Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Congressional research reportJan 31, 2011
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Safe Drinking Water Act (SDWA):
Selected Regulatory and Legislative Issues
(name redacted)
Specialist in Environmental Policy
January 31, 2011
Congressional Research Service
7-....
www.crs.gov
RL34201
CRS Report for Congress
Prepared for Members and Committees of Congress
Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Summary
Much progress has been made in assuring the quality of public water supplies since the Safe
Drinking Water Act (SDWA) was first enacted in 1974. Public water systems must meet extensive
regulations, and water utility management has become a much more complex and professional
endeavor. The Environmental Protection Agency (EPA) has regulated some 91 drinking water
contaminants, and more regulations are pending. In 2007, the number of community water
systems reporting no violations of drinking water standards was 89.5%. Despite nationwide
progress in providing safe drinking water, an array of issues and challenges remain.
Recent issues have involved infrastructure funding needs, regulatory compliance, and concerns
caused by detections of unregulated contaminants in drinking water, such as perchlorate, and
pharmaceuticals and personal care products (PPCPs). Another issue involves the adequacy of
existing regulations (such as the lead rule) and EPA’s pace in reviewing and potentially revising
older standards (such as the chromium standard).
Congress last reauthorized SDWA in 1996. Although funding authority for most SDWA programs
expired in FY2003, Congress continues to appropriate funds annually for these ongoing
programs, while EPA, states, and water systems continue efforts to meet current statutory
requirements. The 111th Congress made one amendment to SDWA, P.L. 111-380, which reduces
the amount of lead allowed in water pipes and plumbing fittings and fixtures.
An overarching SDWA issue concerns the cumulative cost and complexity of drinking water
standards and the ability of water systems, especially small systems, to comply with standards.
The issue of the affordability of drinking water regulations has merged with the larger debate over
what is the appropriate federal role in assisting communities with financing drinking water
projects needed for SDWA compliance, and for water infrastructure improvements generally.
Water infrastructure financing legislation has been offered repeatedly in recent Congresses to
authorize higher funding levels for the Drinking Water State Revolving Fund (DWSRF) program,
and/or to provide grants and other compliance assistance to small communities. In the 111th
Congress, the American Recovery and Reinvestment Act of 2009 (P.L. 111-5) included $2 billion
for the DWSRF program, and the EPA appropriations act for FY2011 (P.L. 111-88) included
another $1.387 billion. Two bills to revise and reauthorize the DWSRF received action: Housepassed H.R. 5320 and Senate-reported S. 1005. Taking an alternative financing approach, H.R.
3202 proposed to create a water infrastructure trust fund supported by fees and taxes.
The SDWA also mandates regulation of underground injection activities to protect drinking water
sources. An issue in this area concerns the underground injection of carbon dioxide (CO2) for
long-term storage as a means of reducing greenhouse gas emissions. The Energy Independence
and Security Act of 2007 (P.L. 110-140) specified that sequestration activities shall be subject to
SDWA underground injection control provisions. In 2010, EPA issued a SDWA rule to provide a
national permitting framework for managing the underground injection of CO2 for commercialscale sequestration projects. Another underground injection issue concerns the growing reliance
on hydraulic fracturing to produce natural gas and oil from unconventional geologic formations.
Two bills (H.R. 2766 and S. 1215, the FRAC Act) were introduced to authorize EPA regulation of
this practice under the SDWA underground injection control program; in contrast, H.R. 2300
expressed opposition to federal regulation of gas and oil production wells under SDWA.
Congressional Research Service
Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Contents
Introduction ................................................................................................................................1
Last Major Reauthorization and Amendments .......................................................................2
Regulated Public Water Systems ...........................................................................................3
Safe Drinking Water Act Issues ...................................................................................................4
Regulating Drinking Water Contaminants..............................................................................5
Contaminant Candidate List ............................................................................................5
Regulatory Determinations..............................................................................................5
Unregulated Contaminant Monitoring .............................................................................6
Standard-Setting..............................................................................................................6
Recent and Pending Rules ...............................................................................................8
Pharmaceuticals in Drinking Water...................................................................................... 10
Drinking Water Infrastructure Needs and Funding ............................................................... 12
Small Systems Issues .......................................................................................................... 16
Exemptions ................................................................................................................... 16
Small System Variances and Affordability ..................................................................... 16
Affordability Criteria Review........................................................................................ 17
Small System Legislation.............................................................................................. 18
Underground Injection Control Program.............................................................................. 19
Carbon Sequestration and Storage ................................................................................. 20
Hydraulic Fracturing ..................................................................................................... 22
Congressional Hearings, Reports, and Documents ..................................................................... 25
Additional Reading ................................................................................................................... 26
Tables
Table 1. Size Categories of Community Water Systems ...............................................................3
Table 2. Recent Regulatory Actions.............................................................................................9
Table 3. Drinking Water State Revolving Fund Program Funding, FY1997-FY2011 .................. 13
Contacts
Author Contact Information ...................................................................................................... 26
Congressional Research Service
Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Introduction
The Safe Drinking Water Act1 (SDWA) is the primary federal law for protecting public water
supplies from harmful contaminants. First enacted in 1974, and broadly amended in 1986 and
1996, the SDWA is administered through programs that regulate contaminants in public water
supplies, provide funding for infrastructure projects, protect underground sources of drinking
water, and promote the capacity of water systems to comply with SDWA regulations.
The Environmental Protection Agency (EPA) is the federal agency responsible for administering
SDWA; however, the 1974 law established a federal-state structure in which EPA may delegate
primary enforcement and implementation authority (primacy) for drinking water programs to
states and tribes. The state-administered Public Water Supply Supervision (PWSS) program
remains the basic program for regulating public water systems, and EPA has delegated primacy
for this program to all states, except Wyoming and the District of Columbia (which SDWA
defines as a state). EPA has responsibility for implementing the PWSS program in these two
jurisdictions and throughout most Indian lands. 2 A second key portion of the act requires EPA to
regulate the underground injection of wastes and other fluids to protect underground sources of
drinking water from contamination. Primary enforcement authority for the underground injection
control (UIC) program also may be delegated to the states. Thirty-three states have assumed
primacy for the program, EPA has lead implementation and enforcement authority in 10 states,
and program authority for different classes of injection wells is split in the remainder of the states.
Since the law was first enacted, much progress has been made in assuring the quality of public
water supplies. EPA has regulated some 91 drinking water contaminants, and more regulations are
pending. Despite this progress, drinking water safety concerns and challenges remain. According
to EPA’s 2006 National Public Water Systems Compliance Report, the number of public water
systems reporting no violations of the health-based standards for 2006 was 93%, and 73% of the
U.S. population was served by public water systems that had no reported significant violations.3
However, EPA estimated that states had submitted to the EPA database only 62% of violations of
health-based standards and 29% of violations of monitoring and reporting requirements, thus
increasing uncertainty as to the quality of water provided by many systems. EPA and the states
have resolved some data quality and reporting problems, and efforts to address this issue
continue. EPA and state compliance data indicate that water systems still incur tens of thousands
of violations of SDWA requirements each year. Although these violations primarily involve
monitoring and reporting requirements, they also include thousands of violations of standards and
treatment techniques. Moreover, monitoring and reporting violations create uncertainty as to
whether systems actually met the applicable health-based standards.
1
Title XIV of the Public Health Service Act, as added by P.L. 93-523 and subsequently amended (42 U.S.C. 300f300j-26).
2
For purposes of the PWSS program, the term “state” includes 57 states, commonwealths, and territories that have
been approved to implement the drinking water program within their jurisdiction. It also includes the Navajo Nation,
which received EPA approval to implement its drinking water program in 2000.
3
U.S. Environmental Protection Agency, Providing Safe Drinking Water in America: 2006 National Public Water
Systems Compliance Report. Office of Enforcement and Compliance Assurance. Report No. EPA-K-09-002. March
2009. 18 p. plus appendixes.
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Also at issue is the rate at which EPA has been reviewing and updating existing contaminant
regulations to respond to newer scientific information (e.g., chromium and trichloroethylene
(TCE)) or to address implementation and compliance problems (e.g., the Lead and Copper Rule).4
Concern also exists over the potential health effects of drinking water contaminants for which
standards have not been set, such as perchlorate and methyl tertiary butyl ether (MTBE). The act
requires EPA to continually evaluate contaminants that may be candidates for regulation and to
periodically review existing standards; however, EPA’s perceived lack of action on specific
contaminants of concern has generated criticism in Congress and elsewhere.
Last Major Reauthorization and Amendments
Congress last broadly revised the act with the Safe Drinking Water Act Amendments of 1996
(P.L. 104-182). These changes resulted from a multi-year effort to amend a statute that was
widely criticized as having too little flexibility, too many unfunded mandates, and an arduous but
unfocused regulatory schedule. Among the key provisions, the 1996 amendments authorized a
drinking water state revolving loan fund (DWSRF) program to help public water systems finance
projects needed to comply with SDWA regulations. The amendments also established a process
for selecting contaminants for regulation based on health risk and occurrence, gave EPA some
added flexibility to consider costs and benefits in setting most new standards, and established
schedules for regulating certain contaminants (e.g., arsenic, radon, and disinfection byproducts).
The 1996 law added several provisions aimed at building the capacity of water systems
(especially small systems) to comply with SDWA regulations, and imposed many new
requirements on the states. Among other provisions, the amendments required states to develop
programs for source water assessment, operator certification and training, and compliance
capacity development. The law also required community water systems to provide customers
with annual “consumer confidence reports” that contain information on regulated contaminants
found in the local drinking water. Appropriations for most SDWA programs were authorized
through FY2003, and although most of the act’s funding authorities have expired, broad
reauthorization bills have not been proposed, as EPA, states, and public water systems remain
focused on meeting the requirements of the 1996 amendments.
