendments; 3) to guarantee or to purchase insurance for loans; 4) as a source of revenue or security for payments on State or local obligations; 5) and to earn interest.

Up to 30 percent of the capitalization grant may be used to provide loan subsidies (including forgiving loan principal) to disadvantaged communities. Each State is to develop affordability criteria for identifying disadvantaged communities.

Authorizations for Appropriations. This section authorizes funds to be appropriated for the SRF program. Authorizations under this section are provided at a level of $600 million for FY 1994, and $1 billion annually for FY 1995 through FY 2000. For FY 1995, EPA is authorized to reserve funds up to $1 million to support a study by the National Academy of Sciences of scientific practices involving the development of drinking water standards for non-carcinogenic contaminants.

SECTION 4. NATIONAL DRINKING WATER REGULATIONS

This section retains the 1986 requirement that EPA issue regulations for 83 contaminants within 36 months of enactment of the 1986 amendments (P.L. 99-339), establishes a schedule for regulating disinfectants and disinfection byproducts and cryptosporidium, directs EPA to describe treatment techniques for small systems (serving 3,300 individuals or fewer), modifies the contaminant selection process and regulatory timetable, directs EPA to develop a national drinking water occurrence data base, provides EPA some added flexibility to consider costs and risk reduction benefits when setting standards, revises the monitoring program for unregulated contaminants to reduce the burden on small systems, lengthens the compliance timeframe for regulations, revises the Act's exemptions and variances provisions, and authorizes States to establish alternative monitoring programs in lieu of Federal requirements.

Disinfectants and disinfection by-products. Subsection 4(a) directs EPA to propose regulations for disinfectants and disinfection by-products (D-DBPs), consistent with a consensus proposal developed through negotiated rulemaking. Participants in the regulatory negotiation included representatives from State and local government organizations, public and private water suppliers, and interest groups. The bill states that by May 31, 1994, EPA must propose maximum contaminant level goals (MCLGs) or maximum residual disinfection level goals for D-DBPs and propose an interim enhanced surface water treatment rule (SWTR) including a cryptosporidium MCLG for systems serving a population of more than 10,000. (3) By December 31, 1996, EPA must promulgate a final D-DBPs rule and an interim enhanced SWTR for systems serving a population of more than 10,000. By December 31, 1998 EPA must promulgate a long-term enhanced SWTR for all systems. Finally, EPA must promulgate a negotiated, revised D-DBPs rule by June 30, 2000.

Filtration Technology for Small Systems. Because of economies of scale, treatment techniques that are affordable for large systems are often unaffordable for small systems. To address this issue, subsection 4(b) further amends the Act's filtration provisions (§1412(b)(7)(C)) adding that, when EPA proposes the D-DBPs rule and the enhanced SWTR, the Agency must also propose a rule describing filtration treatment techniques that are feasible for community water systems serving a population of 3,300 or less and noncommunity water systems.

Standard Setting Schedule and Deadlines. Subsection 4(a) reiterates the 1986 provision requiring that EPA regulate 83 specific contaminants by 1989. Subsection 4(c) repeals the provision requiring EPA to regulate 25 additional contaminants every 3 years and, instead, gives EPA flexibility to regulate contaminants based on health effects as well as levels and frequency of occurrence.

The rigorous standard setting schedule established in 1986 was intended to improve the pace at which EPA regulated drinking water contaminants. In 1984, the National Governor's Association expressed concern that the Federal standard-setting process was working too slowly and urged Congress to establish a firm, but realistic, regulatory schedule. Since 1986, EPA has issued new or revised regulations for 84 contaminants and has proposed rules for a number of other contaminants including radionuclides and disinfection by-products.

Wide agreement has emerged that the current standard setting schedule is too rigorous to be sustained by EPA, or complied with by States and public water suppliers. A key criticism is that the provision directs EPA to regulate an ever-growing number of contaminants without regard to occurrence or public health concern. EPA, States, and local officials favor replacing the current approach with some process that would allow EPA to identify priority contaminants and determine an appropriate regulatory response based on health risk and occurrence. All SDWA reauthorization bills pending in the 103rd Congress propose to revise the current standard setting process.

Identification of Contaminants for Listing. Subsection 4(c) requires EPA to regulate each contaminant that the Administrator determines may have an adverse effect on human health and that is "known or anticipated to occur in public water systems with a frequency and at levels of public health concern." (Language in italics amends the statute.) Within 3 years of enactment, EPA must publish a list of at least 15 contaminants that pose the greatest public health concern. Every 5 years thereafter, the Agency must list at least 7 additional contaminants. Initial selection is to be supported by the national occurrence data base established by this subsection.

