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THIRSTY FOR RESULTS: LESSONS LEARNED FROM

THE DISTRICT OF COLUMBIA’S LEAD CONTAMINATION EXPERIENCE

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

MAY 21, 2004

Serial No. 108–204

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

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

TIM MURPHY, Pennsylvania

MICHAEL R. TURNER, Ohio

JOHN R. CARTER, Texas

MARSHA BLACKBURN, Tennessee

PATRICK J. TIBERI, Ohio

KATHERINE HARRIS, Florida

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

JOHN F. TIERNEY, Massachusetts

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

ELEANOR HOLMES NORTON, District of

Columbia

JIM COOPER, Tennessee

——— ———

———

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 May 21, 2004 ............................................................................... 1

Statement of:

Grumbles, Benjamin, Acting Assistant Administrator for Water, U.S.

EPA; Donald Welsh, Administrator, Region III, U.S. EPA; Thomas

P. Jacobus, general manager, Washington Aqueduct, Baltimore District, U.S. Army Corps of Engineers; and Jerry N. Johnson, general

manager, District of Columbia Water and Sewer Authority ..................... 9

Neukrug, Howard, director, office of watersheds, Philadelphia Water Department, the American Water Works Association; Angela Logomasini,

director, risk and environmental policy, Competitive Enterprise Institute; Scott Rubin, consultant and public utilities expert; Paul Schwartz,

national policy coordinator, Clean Water Action; and Katherine Funk,

Parents for Nontoxic Alternatives ............................................................... 73

Letters, statements, etc., submitted for the record by:

Davis, Chairman Tom, a Representative in Congress from the State of

Virginia, prepared statement of ................................................................... 3

Funk, Katherine, Parents for Nontoxic Alternatives, prepared statement

of ..................................................................................................................... 142

Grumbles, Benjamin, Acting Assistant Administrator for Water, U.S.

EPA, prepared statement of ......................................................................... 12

Jacobus, Thomas P., general manager, Washington Aqueduct, Baltimore

District, U.S. Army Corps of Engineers, prepared statement of ............... 40

Johnson, Jerry N., general manager, District of Columbia Water and

Sewer Authority, prepared statement of ..................................................... 47

Logomasini, Angela, director, risk and environmental policy, Competitive

Enterprise Institute, prepared statement of ............................................... 103

Neukrug, Howard, director, office of watersheds, Philadelphia Water Department, the American Water Works Association, prepared statement

of ..................................................................................................................... 76

Norton, Hon. Eleanor Holmes, a Representative in Congress from the

District of Columbia, prepared statement of .............................................. 7

Rubin, Scott, consultant and public utilities expert, prepared statement

of ..................................................................................................................... 111

Schwartz, Paul, national policy coordinator, Clean Water Action, prepared statement of ........................................................................................ 117

Waxman, Hon. Henry A. Waxman, a Representative in Congress from

the State of California, prepared statement of ........................................... 155

Welsh, Donald, Administrator, Region III, U.S. EPA, prepared statement

of ..................................................................................................................... 27

(1)

THIRSTY FOR RESULTS: LESSONS LEARNED

FROM THE DISTRICT OF COLUMBIA’S LEAD

CONTAMINATION EXPERIENCE

FRIDAY, MAY 21, 2004

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 10:02 a.m., in room

2154, Rayburn House Office Building, Hon. Tom Davis of Virginia

(chairman of the committee) presiding.

Present: Representatives Tom Davis of Virginia, Cummings, Van

Hollen, and Norton.

Staff present: David Marin, deputy staff director and director of

communications; Keith Ausbrook, chief counsel; John Hunter, counsel; Robert Borden, counsel and parliamentarian; Drew Crockett,

deputy director of communications; Teresa Austin, chief clerk;

Brien Beattie, deputy clerk; Robert White, press secretary; Phil

Barnett, minority staff director; Krista Boyd, Althea Gregory, and

Rosalind Parker, minority counsels; Earley Green, minority chief

clerk; Jean Gosa, minority assistant clerk; and Chris Hicks, counsel

from Ms. Norton’s staff.

Chairman TOM DAVIS. Good morning.

The Committee on Government Reform will come to order.

Welcome to today’s hearing entitled, ‘‘Thirsty for Results: Lessons Learned from the District of Columbia’s Lead Contamination

Experience.’’

On March 5, 2004, the committee held a hearing to review the

condition of lead contamination in the District of Columbia’s water

supply and examine Federal and local agencies’ responsibilities for

drinking water safety in D.C. and the surrounding jurisdictions.

After the hearing, the committee requested additional information

from the Environmental Protection Agency, the U.S. Army Corps of

Engineers, Washington Aqueduct and the District of Columbia

Water and Sewer Authority regarding specific actions taken by

each agency to combat the elevated lead levels in the District’s

water system. These agencies have taken a number of steps to address this situation, including supplying water filters to affected

District residents, additional testing of residences, schools and libraries, blood screening for affected children under 6 and pregnant

and nursing women, and also expanded public outreach.

While each agency is taking additional steps to fix the problem,

the committee will continue to consider how elevated lead levels in

the District’s drinking water could have been prevented and whethVerDate 11-MAY-2000 12:16 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 D:\DOCS\96089.TXT HGOVREF1 PsN: HGOVREF1
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er the current response adequately protects public health. There

are still some unanswered questions. What caused the spike in lead

levels in the D.C. area? Did the responsible agencies adequately

consider research on the use of chloramines before introducing

them into the water system? Is the lead testing protocol adequate?

Is the current public information campaign effective? Has WASA

complied with the EPA’s request? Are those requests appropriate?

Last, is there cause for more widespread concern in jurisdictions

around the Nation?

Congresswoman Eleanor Holmes Norton recently introduced H.R.

4268, the Lead Free Drinking Water Act of 2004, which would

amend the Safe Drinking Water Act intended to ensure that the

District of Columbia and States provide a safe and lead-free supply

of drinking water. The legislation attempts to address the concerns

raised by the lead crisis in the Nation’s Capital. This legislation

would impose new responsibilities on the EPA and water utilities

nationwide.

The purpose of today’s hearing is two-fold. First, we intend to address the current status of the lead problem in the District, its

causes and the governmental response, including reformulation of

water, lead service line replacements and communications with the

public. Second, we want to focus on whether the current Safe

Drinking Water Program is adequate to assure safe drinking water

for the consuming public, both in the District of Columbia and

across the Nation, or whether additional measures, either legislative or regulatory, are necessary to accomplish these objectives.

I expect to explore whether the situation in the District of Columbia is indicative of water systems throughout the country or

whether it is unique. That assessment will assist in determining

whether the experience in the District justifies changes to the Safe

Drinking Water Act. Part of this process necessarily includes an examination of the scope of the problem as suggested by the District’s

experience, the costs and benefits that additional requirements

would impose on water systems across the country, and the possible tradeoffs between expenditures for lead-free drinking water

and other programs to protect the public health, safety and welfare.

We have a distinguished panel of witnesses before us. We have

gathered major players and advocates who are well versed on the

lead issue. I look forward to hearing their testimony and how we

can move forward and assure that all residents in the capital region and across the country have safe drinking water. Our witnesses will discuss Federal regulations concerning the monitoring

of lead levels and drinking water, the status of the District’s drinking water lead levels and remediation effects, and their assessments of the need for changes in the current Federal regulations

of lead in the Nation’s drinking water supply.

I would now recognize Ms. Norton for an opening statement.

[The prepared statement of Chairman Tom Davis follows:]

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Ms. NORTON. Thank you very much, Mr. Chairman.

I very much appreciate the attention Chairman Davis has given

to the lead contamination water crisis in the District and region,

unhesitatingly agreeing to our first hearing in March as well as to

this hearing following the introduction of a bill I have co-sponsored

with Senator Jim Jeffords to address the issues.

The city’s residents, Mr. Chairman, I can convey to you have

been particularly grateful for your oversight because two of the

three agencies involved with our water are Federal agencies. It has

brought some comfort to our residents to know that Congress,

through your leadership, felt the city’s water crisis and the health

of its residents warranted congressional involvement.

