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STATEMENT OF
PAUL D. SCHWARTZ
NATIONAL POLICY COORDINATOR
CLEAN WATER ACTION
SUBMITTED TO THE
COMMITTEE ON GOVERNMENT REFORM
OF THE
UNITED STATES HOUSE
REGARDING
REVIEW OF THE NEED FOR
THE LEAD-FREE DRINKING WATER ACT OF 2004
& THE STATE OF THE CURRENT LEAD CRISIS IN WASHINGTON DC
MAY 21, 2004
Thank you for the opportunity to submit this testimony. I
am Paul Schwartz, National Policy Coordinator with Clean Water Action (CWA),
a national organization working to ensure clean, safe and affordable
water, prevention of health-threatening pollution and creation of
environmentally safe jobs and businesses. CWA has more than 700,000
members nationwide. I am on the steering Committee of the Campaign for
Safe and Affordable Drinking Water, an alliance of over 300 medical,
public health, nursing, consumer, religious, environmental, and other
groups working to improve drinking water protection. I also serve on the
steering committee of a new organization called Lead Emergency Action
for the District (LEAD), a coalition of local and national civic groups,
environmental, consumer, medical, and other organizations and citizens
urging a stronger public response to the D.C. lead crisis. I testify
today only on behalf of CWA.
REVIEW OF THE NEED FOR THE LEAD-FREE DRINKING WATER ACT OF 2004
HR 4268/S.2377
The Lead-Free Drinking Water Act of 2004, introduced in
the House by Del. Norton, and cosponsors Reps. Fattah, Hoyer, Markey,
Moran, Solis, Van Hollen, Waxman, and Wynn (H.R. 4268), and in the
Senate by Senators Jeffords and Sarbanes (S. 2377), includes an
important set of provisions necessary to address the nation’s
continuing lead in drinking water problem. This serious issue has
received renewed attention in light of the widespread lead contamination
of the tap water here in the nation’s capital. Lead is a cumulative
poison, and EPA and public health authorities have concluded that the
only “safe” level of exposure, especially for pregnant women and
children, is zero. Recent scientific evidence published in the New
England Journal of Medicine and elsewhere shows that lead significantly
reduces children’s IQ even when levels of lead in the blood are below
the Centers for Disease Control and Prevention’s (CDC) current level of
concern of 10 micrograms per deciliter (µg/dl). In fact, one study
found that the most significant reduction in IQ (over 7 points on
average) occurred when blood lead levels were increased within the band
from zero to 10 µg/dl. In other words, virtually any substantial
exposure to lead, from drinking water or otherwise, has the potential to
significantly reduce a child’s intelligence and ability to learn.
The provisions of the Lead-Free Drinking Water Act of
2004 are important to the protection of public health. The bill:
- Requires EPA to review and revise the national primary
drinking water regulation for lead within 18 months, and to either
establish a maximum contaminant level (MCL) for lead in drinking water
as measured at the tap, or, if EPA determines that it is not
practicable, to establish a treatment technique to prevent adverse
health effects. The new standard must be at least as strict as the
current EPA standard.
- This review is critically important,
as the recent experience with Washington D.C., and now emerging concerns
with other water systems has shown. There are serious problems with the
action level approach, as well as with the lead rule’s provisions
regarding lead service line replacement, monitoring, public
notification/right-to-know, and other measures that must be addressed.
- Speeds up and requires complete replacement of lead
service lines in systems that exceed the MCL or action level for lead
- Upon exceeding the MCL or action
level for lead, a water system must replace at least 10 percent of its
lead service lines annually until they are gone. The current seven
percent per year requirement means that it can take nearly 13 years to
replace lead service lines in a community with serious lead
problems—exposing almost a generation of children to excessive lead.
- Priority is given to homes with
highest lead test results and those that provide drinking water to
infants, children, and pregnant and lactating women. Since these are the
subpopulations at greatest risk, it only makes sense from a public
health perspective to focus on “first things first.”
- Eliminates the existing loophole
allowing systems to avoid replacing lead service lines by conducting
water tests. While it is useful to conduct widespread monitoring of
communities with lead problems, we believe that such monitoring should
automatically be triggered by exceedence of the MCL or action level, and
that lead service line replacement should not be delayed by intensive
monitoring.
- Requires community water systems and
nontransient noncommunity water systems to replace lead service lines,
including those portions owned by homeowners, but allows homeowners to
veto installation of a non-lead line on their property if they choose
not to do so. This provision is critically important in light of
emerging evidence in Washington, D.C. and other cities that partial lead
service line replacement can temporarily make lead levels worse in
drinking water, and that even with the passage of time, lead levels at
the tap still are not reduced nearly as much with partial replacement as
when the full lead service line is replaced. We should not be spending
tens or hundreds of millions of dollars on a partial solution when a
much fuller solution costs only a small amount more (in Washington, for
example, it has been reported that partial lead service line replacement
costs $10,000-$12,000 per household, and replacement of the full line up
to the home costs about $1,000 to $2,000 more, since the contractor is already there with equipment and staff, substantially
reducing costs).
- Strengthens public notice requirements. The
experience in Washington, D.C. and other cities highlights the fact that
even when serious lead problems exist in a city’s drinking water, most
citizens—and sometimes even senior city officials—are not made aware
of the problem.
- Upon exceedance of the MCL or action
level for lead, water systems must deliver notice within a month to
consumers of the testing results and corrective actions to be taken. A
warning must be given on all water bills regarding the presence of a
health risk from high lead levels in tap water, and repeated notices
have to be provided every 90 days as long as the problem continues.
- Water systems must provide, within
two weeks of the receipt of results, notification to each home tested of
their own results, the scope of the testing conducted and the results,
and referrals for any required medical intervention.
- Requires special emphasis on
alerting parents, caregivers, and others of the high risks to infants,
children and pregnant and lactating women from lead in drinking water;
and encourages, when appropriate, immediate modifications of behavior to
minimize exposure to lead in tap water.
- Requires the EPA to establish
verification procedures to determine the effectiveness of public
notification.
- Establishes routine public education
on lead in drinking water.
- Requires routine public education
programs by water systems, designed to improve the level of public
understanding of the risks posed by lead contamination and available
protective actions. EPA can waive this requirement for systems that have
not exceeded the action level for lead since June 7, 1991.