Within 18 months of publishing the list, EPA must propose regulations for contaminants that warrant regulation and for which adequate data are available. If regulation is warranted, but information is inadequate, EPA must publish a 5-year work plan to collect additional information, and determine within 5 years whether or not to regulate each studied contaminant. If EPA determines that a contaminant needs to be regulated, the Agency must do so within 2 years.

National Drinking Water Occurrence Data Base. Within 3 years, EPA must establish a national data base on the occurrence of regulated and unregulated contaminants in public water systems. The Agency is to use the data base to determine whether a contaminant poses a threat to public health.

Standard Setting. Subsection 4(d) gives EPA new flexibility in setting standards under certain conditions. Currently, the Act requires EPA to establish a nonenforceable maximum contaminant level goal (MCLG) for a contaminant at a level at which no known or anticipated adverse health effects occur and which allows an adequate margin of safety. For carcinogens, EPA sets MCLGs at zero. Simultaneous to proposing an MCLG, EPA must propose a maximum contaminant level (MCL) which is the enforceable standard. The MCL is to be set as close to the MCLG as is "feasible" with the use of the best available technology or treatment techniques available (taking costs into consideration). Legislative history directs that EPA's determination of what technologies are available (taking costs into account) in setting standards is to be based on what may reasonably be afforded by large metropolitan or regional public water systems. Only about 6 percent of systems are considered large by EPA standards; consequently, numerous smaller systems may experience financial difficulty meeting MCLs.

Subsection 4(d) revises the standard-setting process, requiring that when EPA proposes a contaminant standard, the Agency must also publish and seek comment on, and consider, an analysis of: 1) the health risk reduction benefits likely to occur as a result of treatment to comply with the standard; 2) the costs of complying with the standard, including monitoring and treatment costs; 3) any potential increased health risk that may occur as a result of complying with the standard; and 4) the effects of the contaminant on sensitive subpopulations.

The subsection authorizes EPA to set an MCL for a contaminant that is less stringent than is 'feasible' if compliance costs are substantially less than the costs of complying with the feasible MCL. For carcinogens, the less stringent level must not significantly increase lifetime cancer risks relative to the feasible level. For contaminants regulated on the basis of other health effects, the less stringent level must ensure a reasonable certainty of no harm. For contaminants regulated for other than carcinogenic effects, EPA may use this authority only after publishing in the Federal Register guidelines establishing sound scientific practices for implementing the authority. The guidelines are to be based on a study to be undertaken by the National Academy of Sciences.

Finally, subsection 4(d) gives EPA authority to balance competing risks. EPA may consider the possibility that controlling one contaminant may increase risks posed by other contaminants. Specifically, EPA would be able to set a MCL that is less stringent than feasible if the MCL reduces the overall health risk. In the case where use of treatment techniques increases the concentration of other contaminants, the MCL is to reflect the level that is likely to reduce the overall risk.

Monitoring for Unregulated Contaminants. Subsection 4(e) revises the 1986 provision (section 1445(a)) requiring public water suppliers to monitor for unregulated contaminants. This program is intended to inform public water systems and their customers of the presence of unregulated contaminants, but has been criticized as being an ineffective, unfunded mandate. Two criticisms are that Congress has not appropriated funds authorized for this program, and that the monitoring data have not been effectively collected or utilized. Subsection 4(e) clarifies that the key purpose of the program is to collect data to provide information for future regulations and reauthorizes appropriations.

Within 3 years, and every 5 years thereafter, EPA must issue a list of not more than 30 unregulated contaminants to be monitored and included in the national drinking water data base. Governors may petition EPA to include specific contaminants on the list. All systems serving more than 10,000 individuals must monitor for the listed contaminants. For smaller systems, States are to develop a representative monitoring plan to assess the occurrence of unregulated contaminants. (Currently, the Act requires all systems serving more that 150 service connections to conduct monitoring.) EPA may waive monitoring requirements for a contaminant if a State demonstrates that the listing criteria do not apply in that State. The bill authorizes appropriations of $15 million annually for FY 1995 through FY 2000 to carry out this provision.

Standard Review and Compliance Periods. Subsection 4(f) directs EPA to review regulations at least once every 6 years, rather than at least once every 3 years, as is currently mandated. It also extends the compliance period for new regulations from 18 months after promulgation to 3 years, unless the Administrator determines that an earlier date is practicable. Finally, EPA or, a State in the case of an individual system, is authorized to allow an additional 2 years for compliance if EPA or a State determines that more time is needed for capital improvements.