I have only brief remarks this morning because we have heard

from some of these witnesses before and the EPA, WASA and the

Washington Aqueduct have begun to take some of the necessary actions which might have forestalled a crisis had these measures

been standard operating procedures. This morning’s report of the

effect of chlorine in significantly reducing lead in our drinking

water is a case in point. As our last hearing made clear, the Aqueduct switched from chlorine to chloramines, apparently elevating

lead contamination without conducting a corrosion control study.

Astonishingly, the EPA regulations still do not require such a

study.

The bill Senator Jeffords and I introduced last month requires a

corrosion control study within a year of any change in the chemicals used to treat drinking water. Nevertheless, I believe nothing

is to be gained by rehashing the extensive evidence of this and

similar deficiencies in the EPA regulations and WASA and Aqueduct practices. Our time is best served by trying to find a path toward remedy and correction today. Particularly now that the bill

has been introduced, I am interested in learning from today’s witnesses what actions Congress should take first to begin to be responsive to what all agree the District’s experienced signals is the

need for some changes.

Our bill is drawing directly from the serious lead contamination

crisis still underway in the District. By now, there is little question

that similar problems exist in similarly situated water systems operating under the same regulations and enforcement methods used

in the District. Because the D.C. crisis was both deep and wide and

exposed so many problems, our bill follows suit.

Senator Jeffords and I live in the real world of the Senate and

the House and have no illusions about what may be possible. My

goal now is to work with the EPA, WASA, the Aqueduct and this

committee to make a good faith start on restoring confidence in the

ability of the Federal Government and WASA to provide safe drinking water to the people of the United States and the District of Columbia. This hearing should be useful in deciding how to proceed.

Our bill is geared far more toward rulemaking than prescription.

It is the EPA that issued the current regulations in 1991 and it is

the EPA that would engage in similar rulemaking under our bill.

After nearly 15 years under the current rules and the problems

that have been uncovered, it is time to review what we have

learned from the D.C. crisis and from new developments in the

basic science and to seek agreement on priorities for change.

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Again, I very much appreciate this hearing, Mr. Chairman, and

I express my appreciation as well to all of today’s witnesses.

Mr. Chairman, may I also ask that the statement of Mr. Waxman, the ranking member of this committee, be entered into the

record.

Chairman TOM DAVIS. Without objection, the statement will be

in the record and the Members can have 5 legislative days to submit opening statements for the record.

[The prepared statement of Hon. Eleanor Holmes Norton follows:]

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Chairman TOM DAVIS. We also have written statements from

D.C. Councilman Harold Brazil and Mike Keegan from the National Rural Water Association to be entered into the record.

I want to recognize our first panel. We have the Honorable Benjamin Grumbles, Acting Assistant Administrator for Water, U.S.

EPA; Mr. Donald Welsh, Administrator, Region III, U.S. EPA; Mr.

Thomas P. Jacobus, general manager, Washington Aqueduct, Baltimore District, U.S. Army Corps of Engineers; and Jerry N. Johnson, general manager, District of Columbia Water and Sewer Authority.

As I think you all know, it is the policy of the committee that

all witnesses be sworn before testifying.

[Witnesses sworn.]

Chairman TOM DAVIS. Thank you.

We would like to keep your opening statements to 5 minutes.

Your entire statements are in the record without objection. The

questions will be based on the entire statement, but you are given

5 minutes to kind of put it together and sum up. Your light in front

of you will be green when you start, it will be orange after 4 minutes and turn red at the end of 5 minutes.

We appreciate all of you being with us and look forward to your

testimony and being able to ask questions.

Mr. Grumbles, we will start with you and move down the line.

You have been here before. Thanks for coming back.

STATEMENTS OF BENJAMIN GRUMBLES, ACTING ASSISTANT

ADMINISTRATOR FOR WATER, U.S. EPA; DONALD WELSH, ADMINISTRATOR, REGION III, U.S. EPA; THOMAS P. JACOBUS,

GENERAL MANAGER, WASHINGTON AQUEDUCT, BALTIMORE

DISTRICT, U.S. ARMY CORPS OF ENGINEERS; AND JERRY N.

JOHNSON, GENERAL MANAGER, DISTRICT OF COLUMBIA

WATER AND SEWER AUTHORITY

Mr. GRUMBLES. Thank you, Mr. Chairman. Thank you, Congresswoman Norton for putting together what looks to be a very balanced and important hearing.

I am appearing with Don Welsh, Regional Administrator for Region III. What I would like to do is touch briefly upon the lessons

learned and also I would say you have billed the hearing as lessons

learned and I would say it should also be lessons learning. Clearly

all of us are still learning as aggressively as we can trying to get

to the bottom of the situation here in the District and importantly,

reach conclusions about national implications and steps forward.

The first thing I would like to say is that the EPA continues to

place a very high priority and take extremely seriously lead in

drinking water. This is an important threat and one that we believe merits the highest degree of attention. I also want to emphasize that I am not here to define the status quo or even to defend

the rule that is 13 years old. I am here to tell you that we are looking at the situation with an open mind and look forward to working

with you closely in giving a hard, honest look at the existing guidance as well as the regulations and make sure that lessons are

learned not just at the Federal level but at all levels involved in

protecting the Nation’s drinking water.

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One of the important first steps that we took after the discovery

of the incident in the District of Columbia was the formation of the

Technical Expert Working Group and also to establish an independent peer review of that group recognizing how important it is

and how critical the science, the chemistry, the corrosion and all

the roles they play in this situation. We are currently working

along those lines with the Technical Expert Working Group and

the independent peer review panel.

I would also like to briefly describe three of the things we are

doing at the national level. The first is that we are aggressively

pursuing a national review of compliance and enforcement of the

1991 lead and copper rule. I have written to all of the regions to

work with the States to get as much data as we possibly can about

the state of compliance with the lead and copper rule. The data we

have indicates that the lead in drinking water is not a national

problem, it is not a systemic, pervasive problem. It is a serious

problem, a manageable problem in some areas of the country.

The data we have gathered also indicates that since 2000, there

are 22 systems serving populations greater than 50,000 that have

exceeded the action level. The most recent data of 2003 indicates

that eight of those systems have exceeded the action level. We

should never diminish the importance of any one exceedence but it

is also important to indicate that the data we have from the States

is that this is not a pervasive national problem. This is a national

opportunity to look very seriously at our existing guidance and regulations and learn lessons from the experience in the District of

Columbia.

One of the other things we are doing in addition to the national

compliance review is to aggressively review existing guidance that

the EPA has and the regulation and to gather lists of ideas to possibly revise or improve upon existing guidance and the regulation.

We have held several expert workshops. We just recently held two

in St. Louis earlier in the month and the first was on the simultaneous compliance which is a critically important issue. It is not

easy to be a utility manager and continue to provide safe drinking

water to the public. There are lots of balances, lots of important decisions to be made and simultaneous compliance. The expert workshop we had, we think is a very important step forward.

The other one we held was on sampling and monitoring protocols, another important aspect of the whole experience in the District of Columbia, making sure we have accurate, timely and uniform protocols for monitoring to check the quality of the drinking

water.

Mr. Chairman, we plan to hold more workshops. We think now

is the best time to have a vigorous and robust debate with the scientific community and the public and public water suppliers on

ways to improve upon the existing guidance or possibly the regulation. We think these workshops are key in that. One of the workshops will involve lead in schools.

That is the last point I want to make. We all recognize the importance of protecting school children and kids at day care facilities

and that is why we are systematically reviewing the policies and

programs of the States throughout the country to ensure that action levels are not exceeded in schools.

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The last point I would make, Mr. Chairman, I recognize my time

has expired, but I may just make a point about the proposed legislation that Delegate Norton and Senator Jeffords have introduced.

I recognize that a lot of thought has been put into this legislation.

It is a very good road map for all of us to discuss, to review the

various range of policy issues. I personally continue to believe that

comprehensive national legislation at this point is premature but

I would commend the drafters of the legislation for raising these

many different issues and aspects. I think it is worthy of debate

and discussion within the context of our existing guidance and our

rulemaking. We look forward to that.

The last point is in terms of lessons learned, I think the key lesson we are learning is the critical importance of communication on

drinking water quality and lead in drinking water, accurate, timely, relevant and useful information is critically important and I

think all of this discussion is going to help the country as a whole

in being better prepared with potential lead and drinking water

issues throughout the country.

