[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
GETTING THE LEAD OUT: THE ONGOING QUEST FOR SAFE DRINKING WATER IN THE
NATION'S CAPITAL
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MARCH 11, 2005
__________
Serial No. 109-9
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
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20-378 WASHINGTON : 2005
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
GINNY BROWN-WAITE, Florida C.A. DUTCH RUPPERSBERGER, Maryland
JON C. PORTER, Nevada BRIAN HIGGINS, New York
KENNY MARCHANT, Texas ELEANOR HOLMES NORTON, District of
LYNN A. WESTMORELAND, Georgia Columbia
PATRICK T. McHENRY, North Carolina ------
CHARLES W. DENT, Pennsylvania BERNARD SANDERS, Vermont
VIRGINIA FOXX, North Carolina (Independent)
------ ------
Melissa Wojciak, Staff Director
David Marin, Deputy Staff Director/Communications Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
C O N T E N T S
----------
Page
Hearing held on March 11, 2005................................... 1
Statement of:
Estes-Smargiassi, Stephen, director of planning,
Massachusetts Water Resources Authority, representing the
American Water Works Association; Erik D. Olson, senior
attorney, National Resources Defense Council; and James R.
Elder, independent consultant.............................. 59
Elder, James R........................................... 107
Estes-Smargiassi, Stephen................................ 59
Olson, Erik D............................................ 84
Grumbles, Benjamin, Assistant Administrator, EPA Office of
Water; Donald Welsh, Regional Administrator, Environmental
Protection Agency Region III; Thomas Jacobus, general
manager, Washington Aqueduct, U.S. Army Corps of Engineers;
and Jerry Johnson, general manager, District of Columbia
Water and Sewer Authority.................................. 10
Grumbles, Benjamin....................................... 10
Jacobus, Thomas P........................................ 34
Johnson, Jerry........................................... 40
Welsh, Donald............................................ 25
Letters, statements, etc., submitted for the record by:
Davis, Chairman Tom, a Representative in Congress from the
State of Virginia, prepared statement of................... 3
Elder, James R., independent consultant, prepared statement
of......................................................... 109
Estes-Smargiassi, Stephen, director of planning,
Massachusetts Water Resources Authority, representing the
American Water Works Association, prepared statement of.... 62
Grumbles, Benjamin, Assistant Administrator, EPA Office of
Water, prepared statement of............................... 12
Jacobus, Thomas, general manager, Washington Aqueduct, U.S.
Army Corps of Engineers, prepared statement of............. 36
Johnson, Jerry, general manager, District of Columbia Water
and Sewer Authority, prepared statement of................. 42
Norton, Hon. Eleanor Holmes, a Delegate in Congress from the
District of Columbia, prepared statement of................ 8
Olson, Erik D., senior attorney, National Resources Defense
Council, prepared statement of............................. 86
Porter, Hon. Jon C., a Representative in Congress from the
State of Nevada, prepared statement of..................... 123
Welsh, Donald, Regional Administrator, Environmental
Protection Agency Region III, prepared statement of........ 28
GETTING THE LEAD OUT: THE ONGOING QUEST FOR SAFE DRINKING WATER IN THE
NATION'S CAPITAL
----------
FRIDAY, MARCH 11, 2005
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:20 a.m., in
room 2154, Rayburn House Office Building, Hon. Tom Davis
(chairman of the committee) presiding.
Present: Representatives Davis and Norton.
Staff present: David Marin, deputy staff director/
communications director; Keith Ausbrook, chief counsel; Amy
Laudeman, special assistant; John Hunter, counsel; Rob White,
press secretary; Drew Crockett, deputy director of
communications; Teresa Austin, chief clerk; Sarah D'Orsie,
deputy clerk; Corinne Zaccagnini, chief information officer;
Rosalind Parker and Alexandria Teitz, minority counsels; Earley
Green, minority chief clerk; and Jean Gosa, minority assistant
clerk.
Chairman Tom Davis. The committee will come to order. I
apologize, we were a couple minutes late.
If you step outside of this hearing room and you try to get
a drink of water from the drinking fountain, you can't. Every
drinking fountain in the Capitol complex has been shut off. Go
into any bathroom in this building and you will be confronted
with a big red sign that reads, ``Do not drink water from
restrooms.'' Why? Because of the elevated lead levels in the
drinking water supply.
I have here the January, 7, 2005 message from the Architect
of the Capitol that warns of the elevated lead levels which,
without objection, I ask to be inserted in the record.
In the Capital of the most advanced and powerful Nation in
the world, the water supply is not safe for drinking. This
discovery came on the heels of elevated levels of lead found in
the District of Columbia's water supply. What exactly is going
on?
Today marks the third investigative hearing that the
Government Reform Committee has conducted into the causes of
the elevated lead levels in the District of Columbia's water
supply. This is a situation that affects every individual of
the District, including the Congress and the rest of the
Federal Government.
In our hearings on March 5 and May 21, 2004, the committee
assessed the progress being made by EPA, the Washington
Aqueduct, and the WASA, in combating the lead problem in the
District, and the sufficiency of steps being taken to address
the problem; the remediation process, lead replacement and
changes to water treatment. We also explored potential measures
designed to assure that the regulations governing lead content
in the water supply and requirements for coordination among the
responsible governmental agencies were effective in ensuring
the safety of the drinking water in the District of Columbia
and throughout the Nation.
Since those hearings, several developments have occurred
that are central to the critical issues raised by the level of
safety in the District water supply. One is the Administrative
Order for Compliance on Consent and the Supplemental Order
between EPA Region III and WASA, where WASA agreed to comply
with the corrective actions specified by EPA, which extended
beyond the minimum compliance requirements of the Safe Drinking
Water Act and EPA regulations. Actions required by WASA
included development and implementation of, one, accelerated
lead service line replacement; two, a public education plan
with education materials approved by the EPA; three, a plan and
schedule for enhanced monitoring and reporting of lead levels
and data base management; and four, a plan to distribute water
filters to all households that have lead service lines.
Another significant development is EPA's announcement
earlier this week of preliminary results in its nationwide
review of the effectiveness of the lead and copper rule in
monitoring and evaluating the lead levels in the water systems
throughout the country.
Overall, EPA found that lead levels were not elevated
nationwide as they were in the District of Columbia. EPA
determined that the framework for the current rule was
reasonably effective in achieving its purpose. Therefore, EPA
did not recommend any wholesale changes in the lead and copper
rule, but did identify a number of clarifications and
improvements to the rule and accompanying guideline documents
which it believes will facilitate compliance by the water
systems across the country. The specific recommended changes
are included in the EPA's plan of action, which I am sure will
be outlined by EPA in its testimony.
I am generally pleased that EPA has taken these actions.
Based on my initial review of the EPA's findings, I believe
that this is a step in the right direction for assuring that
the lead and copper rule is effective in protecting the
Nation's water supply from excessive lead levels.
I look forward to hearing more about the recommendations
from EPA, the water systems across the country, and other
interested parties. Also, I am encouraged that EPA will
continue to evaluate the situation, and will await its further
recommendations.
We have a distinguished panel of witnesses before us. I
look forward to hearing their testimony on Federal regulations
concerning the monitoring of lead levels in drinking water, the
status of the District of Columbia's drinking water lead
levels, the remediation efforts, and EPA's recently announced
plan for actions that includes changes to the lead and copper
rule.
We will hear from the EPA, the U.S. Army Corps of
Engineers, Washington Aqueduct, the District of Columbia Water
and Sewer Authority, the American Water Works Authority, the
National Resources Defense Council, and an independent
consultant.
[The prepared statement of Chairman Tom Davis follows:]
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Chairman Tom Davis. I now recognize the distinguished
ranking member, Ms. Norton, for her opening statement.
Ms. Norton. Thank you very much, Mr. Chairman.
The sad story of lead in the drinking water supply of the
Nation's Capital ultimately became a case study in the
country's undiscovered drinking water problems. As a result of
the revelations reported here, many water systems throughout
the country were found to have excessive lead levels, with
little oversight or public notification and exposure. The
discovery here did not originate where Congress intended, with
the assigned regulator, the Environmental Protection Agency,
D.C. residents and this committee have reason to be grateful
that we live in a society and in a city where there is a free
and inquiring press, and in this case, a series of Washington
Post articles.
Of course children, under 6, many vulnerable residents and
a woman who had been pregnant who testified at our last hearing
were not alerted in time and live with whatever the
consequences may be.
Hearings by the D.C. City Council and this committee
uncovered what appeared to be at first unseemly collusion among
EPA, the District of Columbia Water and Sewer Authority and the
Washington Aqueduct. How else to explain lead levels sometimes
frighteningly above the 15 parts per billion threshold, fine
print notification not designed to alert residents, and a
change in water chemical purification without a corrosion
control study?
However, I believe it is now clear that the shocking lead
water crisis here was not a case of cynical collusion by the
agencies involved. To recoin a phrase, ``it was the rule,
stupid,'' and of course it was not enforcement of the rule such
as it was. EPA's response with a so-called Drinking Water Lead
Reduction Plan announced on Monday, along with the belated
administrative orders to WASA, seem to bear out this
conclusion. However, since last year EPA, WASA and the
Washington Aqueduct have had an additional incentive to add
provided by the Lead Free Drinking Water Act of 2004 introduced
in the last Congress by ranking member Henry Waxman, Senator
Jim Jeffords and me.
We wrote our bill not because the parties at fault were bad
boys, we wrote our bill because the EPA's rule and regulations
were riddled with major flaws. Because, for example, the rule
that purported to assure safe drinking water all but invited
utilities to cheat in evaluating lead levels, and that is
exactly what WASA deliberately did, allowed some residents
whose tests indicated high lead levels to continue to drink
unsafe water without ever being informed, failed to assure
scientifically valid and enforceable maximum levels of lead and
copper in drinking water, and allowed changes in chemicals for
water purification without testing their safety. The question
before us today is whether these problems have been corrected.
Lead in D.C.'s drinking water was revealed more than a year
ago, yet it took until 4 days ago for EPA to hurriedly issue a
six-page document, not the required change in the rule or
regulations, and only after this hearing was announced.
Unfortunately, looking for the moment at the major problems
that cause the District's crisis, the brief outline that EPA
has provided appears to show that the Agency's initial plan
largely ignores the rule's key flaws, including lack of
enforceability, inadequate notice requirements and insufficient
monitoring requirements.
If EPA believes that what it is proposing today would have
prevented the tragedy that occurred here in the District, the
Agency will need, this morning, to explain how.