- Requires that, upon exceeding the
MCL or action level for lead, water systems provide onlocation filters
certified for lead removal to each residence, school, and day care
facility that could reasonably be expected to have lead contamination of
tap water in excess of the MCL or action level for lead.
- Priority is given to vulnerable
populations such as infants, children, and pregnant and lactating women;
and to residences, schools, and day care facilities with high lead
levels.
- Establishes testing requirements and
corrective actions for federal buildings.
- Requires one-time nationwide testing
for lead in drinking water at all community water systems or
nontransient noncommunity water systems to be completed within 18
months.
- Requires an overhaul of monitoring
protocols to ensure that tests for lead are conducted at 6month
intervals, that a statistically significant sample is used that is fully
representative of all types of residential dwellings and commercial
establishments, and that increased testing is conducted after any
substantial modification in the treatment of drinking water or during
any period in which the drinking water exceeds the MCL or action level
for lead. The D.C. situation makes the need for this provision clear.
- Requires that water systems
reevaluate and optimize corrosion control plans within a year of a
change in water treatment or an exceedance of the MCL or action level
for lead.
- Establishes a lead service line
replacement fund that authorizes $200 million per year for 2005 through 2009, and provides $40 million per year to D.C.
- Revises current SDWA definition of “lead-free” from 8
percent lead to 0.2 percent lead and makes it unlawful to import,
manufacture, process, distribute in commerce, or install in any
residence anything but lead-free plumbing fixtures and components as of
January 1, 2005. We now know that 0.2 percent or less lead alloys are
widely available on the market, and are required in purchase contracts
used by Los Angeles and other cities across the country. At a recent
EPA-sponsored workshop in St. Louis May 10-13, experts noted that the
current NSF voluntary standard for lead content in faucets and fixtures
has serious problems and does not assure that lead leaching is
minimized—in fact, at least one expert stated that his lab found that
some pure lead fittings could pass the NSF protocol.
- Establishes requirements for testing and removing lead in
schools. Authorizes $30 million per year for this purpose. A court
decision that has cast a shadow of doubt over the continued
enforceability of the current provisions makes clarification and
strengthening of these provisions important.
The drinking water lead crisis in Washington D.C. poses
serious public health risks to thousands of residents of the national
capital area, and casts a dark shadow of doubt over the ability,
resources, or will of federal and local officials to fulfill their duty
to protect our health. Preliminary data released by the Centers for
Disease Control and Prevention recently found that there are reasons to
be concerned about lead in DC tap water. While severe acute lead
poisoning due to drinking water was not found, blood lead levels in DC
children who drink water in homes served with lead lines did not
decrease, whereas they did decrease in children served by non-lead
lines. This suggested to health experts that lead in tap water is likely
contributing to higher blood lead levels in some children in the
District. Because of deficiencies in the D.C. blood lead monitoring
program design, and because blood lead levels begin to drop fairly
shortly after exposure is stopped (with time much of the lead deposits
in bone and tissues), it is quite possible that more serious problems
were not detected. Mary Jean Brown, the lead poison prevention chief at
the CDC and a co-author of the report said in releasing the report that
"there is no safe level of lead…Even a small contribution,
especially in small children, is not something that we want to
happen…. We don't want to increase the blood lead levels of those
individuals by even 1 microgram if it can be prevented." See Avram
Goldstein, “Blood Lead Levels Affected by Disinfectant,” Washington
Post, March 31, 2004, available online at http://www.washingtonpost.com/wp-dyn/articles/A37404-2004Mar30.html
and CDC study at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm53d330a1.htm.
It is important to note that new data published in major
medical journals the past few years show that even at levels below 10 ug/dl
in blood, lead has been linked to reduced cognitive function in
children, and surprisingly, the most significant effects are seen at
levels below 10 ug/dl. See CDC Advisory Committee on Childhood Lead
Poisoning Prevention, Evidence of Health Effects of Blood Lead Level
<10 ug/dl, available online at
http://www.cdc.gov/nceh/lead/ACCLPP/meetingMinutes/lessThan10MtgMAR04.pdf.
The U.S. Environmental Protection Agency (EPA) has the
primary responsibility for protecting drinking water only in Washington
D.C., Wyoming, and a few U.S. territories. EPA has failed to fulfill its
obligation to aggressively oversee the safety of D.C.’s water supply,
to ensure that the public is fully apprised of the health threats posed
by our drinking water, and to enforce the law.
This raises important questions about the adequacy of
EPA’s drinking water program not only for the Nation’s Capital, but
also for the whole nation. The U.S. Army Corps of Engineers’ Washington Aqueduct Division (the Corps) has failed to
treat the water it delivers to D.C. and neighboring Northern Virginia
communities sufficiently to assure that the water is not corrosive, in
order to reduce lead contamination. The D.C. Water and Sewer Authority (WASA)
has failed to act promptly or adequately on the lead contamination
crisis, and has repeatedly confused and mislead the public about the
lead problem. To date, the local and federal response has been far too
slow and manifestly inadequate. The nation’s capital’s water supply
should be the best in the world, an international model. Instead, it is
among the worst big city supplies in the nation.
It should not be assumed that Washington is the only city
in the U.S. affected by lead or other important tap water problems. We are now learning of lead
problems in Northern Virginia, and there are several other cities have struggled with lead
contamination in recent years, including:
- Seattle, Washington (19 ppb 90th
percentile lead according to Annual Consumer Confidence Report (CCR) issued in 2003, citing 1997
data).
- Portland, Oregon (17 ppb 90th
percentile according to CCR issued in 2003)
- St. Paul, Minnesota (45 ppb 90th
percentile in 1996, reportedly brought down through treatment to 25 ppb in 1999, 20 ppb in 2000, and 11 ppb
in 2003).
- Bangor, Maine (6-8 ppb 90th
percentile from 1993-1999, increased to “15 ppb” in 2001 after switch to chloramines and subsequent nitrification
problem; reportedly reduced since then after additional treatment—compliance issue boiled
down to 1 ppb in one home out of 38 tested).
- Madison, Wisconsin (22.2 ppb 90th
percentile lead level, city is now doing lead service line replacement,
according to February 2004 report available online at http://www.ci.madison.wi.us/water/Report%20PhaseII%20S.pdf).