This provision primarily addresses the concern that public water systems frequently cannot meet the current 18-month compliance timeframe. This is especially the case when the installation of treatment technology requires major construction and communities need time to plan, design, finance, and construct facilities.

Exemptions. Subsection 4(f) give States additional authority to extend compliance timeframes for small communities. The factors to be considered in granting temporary compliance exemptions are revised to include 'disadvantaged' communities. Also, the conditions for qualifying for a 3-year exemption are revised to include time needed to consolidate, restructure, develop a new water source, or install treatment technology. States are authorized to grant one 2-year extension to systems serving a population of 3,300 or less. (The Act currently permits renewal of extensions for one or more 2-year periods for systems serving 500 or fewer service connections.) Systems that have been granted variances may not receive exemptions.

Monitoring Requirements. Each drinking water regulation includes monitoring requirements to determine whether the regulated contaminant is present in water supplies in excess of the MCL. The statute does not specify what form monitoring requirements must take, but directs EPA to specify these requirements in regulations. Because of economies of scale, monitoring costs can be burdensome for small systems. Although EPA has given States some flexibility to grant waivers from monitoring requirements, few States have used this flexibility to any significant degree. This is partly because many State agencies lack the additional resources to perform the necessary assessments for determining whether systems qualify for waivers.

Subsection 4(g) includes several provisions that potentially reduce monitoring requirements. First, EPA is required to review monitoring requirements for 12 regulated contaminants and to revise the requirements if the review indicates that the requirements exceed what is necessary to protect public health. Second, States are authorized to establish alternative monitoring requirements for individual contaminants (other than microbial contaminants). EPA must approve an alternative monitoring program if the monitoring requirements established by the State: 1) are based on occurrence data and other relevant characteristics of the contaminant or the systems subject to the requirements; and 2) include monitoring frequencies for systems in which a contaminant has been detected that are no less frequent than Federal monitoring requirements for a period of 5 years following detection. Third, for systems serving a population of 10,000 or less, EPA or the State may waive additional quarterly monitoring requirements during a 3 year period if monitoring conducted at the beginning of the period fails to detect the presence of the contaminant, and the State determines that the contaminant is unlikely to be detected by further monitoring.

SECTION 5. SMALL SYSTEMS PROGRAMS

Although approximately 94 percent of public water systems serve fewer than 10,000 persons, the Act generally does not address the circumstances of small systems. Section 5 creates a small system variance program, requires EPA to identify treatment technologies that are feasible (i.e., affordable) for small systems, authorizes small system technology research centers, and discourages the formation of new systems that lack that capacity to comply with the Act.

Variances. States currently are authorized to grant systems temporary variances and exemptions from regulations under certain conditions. However, these provisions are widely viewed as complicated, costly, and cumbersome to administer, and some States do not use these authorities. The Administration, States, local governments, and the drinking water industry support revising the Act's variance and exemption provisions to create a new program more responsive to small systems needs.

Subsection 5(a) authorizes States to grant systems serving a population of 10,000 or less variances for compliance with standards or treatment techniques if the systems cannot afford to comply with a regulation and the variance ensures adequate protection of public health. EPA, in consultation with States, must publish information to assist States in developing affordability criteria for determining eligibility for variances. A system receiving a variance must apply a treatment technology that EPA has determined is feasible for small systems. Systems that submit timely applications will not be subject to enforcement action for violating the regulation for which they have received a variance.

Systems are required to comply with the terms of a variance within 3 years, except that States may allow 2 more years if the time is needed for capital improvements. States must review variances at least every 5 years. Systems that are denied variances must comply with a regulation 4 years after it is promulgated. EPA must periodically review State decisions on variances. Variances are not available for microbial contaminants or for regulations issued before 1986.

Small System Technologies. Subsection 5(a) further requires that EPA, when issuing regulations, must also issue guidance or regulations for technologies feasible for small systems (serving 10,000 or fewer individuals). The guidance or regulation must identify the effectiveness and cost of each technology and other factors, including requirements for source water quality. These added requirements are intended to ensure adequate protection of human health, considering removal efficiencies of the technology. EPA may use this authority only if the technology adequately protects human health.

For existing rules for which a variance may be granted, EPA must issue small system technology guidance or regulations within 2 years. EPA may also issue small system guidance or regulations for systems serving populations of 3,300 or fewer.