In 2002, Congress added drinking water security provisions to the SDWA through the Public
Health Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188, Title
IV). New SDWA section 1433 required community water systems serving more than 3,300
people to conduct vulnerability assessments and prepare emergency response plans. The law also
required EPA to conduct research on preventing and responding to terrorist or other attacks. In the
111th Congress, the House passed H.R. 2868, the Chemical and Water Security Act of 2009, to
direct the EPA Administrator to issue regulations establishing risk-based performance standards
for covered water and wastewater utilities. The bill would have required covered systems to
update vulnerability assessments, develop site security and emergency response plans, and
possibly implement methods to reduce the consequences of a chemical release. This proposal was
not reported in the Senate.5
4
SDWA §1412(b)(9) requires that, at least once every six years, the EPA Administrator must review and revise, as
appropriate, each national primary drinking water regulation. Any revision must maintain or provide for greater public
health protection. (42 U.S.C. 300g-1)
5
For further discussion of water security legislation and issues, see CRS Report RL31294, Safeguarding the Nation’s
Drinking Water: EPA and Congressional Actions, by (name redacted), and CRS Report R40695,Chemical Facility
(continued...)
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Regulated Public Water Systems
Federal drinking water regulations apply to some 154,879 privately and publicly owned water
systems that provide piped water for human consumption to at least 15 service connections or that
regularly serve at least 25 people. (The law does not apply to private residential wells.) Of these
systems, 51,651 are community water systems (CWSs) that serve most people in the United
States—a total residential population of roughly 294 million year-round. All SDWA regulations
apply to these systems. Another 18,395 systems are non-transient, non-community water systems
(NTNCWSs), such as schools or factories, that have their own water supply and serve the same
people for more than six months but not year-round. Most drinking water requirements apply to
these systems. Additionally, 83,484 systems are transient non-community water systems
(TNCWSs) (e.g., campgrounds and gas stations) that provide their own water to transitory
customers. TNCWSs generally are required to comply only with regulations for contaminants that
pose immediate health risks (such as microbial contaminants), with the proviso that systems that
use surface water sources must also comply with filtration and disinfection regulations.
Of the nearly 52,000 community water systems, roughly 83% serve 3,300 or fewer people. While
large in number, these systems provide water to just 9% of the population served by all
community systems. In contrast, 8% of community water systems serve more than 10,000 people,
and they provide water to 82% of the population served. Fully 85% (15,619) of non-transient,
non-community water systems and 97% (80,703) of transient noncommunity water systems serve
500 or fewer people. These statistics give some insight into the scope of financial, technological,
and managerial challenges many public water systems face in meeting a growing number of
complex federal drinking water regulations. Table 1 provides statistics for community water
systems.
Table 1. Size Categories of Community Water Systems
Number of
community
water systems
Population
served
(millions)
Percentage of
community
water systems
Percentage of
population
served
Very small (25-500)
28,804
4.82
56%
2%
Small (501-3,300)
13,820
19.80
27%
7%
Medium (3,301-10,000)
4,871
28.40
9%
10%
Large (10,001-100,000)
3,746
106.85
7%
36%
Very large (>100,000)
410
134.45
1%
46%
51,651
294.34
100%
100%
System size
(population served)
Total
Source: Adapted from US Environmental Protection Agency, Factoids: Drinking Water and Ground Water Statistics
for 2008, EPA 816-K-09-004, November 2009, http://www.epa.gov/safewater/data.
(...continued)
Security: Reauthorization, Policy Issues, and Options for Congress, by (name redacted).
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Safe Drinking Water Act Issues
Recent drinking water safety issues have included the gap between infrastructure funding needs
and spending; the capacity of public water systems, especially small systems, to comply with a
growing set of complex standards; and the contamination of water supplies by unregulated
contaminants, such as perchlorate and various pharmaceuticals and personal care products. Issues
involving the act’s groundwater protection provisions include proposals for large-scale storage of
carbon dioxide deep underground to mitigate greenhouse gas emissions, as well as the increased
reliance on hydraulic fracturing to develop domestic oil and natural gas resources, and the
potential impacts these activities might have on underground sources of drinking water. Bills
were introduced on these issues in the 111th Congress. Congress last reauthorized appropriations
for most SDWA programs in the 1996 amendments, through FY2003. As with other EPAadministered statutes having expired funding authority, Congress has continued to appropriate
funds annually for SDWA programs.
The 111th Congress amended the Safe Drinking Water Act with the Reduction of Lead in Drinking
Water Act, P.L. 111-380. This legislation revised the act’s definition of lead free (Section 1417(d))
to reduce the amount of lead allowed in water pipes, plumbing fittings, and fixtures to 0.25%.
Previously, pipes and pipe fittings have been allowed to contain 8% lead, while fixtures were
required to meet a lead leaching performance standard, rather than a lead content standard. This
law is intended to further reduce exposure to lead from tap water.
Several SDWA funding bills also were enacted in the 111th Congress. The American Recovery
and Reinvestment Act of 2009 (ARRA; P.L. 111-5) provided $2 billion for drinking water
infrastructure projects through the Drinking Water State Revolving Fund program; the Omnibus
Appropriations Act, 2009 (P.L. 111-8), included $829 million for this water infrastructure funding
program; and the Department of the Interior, Environment, and Related Agencies Appropriations
Act, 2010 (P.L. 111-88), provided $1.387 billion for the program. The FY2010 funding act and
ARRA require states to make available at least 20% of their DWSRF grants for projects to
address green infrastructure, water or energy efficiency improvements, or other environmentally
innovative activities. 6 Additionally, ARRA included $50 million for site characterization activities
in geologic formations related to carbon sequestration, and $20 million for geologic sequestration
training and research activities. After several short-term continuing resolutions for FY2011,
Congress extended EPA funding at FY2010 levels through March 4, 2011, under the Continuing
Appropriations Act, 2011 (P.L. 111-322).
In July 2009, the Senate Environment and Public Works Committee reported the Water
Infrastructure Financing Act (S. 1005, S.Rept. 111-47), which would have authorized a grant
program and increase funding authority for the drinking water and clean water state revolving
fund programs. The House Energy and Commerce Committee reported, amended, H.R. 5320, the
Assistance, Quality, and Affordability Act of 2010 (H.Rept. 111-524). As passed, H.R. 5320
would have reauthorized funding for the DWSRF program for three years, tightened the
definition of “lead free,” applied Davis-Bacon prevailing wage provisions to projects financed in
any way by a DWSRF, required a study on pharmaceuticals and personal care products in sources
6
For information on water infrastructure provisions in ARRA, see CRS Report R40216, Water Infrastructure Funding
in the American Recovery and Reinvestment Act of 2009, by (name redacted), (name redacted), and (name redacted).
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
of drinking water, revised EPA’s Endocrine Disruptor Screening Program, and made various other
changes to the DWSRF program and the act more broadly.
Regulating Drinking Water Contaminants
Contaminant Candidate List
Since 1996, the Safe Drinking Water Act has required EPA to publish, every five years, a list of
unregulated contaminants that are known or anticipated to occur in public water systems and that
may require regulation (§1412(b)(1)). EPA published contaminant candidate lists (CCLs) in 1998
(CCL 1) and in 2003 (CCL 2). In early 2008, EPA published for public comment a draft CCL 3
that contained 93 chemicals or chemical groups and 11 microbiological contaminants (73 Fed.
Reg. 9627).7 The draft list included commercial and agricultural chemicals, biological toxins,
disinfection byproducts, and pathogens; 16 chemicals, including perchlorate, were carried over
from CCL 2. EPA screened some 7,500 chemicals and microbes and selected 104 candidates for
the draft CCL 3. As discussed below, the list did not include any pharmaceuticals. EPA solicited
public input on the draft CCL 3 regarding the approach used to create the list, contaminants on
the list, and specific contaminants such as pharmaceuticals.
Based on EPA’s review of comments and newly available data, the agency made a number of
changes from the draft to the final CCL 3. Among the changes, EPA deleted several chemicals
and added 10 pharmaceuticals; one antibiotic (erythromycin), nine hormones, and three microbes.
Regulatory Determinations
Every five years, EPA is required to determine whether or not to regulate at least five of the
contaminants included on the contaminant candidate list. The act requires EPA to evaluate
contaminants that present the greatest health concern, and then to regulate those contaminants that
occur at concentration levels and frequencies of public health concern, where regulation presents
a meaningful opportunity for health risk reduction.
In July 2008, EPA published final regulatory determinations for 11 contaminants from the CCL 2
and issued the draft CCL 3. All of the determinations were decisions not to regulate. In making
these determinations, EPA noted that the data indicated that the contaminants either did not
appear to occur in public water systems, or appeared infrequently at levels of health concern, and
that regulating the contaminants did not present a meaningful opportunity for health risk
reduction. For those contaminants with low occurrence frequencies, EPA is updating and
broadening the health advisories to reflect new information on the contaminants or to include
information on a contaminant’s degradation byproducts.
The agency did not make determinations for two chemicals that have been detected in numerous
water supplies and have received considerable congressional attention: perchlorate and MTBE.
EPA noted a decision was not made for MTBE because the health risk assessment for MTBE is
being revised. In early January 2009, EPA stated its intent to request the NRC to review anew the
available scientific data prior to EPA making a final regulatory determination. In August 2009, the
7
The Environmental Protection Agency’s Contaminant Candidate List 3 and related documents are available at
http://water.epa.gov/scitech/drinkingwater/dws/ccl/ccl3.cfm#ccl3.
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Obama Administration announced its decision not to ask the NRC to conduct further review of
perchlorate, having concluded that additional NRC review would unnecessarily delay regulatory
decision making. Instead, on August 19, 2009, EPA published a Supplemental Request for
Comments notice in the Federal Register, seeking public comment on additional ways to analyze
the health effects and occurrence data for perchlorate.8 Specifically, EPA is re-evaluating potential
perchlorate exposure for infants and young children, in addition to pregnant women and fetuses,
as sensitive subpopulations. The agency intends to consider public comments before making a
final regulatory determination. H.R. 3206, in the 111th Congress, would have required EPA to
promulgate a drinking water standard for perchlorate.9 House-passed H.R. 4252 proposed to have
the U.S. Geological Survey (USGS) conduct a study of water resources in the Rialto-Colton
Basin, California, and evaluate perchlorate sources and levels in ground water.