Thank you.

[The prepared statement of Mr. Grumbles follows:]

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Chairman TOM DAVIS. Thank you very much.

Mr. Welsh.

Mr. WELSH. Good morning. I am Don Welsh, Regional Administrator for Region III of the U.S. EPA. Thank you for the opportunity to appear before you today to comment on H.R. 4268, the

Lead Free Drinking Water Act and to provide a full update on the

important issue of lead in tap water of the D.C. residents and the

steps the EPA and other agencies are taking to resolve the problem.

Let me begin by updating the committee on the latest developments in the District of Columbia. There is no higher priority for

my office than to continue to work with the city and other partners

to protect those who live and work in the District and to identify

and correct the cause of elevated lead in the water. Since I last appeared before this committee, significant progress has been made

in both areas.

Regarding actions to reduce the elevated lead levels, the EPA has

authorized interim water treatment changes recommended by a

Technical Expert Working Group. The partial system application of

zinc orthophosphate, a corrosion inhibitor, will begin on or around

June 1 in an area of northwest Washington. The anticipated timetable for full introduction of the proposed remedy has been accelerated to mid-July depending on the results of the more limited application.

The working group’s efforts are being reviewed at key points by

an independent peer panel which includes four corrosion control experts from around the country. The EPA will continue to work with

its partners to ensure that the public is well informed of the treatment changes and the temporary effects on water quality that may

occur. Customers will be reminded that reduction in lead levels will

not likely occur for at least 6 months after the treatment changes

begin. Customers need to follow the flushing guidance and utilize

water filters where supplied to ensure particularly that children

under 6 years of age, pregnant women and nursing mothers are

protected from elevated lead levels.

The District of Columbia Water and Sewer Authority and the

city government continue to move ahead on a series of actions directed by the EPA to address the immediate public health threat

posed by lead in drinking water. We stand ready to use our enforcement authorities if necessary to compel further action and to

ensure consumers are protected and properly informed.

To date, WASA has delivered over 29,000 certified water filters

and consumer instructions to occupants in homes with lead service

lines as well as others. Water filters continue to be sent out automatically along with a referral to the Department of Health when

tap water test results indicate elevated lead levels. Additional tap

water sampling in buildings not served by lead service lines is continuing. A representative sampling of buildings citywide was required by the EPA to include schools, day care centers, businesses

and other facilities. An additional round of sampling for 130 DC

public schools was completed using an EPA-approved protocol. This

sampling round involves close to 2,000 samples in areas of the

schools where the vulnerable population of children under six and

pregnant could be drinking. The city took immediate action to reVerDate 11-MAY-2000 12:16 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 D:\DOCS\96089.TXT HGOVREF1 PsN: HGOVREF1
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move from service any water outlet testing higher than the school’s

action level of 20 ppb. WASA has committed to an accelerated

schedule for physically replacing lead service lines in the District.

The construction method for service line replacement has been

modified to ensure that they do not pose an undue risk to health

in the days or weeks following the replacement while ensuring

compliance with the lead and copper regulations. WASA is expediting notification to customers of the results of water sampling at

their residences committing to providing results in 30 days or less.

The EPA is completing a detailed compliance audit of WASA’s

lead service line program, public education and compliance sampling actions. Based on preliminary results of our initial compliance audit, the EPA asserted instances in which requirements may

not have been met. As part of the enforcement process, the EPA

required WASA to provide information to the EPA responding to

those findings. Nearly 6,000 pages of documents and voluminous

electronic files are under review by the EPA as part of our compliance audit. Once we have completed our review, we will make a

final determination as to whether violations have occurred and we

will take appropriate action authorized under the Safe Drinking

Water Act.

In a separate initiative, an internal EPA team completed its review of WASA’s prior education and outreach efforts. The report

identified a number of steps WASA can take to achieve more effective public education and outreach regarding lead and drinking

water. In addition to following mandatory requirements and making use of extensive EPA guidance, the report recommends that

WASA use consultants to assist in assessing the audience to be

reached, securing feedback on its efforts and in making recommendations for design and content of materials as well as delivery methods.

Major issues identified by the reviewers were the lack of a sense

of urgency in outreach efforts, failure to adequately convey information to the intended audience, insufficient opportunity for involvement by the public in the development of a communication

strategy and lack of tracking measures to determine the success of

outreach activities. The recommendations were designed as key

input to WASA’s continuing efforts to plan and carry out enhancements to drinking water education efforts both for regulatory compliance and also beyond compliance efforts.

The report also includes recommendations for the EPA Region III

to improve our oversight of WASA’s public education program. We

have revised our standard operating procedures in part to assure

that shortcomings in public outreach and identification are identified earlier and corrected and that proper expertise in risk communication is utilized in the process.

Other changes in procedure will ensure that no fewer than four

EPA Drinking Water staff members, two of them managers, see

each compliance report filed by WASA and the Washington Aqueduct. In addition to our collaborative efforts with the city, the EPA

has taken a number of actions to provide information to residents

and others on the issue of lead in the District’s drinking water.

These actions include a new program, Lead Safe D.C., to bring lead

education information, home visits and blood level testing to DisVerDate 11-MAY-2000 12:16 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 D:\DOCS\96089.TXT HGOVREF1 PsN: HGOVREF1
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trict neighborhoods. Regular updates of our Web site, telephone

hotline information, dispatch of community outreach specialists to

the District, radio outreach in English and in Spanish, participation in 10 public meetings and regular contact with the Coalition

of Environmental and Consumer Groups.

On the issue of primacy for drinking water responsibility and enforcement in the District of Columbia, the intent of the Safe Drinking Water Act is for the States, and the District is included within

that definition, to have jurisdiction over the program. If the District seeks such status, we would entertain an application and

work with the District to consider the issues involved.

Working closely with the District of Columbia, our public service

partners and concerned citizens, we will continue to aggressively

act to protect residents and resolve the lead problem. We are taking action to hasten the day when the citizens of the District of Columbia can once again be confident in the safety of their drinking

water. Thank you for the opportunity to present this information

and I look forward to your questions.

[The prepared statement of Mr. Welsh follows:]

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Chairman TOM DAVIS. Thank you.

Mr. Jacobus.

Mr. JACOBUS. Good morning, Chairman Davis and members of

the committee.

I am Tom Jacobus, general manager, Washington Aqueduct. We

appreciate the opportunity to return and update the committee on

the actions we have taken to reduce the elevated concentrations of

lead in the drinking water found in some homes in the District of

Columbia.

Since February 2, 2004, our highest priority has been to reevaluate the corrosion control treatment in use and to develop a treatment modification to make the water less corrosive. We are presently installing equipment that will be used to modify the corrosion

control treatment. As Mr. Welsh just said, a partial system application is scheduled to begin on June 1 in a small portion of the District of Columbia’s service area. Later this summer, we will begin

a full system application that will include the remainder of the District of Columbia and the Arlington County and the city of Falls

Church distribution systems in Virginia.

We are approaching it in two steps to be able to carefully control

and evaluate the initial application to ensure that the program

dose of the inhibitor we are going to use, the zinc orthophosphate,

does not generate any unexpected secondary effects. One known

possible effect of the application of the corrosion inhibitor may be

the localized release of rust from iron pipes. This would result in

discolored water delivered to the customer on a temporary basis

but it would be short term and could be managed by flushing.

When arriving at this treatment change, we have had access to

the Nation’s very best scientific and technical talent in this field.

We appreciate the resources the Environmental Protection Agency

has expended to assist not only us but also to look at the larger

aspects of this issue. While the level of activity certain has been

higher than normal, we have operated within the current program

established by Congress in the Safe Drinking Water Act and implemented by the Environmental Protection Agency. I believe the program has worked well and that each of us has had the opportunity

to collaborate effectively on both the nature of the problem and its

solution while maintaining our independent responsibilities.

The current regulations and relationships have served us well in

addressing corrective actions to modify our optimal corrosion control treatment. I believe the current business arrangement whereby

Washington Aqueduct is the wholesale provider to the District of

Columbia Water and Sewer Authority, Arlington County and the

city of Falls Church is sound. We work effectively with Region 3

of the Environmental Protection Agency as the primary agency responsible for drinking water and we have effective contact with

agencies within the District of Columbia Government, including the

District’s Department of Health.

