Safe Drinking Water Act:
Selected Regulatory and Legislative Issues
Mary Tiemann
Specialist in Environmental Policy
September 2, 2009
Congressional Research Service
7-5700
www.crs.gov
RL34201
CRS Report for Congress
P
repared for Members and Committees of Congress
Safe Drinking Water Act: 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 issues, 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 trichloroethylene (TCE)) and EPA’s pace in reviewing and
potentially revising older standards. Congress last reauthorized SDWA in 1996. Although funding
authority for most SDWA programs expired in FY2003, Congress continues to appropriate funds
annually for these programs. No broad reauthorization bills have been proposed, as EPA, states,
and water systems continue efforts to implement and comply with the requirements of the 1996
amendments and related programs and regulations. A long-standing and 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, such as those for arsenic, radium, and disinfection by-products, 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
improvement in general.
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 also to provide grants and other compliance assistance to small communities. In the 111th
Congress, this issue found early focus in the economic stimulus debate, and the American
Recovery and Reinvestment Act of 2009 (P.L. 111-5) included $2 billion for the DWSRF
program. The Omnibus Appropriations Act, 2009, provided an additional $823 million for this
program. In July, the Senate Environment and Public Works Committee reported S. 1005, a
drinking water and wastewater infrastructure financing bill; while a bill to establish a water
infrastructure trust fund, H.R. 3202, was introduced in the House.
A newer SDWA issue concerns proposals and research regarding the underground injection of
carbon dioxide (CO2) for long-term storage as a means of reducing greenhouse gas emissions.
EPA has proposed regulations under SDWA to provide a national permitting framework for
managing the underground injection of CO2 for commercial-scale sequestration projects. The
Energy Independence and Security Act of 2007 (P.L. 110-140) included carbon sequestration
research and development provisions, and specified that geologic sequestration activities shall be
subject to SDWA provisions related to protecting underground drinking water sources. In August
2009, EPA published a notice of data availability and requested additional comment. Another
underground injection issue concerns the use of hydraulic fracturing to produce natural gas from
unconventional geologic formations. Bills have been introduced to have this practice regulated
under the SDWA underground injection control program.
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Safe Drinking Water Act: Selected Regulatory and Legislative Issues
Contents
Introduction ................................................................................................................................ 1
Last Major Reauthorization and Amendments ....................................................................... 2
Regulated Public Water Systems ........................................................................................... 3
Safe Drinking Water Act Issues ................................................................................................... 3
Regulating Drinking Water Contaminants.............................................................................. 4
Contaminant Candidate List ............................................................................................ 4
Regulatory Determinations.............................................................................................. 4
Unregulated Contaminant Monitoring ............................................................................. 5
Standard-Setting.............................................................................................................. 6
Recent and Pending Rules ............................................................................................... 7
Pharmaceuticals in Drinking Water........................................................................................ 9
Drinking Water Infrastructure Needs and Funding ............................................................... 11
Small Systems Issues .......................................................................................................... 14
Exemptions ................................................................................................................... 14
Small System Variances and Affordability ..................................................................... 15
Affordability Criteria Review........................................................................................ 15
Small System Legislation.............................................................................................. 16
Underground Injection Control Program.............................................................................. 17
Carbon Sequestration and Storage ................................................................................. 18
Hydraulic Fracturing ..................................................................................................... 20
Congressional Hearings and Reports, and Documents ............................................................... 22
Additional Reading ................................................................................................................... 22
Tables
Table 1. Size Categories of Community Water Systems ............................................................... 3
Table 2. Recent and Pending Regulatory Actions......................................................................... 8
Table 3. Drinking Water State Revolving Fund Program Funding, FY1997-FY2009 .................. 12
Contacts
Author Contact Information ...................................................................................................... 23
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Safe Drinking Water Act: 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 the drinking water program 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 fluids to
protect underground sources of drinking water. 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 authority is shared 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. In 2005,
EPA reported that the number of public water systems reporting no violations of the health-based
standards had reached 94%; however, EPA estimated that only 65% of violations of health-based
standards and 23% of violations of monitoring and reporting requirements had been reported to
the EPA database,3 thus increasing uncertainty as to the quality of water provided by many
systems. EPA and the states have resolved various data quality and reporting problems, and efforts
continue to address this issue. In 2008, EPA reported that 91.5% of the total population served by
community water systems received drinking water that met all health-based standards during
2007, compared to 89.4% during FY2006.4 EPA and state enforcement 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
1 Title XIV of the Public Health Service Act, as added by P.L. 93-523 and subsequently amended (42 U.S.C. 300f-
300j-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: 2003 National Public Water
Systems Compliance Report. Office of Enforcement and Compliance Assurance. Report No. EPA 305-R-05-002.