Unregulated Contaminant Monitoring
In another provision aimed at improving the regulatory process, the 1996 amendments directed
EPA to establish criteria for a program to monitor unregulated contaminants. This monitoring
program enables EPA to collect data for contaminants that are not regulated but are suspected to
be present in drinking water. Every five years, EPA is required to identify as many as 30
contaminants to be monitored. This list is largely based on the contaminant candidate lists. All
systems serving more than 10,000 people and a sample of smaller systems must monitor for the
contaminants. The resulting data are added to the National Contaminant Occurrence Database
(NCOD). EPA published the first unregulated contaminant monitoring rule (UCMR 1) in 1999
requiring monitoring for 26 chemicals. In January 2007, EPA issued the second rule (UCMR 2),
requiring systems to monitor for 25 chemicals over a 12-month period between 2008 through
2010.10 EPA had included perchlorate on the draft UCMR 2 list, but deleted it from the final list.
EPA stated that it had sufficient perchlorate occurrence data, but some advocates of perchlorate
regulation were critical of EPA’s decision not to require further monitoring.
Standard-Setting
In the 1996 amendments, Congress attempted to focus regulatory attention on contaminants that
posed the greatest health risks. The act’s revised standard-setting provisions direct EPA to
promulgate a National Primary Drinking Water Regulation for a contaminant if the Administrator
determines that the following three criteria are met:
•
the contaminant may have adverse health effects;
•
it is known, or there is a substantial likelihood, that the contaminant will occur in
public water systems with a frequency and at levels of public health concern; and
•
its regulation presents a meaningful opportunity for health risk reduction for
persons served by public water systems. (SDWA §1412(b)(1)(a))
8
Environmental Protection Agency, “Drinking Water: Supplemental Request for Comments,” 74 Federal Register
41883, August 19, 2009.
9
For further discussion, see CRS Report RS21961, Perchlorate Contamination of Drinking Water: Regulatory Issues
and Legislative Actions, by (name redacted).
10
January 4, 2007 (72 Fed. Reg. 367-398).
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Drinking water regulations generally include numerical standards that establish the highest level
of a contaminant that may be present in water supplied by public water systems. Where it is not
economically or technically feasible to measure a contaminant at very low concentrations, EPA
may establish a treatment technique in lieu of a standard, as it has done for lead and copper.
Developing a drinking water regulation is a complex process, and EPA must address technical,
scientific, and economic issues. The agency must (1) estimate the extent of occurrence of a
contaminant in sources of drinking water nationwide; (2) evaluate the potential human exposure
and risks of adverse health effects to the general population and to sensitive subpopulations; (3)
ensure that analytical methods are available for water systems to use in monitoring for a
contaminant; (4) evaluate the availability and costs of treatment techniques that can be used to
remove a contaminant; and (5) assess the impacts of a regulation on public water systems, the
economy, and public health. Regulation development typically is a multi-year process. EPA may
expedite procedures and issue interim standards to respond to urgent threats to public health.
After reviewing health effects studies, EPA sets a nonenforceable maximum contaminant level
goal (MCLG) at a level at which no known or anticipated adverse health effects occur and that
allows an adequate margin of safety. EPA also considers the risk to sensitive subpopulations, such
as infants and children. For carcinogens and microbes, EPA generally sets the MCLG at zero.
Because MCLGs are based only on health effects and not on analytical detection limits or the
availability or cost of treatment technologies, they may be set at levels that are not technically
feasible for water systems to meet.
Once the MCLG is established, EPA then sets an enforceable standard, the maximum contaminant
level (MCL). The MCL generally must be set as close to the MCLG as is “feasible” using the best
technology or other means available, taking costs into consideration (SDWA §1412(b)). The act
does not discuss how EPA should consider cost in determining feasibility; consequently, EPA has
relied on legislative history for guidance. Congress last addressed this issue in the Senate report
accompanying the 1996 amendments, which stated that “feasible” means the level that can be
reached by large, regional drinking water systems applying best available treatment technology.
The Senate committee report explained that this approach is used because 80% of the population
receives its drinking water from large community water systems, and thus, safe water can be
provided to most of the population at very affordable costs.11
However, because standards are based on cost considerations for large systems, Congress
expected that standards could be less affordable for smaller systems. In 1996, Congress expanded
the act’s variance and exemption provisions to give small systems some added compliance
flexibility. (See the discussion below on “Small Systems Issues.”) Congress further revised the
act to require EPA, when proposing a standard, to publish a determination as to whether or not the
benefits of a proposed standard justify the costs. If EPA determines that the benefits do not justify
the costs, EPA, in certain cases, may promulgate a standard that is less stringent than the feasible
level and that “maximizes health risk reduction benefits at a cost that is justified by the
benefits.”12 EPA used this authority to establish new standards for arsenic and radium.
11
U. S. Senate. Safe Drinking Water Amendments Act of 1995, Report of the Committee on Environment and Public
Works on S. 1316. S.Rept. 104-169. p. 14. November 7, 1995.
12
SDWA §1412(b)(6); 42 U.S.C. 300g-1.
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Recent and Pending Rules
EPA’s latest rulemaking activities include a January 2006 rule package that expanded existing
requirements to control pathogens (especially Cryptosporidium) and disinfectants (e.g., chlorine)
and their byproducts (e.g., chloroform). These rules, the Long Term 2 Enhanced Surface Water
Treatment Rule (LT2 Rule) and the Stage 2 Disinfectant and Disinfection Byproduct Rule (Stage
2 DBP), complete a series of statutorily mandated rules that impose increasingly strict controls on
the presence of pathogens and disinfectants and their byproducts in water systems. EPA
promulgated a related Ground Water Rule to establish disinfection requirements for systems
relying on ground water. In the past several years, EPA also issued standards for several
radionuclides, including uranium and revised standards for radium and arsenic. These rules are
expected to reduce an array of health risks for consumers, but they have potentially significant
costs for the communities that must expand treatment facilities to comply with the standards.
In 2007, EPA completed revisions to the Lead and Copper Rule (LCR). The revisions were made
to address weaknesses identified during a nationwide review of the rule, following the discovery
of high lead levels in Washington, DC, tap water in 2004.13 The changes involved regulatory
requirements for monitoring, treatment, customer notification, and lead service line replacement.
Some of the regulatory revisions clarify the intent of the original LCR for provisions that may not
have been sufficiently clear, while others revise LCR requirements. These changes are intended to
strengthen implementation of the LCR in the short term; EPA is considering making more
comprehensive revisions to the LCR and/or issuing additional guidance for public water systems.
Among ongoing rulemakings, EPA is revising the 1989 Total Coliform Rule, which controls the
presence of bacteria in drinking water.14 EPA also has been working to finalize a radon rule
(proposed in 1999), and has been evaluating numerous new contaminants, including perchlorate
and MTBE, for possible regulation. As noted, in 2009, EPA published a notice in the Federal
Register seeking additional comment on the analysis of data for purposes of making a regulatory
determination for perchlorate. Specifically, EPA is re-evaluating potential perchlorate exposure
for infants and young children, in addition to pregnant women and fetuses.
EPA also is updating risk assessments and regulations for several regulated contaminants,
including chromium. Issued in 1991, the current drinking water standard for chromium is set at
100 parts per billion (ppb) and addresses all forms of chromium, including chromium-3, which is
considered an essential nutrient. The total chromium standard was based on health effects data for
hexavalent chromium (chromium-6), specifically to protect against allergic dermatitis. Although
it was known that chromium-6 could cause cancer when inhaled, EPA concluded that the
evidence was insufficient to determine whether chromium-6 could cause cancer in humans when
ingested (in food or water). When issuing the standard, the agency noted that the only feasible
approach at that time was to base drinking water exposure limits for total chromium on noncancer health effects.15
13
The 2007 revised Lead and Copper Rule is available at http://www.epa.gov/safewater/lcrmr/index.html.
14
Coliforms are a broad class of bacteria, many of which are harmless. However, some, such as fecal coliform, cause
illness, and the presence of coliform bacteria in drinking water suggests that a problem may exist in the treatment
system or distribution system. Some disease (gastroenteritis) outbreaks have occurred in which researchers have
detected very low levels of coliforms. Consequently, EPA is considering tightening allowable limits, strengthening
monitoring requirements, and making other changes to the rule. For more information, see http://water.epa.gov/
lawsregs/rulesregs/sdwa/tcr/regulation.cfm.
15
U.S. Environmental Protection Agency, “National Primary Drinking Water Regulations-Synthetic Organic
(continued...)
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Substantial evidence now indicates that chromium-6 can cause cancer if ingested. In 2008, EPA
began reviewing the chromium standard to determine whether it needed revision. In September
2010, EPA released for peer review and public comment a draft human health assessment
specifically for chromium-6. The agency expects that the assessment will be completed later this
year. EPA will use the health assessment and other available information to determine whether to
develop a drinking water standard for chromium-6. The Administrator has stated that such a
determination is likely. 16 Table 2 reviews EPA’s more recently proposed and finalized and
drinking water regulations.
Table 2. Recent Regulatory Actions
Regulatory
Action
Date
Published
Revisions to Lead
and Copper Rule
(LCR)
10/10/2007
(72 Fed. Reg.
57781)
Final
EPA promulgated targeted changes to the LCR to improve implementation in
the areas of monitoring, treatment, customer awareness, and lead service line
replacement, to better control exposures to lead in drinking water. The
revisions do not affect the lead MCLG or action level, or the rule’s basic
requirements. (A comprehensive revision of the rule is under consideration.)
Unregulated
Contaminant
Monitoring Rule
(UCMR 2)
1/4/2007
(72 Fed. Reg.
367)
Final
SDWA requires EPA to publish every five years a list of unregulated
contaminants to be monitored. This second UCMR requires monitoring of 25
chemicals during 2008-2010. These data provide the main occurrence and
exposure data for EPA to determine whether to regulate the contaminants.
(Perchlorate was included in the first UCMR and in the draft, but not final,
UCMR 2.)
Ground Water
Rule (GWR)
11/8/2006
(71 Fed. Reg.
65574)
Final
The 1996 amendments directed EPA to require disinfection for all public water
systems, including all surface water systems and, as necessary, ground water
systems to provide greater protection against microbial pathogens.
Proposed Revision
of National
Affordability
Methodology
3/2/2006
(71 Fed. Reg.
65573)
EPA proposed options for revising its criteria for determining whether a
technology needed to comply with a standard is affordable for small systems and
for revising its methodology for determining if an affordable variance technology
protects public health. As provided for in the 1996 amendments, states may
grant variances to small systems for standards that EPA determines are
unaffordable. Under the current criteria, no small system variances are available.