As these opening remarks indicate, I have not yet fully
recovered from living in the most visible city on Earth while
my constituents, Federal employees and millions of visitors
unknowingly drank lead contaminated water with the full
knowledge of the three responsible agencies. Public confidence
in the delivery of the most basic of life-sustaining substances
was shattered. The obligation of this committee is to help
rebuild public trust. We can meet this obligation only by
requiring that the appropriate burden of delivery, regulation
and enforcement be placed on the assigned agencies. This
hearing is designed to assure that the three agencies are
meeting the full burden of their responsibilities to the
public. We welcome all of today's witnesses and appreciate
their testimony.
Thank you very much, Mr. Chairman.
Chairman Tom Davis. Thank you, Ms. Norton.
[The prepared statement of Hon. Eleanor Holmes Norton
follows:]
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Chairman Tom Davis. We are going to now recognize our first
panel. We have the Honorable Benjamin Grumbles, the Assistant
Administrator of the EPA Office of Water. We have Donald Welsh,
the Regional Administrator, Environmental Protection Agency
Region III; Thomas Jacobus, general manager Washington Aqueduct
U.S. Army Corps of Engineers, and Jerry Johnson, who is the
general manager of the District of Columbia Water and Sewer
Authority.
You know it is our policy that we swear you in before you
testify, so if you would rise with me and raise your right
hands.
[Witnesses sworn]
Chairman Tom Davis. Thank you very much. Please be seated.
Mr. Grumbles, we will start with you. You are administrator
of this committee; we appreciate your fine work, and thanks for
being with us.
STATEMENTS OF BENJAMIN GRUMBLES, ASSISTANT ADMINISTRATOR, EPA
OFFICE OF WATER; DONALD WELSH, REGIONAL ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY REGION III; THOMAS JACOBUS,
GENERAL MANAGER, WASHINGTON AQUEDUCT, U.S. ARMY CORPS OF
ENGINEERS; AND JERRY JOHNSON, GENERAL MANAGER, DISTRICT OF
COLUMBIA WATER AND SEWER AUTHORITY
STATEMENT OF BENJAMIN H. GRUMBLES
Mr. Grumbles. Thank you, Mr. Chairman and Congresswoman
Norton.
I am Ben Grumbles, Assistant Administrator for the Office
of Water at the EPA, and I am joined by Don Welsh, who is the
Regional Administrator for Region III Mid-Atlantic region.
I want to take a few minutes to describe what has happened
over the last year in terms of our response and our review, and
since the last hearing, and also describe our response.
Congresswoman, I would like to say at the outset that the
response that was described on Monday is something that we have
been working on for quite a long time, it wasn't hastily
prepared; it is something that is also a living document in the
terms of--we want it to be made very clear that it's not the
end of the story, it is the beginning, a chapter where we are
saying yes, regulatory changes are required, they're needed,
and we are going to continue to review some of the other more
comprehensive issues that we don't yet have enough data to make
a regulatory determination on.
So the first thing I would like to do, Mr. Chairman, is
just very briefly describe our response since your hearings,
and since the incident involving the drinking water problems in
the District.
The first thing we did was have a comprehensive data call.
The last time we had the hearing in your committee we had only
25 percent of the utilities in the country that had the data
that had been submitted to the States. Since then, we have made
a major call to get the information in to be able to assess how
the rule has been working, and we have 95 percent of that data
in. We have also conducted audits of the State data
verification plans, and we are currently working on revising
and reviewing those and providing a report on the States.
Congresswoman, we have had site inspections of 484
facilities working with those 10 States; a major amount of work
has gone into it. We have the conclusion that the rule,
basically 96 percent of the utilities across the country that
are subject to the rule, are staying below the 15 part per
billion 90th percentile action level. So 96 percent. But that
doesn't mean we're here to defend the status quo, what it means
is that we're here to change the status quo, and that means
targeted revisions to the rule, coupled with important guidance
and other measures.
On Monday, we described the initial list of items,
regulatory changes that we plan to propose. I would describe
these as becoming part of a significant upgrade--not a major
overhaul of the rule because we think that the fundamental
framework of it works, but we do recognize there is some areas
that need to be improved, and that's what the focus is of the
regulatory changes. And the major themes of these changes, of
the ones we are identifying right now, saying we are moving
forward with and plan to propose in regulation by the end of
the year or shortly thereafter, focus on improved monitoring,
awareness, proactive management, and schools. And on the
monitoring your committee has made very clear, and we agree,
that there are some areas that need to be tightened in terms of
the time, place and manner of how samples are collected and how
the 90th percentile is calculated.
The awareness issue is a focal point for us, and we are
proposing to change the rules to require--we recognize that
homeowners and parents and teachers at public water systems
have a right to know about the results when their tap water is
tested. So we plan to require, in regulation, that customers be
notified of the results.
We also are planning to revise the public education
language. Learning from the District, we believe that it's
important to get the wording right to convey the proper degree
of awareness and motivation to help reduce risk.
Mr. Chairman, we also have some specific elements related
to lead service lines and to simultaneous compliance, focusing
on the areas that you raised in your letters to us.
The last thing I want to mention is the importance of
schools. Schools should be safe havens for learning, and it is
incumbent upon all of us to put more attention and focus on
drinking water in schools. So we are planning to have a
significant revision to the 1994 guidance, focusing on testing
and telling and training to improve the protection and
awareness for lead in drinking water in schools.
Mr. Chairman, I appreciate your patience, and the
Congresswoman; I would be happy to respond to any questions you
have.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Grumbles follows:]
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Chairman Tom Davis. Mr. Welsh.
STATEMENT OF DONALD WELSH
Mr. Welsh. Good morning, Mr. Chairman, and Congresswoman
Norton. Thank you for the opportunity to provide an update on
activities to resolve the problem of lead in drinking water in
the District of Columbia.
EPA has maintained a priority focus on working with local
officials and corrosion experts to reduce lead levels in the
tap water. We have approved water treatment changes and are
closely monitoring sampling results. We have issued
administrative orders under the Safe Drinking Water Act to help
ensure that people are protected and informed, and we have
revised procedures and taken additional steps to achieve more
effective oversight. We are committed to working with the city
and other partners to meet the challenges involved in
safeguarding residents and restoring full confidence in the
drinking water in the Nation's Capital.
Since my last appearance before this committee, EPA Region
III approved the application of orthophosphate to the drinking
water supplied to the District of Columbia. Orthophosphate was
recommended by the Technical Expert Working Group convened by
EPA, and is used by many water systems nationwide to control
corrosion.
Orthophosphate was added to the water in a small section of
Northwest Washington, DC, in June 2004, and after evaluation
and EPA approval, has been applied since August 23rd to the
entire D.C. distribution system.
On January 10, 2005 the D.C. Water and Sewer Authority
submitted to EPA its tap water sampling results for the second
half of 2004. Those results indicated a 90th percentile lead
level of 54 parts per billion. The data showed that 31 percent
of the homes tested had lead levels above the EPA action level
of 15 parts per billion. EPA's lead and copper rule requires
that this percentage be reduced to 10 percent or below.
Residents have been advised to continue to follow the advisory
for flushing and filtering water before use for drinking or
cooking.
Sampling results provided by WASA also show that lead
levels toward the latter half of the 6-month monitoring period
were lower than those from before or during early stages of the
treatment. Until further rounds of monitoring are done and lead
levels are consistently below the action level, it's too early
to declare this treatment fully effective.
Experts in the field have indicated that it can take 6
months or more to begin seeing a drop in lead levels, and a
year or more for the treatment to reduce lead levels below the
EPA action level. We have not seen anything in the data or in
WASA pipe loop simulations that leads us to believe that we're
on the wrong track. The work is being reviewed at key points by
an independent peer review panel formed by EPA.
In June 2004, Region III issued an administrative order on
consent to D.C. WASA to address past violations, and to order
public health protections on multiple levels, including water
filters, lead service line replacement, notifications to
customers, lead testing and enhanced public education.
The consent order with WASA was the result of a 4-month
compliance audit that included onsite review of records, and
detailed evaluation of thousands of pages of documents that
were formally requested by EPA. We have instituted monthly
compliance calls with WASA to ensure a full understanding of
the obligations of the orders, and that the required corrective
actions are being taken. Under this order, WASA is required to
notify customers of the results of tap water sampling in
writing within 3 days of obtaining the laboratory results, and
to exercise its best efforts to provide customers with results
within 30 days of taking the sample.
As a result of the order WASA submitted and EPA approved a
plan to supply replacement water filters to those customers
that have known or suspected lead service lines. WASA last
spring distributed approximately 37,000 water filters certified
for lead removal to those customers. In January, WASA reported
that the manufacturer of one of the replacement cartridges
would not be able to meet the delivery needs; as a result, a
new filter pitcher system was delivered to approximately 7,500
affected homes.
In addition, the order compelled WASA to improve its
efforts to communicate with the public on continuing
developments regarding elevated lead levels in the water.
Required public notifications have been made on time and with
input from EPA. WASA has taken other communications initiatives
and has hired George Washington University's School of Public
Health to provide ongoing risk communication consulting. We
have encouraged WASA to take full advantage of public education
steps contained in EPA guidance and review documents.
On January 14, 2005 EPA issued a supplement to the order,
which it cited WASA's failure to replace the required 7 percent
of lead service lines in 2003, after determining that
approximately 400 lead service lines were tested through an
improper sampling technique. The supplemental order required
WASA to notify customers who received inaccurate information
and directed WASA to physically replace service lines equal to
the number improperly sampled in 2003 in addition to those
previously required.
The June 2004 consent order requires WASA to update its
baseline inventory of lead service lines each year to
recalculate the 7 percent of lines that must be replaced, to
work with the D.C. Department of Health to establish criteria
for health-based priority replacement of lines, and to
implement a strategy to determine the makeup of service lines
listed as unknown content.
In 2004, WASA exceeded the requirements for replacing the
public portion of 7 percent of all lead service lines in their
system. All of the approximately 1,700 replacements were actual
physical replacements as prescribed in our administrative
order. WASA has committed to replacing the public portion of
all lead service lines by 2010. EPA Region III has revised its
internal operating procedures. We've had more regular contact
with D.C. officials, and we have taken a number of other steps
to improve our oversight. I want to assure you of EPA's
continued dedication to finding the best solutions to
challenges that led to the public health concern in the
District. We will continue to build on the progress that has
been made, and we will keep the committee and the general
public informed of developments in our work.
Thank you very much for the opportunity, Mr. Chairman.
Chairman Tom Davis. Thank you very much, Mr. Welsh.
[The prepared statement of Mr. Welsh follows:]
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Chairman Tom Davis. Mr. Jacobus, thanks for being with us.
STATEMENT OF THOMAS P. JACOBUS
Mr. Jacobus. Good morning, Mr. Chairman. Good morning Ms.
Norton. Thank you very much for inviting me to be here and tell
you a little bit of what the water treatment plants have been
doing as part of the effort to change the corrosion control
situation in the District of Columbia.