September 2005. 19 p. plus appendices.
4 U.S. Environmental Protection Agency, FY2009 Annual Performance Plan and Congressional Justification, Program
Performance and Assessment, p. 795.
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reporting violations create uncertainty as to whether systems actually met the applicable health-
based standards.
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., trichloroethylene (TCE)) or to
address implementation and compliance problems (e.g., the Lead and Copper Rule).5 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 (including Cryptosporidium, disinfection
byproducts, arsenic, and radon).
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 the EPA to conduct research on preventing and responding to terrorist or other attacks.6
5 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)
6 For more information, see CRS Report RL31294, Safeguarding the Nation’s Drinking Water: EPA and
Congressional Actions, by Mary Tiemann.
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Safe Drinking Water Act: Selected Regulatory and Legislative Issues
Regulated Public Water Systems
Federal drinking water regulations apply to some154,879 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, 51,988 are community water systems (CWSs) that serve most people in the United
States—a total residential population of roughly 292 million year-round. All SDWA regulations
apply to these systems. Another 18,742 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, 84,149 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% (15,954) of non-transient,
non-community water systems and 97% (81,324) 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
System size
Number of
Population
Percentage of
Percentage of
(population served)
community
served
community
population
water systems
(millions)
water systems
served
Very smal (25-500)
29,1606
4.86
56%
2%
Smal (501-3,300)
13,585
19.87
27%
7%
Medium (3,301-10,000)
4,838
28.13
9%
10%
Large (10,001-100,000)
3,728
106.31
7%
36%
Very large (>100,000)
404
133.13
1%
46%
Total
51,988 282.3 100% 100%
Source: Adapted from US Environmental Protection Agency, Factoids: Drinking Water and Ground Water Statistics
for 2008, EPA 816-K-08-004, November 2008.
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
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carbon dioxide deep underground to mitigate greenhouse gas emissions, as well as the increased
reliance on hydraulic fracturing to develop domestic gas resources, and the potential impacts
these activities might have on underground sources of drinking water. Congress last reauthorized
appropriations for most SDWA programs in the 1996 amendments, through FY2003. As with
other EPA-administered statutes having expired funding authority, Congress has continued to
appropriate funds annually for SDWA programs.
In the 111th Congress, two bills have been enacted that involve the Safe Drinking Water Act. 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,
and the Omnibus Appropriations Act, 2009, (P.L. 111-8) included $829 million for this water
infrastructure funding program. 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.
In July, the Senate Environment and Public Works Committee reported the Water Infrastructure
Financing Act (S. 1005, S.Rept. 111-47), which would authorize a grant program and increase
funding authority for the drinking water and clean water state revolving fund programs. Other
introduced bills include S. 1035, to help water utilities develop and implement climate change
adaptation policies.
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 contains 93 chemicals or chemical groups and 11 microbiological contaminants (73 Fed. Reg.
9627).7 The 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 has been reviewing the
effectiveness of its screening process, as recommended by the National Academy of Sciences.
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.
7 The Environmental Protection Agency’s Contaminant Candidate List 3 and related documents are available at:
http://www.epa.gov/safewater/ccl/ccl3.html.
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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.
Regarding perchlorate, EPA, in early January 2009, stated its intent to request the National
Academy of Sciences to review anew the available scientific data prior to EPA making a final
regulatory determination. In August 2009, the Obama Administration announced its decision not
to ask the NRC to conduct further review of issues related to perchlorate, having concluded that
additional NRC review would unnecessarily delay the regulatory decisionmaking process.
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, introduced in July 2009, would require EPA to promulgate a
drinking water standard for perchlorate.9
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.
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 Mary Tiemann.
10 January 4, 2007 (72 Fed. Reg. 367-398).
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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))
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
11 U. S. Senate. Safe Drinking Water Amendments Act of 1995, Report of the Committee on Environment and Public
(continued...)
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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.
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 September 2007, EPA completed targeted 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
currently considering making more comprehensive revisions to the LCR and/or issuing additional
guidance for public water systems. In the 111th Congress, S. 1005, the Water Infrastructure
Financing Act, reported by the Senate Committee on Environment and Public Works, would
establish a national grant program to reduce lead in drinking water.