Long-Term 2
Enhanced Surface
Water Treatment
Rule (LT2 Rule)
1/5/2006
(71 Fed. Reg.
653)
Final
Supplements existing rules by increasing Cryptosporidium treatment requirements
for higher risk systems. Contains provisions to reduce risks from uncovered
finished water reservoirs and to ensure that systems maintain microbial
protection when they act to decrease the formation of disinfection byproducts
(DBPs).
Stage 2
Disinfectants and
Disinfection ByProducts Rule
(DBPR)
1/4/2006
(71 Fed. Reg.
387)
Final
Builds on existing rules to strengthen requirements for higher risk systems to
reduce potential health risks from DBPs in drinking water, which form when
disinfectants are used to control microbial pathogens. Tightens monitoring
requirements for 2 groups of DBPs, trihalomethanes (TTHM) and haloacetic
acids (HAA5). (This rule was issued with the LT2 Rule to address concerns
about risk tradeoffs between pathogens and disinfection byproducts.)
Purpose
(...continued)
Chemicals and Inorganic Chemicals: Final Rule,” 56 Federal Register 3537, January 30, 1991.
16
For more information on EPA research, monitoring guidance, and other actions to address hexavalent chromium, see
EPA web page, “Chromium in Drinking Water” at http://water.epa.gov/drink/info/chromium/index.cfm.
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Pharmaceuticals in Drinking Water
As monitoring technologies have become available and testing has increased, traces of more
pharmaceuticals and personal care products (PPCPs) have been detected in surface waters and
drinking water supplies. Pharmaceuticals include prescription drugs, veterinary drugs, and overthe-counter medicines. Personal care products cover a broad spectrum and include cosmetics, hair
products, sun-screens, fragrances, anti-bacterial soaps, and vitamins. These chemicals are released
to the environment in various ways, including elimination of human and animal waste, disposal of
unused medicines down the toilet, veterinary drug usage, hospital waste disposal, and industrial
discharges.
Although significant research is being conducted, much is unknown about the occurrence and
movement of PPCPs in the environment, their occurrence in drinking water supplies, or about the
potential health risks from exposure to PPCPs at extremely low levels through drinking water.
Nonetheless, the detection of pharmaceuticals and related products in public water supplies
generates concern, because many of these products are specifically designed to have a biological
effect in humans, animals, and/or plants. Pharmaceuticals often contain chemical compounds that
can affect the endocrine system by altering, mimicking, or impeding the function of hormones.
Such endocrine disrupting chemicals (EDCs) have the potential to affect growth, development,
reproduction, and metabolism. Over the past decade, scientists and regulators have become
increasingly concerned about the effects that exposures to low levels of PPCPs may be having on
aquatic organisms, and also potentially on human health.17
The U.S. Geological Survey (USGS) and EPA have identified a wide array of research needs and
gaps that, if addressed, would help delineate the scope of environmental and human health issues
that might result from the presence of PPCPs in the environment. The USGS has conducted
research on the occurrence of hormones, pharmaceuticals, and other wastes in residential,
industrial, and agricultural wastewater, and has found that a broad range of these chemicals occur
commonly downstream from large urban areas and concentrated animal production areas.18 In
June 2010, the USGS reported that pharmaceutical manufacturing facilities can be a significant
source of pharmaceuticals in the environment.19
EPA has been conducting and supporting numerous PPCP research projects in several areas,
including the relative importance of different sources of PPCPs in the environment (e.g.,
veterinary vs. human medicine), how PPCPs move through the environment, human exposure
pathways, ecological exposure pathways, monitoring and detection tools, assessment of potential
human health effects, and assessment of potential ecological effects. Research is also being
conducted to evaluate the ability of drinking water treatment technologies to remove various
PPCPs.
17
For more information on EDCs and potential health risks, see CRS Report R40177, Environmental Exposure to
Endocrine Disruptors: What Are the Human Health Risks?, by (name redacted) and (name redacted).
18
See for example, U.S. Geological Survey, Pharmaceuticals, Hormones, and Other Organic Wastewater
Contaminants in U.S. Streams, USGS FS-027-02, June 2002.
19
Patrick J. Phillips et al., “Pharmaceutical Formulation Facilities as Sources of Opioids and Other Pharmaceuticals to
Wastewater Treatment Plant Effluents,” Environmental Science and Technology, June 4, 2010, web publication,
http://pubs.acs.org/doi/abs/10.1021/es100356f.
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The agency is also conducting a study to determine the amount of PPCPs that are discharged to
wastewater treatment plants from various sources. As part of this study, EPA is evaluating how
hospitals and other institutions dispose of unused medications.20 Other research projects address
the development of analytical methods to determine the source and fate of PPCPs in the
environment.
Ecological research has received particular attention because exposure risks for aquatic life have
been considered to be much greater than those for humans.21 Nonetheless, a key research issue
concerns the possible health risks from exposure to very low doses of the myriad chemicals found
in PPCPs. Because PPCPs occur in the environment at low concentrations typically, their effects
may be subtle. Among other research gaps, EPA has identified a need to develop tests that can
detect more subtle health effects.
As noted above, EPA proposed its third list of unregulated contaminants being considered for
regulation in February 2008. The draft Contaminant Candidate List 3 (CCL 3) contained 104
contaminants, none of which are pharmaceuticals. Following recent reports of the detection of
pharmaceuticals and commonly used over-the-counter drugs in the drinking water supplies of 24
large community water systems, EPA has asked its Science Advisory Board (SAB) and
stakeholders to evaluate and comment on the contaminant candidate screening and selection
process to determine whether the process required revision.22 Based on recommendations, and
review of comments and newly available data, the agency made a number of changes from the
draft to the final CCL 3. Among the changes, EPA added 10 pharmaceuticals; one antibiotic
(erythromycin), and nine hormones.
Because of ecological concerns, as well as human health concerns, regulating contaminants in
drinking water represents only part of the response to this multi-faceted problem. Recognizing
that people and animals will continue to take and use pharmaceutical products, water suppliers
and other stakeholders consider changes at wastewater treatment plants to be a key part of the
solution.
The Association of Metropolitan Water Agencies (AMWA), which represents the largest publicly
owned water systems, has made several recommendations to address this emerging drinking
water issue. Among these recommendations, the AMWA strongly encouraged EPA to make
research on treatment technologies a high priority, and urged water utilities to inform consumers
of efforts to monitor and remove pharmaceuticals from water sources. AMWA also called for EPA
and the Food and Drug Administration (FDA) to determine whether the presence of trace amounts
of pharmaceuticals results in short-term or long-term effects on health and the environment,
recommended that the federal government take the lead in developing a national program for
disposing of unused prescriptions, and called for animal feeding operations to reduce their
contributions of antibiotics and steroids into water supplies.23
20
For further information on PPCPs and related EPA activities, see http://epa.gov/ppcp.
Aquatic organisms face higher risks of exposure than humans for several reasons. For example, these organisms have
continuous exposure, and generally are exposed to higher concentrations of PPCPs in untreated water, compared to
treated drinking water.
22
Information on the CCL 3 is available at http://water.epa.gov/scitech/drinkingwater/dws/ccl/ccl3.cfm#ccl3.
23
Association of Metropolitan Water Agencies, AMWA Discusses Pharmaceuticals in Water Supplies, March 11, 2008,
http://www.amwa.net.
21
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In the 111th Congress, several bills addressed this issue, including two that passed the House:
H.R. 1145 (H.Rept. 111-76), a water research bill, called for research on prevention and removal
of contaminants of emerging concern, including PPCPs, in water resources; and H.R. 1262
(H.Rept. 111-26), a water infrastructure funding bill, would have amended the Clean Water Act to
require EPA to conduct a study on the presence of PPCPs in the nation’s waters. Additionally, the
House Appropriations Committee report for EPA’s FY2010 appropriations (P.L. 111-88, H.Rept.
111-180) encouraged EPA to develop a plan to synthesize available research on contaminants of
emerging concern, including endocrine disrupting compounds and additives to personal care
products, and to apply a systematic approach to addressing the problem of such contaminants in
water supplies. The House report further directed EPA to publish a list of at least 100 chemicals
for screening in the Endocrine Disruptor Screening Program24 that includes drinking water
contaminants such as PPCPs.25 Action was not completed on the Interior-Environment
appropriations, and EPA is operating under a continuing resolution through March 4, 2011.
In July 2010, the House Energy and Commerce Committee reported, amended in the nature of a
substitute, H.R. 5320, the Assistance, Quality, and Affordability Act of 2010. As with EPA’s
FY2010 appropriations act, this bill would have revised the Endocrine Disruptor Screening
Program and would have required EPA to list at least 100 substances for screening; it also would
have set testing schedules and priorities. H.R. 5320 further would have directed EPA to conduct a
study on PPCPs in sources of drinking water and to identity the sources of these products and
their environmental and human health effects. Taking another approach, H.R. 276 proposed to
require the EPA Administrator to convene a task force to develop recommendations for the proper
disposal of unused pharmaceuticals to protect water sources. The Water Infrastructure Financing
Act of 2009, (S. 1005, section 308) would have required the National Academy of Sciences
(NAS) to conduct a study of the sources of PPCPs in the nation’s waters and to evaluate the
feasibility of methods to treat and control PPCPs in water. None of these bills was enacted.
Drinking Water Infrastructure Needs and Funding
A persistent SDWA issue concerns the ability of water systems to construct or upgrade
infrastructure to comply with drinking water regulations and, more broadly, to ensure the
provision of a safe and reliable water supply. In the 1996 amendments, Congress responded to
growing complaints about the act’s unfunded mandates and authorized a drinking water state
revolving loan fund (DWSRF) program to help water systems finance infrastructure projects
needed to meet drinking water standards and address the most serious health risks.
The program authorizes EPA to award annual capitalization grants to states. States then use their
grants (plus a 20% state match) to provide loans and other assistance to public water systems.
Communities repay loans into the fund, thus replenishing the fund and making resources
available for projects in other communities. Eligible projects include installation and replacement
of treatment facilities, distribution systems, and some storage facilities. Projects to replace aging
24
The Estrogenic Substances Screening Program was established in SDWA § 1457 (42 U.S.C. § 300j-17) by the 1996
SDWA amendments.