As both Mr. Grumbles and Mr. Welsh said, the treatment for
the entire distribution system served by Washington Aqueduct,
which is not only the D.C. Water and Sewer Authority area, but
the Arlington County and the city of Falls Church service area,
all of those service areas began receiving orthophosphate as an
additional corrosion inhibitor in the water on August 23rd. So
far, all aspects of that treatment from the point of view of
the system receiving the orthophosphate have been working very
well.
The important thing right now, I think, to note is that we
have assembled a series of pipe loops using lead pipe that was
harvested from the lead service line replacement program in the
District of Columbia, have set those up, and we have seven
racks running with seven different chemistries in the basement
of a water treatment plant.
The purpose of those loops is to see how water flowing
through pipes, which replicates the situation that would be in
a home or anyplace that water would be delivered to, are
affected by the chemistry of the water. Obviously one of those
loops is representing the ongoing conditions of the water being
delivered. However, we have other chemistries running to see if
there could be some slight improvement to the current
situation; all of those will be evaluated over the next year,
we will actually do sampling, we will take little pieces of
lead out of these loops, analyze it chemically and physically
and--to get a very good idea of the efficacy of the current
system and the ability to maybe change to even a more refined
system. So that's something that is very important and really
ties into the rules that EPA was changing in terms of a water
system having to notify and do some analysis 60 days before any
treatment change in the future. So we will be having these
lines running, and any adjustments we make to the water in the
future will be done as a basis of that analysis.
As others have mentioned, we said it would be a year before
we could really know for sure if the chemistry was working as
we expected, early indications are that it has. I know that Mr.
Johnson will be reporting on that from the District of Columbia
in just a moment.
For the Arlington and Falls Church customers, their systems
were never out of compliance with the lead and copper rule
because they really don't have any lead service lines, they
just have the plumbing and the copper--the solder in the copper
joints and the potential lead in any fixtures. But they, in
their testing cycle from July through December 2004, continue
to remain under the action level. So that's really good news.
The coordination that has occurred over the last year among
the water utilities and the regulators has been excellent, and
we are now in a much more elaborate and deliberate way sharing
water quality information amongst the senior managers, and
understanding completely all aspects of our water chemistry
from the producer at the Washington Aqueduct through the
customers what the conditions are at all times.
Looking to the future, we have acquired the services of
three important consulting firms to conduct studies for us on a
range of alternatives and improvements to our current
processes. We want to be looking to see what kind of long-term
water treatment possibilities there are for our customers.
Clearly, all of that will be done in cooperation with our
customers and the appropriate oversight from EPA State and
local agencies.
Thank you again for the opportunity to appear here this
morning, and that concludes my testimony.
[The prepared statement of Mr. Jacobus follows:]
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Chairman Tom Davis. Thank you very much.
Mr. Johnson, thanks for being with us.
STATEMENT OF JERRY JOHNSON
Mr. Johnson. Good morning, Mr. Chairman, Congresswoman
Norton.
I am Jerry Johnson, general manager of the District of
Columbia Water and Sewer Authority, and I am pleased to
represent the Authority before the committee this morning.
As you may know, the District of Columbia Water and Sewer
Authority has undertaken an intense effort to improve how we
address our obligations under the Safe Drinking Water Act and
the lead and copper rule.
Experience has taught us that fulfilling our obligations
under the law by ensuring complete compliance with the
provisions of the lead and copper rule is important, but not
sufficient. WASA is doing more to address not only the
administrative agreements with the U.S. EPA, which is also
important, but we are addressing the public's concerns and
expectations. WASA has issued a community pledge and promise
that we will continually improve our services and the product,
and also made a commitment to keep our stakeholders better
informed. We released a progress report on that just a few
weeks ago, which is included in your briefing material.
WASA has learned from the reviews and suggestions of
Federal and local policymakers, regulators, residents, health
officials and other experts, however, it is the Board of
Directors that continues to lead our effort. First, the Board
has commissioned an independent review of WASA'S compliance
with the lead and copper rule, and it is important to note that
the Holder Report is the first such independent review
completed. Its findings and recommendations have been, for the
most part, reflected in the recommendations offered by those
that followed, including the Inspector General and the U.S. EPA
enforcement order.
The Board took specific policy actions last year that
resulted in, for example, establishing a flat rate for public
service line replacement, establishing an extended payment plan
for private line replacement, worked with Wachovia Bank to
establish low-interest rate equity loans, created a grant
program through DCHCD, and established a goal of eliminating
all service lines in public space by 2010, at a cost of
approximately $340 million. It is unprecedented nationally, in
size and scope, and goes well beyond the letter and perhaps
even the spirit of the lead and copper rule.
I understand the committee's interest in specific steps
taken by WASA, or WASA in conjunction with other agencies over
the past year. First, WASA is fully addressing the requirements
of the law, and we embrace the need to take extra steps and go
well beyond the requirements of the law to inform and reassure
the public.
Examples of some of the steps taken to include the addition
of orthophosphate, which was discussed earlier, re-evaluating
and restructuring and fully staffing the water quality program,
creating a position of an Environmental Compliance Officer to
coordinate and monitor compliance, creating a senior management
position to manage the lead service program. WASA's Lead
Service Hotline has responded to over 76,000 customer calls and
re-mails, distributed more than 38,000 sample test kits and
35,000 water filter and replacement cartridges.
WASA works with the Department of Health to fund over 7,000
blood lead level tests and environmental assessments throughout
the city and maintain real time data in collecting that
information so that we can provide it to health care providers.
And we've established several innovative automated systems for
monitoring and tracking a variety of functions and activities.
Public communications have mushroomed. You will have
examples of that in the testimony that's been provided to you
today. WASA has hosted over 45 community meetings to help
address public concerns about this issue. A list of other
activities too numerous to mention in the time allotted may be
found in the written testimony.
I would also like to note that we have cooperated with a
number of reviews that have looked at the Authority's
management of this issue, and the Authority concurs with a
great majority of those recommendations, and in most cases the
initiatives that were mentioned were things that had been
planned and implemented prior to even receiving the
suggestions.
There is a long list of reviews that have been undertaken,
to include the EPA audit, the Covington and Burling report, the
Federal GAO review to House Committee on Government Reform
hearings, a Senate Energy Commerce subcommittee hearing, a U.S.
Senate Environment Public Works hearing, 12 District of
Columbia Council Public Works hearings chaired by Mrs.
Schwartz, a City Council Investigative report, an inter-agency
task force that was convened by the mayor and the Committee on
Public Works.
The administrative and supplemental orders for compliance
and consent notes several finding and remedies. WASA, as I
believe EPA has already testified, is in full compliance with
the provisions of those orders. In general, WASA's agreement
with EPA codifies activities that the Authority already had
planned or underway, and it is important that these agreements
encourage, and in some respects, require more attention to a
healthy evolution of the relationship with our regulator.
WASA has a number of broad-base responsibilities in the
water and sewer industry. In one way or another, most of our
employees participate in ensuring that compliance with the Safe
Drinking Water Act and Clean Water Act standards are met on a
daily basis.
Historically communications between the two agencies was on
frequently often productive but often very casual. I believe
that the informal undocumented communications exasperated some
of the problems that this community experienced. Communications
between the two agencies on compliance issues and other matters
is formal and carefully documented today, and I believe that
better serves the public.
Mr. Chairman and Ms. Norton, I am pleased to present my
testimony, and I will be glad to answer any questions you might
have.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Johnson follows:]
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Chairman Tom Davis. Let me start the questioning here.
Mr. Grumbles, as a basis for your conclusion that the lead
and copper rule has been successful and doesn't require
wholesale revision, you cited some statistics that 88 of 2,758
utilities have exceeded the action levels for lead as of June
2004, and that 111 of 3,114 utilities have exceeded the level
as of January 2005. How does this rate of exceedance compare to
compliance with other water requirements?
Mr. Grumbles. Mr. Chairman, I would say that the 96 percent
compliance is comparable to other standards and requirements
under the Safe Drinking Water Act, that they, as well, are over
90 percent, somewhere between 90 and 94 percent.
Chairman Tom Davis. Are there any specifics or anything of
a comparative nature about the municipalities where the lead
level action has been exceeded, do you find that they had
things in common?
Mr. Grumbles. Well, as you know, and as Congresswoman
Norton knows, it is partly a function of the lead service lines
and the lead that's in the pipes and the plumbing in homes, but
a key component that's common with all of them is the
corrosivity of the water. So where we find exceedances of the
action level, it's really--the primary focus is on getting the
corrosion control to be more effective. And that's the
fundamental approach----
Chairman Tom Davis. That's kind of the thread that runs
throughout, basically.
Mr. Grumbles. Yes, sir.
Chairman Tom Davis. There was an October 5, 2004 Washington
Post article that said municipalities across the Nation were
manipulating test results of lead levels in the water supply to
avoid being in violation of the lead and copper rule.
What is your assessment of the charges contained in that
article? Are you familiar with the article?
Mr. Grumbles. I am familiar with the article. We've spent a
lot of time reviewing the allegations made in that article.
We have not found any conscious effort or pernicious
approach where utilities are deliberately manipulating, but
that is still a matter for review, and our enforcement offices
and regional offices will continue to look at that.
I think the focal point is there is some legitimate
ambiguity and a lack of clarity in some of the existing
regulation as to how to take the samples and to correct them.
So what we've done, in November, we issued guidance that was
meant to be helpful guidance, but fair warning to utilities
that you can't improperly invalidate samples, that there is a
certain time, place and manner for taking them. And that's what
we're committed to do so that data that's inappropriate or if
there is a gaming of the system, we want to try to prevent that
from happening by having clearer monitoring and sampling
requirements.
Chairman Tom Davis. OK. Thanks.
Mr. Welsh, you outlined the elements that WASA was required
to comply within the administrative order and the supplement,
and stated that it has met those requirements. But you also
report that WASA's January 2005 sampling results reveal that 31
percent of the homes tested exceeded the lead action level of
15 parts per billion. That seems a little disturbing. I know
that alternative treatment measures such as the orthophosphates
take time to achieve results, but the lead levels have been
elevated for several years. Aren't there other measures that
can be taken to turn the situation around more quickly?
Mr. Welsh. We are encouraged by the data that we've seen,
that it does seem to be the response that we anticipated from
the orthophosphate, it seems to be showing up in the numbers.
We continue to be concerned about the fact that those levels
are above the action levels, so we want to make sure that
neither we nor the citizens of D.C. become complacent on the
issue. We still want to reinforce that people need to continue
to do the flushing, continue to use the filters until the lead
is completely below the action level.
