96-722 ENR
Updated February 8, 1999
CRS Report for Congress
Received through the CRS Web
Safe Drinking Water Act Amendments of 1996:
Overview of P.L. 104-182
Mary Tiemann
Specialist in Environmental Policy
Environment and Natural Resources Policy Division
Summary
The 104 Congress made extensive changes to the Safe Drinking Water Ac
th
t
(SDWA) with the Safe Drinking Water Act Amendments of 1996 (P.L. 104-182),
bringing to a close 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 many changes to the SDWA, the 1996 amendments
added provisions to provide funding to communities for drinking water mandates, focus
regulatory efforts on contaminants posing the greatest health risks, and add some
flexibility to the regulatory process. Congress also added programs to: improve the
capacity of public water systems to comply with drinking water regulations, prevent
contamination of source waters, strengthen the science underlying drinking water
regulations, and increase information provided to public water system customers.
Authorizations for appropriations were extended through FY2003. This report, which
will not be updated, reviews selected provisions of these amendments. (For a broader
review of the SDWA, see CRS Report RL30022,
Environmental Laws: Summaries of
Statutes Administered by the Environmental Protection Agency.)
Overview of Selected Provisions
With the Safe Drinking Water Act Amendments of 1996, Congress acknowledged
federal, state, and local experiences with the drinking water law, responded to emerging
public health information and new scientific and regulatory concepts, and passed the most
extensive drinking water amendments in a decade. Among the key provisions, P.L. 104-
182 creates a new drinking water state revolving loan fund (DWSRF) program to help
communities finance projects needed to comply with SDWA regulations. It establishes
a process for selecting contaminants for regulation based on health risk and occurrence,
gives EPA added flexibility to consider costs and benefits in setting most new standards
and the authority to consider overall risk reduction, and includes schedules for regulating
disinfectants and their by-products, microbial pathogens, radon, and arsenic. The law
includes several provisions to build the capacity of small systems to comply with SDWA
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regulations and allows states to grant these systems greater regulatory flexibility in certain
circumstances. It imposes many new requirements on the states with new programs for
source water assessment and protection, technical assistance, operator training, and small
system capacity building. The amendments also require public water suppliers to issue
annual reports to customers on contaminants found in their drinking water.
State Revolving Loan Funds
Between 1986 and 1996, the number of regulated contaminants grew from 23 to 83.
EPA projected that the cost of complying with the regulations should not be significant
for most households (which are served by large public water systems), but that costs could
increase substantially for many of the households served by the nation's 52,000 small
public water systems (PWSs). Prior to the 1996 Amendments, the SDWA provided no
assistance to help communities meet the cost of complying with these mandates.
Congress responded to this concern by authorizing a drinking water state revolving
loan fund (DWSRF) program to help systems finance projects needed to comply with
SDWA regulations. Fashioned after the Clean Water Act SRF (CWSRF) program,
Section 1452 authorizes EPA to make grants to states to capitalize DWSRFs, which states
then use to make loans to public water systems. States must match 20% of the federal
grant. Through FY2001, a Governor may transfer up to 33% of the grant to the CWSRF,
or an equivalent amount from the CWSRF to the DWSRF. For FY1997, grants were
allotted to states using the formula for distributing state PWS supervision grants; for
subsequent years, grants must be allotted based on the results of a needs survey. Each
state and the District of Columbia will receive at least 1% of the available funds.
DWSRFs may be used to provide loan and grant assistance for expenditures that
EPA has determined will facilitate compliance or significantly further the Act's health
protection objectives. States are required to make available 15% of their annual grant for
loan assistance to systems that serve 10,000 or fewer persons. States may use up to 30%
of their grant to provide grants or forgive loan principal for economically disadvantaged
communities. Also, states may use a portion of funds for technical assistance and for
source water protection, capacity development, and operator certification programs.
The law authorizes appropriations of $599 million for FY1994 and $1 billion per
year for FY1995 through FY2003 for SRF capitalization grants. It directs EPA to reserve
from the annual SRF appropriations: 0.33% for grants to several Trusts and Territories;
$10 million for health effects research on drinking water contaminants; $2 million for the
costs of monitoring for unregulated contaminants; and up to 2% for technical assistance.