25
The Joint Explanatory Statement of the Committee of Conference for the conference report to accompany H.R. 2996
states that “report language and allocations set forth in either [H.Rept. 111-180] or [S.Rept. 111-38] that are not
changed by the conference are approved by the committee of conference.” H.Rept. 111-316, p. 73. The conference
report made no changes to these provisions.
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infrastructure are eligible if they are needed to maintain compliance or to further public health
protection goals.26
The SDWA authorized appropriations for the DWSRF program totaling $9.6 billion, including $1
billion for each of FY1995 through FY2003. Congress provided $829.0 million for each of
FY2008 and FY2009. In the American Recovery and Reinvestment Act (ARRA; P.L. 111-5),
Congress provided an additional $2 billion for the DWSRF program. For FY2010, the President
requested $1.5 billion for the program. Congress approved $1.387 billion in the Department of
the Interior, Environment, and Related Agencies Appropriations Act, 2010 (P.L. 111-88). Since
FY1997, Congress has appropriated more than $14.5 billion for this program. For FY2011, the
President requested $1.29 billion. EPA programs are being funded through a continuing resolution
through March 4, 2011. Table 3 lists funding levels for the DWSRF program since its inception.
Table 3. Drinking Water State Revolving Fund Program Funding, FY1997-FY2011
(in millions of dollars, nominal dollars)
Fiscal Year
Authorizations
Appropriations
1997
$1,000.0
$1,275.0
1998
$1,000.0
$725.0
1999
$1,000.0
$775.0
2000
$1,000.0
$816.9
2001
$1,000.0
$823.2
2002
$1,000.0
$850.0
2003
$1,000.0
$844.5
2004
—
$845.0
2005
—
$843.2
2006
—
$837.5
2007
—
$837.5
2008
—
$829.0
2009
—
$829.0
ARRA
2010
$2,000.0
—
$1,387.0
2011 (request)
($1,287.0)
Total
$14,517.8
Sources: Prepared by CRS using information from the following sources: FY1997-FY2000 and FY2002 enacted
amounts are from the enacted appropriations bills for those fiscal years. FY2001 enacted amount is the prior
year enacted amount specified in EPA’s FY2002 congressional budget justification. FY2003-FY2004 enacted
amounts are from EPA’s Office of Water. FY2005-FY2006 enacted amounts are prior year enacted amounts
specified in House Appropriations Committee reports on subsequent year appropriations bills. FY2007 and
FY2008 enacted amounts are as reported to CRS by the House Appropriations Committee. All enacted amounts
reflect rescissions. FY2009 enacted amount is taken from P.L. 111-8.
26
See also CRS Report RS22037, Drinking Water State Revolving Fund (DWSRF): Program Overview and Issues, by
(name redacted). For information on other assistance programs, see CRS Report RL30478,Federally Supported Water
Supply and Wastewater Treatment Programs.
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Through June 2009, EPA had awarded $10.6 billion in capitalization grants, which, when
combined with the 20% state match, bond proceeds, loan principal repayments, and other funds,
amounted to $18.7 billion in DWSRF funds available for loans and other assistance. Through
June 2009, 6,905 projects had received assistance, 4,567 of which had been completed, and total
assistance provided by the program reached $16.2 billion.27
The DWSRF program is well-regarded, but many state and local officials and interest groups
have argued that greater investment in water infrastructure is needed. EPA’s latest needs survey
estimates that public water systems need to invest $334.8 billion on infrastructure improvements
over 20 years (2007 through 2026) to achieve regulatory compliance and ensure the provision of
safe water. Although all of the infrastructure projects in the needs assessment promote the health
objectives of the act, EPA reports that just 16% ($52.0 billion) is attributable to SDWA
regulations, while $282.8 billion (84%) represents nonregulatory costs. Most needs typically
involve installing, upgrading, or replacing transmission and distribution infrastructure to allow a
system to continue to deliver safe drinking water. Although aging, deteriorated infrastructure
often poses a threat to drinking water safety, these needs occur independently of federal
mandates. 28
EPA also has prepared a broader municipal wastewater and drinking water infrastructure funding
gap analysis, which identified potential funding gaps between projected needs and spending from
2000 through 2019.29 This analysis estimated the potential 20-year funding gap for drinking water
and wastewater infrastructure capital and operations and maintenance (O&M), based on two
scenarios: a “no revenue growth” scenario and a “revenue growth” scenario that assumed
infrastructure spending would increase 3% per year. Under the “no revenue growth” scenario,
EPA projected a funding gap for drinking water capital investment of $102 billion ($5 billion per
year) and an O&M funding gap of $161 billion ($8 billion per year). Using revenue growth
assumptions, EPA estimated a 20-year capital funding gap of $45 billion ($2 billion per year), and
no gap for O&M.
Other assessments also have found a funding gap. In 2000, the Water Infrastructure Network
(WIN) (a coalition of state and local officials, water providers, environmental groups and others)
reported that over the next 20 years, water and wastewater systems need to invest $23 billion
annually more than current investments to meet SDWA and Clean Water Act health and
environmental priorities and to replace aging infrastructure. WIN and other groups have proposed
multibillion dollar investment programs for water infrastructure. Others, however, have called for
more financial self-reliance within the water sector.
In the 111th Congress, this issue found early focus in the economic stimulus debate. As noted,
ARRA included $2 billion, while the FY2009 and FY2010 appropriations acts provided $829
million and $1.387 billion, respectively, for a total of more than $4.2 billion for drinking water
infrastructure. After several short-term continuing resolutions for FY2011, Congress extended
27
Program statistics are available at http://www.epa.gov/safewater/dwsrf/dwnims.html. For further discussion of the
DWSRF program, see EPA Report to Congress, Drinking Water State Revolving Fund: Investing in a Sustainable
Future, EPA 816-R-08-002, March 2008, http://www.epa.gov/safewater/dwsrf.html.
28
Environmental Protection Agency, 2007 Drinking Water Infrastructure Needs Survey and Assessment: Fourth
Report to Congress, EPA 816-R-09-001, March 2009, http://www.epa.gov/safewater/needs.html.
29
U.S. Environmental Protection Agency, The Clean Water and Drinking Water Infrastructure Gap Analysis Report,
Report No. EPA 816-R-02-020, September 2002, 50 p.
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EPA funding at FY2010 levels through March 4, 2011, under the Continuing Appropriations Act,
2011 (P.L. 111-322).
Beyond stimulus and appropriations actions, drinking water and other water infrastructure issues
received attention. In July 2009, the Senate Environment and Public Works Committee reported a
broad drinking water and wastewater infrastructure financing bill, S. 1005 (S.Rept. 111-47), the
Water Infrastructure Financing Act, which was similar to the committee bill from the 110th
Congress. It would have authorized more funding for drinking water and wastewater SRF
programs (authorizing $15 billion over five years for the DWSRF), and created a grant program
at EPA for small or economically disadvantaged communities for critical drinking water and
water quality projects. S. 1005 included a Davis-Bacon prevailing wage provision, requiring that
prevailing wage requirements would apply to all projects financed in whole or part through an
SRF. This would be a new requirement for the states under the DWSRF program, and the
provision has been problematic for similar legislation in recent Congresses. However, Congress
did apply prevailing wage requirements30 to projects that are funded through ARRA or P.L. 11188. On July 1, 2010, the House Energy and Commerce Committee reported H.R. 5320, the
Assistance, Quality, and Affordability Act of 2010. As approved by the full committee, H.R. 5320
would have reauthorized the DWSRF for three years (for a total of $ 4.8 billion), applied DavisBacon prevailing wage provisions to projects financed in any way by a DWSRF, specified certain
eligible uses of the fund (such as rehabilitation of aging infrastructure and projects that improve
energy or water efficiency), and made other changes to this program.
The Water Protection and Reinvestment Act (H.R. 3202) was offered to establish a dedicated
water infrastructure trust fund. The trust fund would have been supported by taxes on various
products, including PPCPs, water-based beverages, and a tax on some corporate profits. H.R. 537,
the Sustainable Water Infrastructure Investment Act of 2009, would have amended the Internal
Revenue Code of 1986 to provide that the volume cap for private activity bonds would not apply
to bonds for water supply or wastewater facilities. The purposes of this bill included providing
alternative financing for water infrastructure investments and promoting the federal partnership
with state and local governments. 31
In the face of uncertainty over increased federal assistance for water infrastructure, EPA, states,
communities, and utilities have been examining alternative management and financing strategies
to address SDWA compliance costs and broader infrastructure maintenance and repair costs. Such
strategies include establishing public-private partnerships (privatization options range from
contracting for services to selling system assets), improving asset management, and adopting fullcost pricing for water services. Still, these strategies may be of limited use to many small and/or
economically disadvantaged communities, and stakeholders are likely to continue to urge
Congress to increase funding for water infrastructure.32
30
SDWA section 1450(e); 42 U.S.C. 300j-9(e).
31
For a discussion of legislative issues related to the Clean Water Act and wastewater infrastructure, see CRS Report
R40098, Water Quality Issues in the 111th Congress: Oversight and Implementation, by (name redacted).
32
For further discussion of infrastructure issues, see CRS Report RL31116, Water Infrastructure Needs and
Investment: Review and Analysis of Key Issues, by (name redacted) and (name redacted).
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Small Systems Issues
An issue that has received considerable attention concerns the financial, technical, and managerial
capacity of small systems to comply with SDWA regulations. Roughly 83% (42,600) of the
nation’s 51,651 community water systems are small, serving 3,300 persons or fewer, and 56%
(28,800) of the community water systems serve 500 persons or fewer. Many small systems face
challenges in complying with SDWA rules and, more fundamentally, in ensuring the quality of
water supplies. Major problems include deteriorated infrastructure, lack of access to capital,
limited customer and rate base, inadequate rates, diseconomies of scale, and limited managerial
and technical capabilities. Because of these same characteristics, the DWSRF program has not
been as successful for small systems, compared to larger systems. Although these systems serve
just 9% of the population served by community water systems, the sheer number of small systems
has created challenges for policymakers and regulators.
