The new infrastructure bill provides the perfect opportunity to create an incentive-based approach to improve drinking water.
By Susan Goldhaber, MPH
The purpose of the Safe Drinking Water Act (SDWA) is to ensure clean and safe drinking water throughout the U.S. It was first enacted in 1974 and substantially amended in 1986 and 1996 (see Table 1). The law established a program for the establishment of standards (regulations) for contaminants in drinking water. However, the SDWA has a much broader mission than simply setting standards: Its mission is to ensure safe drinking water using a myriad of tools, including financing drinking water infrastructure projects, protecting underground sources of drinking water, and providing assistance to rural and small communities with their drinking water problems.
This article will discuss the process and the problems with the SDWA program for setting regulations for contaminants in drinking water. However, it is not all doom and gloom: The SDWA has the tools within it to solve the regulatory problems by using an incentive-based approach to removing contaminants from drinking water. This is also the perfect time to be discussing this issue as there is an opportunity with the new Administration and their upcoming Infrastructure Bill to implement this change.
In 1996 the SDWA was amended outlining a new approach for regulating contaminants in drinking water, which is the approach in the law today. The new “risk-based” approach was intended to be more flexible and to focus resources on contaminants of greatest health concern. Sounds good, doesn’t it? However, in reality this approach has been a disaster. After 25 years, EPA has not regulated one contaminant using this approach, in spite of the fact that 86,000 chemicals are listed by the Toxic Substances Control Act (TSCA) Inventory as being manufactured or processed in the U.S. and hundreds of these have been detected in drinking water.
How can this be explained?
In order to explain this, you need to understand the process set up under the 1996 Amendments that EPA must follow to determine what chemicals to regulate (called the Regulatory Determination Process), as follows:
EPA must base its determination on whether to regulate a contaminant on three criteria:
- The contaminant may have an adverse effect on the health of persons
- The contaminant is known to occur or there is a high chance that the contaminant will occur in public water systems often enough and at levels of public health concern
- In the sole judgment of the Administrator, regulation of the contaminant presents a meaningful opportunity for health risk reductions for persons served by public water systems.
Sounds simple enough? I agree that the first criterion is straightforward: determining whether a contaminant may have an adverse effect on the health of persons. However, as any student of toxicology can tell you, this includes every chemical everywhere. Every chemical is toxic at some level. Water is often used as an example of this: Drinking too much water will kill you (think of drowning) but drinking too little leads to dehydration and ultimately death. It is the dose that determines the toxicity of a chemical. Therefore, the first criterion is meaningless.
The problem with the 2nd criterion is the last part of the sentence: “and occurs often enough at levels of public health concern”. How do you determine what is a level of public health concern? Obviously, this is a truly subjective matter that cannot be determined by science. EPA has struggled with this criterion for the last 25 years (just read a few of their Federal Register Notices and you will be convinced of the problem this criterion presents).
The major problem is with the 3rd criterion. Determining that regulation of a contaminant will present a meaningful opportunity for health risk reduction is nearly impossible. The main reason is that chemicals found in drinking water are also found in food, air, soil, etc. In many cases, the concentrations found in food and/or air greatly exceed what is found in drinking water, and therefore even after regulating the chemical in drinking water, individuals would still be exposed to it through food or air, precluding a “meaningful health risk reduction”. (See my previous article on perchlorate, a chemical which presents a prime example of EPA’s 25-year struggle with this 3rd criterion).
I have outlined above the problems inherent in the criteria in the 1996 Amendments to the SDWA. I want to emphasize that this statutory design is at the heart of EPA’s 25 struggle to regulate chemicals under the SDWA. They have put forth much effort to make sense of the criteria and regulate chemicals, but they have ultimately failed in this regard. This was noted in the 2011 General Accountability Office (GAO) report that focused on EPA’s lack of progress on implementing the regulatory determination process:
Since the enactment of the 1996 amendments to the Safe Drinking Water Act, EPA has made limited progress in prioritizing drinking water contaminants on the basis of greatest public health concern, and the lack of data on the public’s exposure to potentially harmful drinking water contaminants and their health effects continues to limit EPA’s ability to make regulatory determinations. In addition, during the nearly 15 years since the 1996 amendments were passed, EPA has not developed policies or guidance providing its interpretation of, or guiding personnel in how to implement, the broad statutory criteria for selecting contaminants and making regulatory determinations on them. Moreover, the credibility of some of EPA’s regulatory determinations is reduced because of a lack of transparency, clarity, and consistency in the regulatory determination notices and primary support documents.
Ten years have passed since the GAO report and things have not improved.
What to Do?
My first thought was to suggest changing the criteria for regulatory determination. But experience has taught me that this can take years, if not decades. But there is a much more direct and immediate approach.