This concludes my testimony. I will be happy to respond to any

questions.

[The prepared statement of Mr. Jacobus follows:]

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Chairman TOM DAVIS. Thank you very much.

Mr. Johnson.

Mr. JOHNSON. Good morning, Mr. Chairman and members of the

committee.

I am Jerry Johnson, general manager of the District of Columbia

Water and Sewer Authority. I am pleased to represent the Authority before the committee this morning.

As you know, the District of Columbia and the Water and Sewer

Authority have been the focus of great attention in the past few

weeks. We appreciate this new opportunity to appear before the

committee to discuss these issues and explain what has been happening and to talk about what we have learned in response to your

questions.

The Authority continues to work with the EPA on our obligations

under the Safe Drinking Water Act and the lead and copper rule

including the recent submission of an updated action plan. The Authority is continuing a water sampling and testing program and we

are distributing filters to targeted residents and we continue to

support the District of Columbia’s Health Department, and we

have contacted each one of the households by mail that is believed

to have a lead service line or does not have a record of service pipe

type material. Each household has been strongly encouraged to

participate in the leading sampling program.

We delivered water filter and replacement cartridges to every

resident identified as having lead service lines and out of an abundance of caution, any household that participates in the testing

program regardless of pipe material type is receiving a filter and

replacement cartridges if they test over 15 ppb.

WASA is moving forward with its lead line replacement program

and has already replaced about 800 service lines in public space

this year. We will physically replace over 1,800 lead service pipes

in public space and the board of directors for the Authority is proposing to totally eliminate lead service lines in public space by

2010. WASA has engaged a team of experts from George Washington University School of Public Health, including individuals with

expertise in communication, epidemiology and pediatric health. The

Lead Service Hotline has responded to 54,331 customer calls and

6,538 e-mails since February 4 and processed 23,200 test kits in response to these calls.

With respect to properties that are larger than single family

households, which is a question that was raised, WASA’s best information is that these large properties are served by pipes that exceed 2 inches in diameter and usually are not made of lead. However, we have proposed and the EPA has approved a test plan to

test these assumptions. Technical experts in the working group

have come upon the use of zinc orthophosphate as mentioned by

two previous speakers, and I will not go into that discussion. We

have also reviewed some of the national standards with the Environmental Protection Agency’s regulations. One of the most important contributions I think the Authority can make in this discussion is to emphasize the enormous value in collecting and sharing

accurate information, ensuring that the public has confidence in

the water supply is of paramount concern, and we share the concern and are committed to that goal. The importance of informed

45

judgment and considered action by public water systems and our

regulators and the public health authorities is at the heart of building confidence and we cannot overemphasize that.

As of Friday, May 7, the Health Department performed 5,291

blood level screenings, blood lead tests, including 1,924 from the

target population. Of those, 37 children under 6 had elevated blood

levels and 13 lived in homes with lead service lines, 24 did not. All

children of nursing mothers with elevated blood levels lived in an

environment where other significant sources of lead were present

such as lead dust or lead paint. In fact, environmental assessments

of those homes has shown lead dust in soil levels above the EPA

and HUD guidelines.

With respect to the specific experience as a distributor of drinking water, we continue to learn and we put those learning experiences to use every day for our customers. We have undertaken two

series of water samples in public schools and each of those has

shown low to undetectable levels in the systems and we compared

favorably to the surrounding jurisdictions. As recently as yesterday, a preliminary analysis of WASA’s customer water samples

drawn between April 2–8 appear to indicate that chloramine as a

disinfectant used in drinking water to guard against bacteria, viruses and other diseases causing agents may have changed the

water composition causing increased levels in lead and drinking

water received by some District residents.

We detected the surprising change during the 6-week period in

the spring of the year when the Washington Aqueduct switched

from chloramines to free chlorine as a primary disinfectant of the

routine annual treatment program. This possibility is the subject

of much speculation and the idea that things like drought conditions could be contributing factors at one point but with the world

of data we have collected, we may have identified the primary factor responsible for causing elevated lead levels in homes of persons

who have lead service pipes. It is early yet, but our analysis of this

data indicates that the change in chloramines in disinfectant in the

water supply may have caused the water to become more corrosive.

We have shared this data with the Washington Aqueduct, the

EPA and our partners in Virginia who are also Washington Aqueduct customers and strongly urge expedited review of this data to

see what it means for the water distribution system. With this

learning curve in mind, Mr. Chairman, we strongly encourage interested Members of Congress and the EPA to evaluate the lead

and copper rule, with a careful eye toward the intent and a clear

vision toward improving the Nation’s public water system. H.R.

4268 provides one opportunity to help focus on such discussion and

involve a broad range of stakeholders.

With respect to our relationship with the Washington Aqueduct,

it has proven a very strong partnership in the effort to ensure residents have access to clean, safe drinking water. It is a relationship

that has proven satisfactory to WASA’s customers. It has, however,

sometimes proven awkward with respect to the relationship with

the Environmental Protection Agency and other Federal agencies.

Your office, Congresswoman Norton, has interacted with both OMB

and us to help address some of the issues with requirements related to financing. The question of operational responsibility and ownVerDate 11-MAY-2000 12:16 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 D:\DOCS\96089.TXT HGOVREF1 PsN: HGOVREF1
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ership was explored just a few years ago and perhaps the time has

arrived for us to take a second look at that particular issue. There

is something to be said for a single entity controlling both production and distribution in this environment especially since customers and many others hold WASA, the distributor, accountable

for all aspects of the provision of clean drinking water.

In closing, Mr. Chairman, your invitation to testify asked who

should be responsible for the District’s drinking water, enforcing

compliance and Federal standards? The Safe Drinking Water Act

contemplates government closest to the operators of public water

systems is best equipped to monitor and enforce the provisions of

the law. We share that view and I believe the issue of primacy

should certainly be explored more fully.

Thank you for this opportunity to testify. I would be pleased to

answer any questions.

[The prepared statement of Mr. Johnson follows:]

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Chairman TOM DAVIS. Thank you all very much.

I read in the Post this morning, page B5, an article by DeVira

Cohen, about the lead in D.C. water, after a chlorine flush. When

did WASA flush?

Mr. JOHNSON. The flushing took place in early April through

May 8th.

Chairman DAVIS. When did you have these results?

Mr. JOHNSON. We received the results earlier this week, Mr.

Chairman.

Chairman TOM DAVIS. The committee heard about it early this

morning when we picked up the paper.

Mr. JOHNSON. I apologize. We were trying to get press releases

and information out to everyone. We just completed compilation of

that data on yesterday morning prior to holding the press conference and briefing. More complete data and all the raw information is contained in the attachments to the testimony for today.

Chairman TOM DAVIS. Let me ask you this. Do you think the

city’s elevated lead levels resulted from a structural problem with

the testing, reporting and communications regime or do you think

it was simply poor implementation of the existing Safe Drinking

Water regulations?

Mr. JOHNSON. I am sorry, sir. Would you mind?

Chairman TOM DAVIS. What do you think the elevated levels resulted from? Is this a structural problem in the system? Was it the

fact that we were using the wrong chemicals? In retrospect, could

you try to tell me what you think the problem was?

Mr. JOHNSON. I would preface my comments, Mr. Chairman, by

saying that I am going to be somewhat speculative. We have this

information we recently received from the testing that was done

during the period there was pre-chlorine added to the system. We

found in the first 3 weeks that we had lower levels, the lead levels

had actually plummeted in some cases. We went back and looked

at the final 3 weeks when we are assured that the system had total

chlorine and we flushed out all the chloramines and the numbers

had gone down even further. We think that data certainly deserves

further evaluation and a closer look at the experts before drawing

any final conclusions, but it would certainly point in the direction

of the chlorine having a positive effect on the leaching of lead in

the service lines which would then suggest perhaps the use of

chloramines would have had some impact on the leaching of lead

and the elevated blood levels.

Chairman TOM DAVIS. WASA took a number of steps to address

the lead levels in the District’s water supply, many the result of

being ordered to do so by the EPA. Some of them go beyond the

specific requirements of the EPA Safe Drinking Water Program, as

I understand it. Do you think all these steps are necessary to reduce the level of lead in the water supply and to better inform the

public?