In the earliest SDWA debates, Congress recognized that setting standards based on technologies
affordable for large cities could pose problems for small systems. During the reauthorization
debate leading up to the 1996 amendments, policymakers gave considerable attention to the
question of how to help small systems improve their capacity to comply with SDWA mandates.
The 1996 amendments added provisions aimed at achieving this goal, including a requirement
that states establish strategies to help systems develop and maintain the technical, financial, and
managerial capacity to meet SDWA regulations. Congress also revised provisions on standardsetting (§1412(b)), variances (§1415(e)), and exemptions (§1416) to increase consideration of
small system concerns.
Exemptions
The act’s exemption provisions are intended to provide compliance flexibility in certain cases.
States or EPA may grant temporary exemptions from a standard if, due to certain compelling
factors (including cost), a system cannot comply on time. For example, all systems are required to
comply with the new arsenic standard five years after its promulgation date. An exemption would
allow three more years for qualified systems. Small systems (serving 3,300 persons or fewer) may
be eligible for up to three additional two-year extensions, for a total exemption duration of nine
years (and for a total of up to 14 years to achieve compliance). In the preamble to the arsenic rule
published in January 2001, EPA noted that exemptions will be an important tool to help states
address the number of systems needing financial assistance to comply with this rule and other
SDWA rules (66 Federal Register 6988).
However, to grant an exemption, the law requires a state to hold a public hearing and make a
finding that the extension will not result in an “unreasonable risk to health.” Because of the
administrative burden to the states and uncertainty as to what constitutes an “unreasonable risk to
health,” the act’s exemption authority has seldom been used. Approximately 13 states had
indicated that they would likely use the exemption process for the arsenic rule, but it appears that
many states have not exercised this option.
Small System Variances and Affordability
In contrast to exemptions, variances offer a more permanent form of compliance flexibility for
small systems. Since 1996, SDWA has required EPA, when issuing a regulation, to identify
technologies that meet the standard and that are affordable for systems that serve populations of
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10,000 or fewer. If EPA does not identify affordable “compliance” technologies, then the agency
must identify small system “variance” technologies. A variance technology need not meet the
standard, but must protect public health. States may grant variances to systems serving 3,300
persons or fewer if a system cannot afford to comply with a rule (through treatment, an
alternative source of water, or other restructuring) and if the system installs a variance technology.
With EPA approval, states also may grant variances to systems serving between 3,300 and 10,000
people. (Regulations addressing microbial contaminants are not eligible for variances under the
statute.)
In 1998, EPA published affordability criteria to establish guidelines for determining whether a
regulation is deemed affordable for small systems, and whether small system variances would be
available. Under the criteria, EPA evaluates the affordability of a regulation by determining
whether the compliance cost would raise the total water cost above 2.5% of annual median
household income (MHI) in the three categories of small systems. Using this approach, EPA has
determined that affordable compliance technologies are available for every drinking water
regulation. Consequently, the agency has not identified any small system variance technologies,
and thus, no small system variances are available.
Several recent regulations (such as the revised arsenic and radium standards and the Stage 2
Disinfectants and Disinfection Byproducts Rule) have heightened concern, particularly among
rural communities, that EPA has not used the tools Congress provided to help small systems
comply with SDWA regulations.
Affordability Criteria Review
Prompted by debate over the revised arsenic standard and its potential cost to small communities,
the conference report for EPA’s FY2002 appropriations (H.Rept. 107-272) directed EPA to review
its affordability criteria and how small system variance programs should be implemented for the
arsenic rule. EPA began the review and sought the advice of the EPA’s National Drinking Water
Advisory Council (NDWAC) and Science Advisory Board (SAB).
The NDWAC considered recommendations from its affordability work group and reported to EPA
in 2003. The council acknowledged the statutory basis for small system variances and
recommended changes, but cautioned that “significant practical, logistical, and ethical issues
mitigate against the use of variances.”33 The National Rural Water Association, a member of the
NDWAC work group, dissented and issued a separate report urging EPA to adopt a safe and
affordable variance approach that would make variances available to small communities, as
authorized by Congress. The Science Advisory Board concluded that EPA’s basic approach was
justified on the basis of equity, efficiency and administrative practicality, but recommended ways
to improve the criteria. The SAB suggested that EPA consider lowering its affordability threshold,
noting that “the national affordability threshold has never been exceeded, but some small water
systems appear to have genuinely struggled with costs, suggesting that the 2.5% rule is too
high.”34 The SAB also encouraged EPA to develop clear guidelines about when variances should
33
U.S. Environmental Protection Agency, Small Drinking Water Systems Variances: Revision of Existing NationalLevel Affordability Methodology and Methodology to Identify Variance Technologies that Are Protective of Public
Health, (71 Fed. Reg. 10671), March 2, 2006, p. 10657.
34
U.S. Environmental Protection Agency, Science Advisory Board, Affordability Criteria for Small Drinking Water
Systems: An EPA Science Advisory Board Report, 2002, p. 4. The SAB report is available at http://www.epa.gov/
safewater/pws/affordability.html.
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be granted, and recommended that EPA consider measures other than median income to better
capture impacts on disadvantaged households.
In 2006, EPA proposed three options for revising its affordability criteria for determining whether
a compliance technology is unaffordable for small systems (71 Federal Register 10671). EPA
currently assumes that treatment technology costs are affordable to the average household if they
do not cause median annual water bills to exceed about $1,000 (this threshold is calculated by
taking 2.5% of median household income among small systems). Based on this approach, EPA
has determined that affordable technologies are available for all standards. The three options EPA
has proposed to replace this affordability threshold are well below that level: 0.25%, 0.50%, and
0.75%. EPA also requested comment on whether the agency should evaluate affordability strictly
on a national level, or use a two-step process that would include evaluations of affordability first
at the national level and then at the county level. A county level analysis would be performed only
when a standard was found to be affordable at the national level. The revised criteria are further
intended to address the issue of how to ensure that a variance technology would be protective of
public health—an issue that has historically hampered the use of variances.
EPA has evaluated comments on the proposed revisions, and noted its intention to apply the
revised criteria only to future rules. States could use the criteria to grant small-system variances,
on a case-by-case basis, when systems cannot afford to comply with a standard. However, if these
variances do become available, it is not clear how often they might be used. A key issue is that
variances allow systems to provide lower-quality water in lower-income communities, and this
could raise issues for states, communities, and consumers.
In its 2010 budget, the agency committed to work with state and local governments to provide
“equitable consideration of small system customers.”35 To accomplish this, EPA is reviewing
various drinking water policies, including the use of small system variances, the existing variance
determination methodology, the small water system capacity development strategy, and the
DWSRF program.
Small System Legislation
Repeatedly over the past decade and again in the 111th Congress, bills were offered to help small
water systems comply with federal drinking water regulations. Among other provisions, S. 1005
(S.Rept. 111-47), the Water Infrastructure Financing Act, would have created a grant program at
EPA with funding priority to be given to small and economically disadvantaged communities.
This legislation also proposed to authorize appropriations for the DWSRF program in the amount
of $14.7 billion over five years. House-passed H.R. 5320 would have revised the factors states
consider when developing affordability criteria for identifying disadvantaged communities,
increased assistance to water systems and disadvantaged communities, and expanded technical
assistance for small communities. H.R. 2206 would have amended SDWA to (1) authorize
increased appropriations to EPA for technical assistance to help small water systems to comply
with national primary drinking water regulations; and (2) direct the Administrator to provide
technical assistance to organizations providing on-site technical assistance, circuit-rider technical
assistance programs, training, and assistance with regulatory compliance and water security
enhancements. H.R. 4798 would have amended the exemption provisions to require states to
35
U.S. Environmental Protection Agency, 2010 Annual Performance Plan and Congressional Justification, State and
tribal Assistance Grants, p. 686.
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
grant exemptions to small, nonprofit public water systems from naturally occurring contaminants,
including arsenic and other specified contaminants, provided that the water system finds that
compliance is not economically feasible. S. 3038, which paralleled S. 2509 from the 110th
Congress, proposed to address several small system issues. This bill would have required EPA to
(1) convene a work group to study barriers to using point-of-entry and other specified treatment
technologies, (2) develop guidance to assist states in regulating and promoting these treatment
options, and (3) revise affordability criteria for variance technologies to give extra weight to
poorer households and communities. Among other provisions, S. 3038 would have required EPA
or a state to ensure that funds have been made available to smaller systems before taking
enforcement actions and that adequate technical assistance has been provided to these systems.
The bill also would have allowed states to determine the exemption renewal period.
Underground Injection Control Program
Most public water systems rely on groundwater as a source of drinking water, and the 1974 Safe
Drinking Water Act authorized EPA to regulate the underground injection of fluids (including
solids, liquids, and gases) to protect underground sources of drinking water.36 SDWA section
1421 directed EPA to promulgate regulations for state underground injection control (UIC)
programs, and mandated that the regulations contain minimum requirements for programs to
prevent underground injection that endangers drinking water sources. Section 1422 authorized
EPA to delegate primary enforcement authority (primacy) for UIC programs to the states,
provided that state programs prohibit any underground injection that is not authorized by a state
permit.37 Thirty-three states have assumed primacy for the program, EPA has lead implementation
and enforcement authority in 10 states, and authority is shared in the remainder of the states.38
The UIC program regulations specify siting, construction, operation, closure, financial
responsibility, and other requirements for owners and operators of injection wells. EPA has
established five classes of injection wells based on similarity in the fluids injected and activities,
as well as common construction, injection depth, design, and operating techniques.
The 1974 SDWA specified that the UIC regulations could not interfere with the underground
injection of brine from oil and gas production or recovery of oil unless underground sources of
drinking water would be affected. In the Energy Policy Act of 2005, the 109th Congress amended
SDWA to specify further that the definition of “underground injection” excludes the injection of
fluids or propping agents (other than diesel fuels) used in hydraulic fracturing operations related
to oil, gas, or geothermal production activities.39
Underground injection recently has been receiving congressional attention for its role as a
potential means for sequestering carbon dioxide (CO2) emissions in geologic formations to
control greenhouse gas emissions. It also has emerged on the agenda because of the rapidly
growing use of hydraulic fracturing in domestic natural gas production.