Among ongoing rulemakings, EPA has been working to finalize a radon rule (proposed in 1999),
and has been evaluating numerous contaminants, including perchlorate and MTBE, for possible
regulation. As noted, EPA published a Supplemental Request for Comments 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
(...continued)
Works on S. 1316. S.Rept. 104-169. p. 14. November 7, 1995.
12 SDWA §1412(b)(6); 42 U.S.C. 300g-1.
13 The 2007 revised Lead and Copper Rule and more information on lead in drinking water are available at
http://www.epa.gov/safewater/lcrmr/index.html.
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for infants and young children, in addition to pregnant women and fetuses. Table 2 reviews the
status of several recently completed or proposed drinking water regulations and guidelines.
Table 2. Recent and Pending Regulatory Actions
Regulatory
Date
Action
Published
Purpose
Revisions to Lead
10/10/2007
EPA promulgated targeted changes to the LCR to improve implementation in
and Copper Rule
(72 Fed. Reg.
the areas of monitoring, treatment, customer awareness, and lead service line
(LCR)
57781)
replacement, to better control exposures to lead in drinking water. The
Final
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
1/4/2007
SDWA requires EPA to publish every five years a list of unregulated
Contaminant
(72 Fed. Reg.
contaminants to be monitored. This second UCMR requires monitoring of 25
Monitoring Rule
367)
chemicals during 2008-2010. These data provide the main occurrence and
(UCMR 2)
Final
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
11/8/2006
The 1996 amendments directed EPA to require disinfection for al public water
Rule (GWR)
(71 Fed. Reg.
systems, including al surface water systems and, as necessary, ground water
65574)
systems to provide greater protection against microbial pathogens.
Final
Proposed Revision
3/2/2006
EPA proposed options for revising its criteria for determining whether a
of National
(71 Fed. Reg.
technology needed to comply with a standard is affordable for small systems and
Affordability
65573)
for revising its methodology for determining if an affordable variance technology
Methodology and
protects public health. As provided for in the 1996 amendments, states may
Methodology to
grant variances to small systems for standards that EPA determines are
Identify Variance
unaffordable. Under the current criteria, no small system variances are available.
Technologies
Long-Term 2
1/5/2006
Supplements existing rules by increasing Cryptosporidium treatment requirements
Enhanced Surface
(71 Fed. Reg.
for higher risk systems. Contains provisions to reduce risks from uncovered
Water Treatment
653)
finished water reservoirs and to ensure that systems maintain microbial
Rule (LT2 Rule)
Final
protection when they act to decrease the formation of disinfection byproducts
(DBPs).
Stage 2
1/4/2006
Builds on existing rules to strengthen requirements for higher risk systems to
Disinfectants and
(71 Fed. Reg.
reduce potential health risks from DBPs in drinking water, which form when
Disinfection By-
387)
disinfectants are used to control microbial pathogens. Tightens monitoring
Products Rule
Final
requirements for 2 groups of DBPs, trihalomethanes (TTHM) and haloacetic
(DBPR)
acids (HAA5). (This rule was issued with the LT2 Rule to address concerns
about risk tradeoffs between pathogens and disinfection byproducts.)
Proposed Radon
11/2/1999
As provided for in P.L. 104-182, EPA proposed a multimedia approach to
Rule
(64 Fed. Reg.
reducing radon risks in indoor air (the biggest exposure source) while protecting
59245)
public health from radon in drinking water.a EPA proposed an alternative
standard (AMCL) and requirements for multimedia mitigation (MMM) programs
to address radon in indoor air. Under this approach, a community water system
(CWS) could comply with the AMCL if the state develops an MMM program or
the CWS develops a state-approved MMM program. EPA also proposed a
stricter radon MCL to apply in states that do not implement MMM programs.
a. Most of the risk from exposure to radon in drinking water comes from breathing radon released from
water (e.g., during showering or cooking) and not from ingesting the water. EPA estimates that 1-2% of the
radon in indoor air comes from drinking water. Most of the radon present in indoor air seeps into homes
and other buildings from underlying soil.
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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 over-
the-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.14
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.15
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.
Ecological research has received particular attention because exposure risks for aquatic life have
been considered to be much greater than those for humans.16 Nonetheless, a key research issue
concerns the possible health risks from exposure to very low doses of the myriad chemicals found
14 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 Linda-Jo Schierow and Eugene H. Buck.