- Greater Boston, Massachusetts
communities (most recent Mass. Water Resource Authority’s 2003 CCR
reports system-wide (consolidated) 90th percentile lead level has
dropped from 65 ppb in 1992 to 11 ppb in 2002, but MWRA’s 2001 CCR
reported, on a community-by-community basis, that 13 Boston area
communities substantially exceeded the 90th percentile level. It is
unclear why MWRA stopped reporting these community-bycommunity data in
its annual CCRs thereafter.)
- Newark, New Jersey (2001 90th
percentile in Wanaque system was 24 ppb and 13 ppb in Pequannock system;
2002 level reportedly changed to 12 and 14, respectively, with new
corrosion treatment).
- New York City (2002 and 2001 90th
percentile levels reported in CCR at 15 ppb, with levels up to 3,555 ppb
in 2001; compliance issue boils down to 1 ppb in one home out of 107
tested in all of NYC).
- Oneida, New York (2002 CCR reported
19 ppb 90th percentile level, reportedly doing lead service line
replacement).
As several of these examples highlight, there are
opportunities to “game” the system by slightly altering the
monitoring program. Though there is evidence that this may have happened
in Washington D.C., we are not aware of any evidence of this elsewhere,
though the temptation could be large, and the lack of serious EPA
oversight makes detection of such problems unlikely. If the compliance
of a system serving millions of people boils down to less than 1 ppb
measured at one or a few homes out of about 100 tested, this raises
significant issues.
Many other cities have had similar lead problems to those
noted above. However, incredibly EPA maintains no accurate up-to-date
national information on this issue. Some of these cities will assert that they are now in compliance with EPA’s lead
action level despite recent documented problems, but EPA has done little
to aggressively ensure that this is correct.
School systems in many cities across the country
including in Seattle, Boston, Baltimore, Philadelphia, Montgomery
County, Maryland, and many others have found serious lead contamination
problems, but often have been slow to inform parents and resolve the
problem. Many other states and school systems have entirely failed to
comply with the Lead Contamination Control Act of 1988’s mandate to
test school water for lead and replace coolers that serve
lead-contaminated water. EPA and many states have done a poor job of
assuring that the EPA lead rule, and the school testing and cooler
programs are fully implemented.
The EPA Inspector General has recently issued a stinging
report finding that EPA’s national drinking water database mandated by
Congress and EPA rules is woefully incomplete and out of date, and that
EPA has repeatedly mislead the public about drinking water quality and
compliance because violations are seriously underreported.1 EPA has
acknowledged that there are major problems with state reporting of all
violations and specific lead levels to EPA—indeed, NRDC has learned
that fully 20 states have not been reporting any required information on
lead rule compliance, contrary to EPA rules. Yet EPA has has failed to
crack down on states that are not complying with federal reporting
rules, making effective federal tracking, oversight, and enforcement
impossible. Moreover, the Washington crisis and experience in other
cities highlight that the EPA lead rule and public education
requirements are manifestly inadequate and almost designed to be
difficult to enforce.
Below, we summarize some key problems with the response
to the lead crisis, and the actions that need to be taken to resolve the
problem locally and to avoid possible repetition of the problem
nationally:
EPA. The EPA bears a special responsibility for
addressing the D.C. water crisis, since EPA has primary responsibility
for drinking water protection only in Washington, D.C. and Wyoming. EPA
must take emergency enforcement action against WASA and the Corps.
EPA’s recent notice of violation issued to WASA was extremely long in
coming. EPA’s deals with WASA and the Corps lack the clarity, detail,
and enforceability that is needed to assure this problem is promptly
resolved. Only years after the alleged violations, of which EPA was well
aware, and only after a barrage of two months of adverse publicity, did
EPA take this feeble action of issuing an NOV. An emergency enforcement
order should be issued that would not only mandate immediate actions to
deal in the short-term with the lead crisis, but should also require a
comprehensive top-to-bottom third party review of both WASA and Corps
operations.
EPA has failed to ensure prompt and accurate public
education and reporting on lead problems, and there are substantial
questions about whether EPA adequately oversaw WASA’s lead monitoring
and sample invalidations. EPA failed to promptly and adequately review,
or to insist upon the updating the Corps’ corrosion control program.
It is unclear whether EPA insisted upon an adequate and accurate
materials survey, and EPA reportedly allowed WASA to avoid lead service
line replacement by taking advantage of a regulatory loophole.
EPA has been slow to force WASA to redo its manifestly
invalid and misleading school testing, or to mandate testing of day care
centers or private schools. The EPA lead rule itself, which is drafted in a way that makes it extremely difficult to enforce,
needs to be substantially strengthened. In addition, as noted above,
EPA’s data reporting systems are woefully inadequate, to the point
that EPA management cannot accurately and timely answer simple questions
such as “which public water systems are above the lead action level
and which are replacing lead service lines?” EPA also has done little
to ensure that school testing for lead has been carried out nationally,
perhaps in part due to a court ruling casting doubt on the program
(Acorn v. Edwards, 81 F.3d 1387 (5th Cir. 1996)). EPA’s inspection and
enforcement program for drinking water has always been weak, but has
gotten demonstrably worse during the Bush Administration, as is shown in
graphs a the end of this testimony.
Army Corps of Engineers. The Corps has failed to ensure
that its water is adequately treated to reduce its corrosivity and to
thereby reduce lead levels in Washington and the Northern Virginia
suburbs that it serves. The Corps has repeatedly responded to water
quality problems by adopting the cheapest and often least effective
band-aid solutions. Instead of using orthophosphate or other
sophisticated corrosion inhibiters as recommended as best by its
consultants, the Corps chose to simply adjust water pH with lime, a
cheaper and apparently less effective alternative.
Instead of moving towards advanced treatment such as
granular activated carbon filters and UV light or ozone disinfection, or
membranes to reduce cancer-causing (and possibly miscarriage and birth
defect-inducing) disinfection byproducts, and to more effectively remove
the dangerous parasite Cryptosporidium and other contaminants, the Corps
opted for the cheapest and least effective choice. It simply added
ammonia to its chlorine to make chloramines. The switch to chloramines
did slightly reduce chlorination byproduct levels, but also appears to
have increased corrosivity of the water and therefore increased lead
problems. It should be noted that contrary to the inaccurate assertions
of some critics, the EPA rules setting new limits on disinfection
byproducts were not the result of wild environmental extremists, but
were negotiated by a diverse regulatory negotiating committee over a
several-year period. The committee included major water utility trade
associations, chlorine manufacturers, health departments, public health
experts, states, local officials, and environmentalists (see 1998
agreement in principle at http://www.epa.gov/safewater/mdbp/mdbpagre.html).