36
Underground injection control provisions are contained in SDWA §1421 - §1426; 42 U.S.C. 300h - 300h-5.
P.L. 93-523, SDWA §1421 (42 U.S.C. 300h).
38
To receive primacy, a state, territory, or Indian tribe must demonstrate to EPA that its UIC program is at least as
stringent as the federal standards; the state, territory, or tribal UIC requirements may be more stringent than the federal
requirements. For Class II (oil and gas) wells, states must demonstrate that their programs are effective in preventing
pollution of underground sources of drinking water (USDWs).
39
P.L. 109-58, H.R. 6, Section 322, amended SDWA section 1421(d).
37
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Carbon Sequestration and Storage
Geologic sequestration (GS) is the process of injecting CO2 captured from a large stationary
source (such as a coal-fired power plant) through a well deep into the earth for long-term storage.
Research indicates that numerous geologic formations exist in the United States and worldwide
that have the capacity to store large volumes of CO2. Because coal is responsible for nearly half
of the electricity generated worldwide and its use is increasing, carbon capture and storage (CCS)
is attracting a growing number of proponents who argue that, with proper site selection and
management, geologic sequestration could play an important role in controlling CO2 emissions.
Although considerable interest has emerged for the rapid, commercial-scale development of
carbon sequestration projects, questions exist regarding the long-term safety and effectiveness of
sequestration of large volumes of CO2. Issues include how sequestration activities might affect
groundwater quality, what local health and environmental risks could arise from slow leakage or
sudden releases of stored gas, and who would have long-term responsibility and legal liability for
water contamination or other damages that might result from sequestration activities.
A key public health and environment issue concerns the potential for stored CO2 to contaminate
underground water supplies or otherwise adversely affect human health and the environment.
According to a 2005 report by the United Nations Intergovernmental Panel on Climate Change
(IPCC), human and environmental risks potentially could result from leaking injection wells,
abandoned wells, or leakage across faults in rock formations and ineffective confining layers. The
IPCC report noted that
Avoiding or mitigating these impacts will require careful site selection, effective regulatory
oversight, an appropriate monitoring program that provides early warning that the storage
site is not functioning as anticipated and implementation of remediation methods to stop or
control CO2 releases. Methods to accomplish these are being developed and tested.40
Noting that knowledge gaps exist and that more demonstration projects are needed, the IPCC
report concluded that, although “more work is needed to improve technologies and decrease
uncertainty, there appear to be no insurmountable technical barriers to an increased uptake of
geological storage as an effective mitigation option.”41 However, uncertainties and research gaps
involving the safety and effectiveness of long-term carbon sequestration, the potential health and
environmental impacts, regulatory requirements, and long-term liability all pose hurdles to the
rapid deployment of this technology. 42
In July 2008, EPA proposed regulations to create a nationally consistent framework for managing
the underground injection of CO2 for geologic sequestration purposes, thus taking a step toward
40
United Nations Intergovernmental Panel on Climate Change, 2005, IPCC Special Report on Carbon Dioxide Capture
and Storage, p. 197.
41
Ibid, p. 198.
42
Commercial-scale deployment of CCS faces a range of technical, legal, economic, regulatory, and public policy
issues. Capturing carbon and preparing it for transport and storage are generally considered the most economically and
technologically challenging aspects of CCS, and no commercial technology to capture these emissions is currently
available for large-scale coal-fired power plants. Moreover, carbon capture technologies would markedly increase the
cost of electricity generation. Consequently, few companies may be inclined or able to install such technology unless
they are required to do so, either by regulation or by a carbon price. For further discussion see CRS Report RL34621,
Capturing CO2 from Coal-Fired Power Plants: Challenges for a Comprehensive Strategy, by (name redacted) and (name
redacted).
Congressional Research Service
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
providing certainty to industry and the public about requirements that would apply to this
activity. 43 The rule proposes to create a new class of injection wells (Class VI) for geologic
sequestration, and establish national requirements that would apply to these injection wells. The
proposed rule builds on the existing UIC program, including requirements for well owners and
operators to ensure that wells are appropriately located, constructed, tested, monitored, and
ultimately closed with proper funding. EPA’s stated regulatory goal is to ensure that permitting
regulations are in place to ensure that GS can occur in a safe and effective manner in order to
enable commercial-scale CCS projects to move forward.
In 2009, EPA issued a Notice of Data Availability, providing new data and requesting additional
public comment on issues that have evolved in response to comments on the proposed rule. The
new data included, among other items, research from the Department of Energy (DOE)
concerning GS projects and modeling to predict the potential impacts of sequestration activities
on groundwater.44 In November 2010, EPA issued the final GS rule under the authority of SDWA
Section 1421(42 U.S.C. 300h et seq.).45
A key issue surrounding the development of this regulation has been that EPA’s authority under
SDWA is limited to protecting underground sources of drinking water, thus leaving major issues
unaddressed, such as long-term liability and regulation of potential emissions to the atmosphere.
In particular, EPA would need new authority to address liability concerns, and this issue remains
unresolved. 46
Congress has passed several provisions to facilitate and/or regulate the use of underground
injection wells for the purpose of carbon sequestration. The American Recovery and
Reinvestment Act of 2009 (P.L. 111-5) provided $50 million for site characterization activities in
geologic formations related to carbon sequestration, and $20 million for geologic sequestration
training and research activities. The Energy Independence and Security Act of 2007 (EISA; P.L.
110-140) expanded the DOE carbon sequestration research and development program. EISA
Section 702 directed DOE to conduct at least seven large-volume sequestration tests, in addition
to conducting research promoting the development of sequestration technologies. Section 706
specified that the injection and sequestration of CO2 under EISA will be subject to the
requirements of the Safe Drinking Water Act, including the UIC provisions.47
Other proposals in the past Congress included two energy and climate change bills that contained
similar geologic sequestration regulatory and reporting provisions: H.R. 2454 (H.Rept. 111-137),
43
U.S. Environmental Protection Agency, “Federal Requirements Under the Underground Injection Control (UIC)
Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells,” Proposed Rule, 73 Federal Register 4349143541, July 25, 2008.
44
Environmental Protection Agency, “Federal Requirements under the Underground Injection Control (UIC) Program
for Carbon Dioxide (C02) Geologic Sequestration (GS) Wells; Notice of Data Availability and Request for Comment,”
74 Federal Register 44802-44813, August 31, 2009.
45
U.S. Environmental Protection Agency, “Federal Requirements under the Underground Injection Control (UIC)
Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells,” Final Rule, 75 Federal Register 77230,
December 10, 2010.
46
For information on legal issues surrounding geologic sequestration, see CRS Report R41130, Legal Issues
Associated with the Development of Carbon Dioxide Sequestration Technology, by (name redacted), (name redacted), and
(name redacted).
47
For a detailed discussion of geologic sequestration and related legislation, see CRS Report RL33801, Carbon
Capture and Sequestration (CCS), and CRS Report RL34218, Underground Carbon Dioxide Sequestration: Frequently
Asked Questions, both by (name redacted).
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
the American Clean Energy and Security Act of 2009, which the House passed; and S. 1733
(S.Rept. 111-121), the Clean Energy Jobs and American Power Act, reported by the Senate
Environment and Public Works Committee. Both bills would have amended SDWA by adding a
provision directing the EPA Administrator to promulgate, within one year of enactment,
regulations for the development, operation, and closure of CO2 geologic sequestration wells,
taking into consideration the ongoing SDWA rulemaking regarding these wells. The bills also
would have amended the Clean Air Act and established a coordinated certification and permitting
process for geologic sequestration sites. Within two years of enactment, the Administrator was to
issue regulations to protect human health and the environment by minimizing the risk of
atmospheric release of CO2 injected for geologic sequestration, including enhanced hydrocarbon
recovery combined with geologic sequestration. Both bills would have required EPA to submit a
report to Congress detailing a national strategy for addressing the key legal and regulatory
barriers to deployment of commercial scale carbon capture and sequestration. The bills further
would have required reports examining (1) how environmental statutes would apply to CO2
injection and sequestration activities, and (2) the legal framework for geologic sequestration sites,
including existing federal and state environmental statutes and state common law. 48
Hydraulic Fracturing
A second UIC issue concerns the rapidly growing use of hydraulic fracturing to develop onshore,
unconventional natural gas resources. Hydraulic fracturing involves the high-pressure
underground injection of large amounts of water and other fluids into gas-bearing rock formations
to form fractures that are propped open with sand and/or other materials and chemicals that are
also injected. Once the formation is fractured, the natural gas can flow to the well where it is
pumped out of the ground. Hydraulic fracturing is a technique that has enabled the production of
natural gas and oil from unconventional formations, which represent an increasingly important
source of domestically produced hydrocarbons. According to the Independent Petroleum
Association of America (IPAA), roughly 90% of new gas wells rely on hydraulic fracturing, and
600 trillion cubic feet of gas have been produced using this process. Fracturing also has been used
to produce 7 billion barrels of oil.
A single well may be fractured multiple times, using more than 6 million gallons of water in some
locations. Treating and/or disposing of the contaminated flowback water from fracturing
operations can pose groundwater and surface water quality management challenges for state
regulators and gas developers. Landowners are expressing concern over the potential for
contamination of their wells. Some contamination incidents have been reported, but most have
been attributed to poor well construction or surface activities, rather than the fracturing process
itself. However, proponents of stronger regulation and oversight of hydraulic fracturing argue that
well construction is an essential component of natural gas development, which now largely
depends on “fracking.” Moreover, identifying the cause of a contamination incident can be
difficult for various reasons, including the complexity or lack of hydrogeologic evaluations, the
potential variety of circumstances in an area, a lack of baseline well-water monitoring, and the
“confidential business information” status generally granted to fracturing fluid formulae.
48
For further information, see CRS Report R40867, Carbon Capture and Sequestration in H.R. 2454 and S. 1733, by
(name redacted), (name redacted), and (name redacted). For a discussion of associated legal issues, see CRS Report
R41130, Legal Issues Associated with the Development of Carbon Dioxide Sequestration Technology, by (name redacted),
(name redacted), and (name redacted).