EPA may use 1.5% of funds each year for making grants to Indian Tribes and Alaska
Native villages. Congress appropriated $1.275 billion for FY1997, $725 million for
FY1998, and $775 million for FY1999 for this program. (For more information, see CRS
Report 97-677,
Safe Drinking Water Act: State Revolving Fund Program.)
Contaminant Selection and Regulatory Schedule
By the early 1990s, broad consensus had emerged that the Act's standard-setting
schedule was overly ambitious and did not prioritize risks. EPA had missed numerous
statutory deadlines, and many systems had difficulty complying with new rules on time.
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EPA had regulated most of the initial 83 contaminants mandated by Congress in 1986
(excluding arsenic, sulfate and radionuclides) and only had proposed rules for microbial
contaminants (especially
Cryptosporidium) and 12 disinfectants and their byproducts
(M/DBP rules) to meet the first '25 every 3 years' requirement. In general, EPA, states,
and communities were overwhelmed by the statutory schedule, and many questioned the
benefits of some of the regulations, given other contaminants of concern.
P.L. 104-182 made numerous changes to SDWA's standard-setting provisions
(Section 1412). It revoked the mandate that EPA regulate 25 contaminants every 3 years,
and established a process for EPA to select contaminants for regulatory consideration
based on occurrence, health effects, and meaningful opportunity for health risk reduction.
As of February 1998, EPA must publish, every 5 years, a list of contaminants that may
warrant regulation. Starting in 2001, and every 5 years thereafter, EPA must determine
whether or not to regulate at least 5 of the listed contaminants. The law directs EPA to
evaluate contaminants that present the greatest health concern and to regulate
contaminants that occur at concentration levels and frequencies of public concern. It also
adopted in statute EPA's schedule for completing the M/DBP regulations.
Risk Assessment
EPA's risk assessment and cost-benefit analysis practices have been the subject of
much debate in Congress. The law now requires EPA to use sound, peer-reviewed science
in developing regulations and specifies how EPA must present health effects information
to the public. When proposing a drinking water regulation, EPA now must prepare and
seek comment on a health risk reduction and cost analysis. The analysis must include: the
benefits and costs of alternative maximum contaminant levels (MCLs) or treatment
techniques being considered, the incremental costs and benefits associated with each
alternative MCL, the effects of the contaminant on the general population and sensitive
subgroups, any increased health risks associated with compliance, and other factors. EPA
may promulgate an interim standard without first preparing a benefit-cost analysis or
making a determination as to whether the benefits of a regulation would justify the costs
if the Agency determines that a contaminant presents an urgent threat to public health.
The Act authorizes more than $39 million for each of fiscal years 1996 through 2003 for
EPA to conduct studies, assessments and analyses in support of regulations.
Standard-Setting
The Act directs EPA to set a maximum contaminant level goal (MCLG) at a level
at which no known or anticipated adverse health effects occur and allows an adequate
margin of safety. EPA must then set an MCL as close to the MCLG as is "feasible" using
the best technology available, taking costs into consideration. Legislative history has
repeatedly directed EPA, when considering what is "feasible" to consider what is
reasonably affordable for large metropolitan water systems. Because 80% of the
population served by community water systems is served by large systems, this approach
generally ensures that most people can receive high quality water at a reasonable cost.
However, the remaining 20% of the population is served by small systems where
economies of scale are absent, and compliance can impose high costs on households
served by these systems.
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An issue in the SDWA debate was that the law did not give EPA flexibility to select
an MCL that was less stringent than "feasible" but that might provide very similar health
protection at a substantially lower cost. Nor could EPA take into consideration whether
treatment techniques used to control certain contaminants might actually increase the risk
posed by other contaminants. (For example, public water systems use disinfectants, like
chlorine, to kill microbial contaminants that can cause immediate illness; however,
disinfection by-products may increase the long-term risk of cancer.)