But the numbers that you cite there do seem to indicate the
first response to the orthophosphate change in treatment. So we
want to continue to remain vigilant, continue to work to
improve the communication with the public to make certain that
folks understand that they need to continue to use the filters
and continue to flush, and we are keeping a very close eye on
the technical data that is received from the tap sampling.
We still have the Technical Expert Working Group reviewing
that data, so if we see anything in that data that indicates we
need to take other steps or different measures to reduce the
level of lead in the tap water, we would certainly recommend
that, but for now we haven't seen any data that makes us think
that the solution that's been implemented is on the wrong
track, and we think things are turning in the correct
direction.
Chairman Tom Davis. Thank you.
Mr. Johnson, what is your reaction to the continued
elevated lead levels? Similar?
Mr. Johnson. My reaction would certainly be similar, I
think we're going in the right direction. However, Mr. Davis, I
would like to update the data that you have with information
that we received as recently as last evening and analyzed very
early this morning.
We are required to do 100 sample sets, compliance samples
in each of 6 month periods, one beginning in January and
another beginning in June of this year. We have received the
first 51 of those samples back for compliance purposes and have
found that all but four of those are at or below 15 parts per
billion action level. So certainly I think that is a clear
indication that we are moving in the right direction. I am not
really to stand up and declare victory at this point, obviously
we have to go through the balance of the testing period for
this first 6 months, and then again during the summer and fall,
but it is a very clear indication that the numbers are moving
dramatically down, so it appears that the chemical addition is
working and doing what it is supposed to.
Chairman Tom Davis. Mr. Welsh, do you think that would be
consistent with what you predict on this?
Mr. Welsh. Yes. So far the response that we expected to see
we are seeing. But we want to make sure that we bear in mind
that there is a long predicted response time for this. So we
want to keep our eyes on the numbers and make sure they
continue to go in the right direction. And I would echo what
Jerry said, that we don't want to prematurely declare that we
have solved the problem, we want to keep our eyes on it and
make sure that we get under the action levels before we
determine that we've achieved what we need to achieve for the
safety of drinking water.
Chairman Tom Davis. Did EPA consider imposing penalties or
taking civil or criminal action against WASA for violations of
the lead and copper rule?
Mr. Welsh. We did an extensive compliance review and we
learned information that said that there were elements of the
rule that hadn't been completely complied with. We did consider
what the appropriate response should be to that. It was our
judgment that working with WASA, negotiating for measures that
not only brought them back into compliance with the rule, but
went beyond the compliance that would be required by the rule
was the fastest and best way to get us on track to making the
water safe for the citizens of D.C. So we did not assess a
dollar penalty of WASA, and it was my judgment that the consent
order route was the fastest and best way to get the most relief
possible to the situation.
Chairman Tom Davis. All right. Thank you.
Mr. Jacobus, EPA's proposed plan of action calls for
changes in procedures for corrosion control treatment,
particularly requiring notification 60 days prior to making any
changes in corrosion control. Do you agree with that proposal?
Mr. Jacobus. Yes, sir, I do.
Chairman Tom Davis. Do you think it would be effective in
avoiding potential problems such as those that occurred in the
District with elevated lead levels?
Mr. Jacobus. Certainly. In retrospect, had we run pipe loop
studies before we made the change to chloramine we would have
discovered the events that unfolded in 2001, 2002. So that
additional surveillance on lead and copper in any kind of study
to determine what the actual effects of your change would be, I
think, are warranted and important.
Chairman Tom Davis. And you stated, I think, that Virginia
customers were never out of compliance with the lead and copper
rule.
Mr. Jacobus. That is correct.
Chairman Tom Davis. Thank you.
Mr. Johnson, do you think the additional requirement
imposed on WASA by the administrative order or on consent and
the supplemental are reasonable?
Mr. Jacobus. Absolutely, Mr. Chairman. And we have, in
fact, gone beyond the requirements of the administrative order
with all the actions that we have taken in respect to dealing
with this particular issue.
Chairman Tom Davis. And finally, you have had now several
months experience in the lead service line replacement program.
How effective is that program in reducing the cause of lead in
the District water system?
Mr. Johnson. We are getting mixed kinds of test results
back with the replacement program. In cases where we've done
total service line replacement where there is a requirement to
go in and do the testing after the replacement is done, we are
getting lower results than in cases where we have gone in and
done partial service line replacement where the product portion
has not been done. We're going back now and doing some re-
testing in those areas to determine what occurs after some
period of time has passed. And we offer to those residents the
same precautions for flushing and filtering utilization until
we have gone back and done that second test.
Chairman Tom Davis. I guess my last question for the panel
is, how have the public meetings been going that you've been
holding?
Mr. Johnson. The public meetings I think have gone well. I
think that there was an understandably nervous reaction from
the public in some of the initial meetings that we had. I think
after a time when there was a plan in place for some of the
actions that were to be taken, public concerns began to subside
somewhat. In the most recent meetings that we have had, there
obviously continues to be concern, and we continue to make the
public aware that they should still be taking precautions until
such time as we have come under the action level and can give
them the appropriate notification for that.
Chairman Tom Davis. Thank you very much. Ms. Norton, for 10
minutes.
Ms. Norton. Thank you very much, Mr. Chairman.
First of all, I don't want to imply by my opening remarks
or any of the questions I ask that you have done nothing; I
didn't mean, for example, Mr. Grumbles, that your document
issued just before you were to come here meant that you sat
down and quickly scribbled something together. What I meant, of
course, was after a year, it seemed to me that something more
significant was required rather than a plan, particularly if
you contemplate changes in the rule or in the regulations.
Now, I want to begin with you, Mr. Johnson, because quite
apart from the rules and regulations, you are under direct
pressure from everybody who lives in the District. And I don't
have any way of knowing except by what EPA tells me and by what
you tell me exactly how it's going, but I do have anecdotal
evidence that there is still dissatisfaction. So before I even
get to Mr. Grumbles, Mr. Welsh, Mr. Jacobus, I would like to
ask you about particularly the testing that has been done where
we know or we knew we were dealing in some neighborhoods with
high lead content. And there have been complaints that my
office has received, for example, from one southwest
neighborhood where some tested as much as 500 above the
required level--the allowed level, that WASA had been slow to
respond with filters in a timely manner or with immediate pipe
replacement, and the complaints have been--and again, this is
anecdotal, but you need to know it, that unless WASA is
monitored and you stay on WASA every minute, it's hard to get
things done.
How do you respond to that, that people call the
Congresswoman--actually, you might have expected them to call
the council or you--that these complaints are still coming
forward?
Mr. Johnson. I am not actually aware of any recent
complaints, Ms. Norton----
Ms. Norton. Who accepts complaints there and how do you
deal with complaints? Or how many complaints have you gotten?
And is there an office or a place that accepts complaints from
the public?
Mr. Johnson. Yes.
Ms. Norton. So that they don't have to go to their
Congresswoman?
Mr. Johnson. Yes, ma'am, there is. We have a Lead Services
Hotline that receives calls on a continuous basis, those calls
have dropped off. We were at a high of several thousand calls a
day, we are now receiving a couple hundred a month on that
particular service line, but we maintain it as an active line.
We have computerized and automated the filter distribution
system so that any resident who has been listed as having a
lead service line should have received a filter at this point
and replacement cartridges. If there is someone who has a lead
service line and has not received that, then we would certainly
want to know about it and be prepared to----
Ms. Norton. Well, I think people are at least entitled to,
as we're fixing the system, is fast service, particularly if
they haven't received their filters. If they were among the
neighborhoods where there may be replacements on an emergency
basis, and the rest of it, just so that you know.
Mr. Johnson. Well, the service line replacement will
actually be taking place on a block-by-block basis, and we are
doing about 2,800 of those this year. We obviously can't get to
everyone at the same time, but if it's a priority situation
which has been worked out between us and the Health Department
and this person has--a pregnant woman or a child that is under
6 or a nursing mother in a home, then they are placed on a
priority list. And we will get to those sooner than we will on
the block-by-block arrangement. And we currently have about
five contracts now that we're working around the entire city
for those replacements.
Ms. Norton. Mr. Grumbles, in this morning's paper, I
thought that I was waking up to a surprise from EPA on this
issue, ``EPA Enacts Long-awaited Rule to Improve Air Quality,
Health,'' and I said look again, Eleanor, read carefully. It's
not a new rule about lead in the water, it's the long-awaited
and long-discussed problem of air quality. And my questions
really go to the effect of the rule on utilities.
I think what you've already done indicates that EPA does
understand that the rule does need some fixing, and that you
are trying to learn from the experience here.
What I was looking for was some indication that the changes
that we had outlined in our letter, the letter from Mr. Waxman,
from the chairman and from me would at least have been
considered. We understand floridly that WASA violated the
regulations, for example, on public disclosure, there is no
question that in any--anybody looking at anything but an
admission, all the circumstantial evidence is clear that they
were trying to avoid public disclosure. You don't have any
direct responsibility for that, but your regulations on public
disclosure are the only way to alleviate that. And I looked at
what you have presented and recognize that, for example, you
have not set even yet an enforceable limit on lead levels in
public disclosure.
Particularly in light of that, whatever you know, it seems
to me, the public has a right to know in ways the public can
understand. So I looked at what at least your plan says, and I
saw no indication that your educational requirements, shall we
call them, would go to the kind of language that would give the
WASAs of this world guidance of how to, in fact, speak to the
ordinary citizen so he understands. It sounds to me like they
were left the way they were when, in fact, we had the greatest
scandal here, which is that there was no public disclosure.
I see nothing in your plan that would indicate that the
hundreds of thousands of people who live in apartments would
ever know anything unless the owner chose to tell them because
water bills apparently still can be the way to find out whether
there is lead in the water. And I don't care if you're a
nursing mother, somebody with AIDS who lives in an apartment, I
do not see anything in this rule that helps you. And heaven
help you if you are non-English speaking. We would assume--and
here I am speaking for, I think, water systems across the
country, that if there was a part of the jurisdiction where
people needed to have notification in other than English, that
they might be sensitive enough to do it, but it is certainly
not because you tell them to do it. That's the kind of thing
we're looking for to indicate that you have understood what
happened in the District. And I don't see anything in the plan
to indicate that you're going in that direction.
Mr. Grumbles. If I could, and Congresswoman, I really
appreciate your constructive criticisms and also comments. And
I would say that it's very important to understand that those
initial items that we've identified, those are not the end of
the story. In fact, those are some items that we know we can
move forward with quickly; we have the data, the information,
and they will help cure part of the problem, but I can assure
you----
Ms. Norton. Wait a minute, Mr. Grumbles, how about, for
example, let's just take non-English. When you tell folks in a
country where, what is it, the fastest growing group is
Hispanics, wouldn't you tell them at least something about if a
certain percentage--I don't care what you use, I'm not here to
prescribe, that you would want to make sure that you don't have
whole sections of L.A. or D.C. or Fairfax County who don't have
any idea what you're talking about because they are recent
immigrants. I mean, what kind of additional time and evidence
do you need to at least get that out?