Mr. JOHNSON. Here again, I guess I would preface my comments

by saying I believe many of the efforts that were undertaken were

more collaborative than directive efforts in working with the Environmental Protection Agency to accomplish these and I don’t quarrel with any of the activities we have undertaken to date. Some

58

were taken out of an abundance of caution, others because of specifically addressing very targeted issues.

Chairman TOM DAVIS. How effective do you think the lead service line replacement program is going to be in reducing lead in the

system?

Mr. JOHNSON. I continue to have questions with regard to the effectiveness of replacing lead service lines if we are only doing the

replacement in public space. The rule as it is currently structured

requires that once we have done that, we have met the requirements of the EPA standard. If we are still leaving a portion of lead

service lines for the customer to have to contend with, then we still

have a potential problem. If we optimize the treatment process, if

we have coated those pipes appropriately and there is no longer

lead leaching, perhaps we will have a timing factor before something like this happens again. As you know, this is not the first

time the District of Columbia has experienced this problem and we

obviously have to monitor it very closely to ensure that it does not

happen again, but the potential is there as long as there is a portion of lead service lines serving any customer’s home.

Chairman TOM DAVIS. Mr. Welsh and Mr. Jacobus, let me focus

on the testing protocols for just a moment and clarify whether the

lead problem could have been identified in the summer of 2001. According to testimony by Seima Bott, the WASA water quality manager who was responsible for preparing lead test sample reports for

the period July 1, 2000 to June 30, 2001, she had five samples that

exceed a lead action level for that period that she did not submit

to the EPA for the purpose of regulatory compliance. She testified

those were backup samples in case she didn’t have 50 samples for

regulatory compliance purposes. If these five had been reported in

addition to the four reported for that period, the District report

would have exceeded the lead action level for the 90th percentile

in the summer of 2001 instead of a year later when lead levels

might have increased significantly.

While the EPA has responded to a question from the committee

that it has no record of the invalidation of any samples for that period, my question for the EPA and WASA is whether the decision

not to use these samples is consistent with testing and reporting

protocol?

Mr. WELSH. Mr. Chairman, it is my understanding that the EPA

should receive any of the data that is developed, any of the samples

should be reported to the EPA. As mentioned, we discussed this before. We reviewed our records to see if there was any indication the

procedure in the lead and copper rule for invalidation of samples

had been used and it had not been. So it is my understanding that

any data that is collected does need to be reported to the EPA.

Chairman TOM DAVIS. And you don’t know why those particular

samples weren’t put in the selection process?

Mr. WELSH. That is correct. We were concerned about that issue

and have been investigating that, including a request for information and an information request letter to WASA and the 6,000

pages of documents and some of the electronic files I mentioned

earlier, some of that was in reference to that particular question

and we are continuing to investigate that to see exactly what went

on there.

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Chairman TOM DAVIS. Let me ask WASA, what do you know

about that?

Mr. JOHNSON. I only know what was in Ms. Bott’s testimony with

respect to that. It was not an issue that rose to a management

level in the organization to be addressed. We had understood from

discussions with Ms. Bott that there had been consultation with

the EPA. Whether it was formal or not, I am not sure but she indicates that there had been consultation with the EPA through that

process.

Chairman TOM DAVIS. Mr. Grumbles, in the next panel, we have

testimony by a witness that the current Federal regulation of lead

in water supplies is actuality is a one-size fits all approach. It is

disproportionately costly for smaller water systems. Do you think

that is accurate?

Mr. GRUMBLES. Mr. Chairman, I think the current rule when it

was written very much intended to try to reflect that not all systems are of the same size, they have different affordability factors

and different local conditions, so I would say that with any Safe

Drinking Water Act regulation, there is the potential for some

smaller rural areas to have difficulties meeting the requirements,

the lead and copper rule does attempt to take into account special

considerations and that it has the flexibility to do that.

Chairman TOM DAVIS. You are defending the current reg. You

think it gives enough flexibility?

Mr. GRUMBLES. On the subject of small versus large, I think that

is an area that people have brought to my attention that there

needs to be greater flexibility. I would say there are other aspects

of the rule that people want to have a different approach, different

layers of sophistication and stratification that we are pleased to

look at.

Chairman TOM DAVIS. Do you think the EPA should be more actively involved in individual water systems’ decisions regarding

chloracivity control? Do you have any thought on that?

Mr. GRUMBLES. We have a role to play. There are two roles we

play. One is to try to help advance the national research front on

corrosivity. I think we recognize the experience we are having in

the District, we need to be at the cutting edge in research into how

to control and maximize corrosivity control and to improve upon it.

In terms of the decisions on a system by system basis and the

way the regs currently work is that it is the primacy agency that

is more involved than the EPA.

Chairman TOM DAVIS. Do you think the EPA ought to be in that

decision matrix when local decisions are made on that?

Mr. GRUMBLES. I would say in some degree, yes. I think it is important, our overall role in ensuring compliance under the Safe

Drinking Water Act, but I am a little hesitant because I think one

of the reasons the Safe Drinking Water Act has been successful

over the years and that the lead and copper rule has been successful since 1991 is that it recognizes that the States, primarily the

ones involved in carrying out and implementing the regs and working with the utilities.

Chairman TOM DAVIS. Has the EPA found that other jurisdictions with elevated lead levels failed to communicate effectively

60

like WASA? Is this a common problem or is this the worse you

have seen?

Mr. GRUMBLES. From what we know, I would not say it is a common problem but it is extremely important to ensure that communities are as proactive and aggressive and robust as possible and

continue to provide communities with some guidelines to really

reach out and have the most targeted and proactive communications possible to comply with the lead and drinking water rules. I

think that is one of the key lessons to be learned or if there is a

silver lining here, it is if other communities are not proactive, we

can find ourselves in situations where the public doesn’t learn as

soon as they should. I don’t have any indication it is a problem, the

failure to adequately communicate in other cities.

Chairman TOM DAVIS. Let me ask another question on the question of cost and benefits of lead line replacement programs. I guess

I can ask you generally what you think about that. It is my understanding the city of Cincinnati replaced all of its lead service lines

at enormous cost and it didn’t significantly reduce the levels of lead

in the water. Do you know anything about that or if anyone else

knows about that, we would be happy to hear your comments.

Mr. GRUMBLES. I am not personally familiar with Cincinnati, I

know there are some communities, I understand Madison, WI is

going forward with the lead service line full replacement approach.

It will be interesting to see what the results are.

Chairman TOM DAVIS. It is expensive?

Mr. GRUMBLES. It is expensive.

Chairman TOM DAVIS. I think, Mr. Johnson, you alluded to that

a little bit, didn’t you?

Mr. JOHNSON. Yes, sir.

Chairman TOM DAVIS. Because you are not getting all the lines,

but just the public lines?

Mr. JOHNSON. That is correct, sir.

Chairman TOM DAVIS. You think a lot of the problem is in the

private lines?

Mr. JOHNSON. I think if it is a problem with the lead service line,

it is the entire lead service line and replacing a piece of it doesn’t

fix the problem.

Mr. GRUMBLES. I would say that the way the current rule is

structured, the full lead service line replacement is viewed as the

last resort after you go through the other procedures. One of the

key lessons we are learning here in the District is the critical importance of the chemistry involved in the water and trying to figure

out what is causing the corrosion. I think everyone agrees that if

money weren’t the issue or time weren’t an issue, you would want

to eventually remove lead service lines. The way the current rule

is structured and I think the cities across the country have been

implementing it is as you go through the maximizing of corrosion

control, you monitor for the action levels and if you are in the 90th

percentile exceedence, then you are required to engage in that process. It is a very costly proposition but there are communities doing

it.

Chairman TOM DAVIS. Let me ask this. Is anybody prepared to

say the switch to a different disinfectant in 2002 was the major

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cause for the spikes? That is what the Post headline implies today.

I am not saying it is the only cause.

Mr. JOHNSON. I don’t believe, Mr. Chairman, that today with the

information we have that we can definitively say that. That is why

having recently obtained this information that certainly points in

that direction, we would urge an expeditious and immediate review

by the expert panel of the EPA and others to make that final determination so that we have some future direction and know where

we are going with respect to that.