15 See for example, U.S. Geological Survey, Pharmaceuticals, Hormones, and Other Organic Wastewater
Contaminants in U.S. Streams, USGS FS-027-02, June 2002.
16 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.
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in PPCPs. Because PPCPs occur in the environment at low concentrations, their effects may be
subtle. Among other research gaps, EPA has identified a need to develop tests that can detect
more subtle health effects.
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.17 Other research projects address
the development of analytical methods to determine the source and fate of PPCPs in the
environment.
As noted above, EPA proposed its third list of unregulated contaminants being considered for
regulation in February 2008. This Contaminant Candidate List 3 (CCL 3) contains 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 requires revision.18
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.19
In this Congress, several bills address this issue, including two that have passed the House: H.R.
1145 (H.Rept. 111-76) would call for research on prevention and removal of contaminants of
emerging concern, including PPCPs, in water resources; and H.R. 1262 (H.Rept. 111-26) would
direct 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 (H.R. 2996, H.Rept.
111-180) encourages EPA to develop a plan to synthesize available research on contaminants of
emerging concern and to apply a systematic approach to addressing the problem of such
contaminants in water supplies. The House report further directs EPA to publish a list of at least
100 chemicals for screening in the Endocrine Disruptor Screening Program that includes drinking
17 For further information on PPCPs and related EPA activities, see http://epa.gov/ppcp.
18 Information of the CCL3 is available at, http://www.epa.gov/OGWDW/ccl/ccl3.html.
19 Association of Metropolitan Water Agencies, AMWA Discusses Pharmaceuticals in Water Supplies, March 11, 2008,
http://www.amwa.net.
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water contaminants such as PPCPs. H.R. 276 was introduced in January 2009 to require the EPA
Administrator to convene a task force to develop recommendations for the proper disposal of
unused pharmaceuticals to protect water sources.
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 infrastructure
are eligible if they are needed to maintain compliance or to further public health protection
goals.20
The SDWA authorized appropriations for the DWSRF program totaling $9.6 billion, including $1
billion for each of FY1995 through FY2003. Since FY1997, Congress has appropriated more than
$11.1 billion for this program, including $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. The President has requested $1.5 billion for FY2010. (Table
3 lists funding levels for the DWSRF program since its inception.)
Through June 2008, the EPA had awarded $8.97 billion in capitalization grants, which, when
combined with the 20% state match, bond proceeds, loan principal repayments, and other funds,
amounted to $16.2 billion in DWSRF funds available for loans and other assistance. Through
June 2008, 6,177 projects had received assistance, 4,082 of which had been completed. Total
assistance provided by the program reached $14.6 billion.21
20 See also CRS Report RS22037, Drinking Water State Revolving Fund (DWSRF): Program Overview and Issues, by
Mary Tiemann. For information on other assistance programs, see CRS Report RL30478, Federally Supported Water
Supply and Wastewater Treatment Programs.
21 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.
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Table 3. Drinking Water State Revolving Fund Program Funding, FY1997-FY2009
(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
2,000.0a
2010 (req.)
—
$1,500.0
Sources: Prepared by CRS using information from the fol owing sources: FY1997-FY2000 and FY2002 enacted
amounts are from the enacted appropriations bills for those fiscal years. FY2001enacted 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 an d FY2008 enacted
amounts, and FY2009 President’s request, are as reported to CRS by the House Appropriations Committee. Al
enacted amounts reflect rescissions.
a. ARRA.
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.22
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
22 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.
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2000 through 2019.23 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, and the Omnibus Appropriations Act, 2009, provided an additional
$823 million for this program. Beyond stimulus and appropriations actions, drinking water and
other water infrastructure issues continue to receive attention in this Congress. In July, 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 is similar to the committee bill from the 110th Congress. It would authorize more funding
for drinking water and wastewater SRF programs (authorizing $15 billion over five years for the
DWSRF), and create a grant program at EPA for small or economically disadvantaged
communities for critical drinking water and water quality projects. S. 1005 includes 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. In the House, the Water Protection and Reinvestment Act (H.R. 3202) has
been introduced to establish a dedicated water infrastructure trust fund. The trust fund would be
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 amend 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 include providing alternative financing for water infrastructure investments and
promoting the federal partnership with state and local governments.24
The 110th Congress considered various bills to address water infrastructure funding needs and
related issues. Late in the second session, the House passed an emergency supplemental
appropriations bill, H.R. 7110 (the Job Creation and Unemployment Relief Act of 2008). This bill
proposed to provide $1 billion for the DWSRF program, and another $6.5 billion for the Clean
Water SRF program. Additionally, the Senate Environment and Public Works Committee reported
23 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.