WASA. WASA’s response to the lead crisis has been slow,
plagued by misleading statements to the public and even to senior D.C.
officials, and often characterized by missteps and at best grudging
compliance with EPA rules. Whether it is the alleged firing of a WASA
employee for reporting lead problems to EPA, or the failure to notify
customers with high lead levels for many months after samples were
taken, or the failure to effectively notify the Mayor, City Council, and
all city residents of the extensive and serious lead problem until the
Washington Post broke the story, WASA has a lot to answer for. EPA has
recently listed six alleged violations of federal regulations that may
have contributed to the lack of public knowledge. See EPA Non Compliance
Letter to WASA, dated March 31, 2004, available online at http://www.epa.gov/dclead/johnson-letter2.htm.
WASA’s conflicting advice to customers (such as a
February 9 letter to all customers telling them to flush their water for
15-30 seconds, followed by a public announcement a few days later to
flush lead lines for 10 minutes, followed a few days later by a
recommendation that pregnant women and children under six served by lead
service lines should use a filter) has confused and justifiably outraged
citizens. WASA’s invalid and misleading testing of city schools, in
which virtually all samples were taken after water was flushed for 10
minutes (with the likely effect of reducing or eliminating lead levels),
necessitates a re-conducting of a valid school and day care testing
program. At the mayor’s and EPA’s insistence, WASA has now said it
will do additional school testing.
In addition, it appears that WASA’s partial lead
service line replacement program may be making matters worse, increasing
lead levels in some homes’ water. Since local and federal authorities
have approved and encouraged the use of lead service lines in D.C. for
over 100 years, we believe that WASA should fully remove all of the lead
service lines at its expense (with federal assistance, see
“Congress” below), instead of stopping at the property line. A
comprehensive third-party public review of WASA’s lead program and all
water quality operations also is desperately needed.
Congress. We urge Congress to help D.C. and EPA to fund
the response to the lead crisis, including lead service line replacement
and upgrades to the D.C. and Corps water infrastructure. Congress also
should respond to the national water infrastructure problem through
national legislation and increased appropriations. In addition, Congress
should vigorously oversee EPA’s drinking water program, including its
national implementation of the lead rule and its enforcement and data
collection programs. Members of this Committee should urge their
colleagues on the Appropriations Committee to increase funding for EPA
drinking water programs, and particularly for drinking water
enforcement. We also urge Congress to insist that EPA take emergency
enforcement action against WASA and the Corps, as discussed below.
Specifically, among the actions that we believe Congress
should take to address problems raised by the lead crisis are:
- Water Infrastructure or Grants/Trust
Fund Legislation
- Congress should substantially increase the Safe
Drinking Water State Revolving Fund authorization and appropriations
(now funded at $850M; authorization of $1B expired in 2003)
- Congress should adopt broad water
infrastructure bill and/or water infrastructure trust fund legislation.
- Congress should adopt targeted
legislation for lead rule compliance/lead service line replacement and
filters for D.C. residents at least, since the federal government
approved and oversaw the installation of the lead lines.
- The Corps of Engineers should pay
for D.C. lead service line replacement since Corps built the system, and
operates the treatment plant that is providing corrosive water. Also,
federal agents (federally-appointed Commissioners and engineers)
approved and sometimes required lead service lines in D.C.
- Congress should adopt new
legislation that provides grants to needy water systems, like
Reid-Ensign bill (S. 503, 107th Congress).
- Fix Lead Pipe and Fixtures provision
in the SDWA
- Congress should redefine “Lead
Free” in SDWA §1417(d) to mean really lead free (i.e. no lead added,
and no more that 0.1 or 0.25% incidental lead--as required by L.A.,
Bangor, Maine, etc.)
- Congress should fix the public
notice provisions in SDWA §1417(a)(2), which clearly have been inadequate (as shown by the D.C. experience)
- Fix the SDWA lead in schools and day
care provisions (SDWA §§1461-1463)
- Congress should redefine lead free
in the Lead Contamination Control Act (LCCA), which added SDWA §1461, to mean really lead free (0.1%
or 0.25%, see above)
- Congress should order an EPA review
of §1462 implementation and effectiveness of lead fountain recall provision in all states
- Congress should clarify §§1461-63
to eliminate any constitutionality doubts raised by Acorn v. Edwards, 81
F.3d 1387 (5th Cir. 1996).
- Congress should require ongoing retesting of all
schools and day care centers in light of Acorn and widespread
non-compliance, and new info on lead leaching.
- Fix the EPA Lead Rule &
Associated Regulations
- Adopt a 10 or 15 ppb MCL at the tap.
There was an MCL (50 ppb) until 1991.
- As a clearly second-best
alternative, the rule needs serious overhaul:
- Require immediate review of
corrosion control programs for systems that make treatment changes, and
also require review periodically;
- Change monitoring requirements so
systems cannot go for years without testing, and to clarify and
strengthen test methods, site selection, and number of tests (50 or 100
per city are not enough);
- Strengthen/overhaul public education
and public notice requirements in 40 CFR 141.85 which are obviously
inadequate;
- Require full lead service line
replacement, or at a minimum require that water systems that approved,
authorized, or required use of lead service lines to replace those lines
if they are contributing to lead over action level;
- Require in-home certified filters to
be provided to high-risk people who have high lead levels, with water
system-supplied maintenance in accordance with 40 CFR 141.100;
- Eliminate the loophole that allows systems to count
homes tested at below 15 ppb as is their lead service lines were
replaced in implementing the 7%/year lead service line replacement
provision;
- Require an overhaul/upgrade of
EPA’s compliance & data tracking.
- Fix the Consumer Confidence Report
& Right to Know Requirements
- WASA’s report said on the cover
“Your Drinking Water is Safe” and buried the facts. No one knew of
the problem. Similar problems have been documented for water systems
across the country. EPA’s right to know and consumer confidence report
rules need to be overhauled & strengthened.
- Fix SDWA Standards Provisions
- Congress should require that
standards to protect pregnant women, children, vulnerable people.
- Congress should overhaul the new
contaminant selection & six-year standard review provisions. These
provisions have been complete failures since 1996.