Chairman TOM DAVIS. Does everyone agree with that?

Mr. JACOBUS. I would say, sir, this information is very useful to

helping us understand. It may be that the chloramine is not the

corrosive agent. It may be that the chlorine, the free chlorine acts

as an inhibitor. We weren’t looking for the chlorine to act as an inhibitor because we were using pH control. The reason we switched

from chlorine to chloramine was for this concept of simultaneous

compliance. So if it weren’t for the generation of disinfectant byproducts which are also regulated by the EPA and have a health

connection, we would switch to free chlorine today to get the immediate apparent inhibitor effects of the chlorine but because we are

trying to do two things at once, we don’t think that is prudent.

What we do know is that since we have not been adding the followon chemical, the corrosion inhibitor, that is designed to be an inhibitor, zinc orthophosphate or some kind of phosphate, when we do

add the orthophosphate we expect that it will act as an inhibitor

and protect the pipes from the water containing the chloramines.

Our challenge now is to do it in a way that is as quick as possible

with the results that the lowest concentrations of lead and at the

same time keep the disinfection byproducts low.

We accept the data from WASA, we were part of this working

group and we want to use it in an intelligent and responsible and

very quick way. The EPA is working with us specifically Region III,

and we hope to use it and be able to report to the public with the

application of the orthophosphate and what we have learned from

the chlorine good results soon.

Chairman TOM DAVIS. Ms. Norton.

Ms. NORTON. Thank you very much, Mr. Chairman.

It is important to understand two points about the backdrop of

this hearing and this entire crisis. I want to thank the EPA for the

oversight you are now giving to WASA. It does appear to follow the

kind of regimen one might expect. The backdrop of this crisis is

that the EPA was the State agency as well as the EPA for the District of Columbia. Therefore, it is very hard for the committee to

look at the EPA kind of after the fact since as the State and Federal agency it is quite astonishing that WASA got as far as it did.

That is one backdrop that we are looking at, an EPA assigned

by the Congress of the United States to play a role that it does not

play anywhere else except in the State of Wyoming. That has made

the District of Columbia and the residents very uneasy that it

wasn’t at the ‘‘State level,’’ wasn’t ‘‘by the EPA as the Federal regulator.’’ The other backdrop to keep in mind is cost. We are quite

aware that every single issue here is played against a backdrop of

potentially enormous costs. As the Congresswoman for the District

of Columbia, I know that most of those costs will be borne by rateVerDate 11-MAY-2000 12:16 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6633 D:\DOCS\96089.TXT HGOVREF1 PsN: HGOVREF1
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payers. WASA went for 10 years with no increases to ratepayers.

That was before Mr. Johnson got there and before the agency was

revitalized but anybody who thinks that was a favor to the District

of Columbia residents I think doesn’t understand that people are

willing to pay for a service if the service comes at reasonable rates.

I appreciate, Mr. Grumbles, that you understand that our bill, I

think you called it a kind of road map, was addressed to the overall

issue. I indicated in my opening remarks that we did not anticipate

that the Congress would do a major overhaul of the Clean Water

Act this session. We know that cost is always a factor and that any

ultimate rule or any ultimate legislation has to live in the real

world of cost as well as benefit.

I do want to say, and Mr. Chairman, I want to ask for your help

here because Mr. Johnson raised a very important issue that goes

to cost, a cost that the Federal Government inadvertently puts on

the ratepayers. When WASA and Mr. Johnson go to do capital improvements because the agency involved is the Aqueduct and it is

a Federal entity and because of the Federal rules involving how the

Federal Government must pay itself for capital improvements, Mr.

Johnson has to put all the money up front and can’t use a letter

of credit to do capital improvements the way any other jurisdiction

in the United States always does it. It obviously cost the ratepayers

more because he has to gather his money and take it and give it.

Mr. Chairman, one of the reasons I am going to ask for your help

is simply to get this exception that allows WASA to use a letter of

intent, correct me if I am wrong.

Mr. JOHNSON. That is correct.

Ms. NORTON. A letter of intent. He has the money, he has to

show he has the money but he wouldn’t have to put up the money,

stop earning interest on the money and he could do as they do in

Maryland, Virginia and everywhere else, if we were exempt from

this Federal rule which is being used for essentially a local water

delivery system.

I think if the chairman and I could work perhaps with the appropriators and get the right language in the appropriations bill, I

think Mr. Frelinghuysen would be quite willing.

Chairman TOM DAVIS. But I would really like to see WASA let

us know about some of these things that are going on instead of

having to read them in the paper when you get test results and we

have a hearing the next day, it would create I think a better sense

of working together on this issue. Do you understand what I am

saying?

Mr. JOHNSON. I understand that, Mr. Chairman.

Chairman TOM DAVIS. It helps me to think we are in this thing

together as opposed to everybody running out and doing their own

thing. I am frankly a little disappointed when we could have had

that data a day before and prepared it into the hearing record and

been more fully prepared for it.

Mr. JOHNSON. I certainly understand your concern, Mr. Chairman, and certainly we will be mindful of that in the future. As we

were compiling data yesterday morning and trying to think of all

the things we had to do to get that processed and get it out to ensure that we were doing a better job of communicating with our

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customers, we did have that as an oversight and for that, I apologize.

Ms. NORTON. Senator Jeffords and I wrote a bill only after Chairman Davis, Ranking Member Waxman and I on March 17, 2004

sent a letter to the EPA asking that the EPA look at what appeared to be serious flaws in the current rules. We asked that you

reopen the lead and copper rule. You have to understand that backdrop at well. Nobody has reopened the lead and copper rule and

that is part of the backdrop of our own bill.

I would like to ask a preliminary question. When the decision

was made to switch from chlorine to chloramines, who made that

decision, who was at the table, who made the decision to switch,

who was involved, who participated in that decision?

Mr. JACOBUS. We are always looking at regulations that are

going to be effective a date certain in the future. We knew the disinfection byproduct rule was going to change and we knew if we

continued to operate free chlorine as a disinfectant, we would be

in violation of the disinfection byproduct rule. The rule eventually

became effective in 2001 and we began the planning the process

and went through a typical evaluation using consultants and industry practices.

Ms. NORTON. Did you consult at all with WASA or the EPA?

Mr. JACOBUS. Yes. We initially looked at alternatives that would

meet these requirements and then we brought our customers who

were the complete funding operation so they are part of our technical, advisory and wholesale customer board, brought them into

the decisionmaking process. The EPA was involved through Region

III, knowing that we were about to make a technical change. We

had to demonstrate a disinfection profiling requirement to make

sure this process change would in fact meet the new disinfection

requirements to provide that safety. What was not specifically coordinated between the EPA and Washington Aqueduct was a direct

consultation over the concept of simultaneous compliance between

the lead and cooper rule and the disinfection byproduct rule.

Using the guidance in the simultaneous compliance manual, we

did look at the possible corrosive effects via pH change due to a

bacterial nitrification situation, a chemistry change in the water,

but we did not look at a direct corrosive effect. As is well known

now, we did not conduct pipe loop studies or do any specific experimentation on the effects of chloramines on lead. Certainly in retrospect, that would have been a good idea.

Ms. NORTON. But of course you weren’t required to do that? Let

me fully understand how the process worked. Mr. Johnson, were

you in on this process at all?

Mr. JOHNSON. Yes, ma’am.

Ms. NORTON. You were consulted about the change from chlorine

to chloramines?

Mr. JOHNSON. Yes, we were very engaged as was the District of

Columbia Health Department as we looked at the change but it

was intended to address one specific concern having to do with the

byproducts rule, the triolamethanes and I think where we may

have had a shortcoming here was just the lack of any body of research. If we are going to start to talk about where we are going

in the future, research into those issues of taking one action not

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address one particular problem and not having a very clear understanding of what effect that action may have on something else is

something that certainly needs to be looked at.

Ms. NORTON. You were not in the position to do that research.

Mr. Jacobus was not required to do that research. Mr. Grumbles?

Perhaps Mr. Welsh.

In retrospect, would it not have been wiser to have a corrosion

control study done in advance of the change from chlorine to

chloramines?

