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20–378 PDF 2005

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

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

GINNY BROWN-WAITE, Florida

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(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

(III)

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

(1)

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 reVerDate 11-MAY-2000 10:54 May 31, 2005 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 D:\DOCS\20378.TXT HGOVREF1 PsN: HGOVREF1
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mediation 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 sixpage 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

7

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.

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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.

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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.

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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

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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, distribVerDate 11-MAY-2000 10:54 May 31, 2005 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 D:\DOCS\20378.TXT HGOVREF1 PsN: HGOVREF1
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uted 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 bilVerDate 11-MAY-2000 10:54 May 31, 2005 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 D:\DOCS\20378.TXT HGOVREF1 PsN: HGOVREF1
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lion. 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

52

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

53

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.

54

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

55

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,

56

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.

57

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.

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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.

59

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 21⁄2 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

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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.

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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

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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 rightto-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-theart 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

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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.

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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.

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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 onesize-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.

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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

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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-greatgrandchildren’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?

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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——

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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?

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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.

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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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