I am suggesting leaving the regulatory determination process as is, and adding an incentive-based approach to the grant programs that are already in the SDWA. My reasoning is as follows: The goal of the SDWA is to provide clean drinking water across the U.S. The current process provides for a chemical-by chemical evaluation that ultimately may lead to a drinking water standard for a chemical based on its “safe” level. This process takes years and in many cases decades. This is not sufficient to ensure clean drinking water, when there are thousands of chemicals in the environment and many of these been found in drinking water. However, treatment technologies remove groups of chemicals at once. Why not provide an incentive for public water systems to install the best treatment technologies to remove groups of chemicals at one time?
This program would make use of existing grant programs in the SDWA, such as the Drinking Water State Revolving Fund (DWSRF), a grant program that helps systems finance improvements needed to comply with SDWA regulations, and the Water and Waste Act of 2016 that authorizes grants for public water systems serving small or disadvantaged communities These programs would be expanded to include additional funds for this approach.
Since we already have a list of many unregulated chemicals that have been found in drinking water, based on the Unregulated Contaminant Monitoring Rule (results are available from 1988 to 1992 and from 1993 to 1997), this listing can be used as the basis for this incentive-based approach. Some examples of the types of contaminants detected in drinking water include:
- Pesticides and insecticides (Acephate, Dicrotophos, Methamidophos, Ethoprop)
- Anti-freeze ingredients (Ethylene glycol, Methanol)
- Hormones (Estriol, Estrone, Estradiol, Testosterone)
- Pharmaceuticals (Bupropion, Metoprolol, Carbamazepine)
- Gasoline components (Hexane)
As previously noted, this approach would group the contaminants together based on the technology that removes them. In some cases, this would involve new, innovative technologies and in other cases it would involve technologies that have withstood the test of time, but have not been installed due to cost considerations. An example of an innovative technology is one that removes hormones (one of the chemical groups referenced above). This technology consists of a filtration system that combines a polymer membrane with activated carbon. The polymer membrane is so small that it is able to remove hormones down to the 1 nanogram level (parts per trillion).
A collaborative work group would be established with representatives from EPA, academia, the water works industry, and others that would prepare lists of these chemical groupings with verified treatment technologies. These lists would not be static, instead they would be updated as new technologies became available.
Public water systems, usually run by municipalities, would be eligible for grants based on the technologies they select to install in their systems. This would create an incentive for public water systems to install technologies that would remove multiple contaminants at one time and would also encourage innovation within the water industry. Water systems could work with EPA to provide guidance and assistance as to the best technologies for their size and type of system, instead of the current adversarial system that currently exists between EPA and public water systems.
It is important to understand that this incentive-based approach would not set “safe” levels of chemicals in drinking water. The “safe level” approach could still be used based on the regulatory determination process outlined in the SDWA. This incentive-based approach would provide incentives for public water systems to remove contaminants to the levels that are feasible, based on current technologies. This approach would provide incentives for public water systems to remove multiple contaminants at one time, using technologies that fit their particular needs (for example, small systems could install different technologies than large systems). It has the added benefit of allowing EPA to focus on the most critical regulatory issues while bringing the real benefits removal of contaminants without regulations.
The reason that this incentive-based approach is timely is that with the new Administration, Congress is moving forward with a major Infrastructure Bill. This is the perfect time to add resources to the Bill to try a genuine incentive-based approach to improve drinking water.
Table 1. History of Setting Drinking Water Regulations under the SDWA
Enacted in 1974
1) Set interim regulations for chemicals regulated by Public Health Service, 2) Arrange for study by National Academy of Sciences (NAS), 3) Set regulations based on NAS study
Interim regulations set for 23 chemicals
Identified 83 chemicals for future regulation
1) Regulate 83 chemicals previously identified by 1989, 2) Regulate a minimum of 25 additional chemicals every 3 years, 3) Establish a program to test for unregulated contaminants
Regulations set for 77 chemicals in 1996 (missed deadline by 7 years)
Established unregulated contaminant monitoring program
NO CHEMICALS REGULATED
Regulatory Determination Process
Addressed 20 contaminants in 2 cycles of Regulatory Determination (2003 & 2008), No chemicals regulated
Regulations set for 6 chemicals in the list of 83 from the 1986 Amendments
Congressional Research Service. 2017. Safe Drinking Water Act (SDWA): A Summary of the Act and its Major Requirements. https://fas.org/sgp/crs/misc/RL31243.pdf
Science Daily. 2020. New Process for Efficient Removal of Steroid Hormones from Water. https://www.sciencedaily.com/releases/2020/09/200908101557.htm
U.S. General Accountability Office (GAO). 2011. Safe Drinking Water Act: EPA Should Improve Implementation of Requirements on Whether to Regulate Additional Contaminants. GAO-11-254. https://www.gao.gov/products/GAO-11-254