Mr. Grumbles. The point to be made is that I agree with
you, and that is part of the plan.
Ms. Norton. But it's not in the plan.
Mr. Grumbles. It is in the plan in the sense that the plan
has some items--one of the priority items is to develop the
right language for public education. I can't say that we'll
work that specific language over the next couple of months. We
need some more time to have all of the right players involved,
but we are committed to improving upon that language. You have
made it very clear, and we agree--I'm just saying as a timing
matter we don't have that language yet, but we're committed to
developing it, and I agree with you.
We do have, Congresswoman, in the guidance on schools,
we're committed to making that clearer and more communicative
of the risks involved, and that guidance we can complete by the
end of the year. But on the all-important public education
language, right now we don't have--we're not comfortable with
the exact wording, we feel we need more input to make sure that
it communicates the proper tone and awareness so that it not
only informs, but motivates people. And Congresswoman, we're
committed to getting that done, I just don't know what month
we'll have that, but----
Ms. Norton. I didn't even ask about the month. See, you're
not answering my question. Are you committed to non-English
language notification, yes or no?
Mr. Grumbles. To me, that seems right, and the right thing
to do so----
Ms. Norton. Are you committed to notifying people who live
in apartment buildings who would have no notice whatsoever,
including, of course, people with babies, people nursing? Are
you committed to some form of notification for people who live
in those apartment buildings?
Mr. Grumbles. I will say this, I am committed to the
broadest, most effective form of communication. And I know that
I myself, here, am not able to identify the particulars, that
it needs to be risk communication experts. And Congresswoman,
we are committed to having the right people deciding upon and
recommending to us what is the best possible language to
improve the current language. So----
Ms. Norton. Does that mean you're going to take public
comments so that the millions of people who are living in
building can tell you what apparently you're not willing to----
Mr. Grumbles. I don't know how we can----
Ms. Norton. If I lived in New York I would be coming across
this table at you because almost everybody there lives in an
apartment building. You're not even willing to say to those
folks--remember, we're speaking for the entire country there--
would have notification, and this is the kind of thing that we
are after----
Mr. Grumbles. I am just letting you--it makes sense to me,
Congresswoman, I just know that the most important thing is to
have risk communication professionals working to agree upon the
language and to have the public involved and comment on that.
And it's that type of process which led us to conclude we need
some more time to do it; but it is a priority, Congresswoman,
to get that language right.
Ms. Norton. Should utilities like WASA be required to--
again, I'm going to what's not in your action plan, now, and
what, in fact, caused the crisis in the District of Columbia
where babies, where children under six, where people with AIDS
were not identify notified, what is it, 3 years? So my
questions go to what's not in your plan, and if you want to
tell me it's going to be in your plan, that's all I need to
hear.
WASA took months to provide the results. Do you believe
that the rule or the regulations should require the utility to
notify in a timely manner, for example, in 2 weeks or some
other time, that you would consider to be timely, some kind of
deadline, some kind of deadline?
Mr. Grumbles. I completely agree, it has to be timely and
targeted to the relevant audience; it has to be consistent and
accurate, so----
Ms. Norton. Go ahead. I'm sorry.
Mr. Grumbles. No, I am saying that our top priority is to
ensure that it's timely and targeted and consistent and
accurate to motivate.
Ms. Norton. You know, you have taken a lot of our time, Mr.
Grumbles, with really very vague answers. So you understand
that I have asked you specific questions, and I expect you to
respond specifically.
Here is a question that I would like a--because the
chairman wants to move on, this is a critical question for the
people who live in the District of Columbia. You talk about 96
percent of the water systems that are not exceeding the action
level. Thank you for that.
Suppose you are among the homes that are 4 percent. We were
dealing with 9 percent before. You may even happen to live in a
neighborhood full of children. You may even happen to be a
nursing mother. How will you be informed that under the rule
and under the plan that, in fact, your water has tested above
the 15 parts per billion?
Mr. Grumbles. Well, the first thing is that 96 percent is
relevant only in the sense that there is not a need for a
systemic, major overhaul of the rule--is that it works in many
ways. But the 4 percent, that's what we are all focused on, how
to better address that.
Ms. Norton. I am focused on the 4 percent. What is the
answer for the mother who is pregnant and among the 4 percent?
Please answer my question. You are taking up my time, and
now the chairman is forcing me to move on and not even ask all
my questions. Please go ahead.
Mr. Grumbles. Part of the consumer confidence reports is
one way. We are committed to working with the utilities and the
States that oversee the utilities to get more effective
information to those other people.
Ms. Norton. You then are committed to, in the rule or in
the regulations, finding ways to inform the 4 percent--last
time it was 9 percent here--that their water, that they are
drinking lead-contaminated water? You are prepared to inform
those people?
Mr. Grumbles. We are prepared to inform them, or working
through the States who have the statutory responsibilities.
Ms. Norton. Right. I don't mean you necessarily. Here would
be you and the utility. I just want to know, will those people
know; and whether the rule will say, one, they will know, and
two, you will give guidance--you and the State, you and
whoever--so that those people don't continue to drink lead-
contaminated water and never know the difference.
Mr. Grumbles. As we begin this regulatory process, which
will involve public comment and further discussion and bringing
into the discussion the other issues that aren't specifically
identified in those first nine, we are, Congresswoman,
committed to broader communication; and continued customer
communication is a key component of that.
I want to work with you and the committee and the Energy
and Commerce Committee as we move forward with the rulemaking
process.
Ms. Norton. Thank you, Mr. Chairman. I have only one more
question I will ask these witnesses.
Ms. Norton. One of the most shocking things that came
forward in our hearings was the so-called notion of ``lead-free
fixtures'' that contain up to 8 percent lead.
Now, that was--frankly, Congress left that there. I am
concerned about that not only because it is a lie, but because
there are probably hundreds of thousands of people that are
wasting their money--consumers, in fact, buying so-called or
allowing the use of so-called lead-free ``fixtures,'' which
contain--actually contain 8 percent lead. Every day these
people are just buying it off the market with no sense.
It's the same thing, you know, as drinking water if you
want the 4 percent, and you didn't even know you are drinking
lead-contaminated water. Would you recommend to Congress that
that 8 percent rule be changed to some other percentage in
keeping with what we now know?
Mr. Grumbles. Congresswoman, I would recommend that
Congress seriously revisit that 8 percent. I don't know what
the right percentage is. EPA is committed and this is part of
our----
Ms. Norton. That's all I need to know. If you think we need
to revisit it, you are the expert agency and I appreciate that.
Thank you, Mr. Chairman.
Chairman Tom Davis. Thank you very much. I want to thank
this first panel. Is there anything else anybody wants to add
before I dismiss you?
OK. Well, thank you very much for being with us.
We will take about a 3-minute recess as we move to our
second panel. Thank you.
[Recess.]
Chairman Tom Davis. Thank you. We have our second panel.
Mr. Smargiassi, the director of planning of the Massachusetts
Water Authority. Representing the American Water Works
Association. Thank you very much.
Where are you from in Massachusetts?
Mr. Estes-Smargiassi. I live right in downtown Boston
Jamaica Plain.
Chairman Tom Davis. Thank you.
Erik Olson, senior attorney, Natural Resources Defense
Council. Thanks for being back.
And James R. Elder, who is an independent consultant.
It is our policy that we swear our witnesses before you
testify. So if you would just raise your hands.
[Witnesses sworn.]
Chairman Tom Davis. Mr. Smargiassi, we will start with you.
Again, your entire statement is in the record. We appreciate
you being here as kind of a check on everything, outsiders able
to look in and offer a perspective on this. We always find that
this is very, very helpful to us.
We appreciate each of you taking the time to be with us and
your patience.
We will start with you, Mr. Smargiassi, and then move to
Mr. Olson and then Mr. Elder.
STATEMENTS OF STEPHEN ESTES-SMARGIASSI, DIRECTOR OF PLANNING,
MASSACHUSETTS WATER RESOURCES AUTHORITY, REPRESENTING THE
AMERICAN WATER WORKS ASSOCIATION; ERIK D. OLSON, SENIOR
ATTORNEY, NATIONAL RESOURCES DEFENSE COUNCIL; AND JAMES R.
ELDER, INDEPENDENT CONSULTANT
STATEMENT OF STEPHEN ESTES-SMARGIASSI
Mr. Estes-Smargiassi. Thank you, Mr. Chairman.
The MWRA is the wholesale water and sewer provider to 61
cities and towns in the Boston area, serving about 2\1/2\
million people and 5,000 businesses. I am particularly pleased
to be here today because the MWRA has made the lead in drinking
water issue a priority. Over the last decade we have reduced
levels in our system by about 80 percent. We are still working
hard to see further reductions.
With our partners in the public health community, we have
been aggressive in communicating all the risks of lead to our
customers and offered them simple, understandable, practical
advice on how to reduce those risks.
As you have mentioned. I am here today on behalf of the
American Water Works Association. AWWA and its members commend
you for holding this hearing and we do appreciate the
opportunity to present our views. This morning, I would like to
just summarize a few of the points in our written testimony.
AWWA and its members emphatically support all lead
reduction measures that promote public health. AWWA has no
information that would suggest that the problems experienced in
Washington, DC, are occurring elsewhere in the country. In our
testimony before this committee last May, we outlined four
recommended measures to address lead contamination in drinking
water.
First, we did advocate a national approach with research
and public education focused on reducing lead contamination
from all sources. It's important that the program not be
limited simply to drinking water, since all agree that drinking
water is not the major source of lead exposure.
Second, we advocated the use of corrosion control
techniques by all utilities to reduce exposure in every home.
Third, we supported the replacement of lead service lines
that significantly contribute to high lead levels in the home.
And last, we advocated a holistic approach to the
development and implementation of drinking water regulations to
minimize the extent to which regulations can interfere with
each other, potentially increase rather than decrease health
risks.
Over the past year, we have worked to educate water
utilities on ways to manage lead exposure, organizing
workshops, Web-casts and sessions at national and regional
conferences. Our peer review journal has published new research
on the topic, and we have mailed information about lead and
drinking water in homes and in schools to all our member
utilities, and we have incorporated practical advice in all of
our routine publications.
AWWA continues to advocate the treatment technique of
optimizing corrosion control, as I have said, as the best way
of reducing exposure in drinking water in every home, because
that exposure is primarily the result of the interaction of the
water with home plumbing and fixtures. Because managing
corrosion control in drinking water is complex and might
sometimes be in conflict with efforts to meet other important
water quality objectives, AWWA undertook the development of a
management framework to help drinking water utilities
proactively evaluate changes in treatment, or operations that
might impact corrosivity or other key parameters before they
make those changes.