State Viability Programs. Subsection 5(b) adds a new section 1418 to the Act requiring each State that has primary enforcement responsibility (primacy) to develop, and submit to EPA for approval, a 'State Drinking Water System Viability Program.' The program is intended to ensure the capacity of systems to comply with the Act and must include: 1) the legal authority to ensure that, after October 1, 1997, new systems will have the capacity to comply with SDWA regulations; and 2) a voluntary restructuring program for systems that are incapable of complying with regulations. If noncomplying systems seek assistance from a State for restructuring, those systems will not be subject to penalties in enforcement actions for 3 years. Within 2 years of enactment, EPA must conduct a survey of systems to identify those likely to be nonviable.

Small Water Systems Technology Centers. Subsection 5(c) authorizes EPA to make grants to institutions of higher learning to establish and operate at least 5 small system technology assistance centers. Center responsibilities include research, training, and technical assistance concerning the needs of small systems or systems serving Indian tribes. The centers are to provide leadership in contributing to the solution of rural water system technology management problems and to disseminate the results of small system technology research and training programs through continuing education programs.

Feasible Technologies. Subsection 5(d) amends section 1412(b)(6) to expand the list of feasible technologies EPA must include in regulations. Specifically, EPA must include any small system BAT that is feasible for small systems and that achieves the MCL, including packaged systems and point of entry treatment units under the control of the public water system.

SECTION 6. ENFORCEMENT OF DRINKING WATER REGULATIONS

Section 6 revises and consolidates the Act's enforcement authorities. It authorizes EPA to issue administrative compliance orders, assess administrative penalties (including penalties against Federal facilities), and pursue civil actions in Federal district court for SDWA violations. EPA and the courts are directed to consider various factors in assessing penalties, including the seriousness of a violation, good faith efforts to comply, system size, and the economic impact of a penalty on the violator. Additionally, section 6 shields from enforcement actions those systems with State-approved consolidation plans, and requires States to adopt administrative penalty authority as a condition of primacy.

This section also revises requirements for water suppliers to notify the public of violations. For serious violations, notice is required within 24 hours; for other violations, notice is required annually. The Act's enforcement provisions are further amended to make a violation of section 1417 (prohibition on use of lead pipes, solder and flux) an enforceable violation of the Act.

SECTION 7. CONTROL OF LEAD IN DRINKING WATER

Section 7 prohibits the use of lead pipe, plumbing fittings or fixtures, solder, or flux in installing or repairing public water systems or plumbing that provides drinking water. It also makes it unlawful for any person to 1) introduce into commerce any pipe or pipe or plumbing fitting or fixture that is not 'lead free'; 2) sell solder or flux that is not lead free while engaged in the business of selling plumbing supplies (except for manufacturers); or 3) introduce into commerce any solder or flux that is not lead free unless it bears a label stating that it is illegal to use such solder or flux in the installation or repair of any plumbing providing water for human consumption.

EPA is required to provide technical information and assistance to qualified third-party certifiers for the development of voluntary standards and testing protocols for the leaching of lead from new plumbing fittings and fixtures that are intended to dispense water for human ingestion. If a voluntary standard is not established within 1 year of enactment, EPA must promulgate regulations setting a health-based performance standard establishing maximum leaching levels from such fittings and fixtures. The regulation is to become effective within 5 years after it is issued. If regulations are required but not promulgated within 5 years of enactment, the importation, manufacturing, processing, and distribution in commerce of fittings or fixtures that contain more than 4 percent lead will be prohibited.

Well Pumps. Within one year after enactment, EPA must complete a report reviewing data and information on the leaching of lead from water well pumps and well system component parts that come into contact with drinking water. The report must also assess the adequacy of voluntary consensus standards for protecting human health from the leaching of lead. If EPA finds that the voluntary standard is inadequate, EPA must establish a health-based performance standard and testing protocol for such leaching. Section 7 makes it a violation of the Act to import, manufacture, sell, distribute, or install a water well pump or system component parts that leach lead above the maximum allowable level.

Within 1 year, EPA must complete a study that: 1) reviews information on the leaking of oil and polychlorinated biphenyls (PCBs) from well pumps that come into contract with drinking water in private and public wells; and 2) identifies health risks from such substances. EPA must then issue a report that identifies those pumps that present a health risk and provide precautions to be taken to avoid such risks.

SECTION 8. RADON IN DRINKING WATER

The 1986 amendments require EPA to regulate radon in drinking water. In 1991, EPA proposed a rule and received numerous comments that the proposed radon standard was unnecessarily strict and compliance costs were substantially understated. EPA estimated that for systems with radon contamination, treatment would cost approximately $3 to $800 per household annually, depending on system size. A key concern has been that most of the health risk from radon is from indoor air, not from drinking water, and the cost of removing radon from drinking water is much greater (per cancer case avoided) than the cost of reducing radon in indoor air. In EPA's FY 1993 appropriations bill, Congress required the Agency to report to Congress on radon in drinking water and extended the rule's promulgation date. Congress subsequently prohibited EPA from spending FY 1994 funds to issue a radon rule, effectively delaying the rule's publication one more year.