24 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 Claudia Copeland.
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several bills that would have authorized funding for drinking water infrastructure: S. 3617
(S.Rept. 110-509), the Water Infrastructure Financing Act; S. 1933 (S.Rept. 110-475), which
would have created a grant program for small drinking water systems; and S. 199 (S.Rept. 110-
476), which proposed to increase the authorization of appropriations for water and wastewater
grants for Alaska’s rural and Native villages. None of the bills was enacted.
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 full-
cost 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.25
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 84% (44,000) of the
nation’s 52,800 community water systems are small, serving 3,300 persons or fewer, and 57%
(30,000) 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 standard-
setting (§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
25 For further discussion of infrastructure issues, see CRS Report RL31116, Water Infrastructure Needs and
Investment: Review and Analysis of Key Issues, by Claudia Copeland and Mary Tiemann.
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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, 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
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).
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After considering recommendations from its affordability work group, the NDWAC 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.”26 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.”27 The SAB also encouraged EPA to develop clear guidelines about when variances should
be granted, and recommended that EPA consider measures other than median income to better
capture impacts on disadvantaged households.
In March 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 proposed
options are well below that level: 0.25%, 0.50%, and 0.75%. EPA also requested comment on
whether or not 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 been evaluating comments on its proposed revisions, and had 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. If
these variances 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.
Small System Legislation
For several Congresses, various bills have been introduced to help small water systems comply
with the arsenic standard and other drinking water regulations. In July, the Senate Environment
and Public Works Committee reported S. 1005 (S.Rept. 111-47), the Water Infrastructure
Financing Act, which would create a grant program at EPA for small or economically
26 U.S. Environmental Protection Agency, Small Drinking Water Systems Variances: Revision of Existing National-
Level Affordability Methodology and Methodology to Identify Variance Technologies that Are Protective of Public
Health, (71 Fed. Reg. 10671), March 2, 2006, p. 10657.
27 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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disadvantaged communities for critical drinking water and water quality projects. H.R. 2206
would amend SDWA to authorize: (1) increased appropriations to EPA for technical assistance to
help small water systems to comply with national primary drinking water regulations; and (2) 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.
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.28 SDWA §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.29 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.30
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.31
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.32 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.33
28 Underground injection control provisions are contained in SDWA §1421 - §1426; 42 U.S.C. 300h - 300h-5.
29 § 1421(d)(2) states that
underground injection endangers drinking water sources if such injection may result in the presence
in underground water which supplies or can reasonably be expected to supply any public water
system of any contaminant, and if the presence of such contaminant may result in such system’s not
complying with any national primary drinking water regulation or may otherwise adversely affect
the health of persons.
30 P.L. 93-523, SDWA §1421 (42 U.S.C. 300h).
31 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).
32 SDWA §1421(d) specifies that “underground injection” does not include the underground injection of natural gas for
storage purposes. In legislative history, Congress explained that the natural gas exclusion applies only to “natural gas as
it is commonly defined” and “not to other injections of matter in a gaseous state.” U.S. House of Representatives,
H.Rept. 96-1348, 1980, USCCAN, p. 6080.
33 P.L. 109-58, H.R. 6, Section 322, amended SDWA section 1421(d).
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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.
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 believe 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
underground sources of drinking water, what local health and environmental risks could arise
from slow leakage or sudden releases of stored gas, and who would have long-term responsibility
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.34
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.”35 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.36
34 United Nations Intergovernmental Panel on Climate Change, 2005, IPCC Special Report on Carbon Dioxide Capture
and Storage, p. 197.
35 Ibid, p. 198.
36 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
(continued...)
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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
providing certainty to industry and the public about requirements that would apply to this
activity.37 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.
A key issue is 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 August 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 includes, 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.38 The agency expects to
promulgate a final GS rule under SDWA in 2011. In addition to this regulatory effort, EPA is
coordinating with DOE on carbon sequestration research, development, and demonstration
activities.39
Congress has acted on several bills that would 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) included $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 required DOE to conduct at least seven large-volume sequestration tests, in addition
to conducting research that promotes 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.40
(...continued)
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 Larry Parker and Peter
Folger.
37 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 Fed. Reg. 43491-43541,
July 25, 2008.
38 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.
39 More information on EPA’s carbon sequestration activities is available at http://www.epa.gov/safewater/uic/
wells_sequestration.html.