The framework is now completing peer review. We expect
distribution to begin this spring to all of our member
utilities, and it represents a big step forward in avoiding
unexpected consequences.
The importance of corrosion control and a holistic approach
to water quality is emphasized by the challenges posed in
managing lead services. All agree that partial replacement of
lead service lines increases lead levels in water, at least in
the short term and should be avoided.
Lead service line replacements are complicated throughout
the country by the ownership of the service lines. In most
cases, part of the service lines are owned by the utility and
part are owned by the property owner. Getting property owners
to change their position--change the position, rather, of lead
service lines, can be challenging.
AWWA is preparing a guide for drinking water engineers.
This guide will encourage public water systems to aggressively
work toward full lead service line replacement and provide them
helpful guidance on how to develop that program and how to gain
acceptance for that program in their community. We anticipate
distribution of that document also this spring.
AWWA strongly advocates public education about all sources
of lead exposure and effective, protective measures as a key
component of any risk reduction effort. Back in the 1980's,
AWWA launched a national ``Get the Lead Out'' campaign. In
2004, we renewed our efforts to create informational material
for utilities to provide to their customers and to provide
information directly to the public through our consumer-
oriented Web site. Water suppliers, working in cooperation with
public health officials and others, can help deliver the needed
messages on lead and all the parts that we can play.
Plumbing materials are also important. AWWA standards for
the type of materials used are now being reviewed and with the
explicit goal of identifying any remaining lead products and
eliminating them if we can.
We remain concerned that consumer products may leach lead.
The NSFF has initiated a review of its testing protocol to
ensure that plumbing products do not contribute excessive lead
to drinking water. We will be active in that.
As to school and child care facilities, the existing
regulatory legal structure provides for a voluntary program at
schools in contrast to the program for the lead and copper
rule, which is mandatory. We are preparing a guide for our
water utility managers to encourage them to go out and work
with the school and child care administrators in addressing
this issue, giving them the tools they need to do that.
In conclusion, we pledge to continue to work with you and
with EPA and with our State and local partners in public health
and education to address this important issue.
We thank you are for your consideration of our views.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Estes-Smargiassi follows:]
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Chairman Tom Davis. Mr. Olson, thank you for being with us.
STATEMENT OF ERIK D. OLSON
Mr. Olson. Good morning, and thank you for asking us to
testify this morning.
I wanted to briefly say that we do think that there has
been some progress in this area, certainly since the 1991 rule
was issued. And in Washington, it was good news this morning to
hear Mr. Johnson say that the levels of lead may be dropping in
D.C.
But there is a lot left to be done here. Specifically,
although you heard this morning about 96 percent of the water
system supposedly being in compliance, the same data show a
different story, if you look at it. For example, that number is
based on less than half of the water--of the large water
supplies, 316 out of 744 water--of the large water supplies.
Our concern is that there may be another story to tell.
In addition, over 10 million people's water is supplied by
systems that exceeded the action level. That's not a trivial
number, and we are concerned that some of the problems
identified by the Washington Post in October of last year, that
Congresswoman Norton alluded to, specifically gaming the system
on how monitoring is done, may cover up the extent of the
problem.
In addition, EPA has done 10 verifications of data in 10
States, and those have not been integrated into this review. So
we are concerned that the problem may be larger than suggested
by the proposed 96 percent compliance.
In addition, the enforcement record is problematic. In
recent years the numbers have plummeted of enforcement actions.
I put them in the testimony, but you can see that there's a
huge decrease in the last several years in enforcement, and we
are concerned that's sending a wrong signal.
There are, however, a series of fundamental changes that
need to be made. The one that I think is important that we
should all agree on is that the State revolving fund, the
current Federal assistance to water supplies and to sewage
treatment plants, should not be slashed. The administration is
proposing an enormous cut in State revolving fund money for the
Clean Water Act, and that can have a spillover effect in the
drinking water arena, literally.
More important for this hearing, I know, is a discussion of
what the rules themselves need to do. We are concerned that
there are major changes that are necessary in the drinking
water regulations that have not been recommended by the
administration.
Specifically, as has already been addressed, the lead pipe
and fixtures provision, allowing 8 percent lead, is inexcusable
and not based on current science. We now know that some cities
require, by contract, 0.1 to 0.25 percent lead, routinely--Los
Angeles, Bangor, ME, elsewhere. We ought to have that here in
D.C. We ought to have it nationally.
In addition, lead in schools--what hasn't been mentioned--
this is not just a problem in Washington, DC. In Seattle and in
Boston they are buying bottled water for students and staff in
the schools.
There are serious lead problems here in this building,
right here, and in many schools across the country. What hasn't
been mentioned is that there is a court decision that
overturned a section of the Safe Drinking Water Act with
respect to schools, so there is no longer a mandatory testing
program. This needs to be fixed, and we believe that it could
be fixed quickly.
In addition, with respect to the broader lead regulations,
we urge a comprehensive review and overhaul of the rule. We
would like to see a maximum contaminant level for lead with
potentially an affirmative defense if there is no lead service
line and the utility has done as much as it can for corrosion
control. But absent that, there needs to be an overhaul of the
rule. There shouldn't be a 10 percent exemption so that 10
percent of the households don't have to comply with the action
level.
There also needs to be an overhaul of the public notice and
right-to-know provisions. Specifically, for example, there
needs to be immediate notice if a result comes back high, to
the consumer. There need to be non-English-speaking notices.
There needs to be an overhaul of the mandatory language that's
used.
It obviously was completely ineffective in Washington and
everywhere else.
There need to be better methods of delivering the
information and the right-to-know reports have to be changed.
We all remember the right-to-know report that came out the year
this ongoing lead problem was ongoing in 2003, where it said,
``Your drinking water is safe,'' across the cover. We can't
allow that to continue anywhere in the United States, and
Washington is not the only location where that has happened.
In addition, the monitoring system is broken. We are
concerned that you can do just 50 samples in many cities across
the country and demonstrate so-called compliance. As this
committee recently found, I think, with the steroid
investigation, you have to have a good monitoring system in
order to pick this kind of thing up; and you have to have
statistically valid comprehensive testing and site selection
that can't be gamed. That's a big problem.
Partial lead service line replacement is not adequate, and
I was glad to hear AWWA concede that it would be better to have
full lead service line replacement.
In conclusion, there are several other changes that are
laid out in our testimony, those are some of the bigger ones
that need to be adopted. We would like to work with this
committee, with the Energy and Commerce Committee and others to
try to put together legislation like that we support, that Ms.
Norton introduced last year.
Thank you.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Olson follows:]
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Chairman Tom Davis. Mr. Elder, thanks for being with us.
STATEMENT OF JAMES R. ELDER
Mr. Elder. Mr. Chairman, Congresswoman Norton, I thank you
for the invitation to testify on the regulation of lead in
drinking water. I want to make clear that my statements and
responses are entirely my own and do not represent the point of
view of any third party or organization.
I've had a 28-year Federal career, 24 of those at EPA and
the last 12 I worked in the headquarters' water program. In
April 1991, I was reassigned to head the Safe Drinking Water
Act program. At that time we aggressively made certain that the
States and the EPA region took hundreds of Federal enforcement
actions during the first phase of the lead rule for failure to
monitor, and subsequently, for failure to proceed on optimal
corrosion control.
Although I retired in 1995, like anyone who has worked on
such an important public health program, I cannot stop feeling
passionate about the importance of our Nation's drinking water.
Therefore, I believe it is critical for Congress to exercise
its oversight authority for the Safe Drinking Water Act, and I
applaud this committee for doing so.
Specifically regarding Washington, DC, indications are that
the lead contamination levels are improving, as described this
morning, but this is mostly due to the late introduction of
orthophosphate in the distribution system. As others have said,
it is too early to declare victory.
I personally am not pleased with the total contents of the
administrative consent order issued by Region 3. They did an
excellent job of documenting all the violations and then the
supplemental order after the Holder report, but given the
magnitude of the violations, in my experience, to not have any
up-front or stipulated penalties is a gross mistake. I think
such weak enforcement actions have little deterrent value for
other public water systems.
Nearly a year ago, I recommended in the Washington Post
opinion piece that in addition to short-term measures, two
long-term actions were essential to changing the track record
of poor water quality in the District. The first was to invest
the necessary millions to upgrade the District's treatment
plants with state-of-the-art technology to include granular
activated carbon.
My other recommendation was to remove the U.S. Army Corps
of Engineers from responsibility for the collection of water
from the Potomac and its treatment. The origin of the Corps in
operating the treatment plants and in the collection system
goes back to the 1850's in anticipation of the Civil War. This
situation is more than an anachronism to me.
Moving on to the national picture, I was pleased that the
Post decided to investigate lead contamination and compliance
around the country. The Post's October 5th story revealed
gaming and manipulation of the lead rule by 12 large systems. I
am not aware that any of the Post's findings have been refuted.
On the day of the story, Tom Skinner, EPA's Acting
Administrator for Enforcement, stated during an NBC Nightly
News interview that ``If there's anybody out there who is
misleading the public or, more importantly, not submitting to
EPA or the States the data they are required to submit, we are
going to go after them.'' I am still waiting for that to
happen.
According to my information, since that article, EPA has
not issued a single enforcement action other than the
supplemental order with D.C. cited above. Erik has alluded to
the special audits that were conducted of the lead rule. I have
tried mightily to get copies of any of these. I have not
succeeded, but I don't understand how EPA could have come up
with its lead reduction plan without having those studies
completed.
Turning to the latest plan put forward by EPA on Monday, I
think there are several steps in the right direction. However,
I question several aspects of what the agency is proposing. I
outlined these specifically in my testimony. I want to make one
particular point from my testimony.
For instance, the table presented showing how well the
systems were doing, 12 of the systems that originally exceeded
the action level have now achieved a result of zero parts per
billion for lead at the 14th percentile. Another nine reported
1 part per billion. If true, these results would be remarkable.
Unfortunately, I have talked to several different chemists
and engineers in the field, and they have convinced me that
these results are too good to be true.
I make other specific points about the content of the plan.
One that particularly bothers me, in terms of regulatory
proposals is this idea that communities would have the ability
to recommend different amounts of time to run the water prior
to consuming it. I do not think that's practical, and if the
conditions require a 10-minute flushing time, they should be
given bottled water or filters. You can't realistically expect
people to run their water for 10 minutes.
In conclusion, for many years I believed the lead rule was
very creative and dealt wisely with the real issue of how to
regulate a contaminate that for the most part showed up after
the water entered the distribution system. I still believe the
1991 rule was 90 percent correct.