Section 8 creates a new section on radon in drinking water that provides a unique, multimedia approach to controlling this naturally occurring contaminant. Within 1 year of enactment, EPA is required to promulgate a conventional radon MCL and an alternative MCL. The alternative MCL is to be set at the level that results in a radon concentration level in indoor air from drinking water that does not exceed the average concentration in outdoor air. Public water systems may comply with the alternative level if the State or the system has an indoor air radon reduction program. The program must include education, testing, and radon mitigation measures for new home construction. States must approve alternative compliance programs. EPA is required to report to Congress on radon programs within 7 years after enactment.

SECTION 9. WATER QUALITY PROTECTION PARTNERSHIP

This section establishes a new program to assist local governments in protecting surface and ground water sources of drinking water in response to their petitions to the State. This provision also increases the coordination among Federal and State surface water and ground water quality protection programs to prevent contamination of source waters.

Subsection 9(a) authorizes a State to establish a program under which community water systems or local governments may submit water quality protection petitions requesting States for assistance in addressing: 1) the sources of contaminants affecting the water supply; and 2) the technical and financial limitations that impair a system's ability to control contaminants of public health concern. For approved petitions, States may make available funds under the Clean Water Act, including the SRF and nonpoint source programs, and under the SDWA SRF program. Additionally, sole source aquifer plans, wellhead protection plans, and source water quality protection measures assisted in response to petitions are eligible for assistance under the Clean Water Act.

This subsection authorizes EPA to make grants to States with source water quality protection petition programs for 50 percent of the cost of administering the program. To implement this subsection, sums as may be necessary are authorized to be appropriated annually from FY 1995 through FY 2000.

Subsection 9(b) revises the Act's critical aquifer protection provisions (section 1427) to provide that a local government may apply to a State (rather than to EPA) for the approval of an application for the designation of a critical aquifer protection area (rather than for the selection of such an area for a demonstration program). Authorizations for appropriations are extended and increased from $17.5 million (the level authorized for FY 1989 through FY 1991) to $20 million annually for FY 1992 through FY 2000.

Subsection 9(c) revises the Act's wellhead protection area provisions (section 1428) to make the program voluntary for States and to continue appropriations at a level of $35 million annually for FY 1992 through FY 2000.

SECTION 10. EMERGENCY POWERS

Section 10 modifies section 1431 to delete language that might prevent EPA from acting in a timely fashion in the face of a public health emergency.

SECTION 11. DRINKING WATER RESEARCH, EDUCATION, AND CERTIFICATION

Section 11 clarifies the Act's general research authorities and authorizes annual appropriations for drinking water research at a level $25 million for FY 1994 through FY 2000.

This section gives specific research instructions to EPA and directs the Agency to use the best available peer-reviewed science and supporting studies in carrying out this title, and to ensure that the presentation of information on public health effects is complete and informative. EPA must make available to the public regulatory support documents that: 1) specify each population addressed by estimates of health effects; 2) the expected or central risk estimate for the specific population; 3) appropriate upper- or lower-bound risk estimates; 4) uncertainties in the health effects assessment process and research needed to address the uncertainty; and 5) any studies that support or fail to support any health effects estimates, including the methodology used to reconcile varying scientific data.

Existing authority is retained for making grants to assist in emergency situations involving public water systems. The authorization of appropriations of $8 million annually is extended through the FY 2000. Various authorities related to education and training are consolidated, and a new authorization of $10 million is added for each of FY 1994 through FY 2000.

Operator Certification. Section 11 also creates a new requirement for certification of operators of public water systems. The principal operator of each community and noncommunity water system serving nontransient populations must be certified within 4 years of enactment. EPA, in consultation with States, is required to publish guidelines describing minimum operator certification standards. Beginning in 1999, EPA is to withhold a percentage of the capitalization grant of any State that has a deficient certification program.