EPA’s Responsibilities
EPA has known, at least since the mid-1990’s, that lead
contamination of tap water is a significant issue in Washington, and
that the public was ill informed about the problem. In 1995-1996, in
response to a Freedom of Information Act request, NRDC learned that many
homes across the city had lead levels well in excess of the EPA Action
Level, and that those homeowners had not been informed of the
contamination. The Washington Post ran a story about the issue in April
1996. Meanwhile, the Corps’ filed its corrosion control plan with EPA,
and EPA substantially delayed in its approval, well beyond the legal
deadline. Finally, EPA apparently simply accepted the Corps’ plan to
use only pH adjustment, rather than requiring the Corps to further study
or use orthophosphate or other more sophisticated corrosion inhibiters
recommended by some consultants. When the Corps later switched to
chloramines as a disinfectant, EPA made the serious mistake of not
insisting upon a full review of the corrosion control plan in light of
the apparently more corrosive disinfectant.
Even when the lead Action Level was exceeded in
Washington in 2001, EPA required no changes in corrosion control, went
along with WASA’s plan to replace only a small number of lead service
lines, and did not insist that WASA conduct an effective public
education program. There also are substantial unresolved questions about
whether EPA allowed WASA to “invalidate” lead samples and avoid an
exceedence of the Action Level, as alleged by a former WASA employee who
was reportedly fired for informing EPA of the lead problem.
Additionally, while EPA has issued a notice of violation recently to
WASA for failing to comply with public notification and public education
rules, EPA has never challenged the adequacy of WASA’s water quality
reports sent to all consumers in June 2003 boldly proclaiming that
“YOUR DRINKING WATER IS SAFE,” despite the exceedence of the lead
Action Level.
Moreover, while EPA enforcement of the Safe Drinking
Water Act (SDWA) has never been strong, this testimony documents that
nationally, it has substantially dropped off since President Bush took
office (see Figures at the end of this testimony). EPA’s drinking
water inspections, administrative penalty orders, administrative
penalties, and other measures of enforcement activity generally have
taken a substantial downturn in the past three years. We understand
there is only one EPA staffer in EPA’s Washington enforcement office
dedicated to drinking water enforcement (though there are pieces of a
few others who spend small amounts of time on drinking water
enforcement), and that the dedicated drinking water enforcement staffing
in the EPA’s regions is small and dwindling. This enforcement downturn
may have contributed to the lack of action in this case, compared to a
far more vigorous EPA enforcement response to previous D.C. water crises
in 1993-94 and 1995-96. There is a serious need for a major infusion of
resources and a will to enforce in EPA’s drinking water and
enforcement programs.
The only solution to the D.C. water crisis is for EPA to
initiate a full civil and criminal investigation, and to immediately
issue emergency administrative orders to WASA and the Corps. The orders
should mandate that they address the multitude of problems with their
response to the lead crisis and other water quality problems, including
enforceable deadlines for:
- expedited, valid testing of all schools and day care
centers;
- expanded testing of multiple family and single family
homes and apartments beyond those with lead service lines;
- reissued accurate, understandable notices to
consumers of lead levels, health risks, and options to avoid lead;
- professional installation and maintenance of
certified filters for homes with lead service lines or high lead levels
in their water, and that have young children, pregnant women, women who
expect they may become pregnant, and other high risk individuals;
- an aggressive, honest, ongoing public education
campaign developed with public input;
- a comprehensive third-party review of all available
records and archives to determine whether the D.C. materials survey
correctly identifies all locations where lead components were used;
- an expedited third-party review of the Corps’
corrosion control and disinfection byproduct control strategy, with
mandatory implementation of solutions by specified dates certain; and
- a top-to-bottom third party expert review of WASA and
the Corps’ water quality, source water, and overall performance,
including a detailed review of their implementation of past consultant
recommendations, Comprehensive Performance Evaluations, and sanitary
surveys, and recommendations for long-term compliance with current and
upcoming rules and water quality objectives. The review should seek
public input and should be published.
(See LEAD coalition recommendations below for a more
detailed discussion of the terms of possible orders). Finally, EPA must
overhaul its lead rule, and its overall and substantially better fund
its drinking water and enforcement program’s oversight,
sampling, data collection, and legal enforcement to ensure that this or
other similar problems are not repeated in other cities around the
country.
The Army Corps of Engineers’ Responsibilities
The Corps has repeatedly opted for the cheapest, easiest
way out of water quality problems, even if the “solution” is
manifestly inadequate. Thus, instead of following consultants’ advice
to consider aggressive and sophisticated corrosion inhibiters such as
orthophosphates to reduce lead problems, the Corps chose merely to
adjust pH. Instead of addressing the underlying problem creating the
high chlorination byproduct contamination of city water by installing
advanced treatment such as activated carbon and ozone or UV
disinfection, or membranes, the Corps opted for a cheap “band-aid”
solution of using chloramines alone, apparently exacerbating the
corrosion problem with our water. As noted above, EPA should immediately
issue an emergency order to the Corps requiring: (1) a comprehensive and
public third party expert review of the Corps’ corrosion control and
water treatment problems; (2) enforceable deadlines for completion of
the review and implementation of recommend solutions; and (3) a
longer-term top-to-bottom third party review, with public input, of the
Corps’ water quality and treatment.
D.C. Water and Sewer Authority’s (WASA)
Responsibilities
WASA has bungled its response to the D.C lead problem. In
addition to violating EPA rules, WASA’s public education and public
notice efforts have been conflicting, confusing, misleading, and
manifestly woefully inadequate. The direct notices provided to customers
whose water was tested and confirmed to be highly contaminated was
misleading and failed to provide any sense of health risk or urgency.
The WASA water quality reports issued to the public proclaiming that
“YOUR DRINKING WATER IS SAFE,” despite evidence to the contrary, was
highly misleading, as were a variety of other WASA public
communications. WASA’s changing advice on how long and whether to
flush tap water, and whether filters are necessary, has confused the
public.
WASA’s program testing about 750 samples from over 150
city schools’ fountains and faucets was fundamentally flawed and
either completely inept or intentionally misleading. WASA admits that
contrary to standard EPA regulatory protocol and standard scientific
practice, they ran the water for 10 minutes before taking school
samples, thereby likely substantially reducing lead levels in the
samples. No child runs water for 10 minutes before drinking it. WASA’s
press conference portraying the results as demonstrating that there is
no lead problem in D.C. schools was highly misleading and likely false.