However, given the 14 years of experience since the
original rule, I now believe substantive changes are necessary,
as I have noted. Additionally, Erik Olson has provided a very
valuable list of needed actions compared to EPA's proposal.
I thank the committee, and EPA should approach his
recommendations on the basis of why not. My one concern is
about his recommendation for an MCL for lead. I do not think
that is practical. So, therefore, I would oppose that.
Therefore, in final comment, I appreciate the opportunity
to express my views and I look forward to any questions you
might have. Thank you.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Elder follows:]
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Chairman Tom Davis. Mr. Smargiassi, let me start with you.
You point out that the primary cause of lead contamination is
lead in home plumbing and fixtures and, therefore, advocate
corrosion controls as the primary means of eliminating lead
levels. In light of this, do you think, though, the EPA's plan
of action announced this week adequately addresses corrosion
water in water plans?
Mr. Estes-Smargiassi. The EPA's plan--we obviously haven't
seen all the details, and the devil is in the details, but the
broad outline of it does point us in the right direction. We
are particularly interested in some of the issues that they are
going to deal with on the simultaneous compliance.
Corrosion control is complicated, it's different for every
single water. You need to be cautious when you make changes
that those changes don't result in unexpected consequences. So
we are pleased we are headed in that direction.
Chairman Tom Davis. Would you make any additional
suggestions from what you have read with the strength of
corrosion control measures?
Mr. Estes-Smargiassi. Not that we are aware of at this
point, but we haven't seen the details yet.
Chairman Tom Davis. OK.
Mr. Elder, do you have any comments on--have you seen EPA's
announced plan of action?
Mr. Elder. Yes, I have reviewed almost all of the documents
that were put on EPA's Web site on Monday.
Chairman Tom Davis. What is your opinion?
Mr. Elder. I think that it is not specific enough, and I
think that it is too weak and some areas are not addressed at
all that I outline in my statement, my complete statement, that
should be addressed.
Chairman Tom Davis. OK.
Mr. Smargiassi, you highlight the fact that different lead
requirements apply to schools and child care facilities than to
water systems. Do you think the requirements in the lead and
copper rule should apply to schools and child care facilities?
Mr. Estes-Smargiassi. I think the question would be which
requirements. We are concerned that schools be tested, that
schools be--if there are problems, that the parents get
notified and that those problems be resolved. Those are some of
the same general themes that you find in the lead and copper
rule.
But one deals with public water supplies, the other deals
essentially with buildings. I am not sure that the regulatory
frameworks could ever be exactly the same.
Chairman Tom Davis. One of the problems is--a potential
significant source is the customer's plumbing system, and that
is beyond the control of the water system.
Mr. Estes-Smargiassi. We are the experts on water. We think
we need to work with those individual facility managers, if
there are problems, to help them resolve them. But ultimately
it is--the plumbing belongs to the building owner. We can do
our part; they have to do their part. We shouldn't fully ignore
it, and with the help of EPA's and, I think, with Erik's
position, this is a problem that needs to be dealt with.
Mr. Elder. Mr. Chairman.
Chairman Tom Davis. Mr. Olson----
Mr. Elder. Could I add one comment?
Chairman Tom Davis. Yes, sure.
Mr. Elder. I think the structure of the Safe Water Act is
deficient in that it carves out different responsibilities
based on what type of system you are. When you talk about lead
in schools and lead in day-care facilities, there's a
particular void, if you think about those facilities that have
their very own drinking water supply, as opposed to getting the
water from a community system.
So I think that Congress and EPA should pay more attention
to that area as well.
Chairman Tom Davis. Thank you.
Mr. Olson, you are critical of the fact that WASA is
leaving it up to individual residents to replace lead lines on
their property, but ownership and jurisdiction of those lines
really varies in every municipality across the country. Given
that situation, how would you suggest that the goal of
replacing lead lines in individuals' properties be
accomplished?
Mr. Olson. Well, I think it would be worth having 2 seconds
of history, because here in D.C., the lead service lines
actually were installed, many of them, over 100 years ago, by
Federal officials. It was the Corps of Engineers and other
engineers, that were federally operated, that installed them
and required them to be used.
Now where we are is, we have to replace them somehow; and I
was pleased to hear AWWA say this morning that they think
partial lead service line replacement doesn't really solve the
problem. At the EPA workshop on that very issue, there was a
lot of data presented that shows levels go up after--
immediately after replacement; and they drop down somewhat, but
they never get as low as they would be if you fully replaced
the lead service line.
So what we think--the original rule that was issued in 1991
actually required full service leaded line replacement, and it
was under the control of the water system. That was challenged
by AWWA in court, and because the notice was deficient that EPA
hadn't fully revealed that. That's where we think we ought to
go back. We ought to have a control, not an ownership
requirement.
So if the system has the authority under local law to go
forward with replacement, they should do that. Ms. Norton's
bill actually does require that. There would have to be full
notice and so on. A homeowner could refuse and say, no, I don't
want you coming on my property.
But we think that, frankly, WASA is going to spend $300
million partially replacing lead service lines, and it may not
solve the problem. Nobody is going to look good if that is what
happens if we are spending hundreds of millions of dollars and
we haven't resolved the lead problem.
Chairman Tom Davis. Who pays under that scenario?
Mr. Olson. Well, ultimately, it will be divided up. It will
be spread across the consumers; it will be spread across the
consumers over a period of time. Some of it may come out of
Federal funding, particularly if--in our view, if the Federal
Government said, these are the lines that should be used in the
District, the Federal Government ought to bear some
responsibility for helping to replace them.
Chairman Tom Davis. Mr. Smargiassi, do you want to react to
that at all? You don't have to.
Mr. Estes-Smargiassi. To the extent to which there is a
local history that may be illuminating for the committee
nationally, I think the situation is much more mixed. In many
municipalities, the municipality doesn't own, doesn't control
and has no legal authority to require action on private
property. Many municipalities do not have the legal authority
to spend money on private property.
Now, as much as a municipality may, and many do, want to
deal with the homeowner-owned portion, they may not have that
authority. We are trying to create the kind of matrix guidance
that says, if you are in this situation, here are some ideas;
if you are in this situation, here are some ideas to get the
homeowners involved.
The goal, I think, is exactly the same. If the lead line is
contributing to the problem, get rid of the lead line. But our
issue, essentially, is so much variability across the country,
and authority guidance may be what's necessary. It may not be
able to handle one-size-fits-all through regulation.
Chairman Tom Davis. Thank you.
Mr. Olson, let me just ask you, too, what would you do to
assure that testing protocols are accurately followed
throughout our water system?
Mr. Olson. Well, I think that's a very difficult question
to answer. First of all, one of the basic problems is, we don't
have statistically valid samples. So in a city the size of New
York, testing 100 samples for the entirety where you have tens
of millions of taps really is inadequate, so that is one thing.
Second, you need to have really clear criteria for where
you test, and that you don't have households in and out of the
testing regime, which can really skew your results.
So I think the rules need to be much more specific and take
into account what the Washington Post reported, as well as what
these data verification audits are showing, so that we get at
where the problems really are, at the highest-risk homes.
Thank you.
Chairman Tom Davis. Mr. Elder, you stated that EPA should
be more aggressive in enforcement of the lead and copper rule.
Would that include more use of civil and criminal sanctions?
Mr. Elder. Absolutely, it would.
Chairman Tom Davis. They don't use that very often, do
they?
Mr. Elder. No, as Erik's table indicates, even
administrative enforcement actions, which now include the
possibility for administrative penalties, have basically gone
through the basement. And there was no judicial action that I
am aware of, civil or criminal, relating to enforcing the lead
and copper rule; and I think in some cases that would be
appropriate.
Chairman Tom Davis. Thank you very much.
Ms. Norton.
Ms. Norton. Thank you very much, Mr. Chairman.
Following up on the chairman's question about partial
replacement of lead lines, I wonder--in the District, we saw
some replacement of the public portion, and then we saw, still,
lead, and the conclusion was that it was coming from the
private portion.
Do you think it's better to have no replacement rather than
full replacement, to go to corrosion control or some other--or
some other method if, in fact, full replacement cannot be done?
This is very costly. So if the jurisdiction is going to go
to replacement of public lines, will there be enough reduction
in lead so that you can say that has been worth the
expenditure?
Mr. Olson. Let me take a crack at that.
At least according to the data that I have seen, and these
are ballpark figures, WASA is saying that it costs around
$10,000 to do partial replacement, on average; and to do full
replacement, it's $12,000 or in that neighborhood.
It would seem like if you are going to go to the $10,000
arena, you might----
Ms. Norton. Who says?
Mr. Olson. Those were WASA's original figures, I don't know
if they have changed them or not, but we would certainly be
happy to put into the record what the most recent figures are.
But the point is, once you are up there and digging and
pulling out pipe and so on, it's relatively less expensive to
just complete, complete service line replacement.
Our position publicly has been and continues to be that
rather than expediting and trying to replace partial service
lines really fast, why not just do the full service lines and
perhaps back off somewhat, so that you can really take care of
the problem.
Ms. Norton. I just don't know whether we are making--this
is a lot of make work, and we will be back, you know, 10 years
from now and say, what was that all about.
Mr. Olson. Well, I think there is a risk of that. I don't
think you are going to see the levels permanently going up as a
result of partial service line replacement. The point is,
though, that you are not getting as much benefit at all as you
would with full replacement.
Mr. Elder. May I please add something?
Ms. Norton. Yes, please.
Mr. Elder. There is also a risk associated with partial
lead service line replacement that you--because that change
involves electrochemistry that you may then leach more lead out
of the part that was not replaced, that was previously leaching
before you took out any of the lead service lines.
Ms. Norton. Yes, that was what was in my mind. There was
testimony in one of our hearings to that effect, actually, Mr.
Olson, not that you might not cure the problem, but that you
might be making it worse.
Mr. Elder. It's a gamble for a city to approach it in terms
of partial line replacement in terms of making sure that action
would get you below the 90th percentile number to meet the EPA
regulation.
Mr. Estes-Smargiassi. Congresswoman, we would agree that
there are situations where local partial lead service lines may
not be appropriate. Clearly, if you are going to replace the
line, replacing all of it is better. In fact, there may be
circumstances where replacing part of it makes it worse or at
least is a bad investment.
Ms. Norton. This is rather absurd. I can understand we are
getting into these problems in life; that is just the way it
is. But you know that in the District they are now beginning to
at least experiment with a change in water chemicals, so
whether or not you were for partial lead replacement or full
pipe replacement, it does seem that we have something going now
that could happen more rapidly than either.
I am not suggesting that what--we do one or the other. But
isn't that essentially what we have to rely upon for the
foreseeable future?