Research Studies. New provisions establish additional research authorities, including requirements for studies to: 1) determine the occurrences of contaminants in drinking water; 2) develop reliable and cost-effective monitoring methods; 3) develop improved technologies and alternative treatment strategies, especially for small systems; and 4) evaluate the relative risks, costs, and benefits of each strategy to provide safe drinking water. Among other things, EPA is also required to: 1) conduct risk assessment research; 2) study the relative risks of alternative disinfectants and disinfection byproducts; 3) study microorganisms and susceptible populations; 4) study how to weigh and analyzing competing risks; 5) establish a national data base on the occurrences of synthetic organic chemicals and their sources; and 6) study the health effects of treatment processes and the disposal of the resulting wastes. This section sets forth criteria for EPA to use in setting research priorities.

Risk Characterization and Risk Management. EPA is required to develop an integrated risk characterization strategy for drinking water quality and report to Congress on the strategy including EPA's research plans

Subpopulations at Risk. This subsection directs EPA to conduct a continuing research program to identify groups that may be at greater than the general population risk of adverse health effects from contaminant exposures. EPA must report to Congress on this research every 3 years.

SECTION 12. STATE DRINKING WATER PROGRAM FUNDING

Public Water System Supervision Program. Subsection 12(a) increases the funding levels for State Public Water System Supervision (PWSS) grants from $40 million to $100 million annually through FY 2000. This subsection also requires EPA to develop a resource model to help determine the costs incurred by States in implementing the PWSS program. The model must be developed in cooperation with the States and be completed within 60 days of enactment.

State Ground Water Protection Grants. Subsection 12(b) authorizes $20 million for each of fiscal years 1995 through 2000 for State grants to assist the development of comprehensive programs to protect ground water resources. EPA is to establish application procedures and public guidance on the key elements of a State ground water protection program. Grant awards are to be coordinated with nonpoint source pollution grants made under section 319 of the Clean Water Act and any other ground water protection grants. Grants may not exceed 50 percent of the costs of implementing a ground water protection program and may be made for innovative programs. EPA must report to Congress every 3 years on the status of ground water quality in the Nation and the effectiveness of State programs.

Underground Injection Control Grants. Subsection 12(c) reauthorizes and extends appropriations for State underground injection control program grants. The bill funds these State program administration grants at a level of $20.85 million annually for FY 1992 through FY 2000.

SECTION 13. INFORMATION AND INSPECTIONS

Subsection 13(a) amends section 1445 of the Act to simplify procedures for obtaining information from public water systems by allowing EPA to request information and monitoring in certain circumstances without promulgating regulations. This flexibility is intended to facilitate EPA's ability to gather information when developing regulations, and, in individual cases, when determining compliance with the Act. Subsection 13(b) revises existing provisions to simplify the inspection process and to eliminate the requirement that EPA inform a State before conducting an inspection in a State. It also specifies that authorized contractors may conduct inspections and requires that EPA give 3 day notice to systems serving a population of 3,300 or less

SECTION 14. FEDERAL AGENCIES

Section 14 revises the Federal facilities provisions of the Act to clearly waive the United States' sovereign immunity with respect to enforcement actions for violations of the Act and related State authorities. Existing authority for Presidential exemption is retained and expanded to cover all Federal agencies. Additionally, this section provides that no agency, employee, or officer of the United States shall be personally liable for any civil penalty within the scope of official duties, but may be subject to a criminal sanction.

Subsection 14(b) revises the citizen's civil action provisions of the law (section 1449) to allow citizens and States to seek penalties for violations of the Act by Federal facilities.

SECTION 15. ASSESSING ENVIRONMENTAL PRIORITIES, COSTS, AND BENEFITS

Adding new language, section 15 directs EPA to: 1) rank sources of pollution with respect to the relative degree of risk of adverse effects on human health, the environment, and public welfare; 2) evaluate costs and benefits associated with compliance with regulations and Federal actions with health and environmental impacts; and 3) identify reasonable opportunities to achieve significant risk reduction through modifications in environmental regulations and programs and other Federal programs with health and environmental impacts. In evaluating risks, EPA must identify and explain associated uncertainties and attempt to estimate the monetary value of reducing various risks. EPA is required to report to Congress every three years the findings of the risk rankings and cost-benefit analyses and to make the reports available to the public. The reports must be reviewed by the Science Advisory Board.

SECTION 16. BOTTLED DRINKING WATER STANDARDS

The Safe Drinking Water Act of 1974 added section 410 to the Federal Food, Drug, and Cosmetic Act (FFDCA) (21 U.S.C. 4365) mandating that, within 6 months after EPA promulgates a new or revised drinking water regulation, the Secretary of Health and Human Services must amend its bottled water regulations to reflect the EPA standard, or publish in the Federal Register reasons for not doing so. A 1991 report by the General Accounting Office found that the Food and Drug Administration had taken much longer than 6 months to adopt EPA standards for bottled water, and had not adopted certain applicable standards.