The Mayor and EPA have now told WASA to redo this testing. It should be
done for all school and day care center faucets and fountains used by
children for consumption.
In addition, there are serious unanswered questions about
when WASA first learned of the lead problem, whether WASA
“invalidated” lead samples to avoid exceeding the Action Level, and
whether WASA fired an employee allegedly for notifying EPA of water
quality problems (as has been found by a U.S. Department of Labor
whistleblower review). It is also unclear whether the city’s materials
survey (intended to identify lead components in the system) adequately
documents where lead service lines and high-risk homes are located. The
WASA lead sampling plan and monitoring program clearly are inadequate,
since to date they have not sought to document the extent of the lead
problem in homes not served by lead service lines.
WASA’s lead service line replacement program is
insufficiently aggressive and will not promptly resolve the city’s
lead problems. In addition to the slow pace of replacement (at WASA’s
current rate, it will take about 15 years to complete), it also is
becoming apparent that partial lead service line replacement (leaving
the lead line on the homeowner’s property in place) may actually make
lead problems worse. Partial service line replacement can exacerbate
lead problems by shaking loose lead particles during and after the
replacement process, and by creating galvanic corrosion (similar to a
battery) caused when two pipes made of different metal are connected. We
believe that WASA should pay for—with federal assistance—full lead
service line replacements.
A long history of problems with the operation and
maintenance of the D.C. water distribution system, including past
city-wide boil water alerts during the microbial crises in 1993-94 and
1995-96, and WASA’s inability or unwillingness to candidly inform
customers and apparently even senior city officials about water quality
problems makes clear the need for EPA to issue an emergency order
mandating a comprehensive top-to-bottom third party expert review of
WASA’s water quality and operations, with public input and public
release of the findings, and a schedule for implementation of the
recommendations.
History of Recent Lead Crisis in D.C.
On Saturday January 31, 2004, residents of the Nation’s
Capitol picked up their morning papers and were stunned to learn that
thousands of homes’ drinking water in the District was seriously
contaminated with lead. Officials at the D.C. Water and Sewer Authority
(WASA) and at the U.S. Environmental Protection Agency (EPA) had known
about the lead problem for over a year, and probably longer, but had
failed to effectively notify the public about the problem. The Mayor,
City Council, Members of Congress, and the general public were caught by
surprise that over 4,000 of 6,000 homes whose water WASA tested was
contaminated with lead at levels above EPA’s action level—the safety
level at which federal rules require prompt action to reduce lead
levels. There has been over a month of front-page stories, saturation TV
and radio coverage, hostile City Council hearings, public outrage, and
repeated (albeit often conflicting) WASA public statements that there
was no serious health threat. Finally, WASA recommended on February 25
that pregnant women and children under age six whose homes were served
by lead service lines should not drink city water, fueling further
public concern, confusion, and outrage that WASA and EPA had known about
the health threat for so long and never previously told pregnant women
and parents of young children not to drink the water.
WASA also held a press conference in late February to
announce that school drinking water was safe, based upon testing of over
750 fountains and faucets in D.C. schools. It then came out that the
results were seriously misleading because in almost all cases, WASA
flushed the water lines for 10 minutes, likely removing most lead from
the water, contrary to EPA rules and all scientific protocols for lead
testing. No child stands at a fountain flushing water for 10 minutes
before taking a drink. WASA refused to retest D.C. school drinking
water, or to comprehensively test day care centers, posing a serious
health risk to D.C. school and preschool children, until ordered to do
so by the Mayor and EPA.
Now we are learning that it appears that similar problems
may be plaguing Northern Virginia communities that also receive their
water from the U.S. Army Corps of Engineers’ Washington Aqueduct Division (the Corps). The Corps changed its
disinfection practice to use chloramines in 2000, a switch many experts
believe may account for increased corrosivity of the water and therefore
more lead leaching into tap water. Chloramines are a “band-aid” that
modestly reduce cancer-causing chlorination byproducts, but only a
switch to modern water treatment technologies such as granular activated
carbon plus UV light or ozone disinfection will actually solve both the
chlorination byproduct problem.
The February 25 “don’t drink the water” advice,
though necessary, is woefully inadequate. Citizens are infuriated that
they have been mislead and given conflicting advice. District leaders
announced, as this scandal erupted in early February, that they would
name an “independent” blue ribbon panel to investigate. However,
this was followed days later by an announcement of a panel consisting
entirely of WASA and other District government officials, with no
independent experts and no citizens, environmentalists, or consumer
representatives. The District government’s retreat from its promise
that there would be an independent review showed a lack of commitment to
swiftly resolve this serious health problem or to get to the bottom of
why WASA continues to fail in its duty to protect the public.
The decisions to approve the use of lead service lines
were made with the explicit approval and oversight of federal officials,
who were overseeing the construction of the city’s water lines and
supply. There had been a vigorous public debate about the safety of lead
service lines stretching back to the 1890s, yet federal officials who
ran the city supply decided to use lead lines. Thus, the federal
government bears some culpability for the problem.
Conclusion
We urge members of this Committee to consider the
legislative and oversight recommendations noted above. Without changes
in applicable statutory provisions, and aggressive Congressional
oversight, it is likely that problems like those in Washington, D.C.
could happen in many cities and towns across the country. Public health
protection requires increased vigilance by EPA, Congress, health
authorities, and water utility professionals, and increased public
awareness.
APPENDIX A
LEAD Coalition’s Recommendations
Lead Emergency Action for the District (LEAD), a
coalition of local and national health, environmental, and other citizen
organizations of which NRDC is a member, recommended the following
actions in February; only part of a few of these recommendations have
been carried out:
1. The U.S. Environmental Protection Agency (EPA) has the
responsibility to immediately take enforcement action against WASA to
ensure our health is protected, and should initiate a full criminal and
civil enforcement investigation.
The EPA has primary responsibility for overseeing the
safety of the District’s drinking water supply. Unlike its vigorous
actions to resolve microbiological threats a decade ago, the agency has
shirked its responsibility in response to the recent lead problem. The
EPA should immediately initiate an enforcement action under its
emergency order authority (which allows the EPA to enforce when there is
an imminent health threat, requiring no finding of a violation of law),
and should initiate a parallel criminal and civil enforcement
investigation. The EPA order should mandate several specific actions,
including enforceable deadlines for:
- Expedited, valid testing of all schools and day care
centers, both first draw and flush samples.