Mr. WELSH. My understanding of the situation is that the EPA

Region III did consult with the Washington Aqueduct at the time

the change was made for compliance with the disinfection byproduct rule. The EPA doesn’t require that they use chloramines. It requires the jurisdiction to meet the disinfection byproduct rule.

Ms. NORTON. The operative words are corrosion control study. I

realize there was consultation and I appreciate there was consultation and nobody acted without talking to one another, but the question here is before a water system undertakes to change the chemicals used in the water, given the different kinds of lines that send

water to peoples’ homes, shouldn’t there be a corrosion control

study done in light of the experience we have had in the District

of Columbia?

Mr. WELSH. I think corrosion control studies and analysis when

a treatment change is being made is critically important. Your legislation, I believe, requires a report on the corrosion control within

a year after a treatment change is made.

Ms. NORTON. You notice I let you use it in my bill for a year,

test it and only then rather than say don’t do it to begin with. Do

you think that is a preferable approach to a study ahead of time?

Mr. WELSH. Again, an important factor here is the existing rule.

The existing rule does require that when there is a treatment

change made that the analysis on corrosion control be done within

60 days after the treatment change is made. That is in the current

rule.

Ms. NORTON. Did you do that?

Mr. WELSH. In the District, I am not sure what the facts were.

Ms. NORTON. I am sure because you are just finding out. If you

did something approaching a corrosion control study within 60 days

and Mr. Davis just read in the paper this morning that lead

leaches into water because of the switch to chloramines, I am sure

what was done after 60 days was not a corrosion control study.

That is what I asked, about a corrosion control study. I don’t care

if it is a year as the legislation says or if you do in advance or in

60 days.

Mr. WELSH. I think the sooner the better. One of the reasons the

60 day figure jumps out to me is it gives you information, gives the

primacy agency information.

Ms. NORTON. Did you have that information, Mr. Grumbles, did

you get any information within 60 days?

Mr. GRUMBLES. It is my understanding that what we looked at,

in anticipating that a change in treatment might have affected the

corrosion, the chemistry we expected to see was an increase in nitrification, so nitrification monitoring was required, a look at the

nitrification to see whether there was a change in nitrification.

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That was done and it didn’t pick up a change that would have indicated a problem with corrosivity. That is one of the open questions

here as we look at all the data to see why did the water become

more corrosive even though the way we anticipated it might become corrosive was not caught by the followup work that was done.

So the nitrification study was there to identify whether that had

caused a corrosion problem and that didn’t indicate the problem.

Ms. NORTON. This is what gives me pause. I asked a very specific

question. I know what happened in the District of Columbia. I am

trying to find out whether or not if the very action that is taken

now had been taken before, whether we could have avoided the

problem. I keep hearing nitrification studies, I keep hearing we did

something in 60 days that I still don’t see the relevance of. It seems

to me one way to allay our problem, particularly the problem you

have with the fact that my bill is ‘‘pre-mature’’ is to say no and we

are going to change it, in the lead and copper rule. I can’t get a

straight answer. Therefore, I don’t have the confidence, at least

with respect to this question which goes directly to what you have

just found is the problem, namely the failure to do some kind of

study. I don’t have the confidence that you would do that or will

do that absent a mandate to do that.

I have other questions but I will go forward.

Chairman TOM DAVIS. The gentleman from Maryland, Mr. Van

Hollen.

Mr. VAN HOLLEN. Thank you, Mr. Chairman.

I want to thank the witnesses for their testimony. Sometimes a

severe problem in one jurisdiction raises questions and red flags

about problems that may be far more extensive. That, I believe, has

been the case with respect to the terrible situation with D.C., the

lead in the water in the District of Columbia. It has raised awareness around the country and as a result, others have also begun

testing their water. In Montgomery and Prince Georges Counties,

school systems began testing their water and in fact, found elevated lead levels in the schools. I was at my son’s elementary

school the other day and when you went to the faucet, there is a

big sign up there saying ‘‘Do not drink this water. It has not been

flushed for long enough.’’ There are signs throughout that school

and other schools. So it seems to me that we do need to get to the

bottom of this on a national level. I want to thank Ms. Norton for

her leadership on this and for introducing the legislation.

I guess most of my questions will be to you, Mr. Grumbles, since

they relate to the legislation itself. I assume that since your conclusion at least for now is that it is premature to go forward with this

legislation, that is based on the fact you have reviewed and read

the legislation, is that right?

Mr. GRUMBLES. I have read through it, yes, sir.

Mr. VAN HOLLEN. There has been a lot of talk about the replacement of service lines and I think it is true, whatever we agree to,

if there is some consensus, that will be a longer term solution and

it takes time to actually do those replacements. I think we could

all agree that three things are critical. One, that you have ongoing

active monitoring; second, that you have appropriate action levels;

and third, that if you find something that is inconsistent with the

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standards, that you have a system to quickly alert the public so individuals can take action immediately. Would you agree with that?

Mr. GRUMBLES. Yes.

Mr. VAN HOLLEN. Let me ask you about the notice requirements

because my understanding is that the EPA has concluded, maybe

I am wrong, that D.C. did not comply fully with the notice requirements, is that right?

Mr. WELSH. We have not finalized a review of that but we did

identify areas where we believe that D.C. didn’t fully comply with

the rule and sent that in a letter to them, got additional information and we are continuing that review. We haven’t made the final

determination but we did indicate areas already where we believe

the rule wasn’t fully complied with.

Mr. VAN HOLLEN. Let me ask you this. You have identified some

areas but what if the District of Columbia had minimally complied

in those areas where you found problems, they minimally complied,

would that, in your view, have been adequate notice to the residents of the District of Columbia?

Mr. WELSH. It is difficult to judge. I think we want to do a better

job of review in the region and assessing whether, in fact, the information they put together is one, fully consistent with the rules but

did it get the impact through to the consumers so they understood

the message?

Mr. VAN HOLLEN. Let me take the second part because the conclusion is clear to most people that D.C. residents were not adequately informed. This broke in the newspapers and I don’t think

people were adequately informed. I think whether or not D.C. may

have technically been in violation of some of the rules overlooks the

larger question which is I think the current regulations with respect to notice are inadequate. I guess my question to you, Mr.

Grumbles, is having reviewed the legislation, which provisions in

the notice section do you find objectionable or premature? Maybe

you don’t. You said the overall bill was premature. Maybe you believe that part was not premature. I am trying to get at what we

can agree on and what we don’t.

Mr. GRUMBLES. Honestly, when you get into the specifics, I am

not able to go into any detail. I think the spirit of the bill on notice

is admirable. I think one of the things the agency wants to work

with you on, whether through guidance or looking at whether or

not to modify the rule, is the point in the legislation that better notice is required.

Personally, one of the things I have not finished doing is going

through some of the specific aspects. I know that what we have to

do responsibly is to weigh what is the balance between the notification requirements, what is the right degree to get out the word so

that people know this. We don’t want to have something become so

routine that the consumers are inundated on a regular basis so

that they mix the big picture. I think the spirit of the bill is good

on increased notification and monitoring.

Can I just say, I misspoke a few minutes ago when Delegate Norton and I were talking about the corrosivity study and I mentioned

the 60 days. What I was referring to incorrectly was the existing

rule, a 60-day notification requirement. It is not a study, it is a notification requirement, if that helps to clarify. The public notificaVerDate 11-MAY-2000 12:16 Oct 18, 2004 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6633 D:\DOCS\96089.TXT HGOVREF1 PsN: HGOVREF1
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tion, I think my point when I said the legislation provides a helpful

road map, it is precisely in areas like that where it is a good road

map for discussion in our expert national working groups that we

are having on various ways to look at the existing guidance and the

rule, and the spirit of the legislation in that respect is good but I

have to defer on the specifics and whether or not some might be

more than necessary or not as effective as existing guidance or existing rules.

Mr. VAN HOLLEN. Mr. Chairman, I know my time is up and I

have more questions but let me say, there are some things that will

take time and where there may not be consensus. It seems to me

we should identify those areas and identify areas where there is

consensus because when it comes to adequacy of public notice and

monitoring, things like that where we can immediately take action,

it seems to me we should move forward quickly in those areas if

there is a problem. It would be very helpful, at least to me, if we

could identify those parts of this legislation Ms. Norton has introduced where there is consensus and we can move forward immediately and then isolate the areas of the legislation that are maybe

more controversial or where we don’t have consensus.