To address this issue, P.L. 104-182 amends the Act's standard-setting provisions to
allow EPA to consider overall risk reduction benefits when setting standards. EPA may
set a standard at other than the feasible level if the feasible level would lead to an increase
in health risks by increasing the concentration of other contaminants or by interfering with
the treatment processes used to comply with other SDWA regulations. In such cases, the
standards or treatment techniques must minimize the overall health risk. The authority
to consider overall risk reduction benefits is particularly important to EPA in developing
the M/DPB rules (for
Cryptosporidium and disinfection by-products).
A further change is that EPA, when proposing a regulation, now must publish a
determination as to whether or not the benefits of the standard justify the costs. If EPA
determines that the benefits of a standard do not justify the costs, EPA may promulgate
a standard that maximizes health risk reduction benefits at a cost that is justified by the
benefits. EPA may not use this authority to set less stringent standards if the benefits
experienced by persons served by large systems would justify the cost to these systems,
unless the contaminant is found almost exclusively in small systems. Nor may EPA use
this authority in developing the M/DBP regulations.
Congress also gave systems more time to comply with standards by extending the
effective date for a new regulation from 18 months to 3 years after promulgation. Up to
2 additional years may be allowed if EPA (or a state in the case of an individual system)
determines that the time is needed for capital improvements.
Arsenic, Sulfate and Radon. The 1996 amendments added specific provisions for
arsenic, sulfate and radon rules, all of which were subject to court orders. EPA is now
required to develop regulations for these contaminants using the new standard-setting
procedures established by P.L. 104-182. For arsenic, EPA must adopt a research plan and
issue a revised standard by January 1, 2001. For sulfate, EPA must include sulfate in the
list of contaminants for which EPA must make a regulatory decision by August 6, 2001.
If EPA decides to regulate sulfate, the rule must allow systems to use public education
and bottled water as an alternative to centralized treatment. For radon, EPA has 4 years
to set one standard using the process under this Act and an alternative standard that is no
more stringent than the level equivalent to risks from radon in outdoor air; a state (or
public water system) may adopt the alternative standard if it has an EPA-approved
multimedia radon mitigation program.
Small Systems
Approximately 90% of all community water systems serve fewer than 3,300 persons.
Many of these small systems may have difficulty affording treatment technologies needed
to comply with new SDWA regulations. Another problem facing small systems is that
they often lack the technical, managerial, and financial capacity to comply with
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monitoring and other technical requirements. In addition to the SRF program and new
standard-setting procedures, the 1996 amendments contain several other provisions
intended to assist small systems and to improve their compliance capacity.
Technologies. Congress further revised the Act's standard-setting provisions to
require EPA, when promulgating a regulation, to list any technology that achieves
compliance and is affordable for small systems serving between 10,000 and 3,300
persons, 3,300 and 500 persons, and 500 and 25 persons. By August 6, 1997, EPA was
required to list any technologies that meet the Enhanced Surface Water Treatment Rule
for small systems. (See
Small System Compliance Technology List for the Surface Water
Treatment Rule'' (EPA 815-R-97-002).) By August 6, 1998, EPA was required to list
small system technologies that achieve compliance with existing regulations (see 63
FR
42032). If EPA does not list a small system compliance technology for a contaminant,
the Agency must issue guidance or regulations describing the best treatment technologies
(i.e., variance technologies) that EPA finds are available and affordable for small systems.
Variances. Revised Section 1415 provides for variances from standards or treatment
requirements for small systems. States now may grant a variance to a system serving
3,300 or fewer persons if: the system cannot afford to comply (through treatment, an
alternative source, or restructuring), the system installs a variance technology, and the
terms of the variance ensure protection of human health. States may also grant variances
for systems serving between 3,300 and 10,000 persons with EPA approval. Variances are
not available for regulations concerning microbial contaminants or their indicators.
Other 1996 provisions also aim to increase the compliance capacity of small systems.