- Expanded testing of homes beyond those with lead
service lines. WASA should arrange free water lead tests for all D.C.
residents. (This is what the New York City Department of Environmental
Protection has been doing for more than 10 years.) Notice of these free
lead tests should be drafted in consultation with EPA and the public,
and should note the health implications of elevated lead levels in water
and the threat from lead paint in D.C.
- Reissued accurate, understandable notices to consumers
of lead levels, health risks, and options to avoid lead, by mail and
through broadcast media. WASA should be required to immediately notify
all D.C. households whether they are believed to have lead service lines
or not, what the risks are, and should arrange for free lead testing of
any tap water on request. Notices similar to those recently sent to lead
service line customers should be sent to customers who are not believed
to have lead service lines noting that there still may be a risk of lead
contamination, and offering to arrange for free lead testing.
- Professional installation and maintenance of certified
filters for homes with lead service lines or high lead levels in their
water, and that have young children, pregnant women, women who expect
they may become pregnant, and other high risk individuals.
- An aggressive, honest, ongoing public education
campaign developed with public input. This should include several
specific requirements, such as:
- WASA should send all D.C. residents a detailed
citywide map of all areas with known or suspected lead service lines with accompanying health
and other explanations.
- WASA must acknowledge the public’s right to know and
issue a city-wide map of lead levels detected on a detailed map, and should provide
real time monitoring results for lead and all contaminants found in its water.
- WASA must notify any home with a lead service line
that has been found to have excessive lead in an appropriate water test
that it is eligible for free lead service line replacement, and the
schedule for replacement. The notice should also note whether WASA is
responsible for only part of the service line replacement or full
service line replacement under D.C. law.
- EPA and WASA must issue notices that publicly
recommend that those pregnant women, or parents of young children, with
lead service lines or whose water lead levels are in excess of EPA’s
Action Level (or some other reasonable safety level), should obtain
blood screening for lead for their children. This is not an emergency
that would require going to the emergency room, but it is a matter of
importance, and blood tests for lead levels should be provided by the
D.C. Department of Health.
- A comprehensive third-party review of all available
records and archives to determine whether the D.C. materials survey
correctly identifies all locations where lead components were used;
- An expedited third-party review of the Corps’
corrosion control and disinfection byproduct control strategy, with
mandatory implementation of solutions by specified dates certain; and
- A top-to-bottom third party expert review of WASA and
the Corps’ water quality, source water, and overall performance,
including a detailed review of their implementation of past consultant
recommendations, Comprehensive Performance Evaluations, and sanitary
surveys, and recommendations for long-term compliance with current and
upcoming rules and water quality objectives. The review should seek
public input and should be published.
2. EPA should immediately take enforcement action against
the Army Corps of Engineers’ Washington Aqueduct and order it to
aggressively treat the water to reduce lead leaching.
The EPA’s 1991 lead and copper regulations require the
Washington Aqueduct to treat our water in order to reduce its
corrosivity; less corrosive water should mean less lead leaching from
pipes. While the Corps and WASA do have a corrosion control program
(albeit one that reportedly was reviewed by the EPA far later than
envisioned by the 1991 rules), it is obvious that it must be critically
examined and improved. Recent changes in water treatment at the
Washington Aqueduct (apparently made after the corrosion control plan
went into effect), aimed at reducing disinfection byproducts, may have
altered the chemistry of the city’s water. An urgent independent
review of the corrosion control plan is warranted, with EPA-ordered
steps to implement recommended actions. Deadlines should be established
for completion of the review and implementation of its recommendations,
and the results should be made public as soon as they are completed.
When WASA was constituted, it entered into a governance agreement with
the city of Falls Church and Arlington County over Washington Aqueduct,
with oversight over expenses and actions. WASA and other customers
should long ago have insisted upon improvements in the Washington
Aqueduct’s corrosion control program.
3. WASA must re-conduct its testing of District school
water to be sure that all drinking water fountains and all faucets used
for consumption in District schools and day care centers are
tested—both first draw and flushed samples—within two weeks.
WASA’s recent water test results were highly misleading
because more than 97 percent of the samples taken were from faucets and
fountains flushed for 10 minutes. Since no student flushes a fountain
for 10 minutes before taking a drink, flushing water for a test sample
would create misleading samples and test results. (Flushing often will
reduce or eliminate lead levels in large buildings.) Since infants and
young children are most vulnerable to lead poisoning, schools and day
care centers should be top priorities for testing.
4. EPA and Congress should help WASA and the D.C.
government fund home treatment units or bottled water for pregnant women
and infants under age 6 in households that have lead service lines or
lead in the drinking water at levels above the EPA action level.
There are likely thousands of pregnant women and young
children under the age of 6 who are drinking tap water that contains
lead at levels higher than 15 parts per billion, EPA’s action level.
These people need a safe alternative water supply until the problem has
been resolved. The D.C. government, EPA and Congress should fund
alternative water supplies for high-risk water drinkers. Bottled water
is not necessarily any safer than tap water unless it is independently
tested and confirmed to be pure, and many filters are not independently
certified to remove the levels of lead found in many D.C. homes’
water. Therefore, EPA should assist residents by assuring that any
alternative water supply (such as bottled water) is indeed free of lead
and other harmful contaminants, or that a filter is independently
certified (see www.nsf.org) to take
care of lead. It should be noted that NSF certifies only that lead
levels up to 150 ppb will be reduced to below 10 ppb; there is no
guarantee for reducing levels above 150 ppb. Finally, it is critical
that WASA and other officials involved ensure that there is a follow-up
program for maintenance of filters, since poorly maintained filters can
fail to remove lead or even make contamination worse.
5. WASA should expedite replacement of lead service
lines, and the City Council should review policies on replacement of the
homeowner’s portion of the line.