This section makes 2 changes to the current provision. First, section 410 of the FFDCA is amended to direct that, within 6 months after EPA promulgates a drinking water regulation for a contaminant, the Secretary of Health and Human Services must issue a regulation establishing a quality level for that contaminant in bottled water or make a finding that a regulation is not necessary to protect public health because the contaminant is not in bottled water. The level must be at least as stringent as the MCL. Second, if the Secretary fails to act with the 180-day period, the MCL is to be considered the final regulation for the establishment of the bottled water quality level.

SECTION 17. RESEARCH PLAN FOR HARMFUL SUBSTANCES IN DRINKING WATER

Section 17 directs EPA, by September 30, 1994, to develop a research plan supporting the development and implementation of the February 1994 version of the enhanced surface water treatment rule, the disinfectant and disinfection byproducts rule, and the ground water disinfection rule, and to implement that plan. This section also outlines the minimum scope and contents of the research plan, including a risk definition strategy for determining the risks and estimated extent of disease resulting from pathogens, disinfectants, and disinfection byproducts, and how the risks can most effectively be controlled, taking into consideration the costs of various control methods and the sizes of various systems. This section authorizes appropriations of $12.5 million for each of FY 1995 through FY 1998 to carry out these provisions.

SECTION 18. RISK ASSESSMENT AND COST-BENEFIT ANALYSIS

Section 18 directs EPA to prepare risk, comparative risk, and cost and benefit analyses for major regulations (i.e., those with an expected annual effect on the economy of more than $100 million) concerning human health or the environment. EPA must publish in the Federal Register with the regulation a statement that: 1) describes and quantifies the risks addressed by the regulation; 2) compares such risks to other risks; and 3) estimates the costs and benefits of compliance to the Federal, State, and local governments and to the private sector. This section also requires EPA to certify that such regulations reduce the targeted risks and represent the most cost-effective regulatory alternatives allowed by statute. If EPA cannot make a certification, the Agency must include a statement of the reasons along with the regulation. EPA must report to Congress annually on those regulations for which a certification was not made.

SECTION l9. PRIVATE PROPERTY RIGHTS

Section 19, titled the Private Property Rights Act of 1994, directs that, to the fullest extent practicable, 'all Federal agencies must complete private property takings analyses before issuing any policy, regulation, proposed legislation or related agency action which is likely to result in a taking of private property,' with certain exceptions. Agencies must report each year to the Office of Management and Budget (OMB) any analyses prepared pursuant to this section, and OMB must publish a compilation of the reports annually.

SECTION 20. OTHER AMENDMENTS

Definition of Public Water System. Subsection 20(a) revises the definition of public water system to include systems that provide water through pipes 'and other constructed conveyances' and specifies that existing irrigation districts are generally exempt from the definition.

State Primary Enforcement Responsibility. Subsection 20(b) specifies that, as a condition of primacy, States must adopt Federal drinking water regulations not later than 2 years after they are promulgated.

Report to Congress on Private Drinking Water. Subsection 20(e) requires EPA to study the extent and seriousness on contamination of private drinking water sources not regulated under the Act and to report to Congress the findings and recommendations of the study within 3 years.

Capital Improvements for the Washington Aqueduct. Subsection 20(f) directs the Secretary of the Army, acting through the Chief of the Army Corps of Engineers and at the request of public water supply customers, to borrow from the Federal Financing Bank to finance capital improvements for the Washington Aqueduct.

Certification of Residential Water Treatment Devices. Subsection 20(g) requires EPA to: 1) develop criteria to identify qualified independent certifiers of residential water treatment devices and identify those certifiers; and 2) publish a list of certified devices annually. This subsection makes it a violation of the Act to distribute, sell, or promote the sale of residential water treatment devices on the basis of false or misleading claims.

Drinking Water Advisory Council. Subsection 20(h) revises section 1446(a) to require that two members of the Drinking Water Advisory Council must represent small, rural public water systems.

Hardship Community Demonstration. Subsection 20(i) amends section 1444 on special studies and demonstration project grants, to authorize the Commonwealth of Virginia to establish a regional endowment fund for programs to demonstrate alternative approaches to intergovernmental coordination in the financing of drinking water projects in rural communities in southwestern Virginia that are experiencing severe economic hardship.

Short Title. Subsection 20(j) renames title XIV of the Public Health Service Act (42 U.S.C. 1401 et seq.) as the 'Safe Drinking Water Act' and makes other technical amendments.