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Hydraulic Fracturing and the Safe Drinking Water Act
The Safe Drinking Water Act directs EPA to regulate the underground injection of fluids to
protect underground sources of drinking water. Notwithstanding this general mandate, the law
specifically states that EPA regulations for state UIC programs
may not prescribe requirements which interfere with or impede ... any underground injection
for the secondary or tertiary recovery of oil or natural gas, unless such requirements are
essential to assure that underground sources of drinking water will not be endangered by
such injection.49
Consequently, EPA had not regulated gas production wells, and did not consider hydraulic
fracturing to fall within the regulatory definition of underground injection. In 1997, the U.S.
Court of Appeals for the 11th Circuit ruled that the hydraulic fracturing of coal beds for methane
production constituted underground injection and must be regulated. This decision applied only in
the 11th Circuit, and Alabama was the only state required to revise its UIC program.50
In response to the 1997 court decision and citizen complaints about water contamination
attributed to hydraulic fracturing, EPA began to study the impacts of hydraulic fracturing
practices used in coal-bed methane (CBM) production on drinking water sources, and to
determine whether further regulation was needed. In 2004, EPA issued a final (phase I) report,
based primarily on interviews and a review of the available literature, and concluded that the
injection of hydraulic fracturing fluids into CBM wells posed little threat to underground sources
of drinking water and required no further study; however, EPA noted that very little documented
research had been done on the environmental impacts of injecting fracturing fluids. 51 EPA also
noted that estimating the concentration of diesel fuel components and other fracturing fluids
beyond the point of injection was beyond the scope of its study.52 Some Members of Congress
and some EPA professional staff criticized the report, asserting that its findings were not
scientifically founded.
The 109th Congress also responded to the court’s decision and, in the Energy Policy Act of 2005,
amended SDWA Section 1421(d) to specify that the definition of “underground injection”
excludes the injection of fluids or propping agents (other than diesel fuels) used in hydraulic
fracturing operations related to oil, gas, or geothermal production activities.53 This language
49
SDWA Section 1421(b)(2)(B); 42 U.S.C. § 300h.
Legal Environmental Assistance Found., Inc. v. U.S. Environmental Protection Agency, 118 F. 3d 1467 (11th Cir.
1997). In 2000, a second suit was filed against EPA for approving Alabama’s revised UIC program when it contained
several alleged deficiencies. (Legal Environmental Assistance Foundation, Inc. v. U.S. EPA, 276 F.3d 1253 (11th Cir.
2001)). The U.S. Court of Appeals for the 11th Circuit directed EPA to require Alabama to regulate hydraulic fracturing
under SDWA. The court determined that EPA could regulate hydraulic fracturing under SDWA’s more flexible state
oil and gas provisions in Section 1425, rather than the more stringent underground injection control requirements of
Section 1422.
51
Environmental Protection Agency, Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic
Fracturing of Coalbed Methane Reservoirs, Washington, DC, June 2004, pp. 4-1.
52
Ibid. p. 4-12.
53
The Energy Policy Act of 2005 (P.L. 109-58), Section 322, amended SDWA § 1421(d)(2) [42 U.S.C. § 300h(d)(2)].
Also pursuant to the Energy Policy Act of 2005 (Section 1811), the National Research Council (NRC) of the National
Academy of Sciences conducted a study titled “Management and Effects of Coalbed Methane Development and
Produced Water in the Western United States.” The study, issued in August 2010, includes an evaluation of federal and
six states’ regulations addressing the management and effects of CBM produced water on groundwater and surface
water resources.
50
Congressional Research Service
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
removed EPA’s arguably latent authority under SDWA to regulate the underground injection of
fluids for hydraulic fracturing purposes.
Since these developments, the use of hydraulic fracturing has increased markedly. So has concern
over the potential impact on groundwater resources, and very few studies have been done to
evaluate these concerns. Concerns initially involved the use of fracturing to develop coalbed
methane; however, hydraulic fracturing is also essential to the development of gas from various
unconventional shale formations in several southern and densely populated eastern states,
creating new concerns about possible gas development threats to underground sources of drinking
water, as well as to surface water quality and supply. These formations include the Marcellus
shale, which underlies large parts of New York, Pennsylvania, and West Virginia. The U.S.
Geological Survey recently noted that, while the extraction technology for this gas resource has
advanced in recent years, “the knowledge of how this extraction might affect water resources has
not kept pace.”54
The gas industry, and many states, argue that state regulations are adequate and more appropriate
than federal regulation. The industry notes that roughly a million fracturing jobs have been
conducted with few problems, and cautions that additional federal regulation is unnecessary and
would likely slow domestic gas development, increase energy prices, and reduce energy
independence. However, landowners have reported various incidents of well water contamination,
and various environmental and citizen groups are calling for federal regulation and/or further
study of this activity. The Ground Water Protection Council (GWPC), representing state
groundwater protection agencies and underground injection control program administrators,
argues for keeping regulatory authority with the states, and notes that states generally have
effective programs in place to protect water resources during oil and gas development. However,
the GWPC also notes that such environmental regulations are uneven among the states and offers
recommendations for strengthening state programs.55
Legislation in the 111th Congress
In the 111th Congress, several bills proposed to address the treatment of hydraulic fracturing under
SDWA. H.R. 2300, the American Energy Innovation Act, expressed the sense of Congress that
SDWA was never intended to regulate natural gas and oil well construction and stimulation, and
that the 2005 SDWA amendment clarifying that SDWA was not intended to regulate the use of
hydraulic fracturing should be maintained. Companion bills H.R. 2766/S. 1215, entitled the
Fracturing Responsibility and Awareness of Chemicals (FRAC) Act, would have amended the
SDWA definition of “underground injection” to explicitly include the underground injection of
fluids or propping agents used for hydraulic fracturing operations related to oil and gas
production activities. The two bills also would have required public disclosure of the chemical
constituents (but not the proprietary chemical formulas) used in the fracturing process. Disclosure
of a propriety formula to the state, EPA Administrator, or treating physician or nurse would have
been required in the case of a medical emergency. Similarly, the American Power Act, as drafted
by Senators Kerry and Lieberman, would have amended section 324 of the Emergency Planning
54
Daniel J. Soeder and William M. Kappel, Water Resources and Natural Gas Production from the Marcellus Shale,
U.S. Geological Survey, U.S. Department of the Interior, Fact Sheet 2009-3032, May 2009, http://pubs.usgs.gov/fs/
2009/3032/pdf/FS2009-3032.pdf.
55
Ground Water Protection Council, U.S. Department of Energy, Office of Fossil Energy, National Energy Technology
Laboratory, State Oil and Natural Gas Regulations Designed to Protect Water Resources, May 2009, p. 24.
Congressional Research Service
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
and Community Right to Know Act of 1986 (42 U.S.C. 11044) to require a hydraulic fracturing
service company to disclose on the Internet all chemical constituents used in a hydraulic
fracturing operation. None of the bills was enacted.
The House Appropriations Committee report accompanying the Department of the Interior,
Environment, and Related Agencies Appropriation Bill, FY2010 (P.L. 111-88, H.Rept. 111-180),
called on EPA to review the risks that hydraulic fracturing poses to drinking water supplies, using
the best available science, as well as independent sources of information. Conferees agreed to the
provision, and EPA’s Office of Research and Development has begun work on this study, and
expects to complete the study in late 2012.
Additionally in the 111th Congress, the House Energy and Commerce Committee sent letters to
eight hydraulic fracturing service companies asking for detailed information about the chemicals
they use in the fracturing process. Given the importance of natural gas in domestic energy
supplies and the long-standing role of the states in regulating the oil and gas industry, views have
mixed on whether to mandate EPA to regulate hydraulic fracturing under SDWA. Many would
like to wait for the results of the NRC and EPA studies before deciding on the need for federal
legislation, while others have advocated the passage of the FRAC Act or chemical disclosure
requirements. Still others have argued that states remain best positioned to oversee hydraulic
fracturing as part of their long-standing oil and gas regulatory programs, and point to recent and
pending regulatory developments in various states, such as Colorado, New York, Pennsylvania,
and Wyoming. Various contamination incidents attributed to fracturing may have added urgency
to state initiatives to review, and revise as appropriate, oil and gas regulations intended to protect
water resources. 56
Congressional Hearings, Reports, and Documents
U.S. Congress. Senate. Committee on Environment and Public Works. Water Infrastructure
Financing Act of 2009. Report to accompany S. 1005. 111th Cong., 1st sess. July 15, 2009.
59 p. (S.Rept. 111-47).
U.S. Congress. House. Committee on Government Reform. Subcommittee on Energy Policy,
Natural Resources and Regulatory Affairs. EPA Water Enforcement: Are We on the Right
Track? Hearing, October 14, 2003, 108th Cong., 1st sess. 201p. (Serial No. 108-157).
U.S. Congress. House. Committee on Transportation and Infrastructure. Subcommittee on Water
Resources and Environment. Aging Water Supply Infrastructure. Hearing, April 28, 2004,
108th Cong., 2nd sess. 78 p. (Serial No. 108-63).
56
For more information, see CRS Report R40894, Unconventional Gas Shales: Development, Technology, and Policy
Issues, coordinated by (name redacted).
Congressional Research Service
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Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues
Additional Reading
U.S. Environmental Protection Agency. Providing Safe Drinking Water in America: 2006
National Public Water Systems Compliance Report. Office of Enforcement and Compliance
Assurance. Report No. EPA-K-09-002. March 2009. 18 p. plus appendixes.
http://www.epa.gov/compliance/resources/reports/accomplishments/sdwa/sdwacom2006.pdf.
U.S. Environmental Protection Agency. Drinking Water State Revolving Fund Program:
Increasing Impact, 2006 Annual Report. Office of Water. Report No. EPA 816-R-07-002,
June 2007. 44 p. http://www.epa.gov/safewater/dwsrf/index.html.
U.S. Environmental Protection Agency. The Clean Water and Drinking Water Infrastructure Gap
Analysis Report. Office of Water. Report No. EPA 816-R-02-020. September 2002. 50 p.
National Research Council. Health Implications of Perchlorate Ingestion. Board on
Environmental Studies and Toxicology. National Academies Press. January 2005. 177 p.
Author Contact Information
(name redacted)
Specialist in Environmental Policy
[redacted]@crs.loc.gov, 7-....
Congressional Research Service
26
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