Under EPA’s lead and copper rule, WASA reportedly has
begun to implement its obligation to replace 7 percent of the
District’s lead service lines (or to test and clear homes served by
lead service lines as containing less than 15 ppb lead in their water)
each year. At this pace it will take nearly 15 years— until about
2018—for WASA to replace all the city’s lead service lines. In the
meantime, thousands of pregnant women, infants and children could be
consuming water with excessive lead levels. We strongly urge that the
lead service line replacement program be aggressively expedited. A
schedule should be published, with objective criteria for which lines
will be replaced first (presumably based primarily upon replacement of
those lines posing the greatest public health risk first). Federal and
city general funds should be set aside for this program to augment
promised rate increases on our water bills. WASA customers should not
foot the entire bill, since the decisions to approve the use of lead
service lines were made with the explicit approval and oversight of
federal officials who were overseeing the construction of the city’s
water lines and supply. There was a vigorous public debate about the
safety of lead service lines stretching back to the 1890s, yet federal
officials who ran the city supply decided to use lead lines. District
officials also should consider using the city’s multimillion dollar
rainy-day fund to help pay for service line replacements.
In addition, the City Council should review WASA’s and
the city’s policy about lead service line replacement for the portions
of the line that are supposedly owned by homeowners. Evidence is
mounting that partial lead service line replacement often will not solve
the problem, and actually can make lead levels worse by shaking loose
lead in the pipes and causing galvanic corrosion that may exacerbate
lead problems.
Under recent EPA rule changes, it is apparently up to the
City Council to determine how much of the service line should be
replaced by WASA. In 1991, EPA originally required full lead service
line replacement unless the water utility could prove that it did not
control part of the line, in which case it was to replace only that
portion that the utility controlled. After being sued successfully by a
water industry group, the EPA changed the rules to provide that it is
largely a question of local law what portion of the lead service line is the responsibility of
the water utility. We believe that it is only fair that since many of
the lead service lines were installed from the 1890s through the 1940s
under the direction, approval and control of the District and federal
officials, those authorities should be responsible for replacing them,
not homeowners. The cost to homeowners of their portion of lead service
line replacement could be thousands of dollars, but it is far more
efficient and cost-effective to replace the entire service line at once,
rather than digging up yards twice. This is a question that deserves a
full public airing by the City Council.
6. The City Council should create a permanent citizen
water board for water to oversee WASA and the Washington Aqueduct, to
address longstanding problems with D.C.’s water supply.
In 1996, the Natural Resources Defense Council (NRDC),
Clean Water Action (CWA), and the DC Area Water Consumers Organized for
Protection (DC Water COPs) issued a report, based in large part on city
and federal records obtained under the Freedom of Information Act. That
report found serious ongoing problems with the District’s water, and
identified likely problems that could occur in the future. Among the
current and future problems noted were lead contamination, bacteria and
parasites, cloudiness (turbidity) in the water – which may indicate
poor filtration and can interfere with disinfection – and disinfection
byproducts that cause cancer and may cause birth defects and
miscarriages. The report also noted that the Washington Aqueduct’s
water treatment plants need a major infusion of funds to modernize and
upgrade treatment, and that the District has ancient and deteriorating
water pipes leading to water main breaks, regrowth of bacteria, and lead
problems. Those pipes must be replaced. In addition, the WASA-operated
sewage collection and treatment systems have serious inadequacies,
including major problems whenever stormwater runoff overloads the
treatment plant’s capacity, causing raw sewage to flow into the
Anacostia and Potomac rivers.
In the wake of the D.C. citywide boil-water alerts in
1993 and 1996 due to turbidity and bacteria problems, and EPA’s
enforcement orders issued thereafter, comprehensive sanitary surveys and
engineering reviews by outside contractors found a series of serious
problems with our water treatment and distribution system. These reviews
recommended hundreds of millions of dollars in improvements in the
city’s water supply system.
While the city has addressed some of the most pressing
problems, it has not made many of the important investments needed to
repair local water infrastructure. We strongly recommend that the City
Council establish a citizen water board to oversee the city’s water
supply and sewer system. The board should oversee not only steps to
improve our drinking water system, but also WASA’s storm water and
sewer obligations, because of the overall competition for water
infrastructure dollars and need to focus on whole watershed and “sewer
shed” solutions. This board—like those created by some states to
oversee electric and other utilities—should be funded with a small
surcharge on water and sewer bills, and should be wholly independent of
WASA and the Washington Aqueduct. It should include independent
engineering and public health experts and citizen activists interested
in drinking water, and should issue an annual progress report on
WASA’s and the Washington Aqueduct’s performance, progress and
problems.
7. The City Council must improve its oversight of WASA.
The District’s City Council is responsible for
overseeing WASA’s day-to-day activities, and has failed to do its job over recent years to make sure that WASA is
carrying out its responsibilities to deliver safe drinking water and to
safely collect and fully treat city sewage. More aggressive City Council
oversight is needed to avoid continued problems with WASA.
8. The mayor should make tap water and all environmental
protection a high priority.
The mayor should make drinking water safety, sewage
collection and treatment and environmental protection a high priority.
The mayor bears some responsibility for ensuring that WASA is doing its
job. He has many ways to influence WASA’s board and daily operations,
and should insist on regular briefings and updates on how the city is
fulfilling its obligations to provide these most basic city services.
9. Consumers, health, and citizens groups should be on
the blue ribbon commission, and should recommend people to serve on the
panel.
The announced “independent” panel to review WASA’s
embarrassing performance in addressing the lead problem has instead
morphed into an internal review panel of city officials, including two
of the WASA officials who so obviously have failed to do their jobs. In
order to avoid a panel that merely papers over the problems and
whitewashes the lead crisis, LEAD is calling upon city officials to name
independent experts, consumers, citizen groups and environmentalists to
the panel.
10. The EPA, CDC, the D.C. Dept of Health and the City
Council should establish a joint task force with citizen participation,
to evaluate the extent of lead poisoning from all sources in the
District, and its environmental justice implications, particularly for
low-income AfricanAmerican and Latino households.
According to expert estimates, the District has
widespread lead poisoning, affecting perhaps tens of thousands of
District children. Because of the city’s demographic and economic
realities, most of these children are African American and Latino. The
District and federal officials should establish a joint task force, with
citizens and medical experts, to evaluate the extent of the problem and
its environmental justice implications, and to recommend actions to
remedy it.
APPENDIX B
RECENT TRENDS IN EPA DRINKING WATER ENFORCEMENT
Source: EPA Data, 20042
1. EPA Inspector General, “EPA Claims to Meet Drinking
Water Quality Goals Despite Persistent Data Quality Shortcomings,”
Report 2004-P-0008, available online at www.epa.gov/oig/reports/2004/20040305-2004-P-0008.pdf.
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