40 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 Peter Folger.
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H.R. 2454, the American Clean Energy and Security Act of 2009, would amend 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 bill also
would amend the Clean Air Act and establish a coordinated certification and permitting process
for geologic sequestration sites. Within two years of enactment, the Administrator would be
required to promulgate 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. The legislation also would require
EPA to submit a report to Congress, within one year of enactment, detailing a national strategy for
addressing the key legal and regulatory barriers to deployment of commercial scale carbon
capture and sequestration. The bill requires two other reports from studies examining: (1) how the
environmental statutes that EPA administers would apply to CO2 injection and geologic
sequestration activities, due within 12 months of enactment; and (2) the legal framework for
geologic sequestration sites, including existing federal and state environmental statutes and state
common law, due within 18 months of enactment.
Hydraulic Fracturing
A second UIC issue concerns the rapidly growing use of hydraulic fracturing to develop land-
based 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 from unconventional formations, which represent an increasingly important source of
domestically produced gas.
A single well may be fractured several times, using up to 3 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 fracturing. However,
identifying the cause of contamination can be difficult for various reasons, including the
complexity of hydrogeologic evaluations, as well as the confidential business information status
given to fracturing fluids in many states.
The SDWA requires controls on the underground injection of fluids to protect underground
sources of drinking water. Notwithstanding that 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.”41 Consequently, EPA has not regulated gas production
wells, and had not considered hydraulic fracturing to fall within the regulatory definition of
underground injection. Then, in 1997, the U.S. Court of Appeals for the 11th Circuit ruled that the
41 SDWA Section 1421(b)(2)(B).
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hydraulic fracturing of coal beds for methane production constituted underground injection and
must be regulated. (This decision applied only to Alabama (LEAF v. EPA, 118 F. 3d 1467).)42
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. 43 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.44 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 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.45 This language removed EPA’s authority under SDWA to
regulate the underground injection of fluids for hydraulic fracturing purposes.
Since these developments, the use of hydraulic fracturing has increased. So has concern over the
potential impact on water resources, particularly in the water-scarce West, and very few studies
have been done to evaluate these impacts. Moreover, hydraulic fracturing is becoming important
in the development of gas from shale formations in the 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.”46 The gas industry believes that state regulations are adequate, and notes that thousands of
fracturing jobs have been conducted with few problems. The industry cautions that additional
federal regulation is unnecessary and would likely slow domestic gas development and increase
energy prices. However, information on reported contamination incidents is largely anecdotal,
and some are calling for federal regulation or further study of this activity. Currently the National
42 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.
43 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.
44 Ibid. p. 4-12.
45 The Energy Policy Act of 2005 (P.L. 109-58, Section 322).
46 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.
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Academy of Sciences is conducting a study titled “Management and Effects of Coalbed Methane
Development and Produced Water in the Western United States.” The project is expected to be
completed in mid-2010.
In the 111th Congress, several pending bills address the treatment of hydraulic fracturing under
SDWA. H.R. 2300, the American Energy Innovation Act, would express 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 Act, would amend the SDWA definition of
“underground injection” to 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 require 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 be required in the case of a medical
emergency. The House Appropriations Committee report accompanying the Department of the
Interior, Environment, and Related Agencies Appropriation Bill, FY2010 (H.R. 2996, H.Rept.
111-180), urges 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.
Congressional Hearings and Reports, and
Documents
U.S. Congress. Senate. Committee on Environment and Public Works. Water Infrastructure
Financing Act. Report to accompany S. 1400. 109th Cong., 1st sess. December 8, 2005. 52 p.
(S.Rept. 109-186).
U.S. Congress. House. Committee on Government Reform. Public Confidence, Down the Drain:
the Federal Role in Ensuring Safe Drinking Water in the District of Columbia. Hearing,
March 5, 2004, 108th Cong., 2nd sess. 268 p. (H.Rept. 108-161).
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. (H.Rept. 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. (H.Rept. 108-63).
Additional Reading
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. Providing Safe Drinking Water in America: 2003
National Public Water Systems Compliance Report. Office of Enforcement and Compliance
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Assurance. Report No. EPA 305-R-05-002. September 2005. 19 p. plus appendices.
http://www.epa.gov/compliance/resources/reports/accomplishments/sdwa/sdwacom2003.pdf
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
Mary Tiemann
Specialist in Environmental Policy
mtiemann@crs.loc.gov, 7-5937
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