Estrogenic Substances Screening Program. Subsection 20(1) further amends the Act's research provisions by adding a new section (j) requiring EPA to develop and implement a screening program to determine whether certain substances may have an effect in humans that is similar to an effect produced by a naturally occurring estrogen or other endocrine effect. In implementing this screening program, EPA must test all active and inert ingredients used in pesticides and may test any other substance to which a widespread population may be exposed. For any substance found to have a potential adverse health effect, EPA is required to take action, including regulatory action, as is necessary to protect human health. Within 4 years of enactment, EPA must report to Congress the findings of the screening program and recommendations for further testing and research or other actions.

Prevention and Control of Zebra Mussel Infestation of Lake Champlain. Subsection 20(m) amends the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 to apply the aquatic species program to Lake Champlain.

TITLE 1 - DEPARTMENT OF ENVIRONMENTAL PROTECTION

This title, the Department of Environmental Protection Act of 1994, elevates the EPA to a cabinet-level department. Section 103 encourages the Secretary of Environmental Protection to: 1) assist the Secretary of State in participating in international environmental protection agreements and organizations; 2) conduct research on and develop responses to international environmental problems; and 3) provide assistance to foreign countries and international bodies to improve the environment. This section further requires the staff of the Department to assist individuals and small businesses in obtaining any necessary permits.

Section 108 establishes a Small Business Ombudsman Office to carry out environmental compliance and technical assistance for small businesses. Section 109 requires the Secretary to carry out environmental compliance and technical assistance programs for small governmental jurisdictions.

Section 110 establishes a Bureau of Environmental Statistics that has responsibility for: 1) compiling, analyzing, and publishing environmental statistic; and (3) an Advisory Council on Environmental Statistics; 2) coordinating information collection with other Federal agencies; 3) making the statistics available; and 4) identifying information needs. The Secretary must submit environmental statistics annual reports to the President. This section also requires that, for each proposed new regulation or modified regulation, the Secretary must publish in the Federal Register a comprehensive assessment of specific costs and benefits resulting from implementation of the regulation, including a job impact assessment. Such assessments are required to the extent that the Department is not in compliance with any applicable Executive Order requiring an analysis of costs and benefits for proposed regulations.

Section 111 authorizes grants to, and contracts with, State and local governments, Indian tribes, universities, and other organizations to assist in data collection.

Section 112 directs the Secretary to enter into an agreement with the National Academy of Sciences for a report on the adequacy of the Department's data collection procedures and capabilities. This section authorizes appropriations of such sums as may be necessary to implement this section.

Section 114 abolishes the Council on Environmental Quality and transfers the Council's functions to the Secretary.

Section 116 sets forth conflict-of-interest disclosure requirements for persons entering into arrangements for services with the Secretary. This provision requires public notice be given when the award of a contract may result in an unavoidable conflict of interest.

Section 122 establishes the Office of Environmental Justice to: 1) develop a plan to ensure equality in environmental protection; 2) evaluate whether environmental policy is helping is individuals who suffer the highest exposure to pollution; 3) compile an annual report on progress in achieving environmental equity; 4) collect data on environmental health effects; 5) identify environmental high impact areas which are subject to the highest loadings of toxic chemicals; and 6) assess health effects that may be caused by emissions in high impact areas.

Section 123 directs the President to report to the Congress on measures to provide that: 1) a single Federal agency be responsible for making technical determinations on agricultural lands with respect to wetlands to reduce confusion among agricultural producers; and 2) provide that the Soil Conservation Service be responsible for all such technical determinations on agricultural lands.

Subtitle B establishes the Commission on Improving Environmental Protection to make recommendations on the implementation of Federal environmental laws to protect human health and the environment. To implement this provision, there are authorized to be appropriated $2 million in each of fiscal years 1993 and 1994.

ENDNOTES

1. The 100th Congress passed the Lead Contamination Control Act of 1988 (P.L. 100-572) requiring the recall of lead-lined water coolers and requiring EPA to issue guidance to assist schools in controlling lead contamination in school drinking water. Congress has also included in EPA's appropriations laws provisions that addressed specific SDWA issues but did not amend the statute.
2. For a detailed discussion of the provisions of S. 2019, as reported, see Safe Drinking Water Act Amendments of 1994, Report of the Committee on Environment and Public Works, together with additional views to accompany S. 2019. U.S. Senate. April 14, 1994. Rpt. 103-250. 136 p.
3. On June 13, 1994, the EPA Administrator signed proposed rules for: 1) D/DBPs to control disinfection by products; and 2) enhanced surface water filtration to control cryptosporidium, a waterborne parasite.