Mr. Estes-Smargiassi. I think in most systems, corrosion
control, because it deals with every home and can be done
across the system in a matter of months to years, depending on
the amount of construction and the amount of acclimation time,
may in fact, be better than a many many-year program of
removing lead services, particularly if removing the lead
services yields only partial replacement.
So that's one of the reasons why, in our testimony, in our
approach, we have been consistent to say as such: Wide
corrosion control effectively applied is a benefit to all the
homes, to every consumer.
Mr. Elder. If I could add, the original EPA rule from 1991
required every system serving greater than 50,000 population to
optimize corrosion control no matter what their monitoring
results. It was only after you had experience with corrosion
control, if you then did more monitoring and still failed to
meet the action level, that you would be compelled to begin a
lead service line replacement program.
So it was definitely staged along the lines that these
gentlemen are talking about.
Ms. Norton. I, of course, am not suggesting one or the
other. I will tell you, I am suggesting this. The public
rightfully does not like remedies that will, in fact, take
place in their great-great-grandchildren's lifetime. I am very
concerned. I was very concerned that instantly everybody
thought that replacement of pipes by the public was the answer.
Our problem here--and then of course we had to do some
investigating before we found out that the problem may have
been an EPA reluctance or, in fact, not requiring a corrosion
control study when there was a change in water chemicals. That,
of course, was absolutely shocking.
If you tell people that you can put something in each's
waters, just change it and, you know, they say this is
generally safe, but do no studies, I think most people would be
shocked by that.
Do you all agree that the problem here was probably the
change in chemicals, a change that was made in good faith
because of what we know about the cancer-causing properties of
chlorine; that the change was probably indicated, but the
problem was with the lack of an appropriate study?
Mr. Elder. Yes. I clearly believe that and said so in an
opinion piece last March.
Mr. Olson. I would agree that appears to be one of the
significant sources. Another one is that the corrosion control
plan that the Corps of Engineers put into place many years ago
was not using orthophosphate, as some experts had suggested. It
may be if they were using orthophosphate all along, the change
wouldn't have----
Ms. Norton. Why weren't they doing that?
Mr. Olson. It was cheaper to use the alternative.
Ms. Norton. Well, the other thing--to come again--we just
don't sit here and tell the regulators to find the best and
most expensive thing to do, the way we might do at home. We
know we are always dealing with cost and benefit.
I don't have any problem with a utility using the most
cost-efficient way to control a public health problem. I think
it's real important for those of us who believe in regulation
to make that clear. The problem I have is if you don't know
that it is a safe replacement. We were shocked to find that
they were using a new chemical that introduced new problems,
even as they tried to get out of old problems from the other
chemical--in this case, chlorine.
I must say this graph, I think it was in Mr. Olson's
testimony, is another shocker, because it shows levels of
enforcement not declining, but disappearing. I am not sure how
that particularly--what does that mean? What was happening?
Perhaps we should ask Mr. Elder.
When you go from levels this high, you know, does it mean
that things improved dramatically throughout the country and
precipitously so that enforcement just wasn't as necessary?
Maybe they found something to do. I just need to know how
anybody would explain--I couldn't get to this when EPA was
here, but I would like to know, first, how do you explain it,
and then how do you think EPA would explain it?
Mr. Elder. I certainly would not like to justify it, but I
will try to explain it.
In the early part of the program, it was a lot easier to go
after systems that did not do the monitoring on time or submit
the results properly to the State agencies, and also to issue
administrative orders about systems not proceeding with optimal
corrosion control.
If most of the systems did those first two steps of
implementing the rule, then the likelihood that you had the
same degree of noncompliance certainly would have dropped off.
But what this graph shows is that, as you said, it's basically
disappeared. And given all the statistics that are out there,
and all the anecdotes that have been documented in the Post and
the data that's in, even EPA, what about--what are they doing
about the 4 percent of the systems that they claim are in
noncompliance? Are they taking enforcement actions against
them? Apparently, not yet. So why aren't there enforcement
actions up there?
Ms. Norton. Would either of the two of you like to make a
comment on the level of this enforcement?
Mr. Estes-Smargiassi. I would like to add one clarification
to Mr. Elder's statement.
Systems which are above the action level and which are
providing public education, as required by the rule and, if
required, are doing lead service replacement, are in compliance
with the lead and copper rule.
Mr. Elder. That's correct.
Mr. Estes-Smargiassi. So, in fact, the 4 percent of systems
which may be above the action level, I don't know what number
of those, but in fact they could all be in compliance with the
rule; and if that were the case, then no enforcement action----
Ms. Norton. So you think that might be the case here? That
might explain some----
Mr. Estes-Smargiassi. One of the things that I think--I
haven't reviewed Erik's charts, but it is true that we have
waves of regulations, as Mr. Elder indicated. When the new
regulations come out, they have specific timetables; there is a
lot of transition as people get informed about them. You do
typically expect to see more actions by the State drinking
water agency each time a new rule comes out.
Over time, we, one, get the facilities built, get into
compliance; and two, get better at figuring out how to better
do the monitoring and compliance. And we would expect those
numbers to go down. I don't want to comment any further on
that.
Mr. Olson. I just want to add one thing.
It is true that you are not completely out of compliance if
you are over an action level. However, if you are over an
action level, we are well past the time when you are supposed
to have started lead service line replacement, and there are
very few cities that are in the process of doing that.
So I think part of the problem is that it's a big bullet to
bite to force a city to start lead service line replacement,
which very often is going to be where you are.
I know MWRA was recently cited for a monitoring violation.
There are probably a lot of those also in here that wouldn't
even be reflected in the so-called 4 percent above the action
level. So there are probably a lot of violations that wouldn't
be included in here.
Mr. Elder. Could I add one last point?
Ms. Norton. Yes, please.
Mr. Elder. That is that of the 12 systems that the Post
documented on October 5th, only 2 of those show up as still
being in noncompliance in their most recent table that was
released on Monday. Had those systems properly reported and
sampled, I believe that they would have exceeded the action
level. So by manipulating the data, they show up in the data
system as being in compliance when I don't believe that they
should have shown up that way in the first place.
Ms. Norton. So you do believe manipulation of the data is
still occurring?
Mr. Elder. Yes.
Ms. Norton. What do you think should be done about that?
Mr. Elder. I think, among other things--maybe Mr. Grumbles
addressed it this morning.
EPA has not had a history of making actual site visits to
cities. When they do data verification audits, they typically
go to a central location in a State and look at files and do a
file review. That is not the same as going and taking samples
on your own.
That would be like relying on airplanes to be safe, without
having any actual inspection of the aircraft by the FAA. EPA
just doesn't have the priority or the resources to do the type
of field work that I think is needed.
Ms. Norton. Given the fact that you were at EPA and saw
that to be the case, should they do this on a random basis? How
do you think they could therefore even do this?
Mr. Elder. Random and targeted, yes. Certainly, if they
don't have a list, the list in the Post would be a good place
to start doing that.
Ms. Norton. One more question.
The particular concern we have, of course, is not so much
the overall population as much as we know that none of us
should have--should be drinking lead-contaminated water. Our
particular concern is of certain vulnerable populations,
children under 6, nursing women, pregnant women.
My understanding--in fact, I think there was testimony from
one of you--is that the rules involving testing in schools were
thrown out, apparently because of the commerce clause and how
the rule is being structured.
What is being done now, for example, by EPA and, for that
matter, by the States to test drinking water in schools? Is
there annual testing? Is there regular testing? How do we know
that children in schools are being protected today from lead-
contaminated water?
Mr. Estes-Smargiassi. Congresswoman, this is a State issue
at this point under the existing structure.
Ms. Norton. I can't hear you.
Mr. Estes-Smargiassi. Different States are approaching it
differently. I can speak to my home State.
Ms. Norton. Why is this a State issue and not an issue for
the EPA?
Mr. Estes-Smargiassi. I am not sure I can speak to the
legal issues which arose out of the original structure back in
1988, but as I understand it----
Ms. Norton. So you are saying the States still would be
required even if the Federal Government----
Mr. Estes-Smargiassi. The States have the authority to
require this. It is not clear--as I understand it, it is not
clear under the current structure that the Federal Government
does. But for instance, in my home State, Massachusetts, our
Department of Public Health and our Department of Environmental
Protection, the two agencies which are charged with dealing
with lead issues in all venues, have sent letters to every
single school superintendent, every single chief elected
official and every single public water supplier, giving them
information, urging them to do testing and to provide testing
results back to the State, creating a data base. And then they
are in the process now of essentially going back, and they are
iterating through if folks are not moving forward on that. It
does not yet appear to be a mandatory program, but they are
very aggressively moving forward.
Our experience has been that when school departments
receive this information and their local water department and
the school department are involved, they do move forward.
I think Mr. Olson indicated in my home city, Boston, the
city of Boston schools, if they find a tap or a kitchen faucet
which is high, they take that out of service. And until they
can replace the fixture and ensure that fixture is not yielding
high lead, they will provide bottled water, if that's
appropriate; or they may just close it off, if there's another
one down the hall which is below the action level.
Those are reasonable steps. They achieve the purpose of
identifying whether there's a high exposure and remediating it.
If there's lead coming out of the tap, that tap should be shut
off.
Ms. Norton. Would either of you--I am pleased to hear that
Massachusetts and the school systems know what to do and are
responsive.
Do either of the other witnesses have the sense that
Federal regulation may not even be required here because the
States have taken this responsibility for lead in the schools?
Mr. Olson. No, this is a situation where the Safe Water
Drinking Act is broken. It does not right now state it is up to
the individual State. We have seen evidence from Philadelphia,
Seattle, the District here, where many school systems, if they
test, find problems.
Very often they don't even inform the parents or the staff
that there is a contamination problem. They are not retesting
periodically. Some of them apparently didn't take out, many
years ago--10 years ago--the fountains that were supposed to be
taken out that had excess lead.
So this is a problem that really only Congress can fix.
Mr. Elder. I might add that my understanding in Virginia,
where I live, is that this responsibility is vested at the
county level. The county health director has the authority to
mandate the type of testing in schools that the gentleman from
Massachusetts spoke of.
Ms. Norton. And therefore?
Mr. Elder. So therefore it's not a nationally consistent
program and basically is left up to each State--in Virginia's
case, the county--to decide if they really ought to go after
this issue.
Ms. Norton. Thank you very much, Mr. Chairman.
Chairman Tom Davis. Thank you very much. This was very
helpful to us, and we appreciate your being with us today to
give testimony and to answer our questions. Thank you.
This hearing is adjourned.
[Note.--Additional information from DCWASA is on file with
the committee.]
[Whereupon, at 12:16 p.m., the committee was adjourned.]
[The prepared statement of Hon. Jon C. Porter and
additional information submitted for the hearing record
follow:]
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