REGULATORY MEMORANDUM

House Subcommittee Holds Hearing on EPA’s Safe Drinking Water Standards

On July 28, 2020, the House Energy and Commerce Subcommittee on Environment and Climate Change held an oversight hearing entitled “There's Something in the Water: Reforming Our Nation's Drinking Water Standards.” The hearing concentrated on the Safe Drinking Water Act (SDWA) and the provisions of its standard-setting process as administered by the U.S. Environmental Protection Agency (EPA) and whether legislative reform is necessary to ensure safe drinking water nation-wide. The logistical and financial divide between federal and local abilities to detect, monitor, and eliminate contaminants was a subject of the debate centered on SDWA Section 1412(b). Witnesses represented the Association of State Drinking Water Administrators (ASDWA), the Association of Metropolitan Water Agencies (AMWA), and the Natural Resources Defense Council (NRDC).

In his opening statement, Subcommittee Chair Paul Tonko (D-NY) described the SDWA’s lengthy regulatory process for EPA standard setting. Tonko argued this process could take years and face many barriers before EPA sets a final standard. Tonko called attention to perchlorate, the single new standard in 24 years, which EPA withdrew from regulation on July 21, 2020, nine years after first labeling it a contaminant. Detected perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and per- and polyfluoroalkyl substances (PFAS) in the water supply could feasibly follow a similar trajectory as perchlorate. Tonko stated that the absence of federal action subsequently affects public confidence and facility efficacy in source water protection, with disproportionate outcomes felt in vulnerable communities.

Ranking Member John Shimkus (R-IL) drew attention to the arc of federal oversight, noting that before the 1996 amendment, EPA was burdened by regulatory requirements that it was unable to meet successfully. Shimkus stated that the 1996 improvements to SDWA prioritize a quality-based, not quantity-based, approach. Shimkus referenced the multiple health advisories that EPA has released, describing them as still impactful to public health even if not in the form of a standard.

Chair of the Full Committee and Ex-Officio of the Subcommittee Frank Pallone Jr. (D-NJ) commented on the public health connection between accessible clean water and mitigating the spread of COVID-19. Pallone stated that EPA has published only six standards since the 1996 amendment, and each were made under special statutory procedures and none under the general process. Pallone proposed the Committee work similarly as it did on the 2016 amendments to the Toxic Substances Control Act (TSCA) and revise the SDWA from a regulatory system based on cost-benefit analysis to one based on health protection.

Ranking Member of the Full Committee and Ex-Officio of the Subcommittee Greg Walden (R-OR) emphasized what he believed to be the Republican interests, including objective science, which Walden felt was already present in EPA’s decision making. Walden stated that removing risk from the SDWA would require small water facilities to spend money on reducing contaminants that may not present a significant threat to public health, diverting resources from dangerous contaminants. Walden argued that state and local facilities would feel unnecessary burdens if cost-benefit analysis was not a part of the SDWA.

The Committee heard from the following witnesses (written testimony is hyperlinked):

  • Shellie R. Chard, President of ASDWA;
     
  • Diane VanDe Hei, Chief Executive Officer of AMWA; and
     
  • Mae Wu, Senior Director of the Health and Food, Healthy People and Thriving Communities Program, NRDC.
     

Chard testified that small water systems have to be selective on immediate threats to allocate their limited funding. In support of keeping SDWA’s cost-benefit analysis, Chard expressed that regardless of what standards EPA implements, facilities with less economic capital would not be able to enforce them. Chard suggested that rules without cost-benefit analysis are creating unrealistic expectations for states.

VanDe Hei agreed that eliminating a cost-benefit analysis would ultimately hinder smaller or vulnerable communities. In response to a question from Representative Cathy McMorris Rodgers (R-WA), VanDe Hei clarified that improved technologies allow scientists to detect lower and lower levels of contaminants, but analysis of the levels is necessary to determine whether the levels of the contaminants pose a risk to public health. When prompted by Representative Scott H. Peters (D-CA) on how technological expansion could reduce costs, VanDe Hei stated that updated systems work for certain contaminants but when they are not needed, they are unused and would ultimately be a drain of funding. The current system is beneficial for regional contaminants, where states could work to eliminate threats not present on a national level. VanDe Hei stressed cost-analysis is merely a consideration, not a definitive, in the regulatory process.

Wu characterized SDWA’s cost-benefit analysis as incomplete in comprehending the toll of disease and illness caused by contaminated water on families. Wu criticized the current system as states shouldering the federal government’s role, thus creating inequalities between states with varying degrees of regulation and safety. In response to a line of questioning from Pallone, Wu suggested fixing the legal standard in the SDWA to make sure that an extra layer of cost-benefit is not required as the feasibility requirement already includes taking costs into consideration. Representative Yvette Clark (D-NY) expressed concerns about how a lack of federal intervention could adversely affect communities of color. Wu replied that social determinants exacerbate inequitable healthcare, and lack of access to safe and running water with slow state and federal response stands to worsen these conditions. Wu advocated a comprehensive and equal plan for each state to meet, and that EPA set interim measures while undergoing the current regulatory process.

Commentary

As expected, bipartisan discrepancies emerged on whether EPA has pursued protective standards or adopted a political non-intervention policy. A consensus emerged that action was necessary to address known risks, yet a party divide remained on whether this was a logistical and financial effort to be carried out by states or EPA. Multiple Subcommittee members mentioned the connection between having clean water and decreased COVID-19 risk. Unclean water stands to worsen the risk for communities at high risk and who cannot socially distance, among other social factors. Many lines of questioning concluded with the expectation of potential funding bills raised alongside discussion of possible increased federal regulations affecting smaller water facilities.

 
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