Newly added Section 1420 directs states to adopt authority to ensure that as of October
1999, new systems demonstrate technical, managerial, and financial capacity to comply
with SDWA regulations. Beginning in FY2001, EPA must withhold part of a state's SRF
grant unless the state implements a capacity development strategy. Section 1420 also
authorizes EPA to make grants to institutes of higher learning to establish small system
technology assistance centers, and directs EPA to provide initial funding for one or more
university-based environmental finance centers to assist state and local officials with
capacity development. New Section 1419 directs EPA to publish guidelines specifying
minimum standards for certification of system operators. States then have 2 years to
adopt an operator certification program or forfeit 20% of their SRF grant. The law
authorizes $30 million annually for EPA to provide grants to states for reimbursing
training and certification costs of persons operating small systems. New Subsection
1442(e) authorizes $15 million annually for technical assistance to small systems.
Source Water Protection
In another significant change, P.L. 104-182 broadens the pollution prevention focus
of the Act to embrace surface water, as well as ground water, protection. New Section
1453 directed EPA to publish, by August 1997, guidance for states to implement source
water assessment programs. States are required to submit their programs to EPA for
approval by February 1998. State then have 2 years to delineate boundaries of areas that
provide source waters for public water systems and to identify (to the extent practical) the
origins of contaminants in delineated areas to determine systems' susceptibility to
contamination. States with approved assessment programs may adopt modified
monitoring requirements to provide systems with permanent monitoring relief under new
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Section 1418. Public water systems could be eligible for monitoring relief once an
assessment in the delineated area is completed. States may use up to 10% of their
FY1997 SRF capitalization grant for the source water assessment activities.
New Section 1454 authorizes a source water petition program based on voluntary
partnerships between state and local governments. States may establish a program under
which a community water system or local government may submit a petition to the state
requesting assistance in developing a voluntary, local, incentive-based partnership to: 1)
reduce the presence of contaminants in drinking water; 2) receive financial or technical
assistance (from other state and federal programs); and 3) develop a long-term source
water protection strategy. This section authorizes $5 million per year for grants to states
to cover up to 50% of the costs of administering the petition program. States may use up
to 10% of their annual SRF capitalization grant for the petition program, provided that no
more than a total of 15% of the grant is used for source water and ground water protection
programs and the capacity development strategy combined.
Monitoring
Revised Section 1445(a) provides for increased monitoring flexibility at the federal
and state level. It directs EPA to review and, if necessary, revise existing monitoring
requirements for at least 12 contaminants within 2 years. (EPA made no changes.) States
may establish alternative monitoring requirements to provide interim monitoring relief
for systems serving 10,000 or fewer persons for contaminants (excluding microbial
contaminants, disinfection byproducts, or corrosion byproducts), if a contaminant is not
detected in the first quarterly sample. States with approved source water assessment
programs may adopt alternative monitoring requirements to provide permanent
monitoring relief to qualified systems for chemical contaminants. State alternative
monitoring programs must ensure compliance with, and enforcement of, regulations. The
amendments also revise the monitoring program for unregulated contaminants. New
Subsection 1445(g) directs EPA to establish a national drinking water database that
includes information on the occurrence of regulated and unregulated contaminants in
public water systems; these data can be used to inform and support regulatory decisions.
Other Provisions
P.L. 104-182 addresses other drinking water issues that have emerged in recent
years. For example, the law requires states to adopt authority for administrative penalties
for violations of state regulations, and requires systems to notify customers of violations
with potential for serious health effects within 24 hours instead of 2 weeks. It strengthens
requirements for the Food and Drug Administration to issue bottled water standards for
contaminants regulated under SDWA, augments the new estrogenic substances screening
program created under the Food Quality Protection Act (P.L. 104-170) to focus on
substances found in drinking water, sets limits on the amount of lead that may leach from
plumbing fixtures, and clarifies that federally owned systems are subject to federal, state,
and local drinking water requirements. The law also authorizes water and wastewater
grants for
colonias and Alaska rural and native villages, and authorizes the transfer of the
Washington (D.C.) Aqueduct to a regional authority. Finally, the 1996 amendments
authorize a $50 million dollar per-year grant program for additional infrastructure and
source water protection projects.