Chairman TOM DAVIS. Thank you.

Ms. NORTON. I appreciate Mr. Grumbles, your response on the

corrosion control study because my staff brought up the wording for

me and you preempted them and I appreciate that.

Would you want a situation to arise in adjoining counties here

or in other States where the water system proceeded without a corrosion control study given what happened in the District of Columbia? You acted after the fact to do a corrosion control study. I am

just trying to see whether anybody is into preventing this problem

elsewhere. You are doing it now. Is it your testimony that you will

do it if you find a situation like what you found in the District of

Columbia after you found it or do you think it is better to do it in

advance? Can I get a straight answer on that one?

Mr. JACOBUS. I will try this. I believe a corrosion control study

might include a pipe loop study and if we look back on the situation in D.C., it is possible, we can’t be certain, but a pipe loop study

was not done at the time of the change from chlorine to

chloramines. Since we don’t understand exactly the chemistry of

what has caused this problem, it is possible that a pipe loop study

may have identified that problem in advance. We can’t be certain

but it is possible that could have helped in this situation. I am not

in a position to judge whether in every type of treatment change

that an authority might have to make, whether that requires a full

pipe loop study to determine whether there have been changes to

the corrosivity, but that may have helped in the case of D.C.

Ms. NORTON. One would think then that the EPA rules would

outline the various ways the locality can proceed but Mr. Jacobus

and Mr. Johnson had to figure it out for themselves. If you have

an expert environmental agency, it seems to me whether it is pipe

loop study or full corrosion control study, it is something that there

ought to be some guidance on which brings us back to the rules

which give no guidance whatsoever on that as Mr. Grumbles indicated there is a notice requirement. This is an example of why

there is legislation.

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Mr. GRUMBLES. I know you have limited time but I wanted to

say as we are carrying out work groups and work shops looking at

areas of guidance, I think we are learning painfully in this instance

the importance of understanding the changes and the unintended

consequences when you have a change in treatment and how that

relates to corrosivity. That is something we will certainly commit

to work on more at a national level as well as to make sure when

treatment changes are being made, as much as possible, we can

understand or the primacy agency in those other 48 areas of the

country understand exactly the effect.

Ms. NORTON. It seems to me even given the fact that the information is still rolling it, it has rolled in rather strongly. Your own

experts, by the way, after the fact, Dr. Thompson indicated he

thought this was very, very likely to be the result of corrosivity. At

the very least, the EPA you would think, would be sending out

messages, phone home before you change chemicals in your water.

The notion that we can’t get that kind of response is very troubling

because it means everybody is still on his own and I appreciate

how you have been willing to go.

Let me go to notification. That is an easy one. That is one I think

everyone agrees we might be able to deal with. Of course there

have been no changes and you have gotten to WASA and indicated

they should have done more. Let me tell you the notification problem that really bothers me.

The notification problem that bothers me is that I am pregnant.

I hope not. [Laughter.]

I am drinking the water but I am in 1 of the 10 percent of homes

that have very high lead levels because you have a 90 percent rule.

Not only don’t I know it while I am drinking water during my pregnancy but I will never know it. So then I am going to use the water

to make the baby’s formula and I am going to continue to use the

water while the child is in the formative years of brain development between ages 1 and 5 and nobody ever told me about lead in

the water because of the 90 percent rule and I think you only have

50 samples even in a huge city like this and I was unlucky enough

to be in the 10 percent and I never knew it. I am asking you what

we should do about these lost residents, these people who never

knew? Is there an obligation to at least give them some notice?

Should everybody have notice rather than only some of those who

may have lead? Should everybody have notice that there is lead or

may be lead in the water?

Mr. WELSH. I would agree and I acknowledge the tone of the

question that I think one of the priority areas for the agency to review the existing rule and our guidance associated with it is the

amount of notice that is currently required adequate, is it robust

enough to get out the word?

Ms. NORTON. What is your timeframe on that, Mr. Grumbles?

Mr. GRUMBLES. We are going full throttle on the review of the

existing rule.

Ms. NORTON. The people I am talking about are drinking the

water, so I want to know when everybody who may be drinking

water is going to know they may be drinking water so they can

switch real quick? That is why I am asking for the timeframe on

that one. That is the most serious one.

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Mr. GRUMBLES. The timeframe for the immediate notification.

Ms. NORTON. Even the 10 percent of the homes in a particular

jurisdiction which may be above the action level would at least

know it. This is notification only.

Mr. WELSH. One thing I can add is separate to the lead and copper rule, the consumer confidence rule requires the authority to put

out a report on the quality of the water. In the annual consumer

confidence report, the minimum and the maximum and the 90th

percentile level has to be reported, so there is a mechanism that

is designed to let the public know what the 90th percentile level

is. That speaks partially to the concern you are talking about. I

know there are issues about whether that will be read all the way

through and that message will get through if it is just in the consumer confidence report but that existing requirement gets to some

of the issues you are discussing.

Ms. NORTON. I wish you would look closely at that. I really do

think when we are talking about pregnant and lactating women

and children under 6, maybe at that point alone, there should be

no margin of error. I think the science on that has long been in,

so I am asking for that as a first priority.

Chairman TOM DAVIS. To go along with that, I think it is really

important to worry about the entire water system. What does

WASA do for those homes where the lead levels exceed the action

level when the overall system doesn’t? Does the EPA require action

with respect to those?

Mr. WELSH. In the case where there is not an exceedence, but

there are individual samples over the limit? No, there is not a requirement in the lead and copper rule that a specific action take

place.

Ms. NORTON. You see the point the chairman is bringing out?

Mr. WELSH. Yes.

Ms. NORTON. Thank you. That really does clarify the point even

better. Do you think, Mr. Grumbles, Mr. Welsh, that water fountains in school ought to be tested on a frequent basis?

Mr. GRUMBLES. I think they should be tested on a frequent basis.

I say that and I have to acknowledge that I send out letters to

every State in the country asking them whether they had a program for lead in drinking water at schools and day care facilities,

we got back a mixed bag in terms of the number of programs specifically that States have related to lead in drinking water at

schools and day care facilities.

Ms. NORTON. You got back what? I am asking should they be

tested and you said what happened?

Mr. GRUMBLES. I said it was a mixed bag and I meant that some

of the States have programs and others do not.

Ms. NORTON. Let me ask my colleague, was your son’s school in

Montgomery County? That is a public school in Montgomery County where they now have these signs. You think this thing is localized in the District of Columbia. Montgomery County doesn’t get

water from D.C. They all come under your jurisdiction and this is

why I am probing this question. Should water fountains in the

United States be subject to the mixed bag you described or should

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quency should be. We think once a year is par for the course but

should they be tested on a frequent basis?

Mr. GRUMBLES. I think they should. The point I wanted to make

and it is an important one based on the way the current law is implemented and with the court cases involving the roles of various

governments. The States primarily carry out these programs for

the Safe Drinking Water Act as it relates to schools and also

schools and day care facilities if they are public water systems,

then there is an action level for the lead and copper rule.

Ms. NORTON. Should there be a national requirement because

you have varying responses from jurisdictions? Is the issue of lead

in the drinking water of children serious enough for there to be a

national requirement that water fountains in schools be tested on

a frequent basis?

Mr. GRUMBLES. I know there is a national requirement based on

the Lead Contamination Control Act of 1988.

Ms. NORTON. After the child already has lead in his system,

please take back lead. Every answer I get is after we see the problem, we are going to do a corrosion control study, we are going to

get to the water fountain have children have drunk the water. I am

asking should the water fountains in schools, this is about the

third time I have asked this question without getting an answer,

should the water fountains in schools be tested on a frequent basis?

Mr. GRUMBLES. I think they should and I respect the question

and I agree that is the case. What I wanted to communicate is that

there needs to be a discussion about the appropriate roles for not

only the EPA but the States.

Ms. NORTON. I agree, only calling for a national standard so that

kids in Montgomery County wouldn’t find they are not tested except every 5 years but D.C. tests every year because we have had

a crisis. That is all I am asking.

Mr. GRUMBLES. One of our priorities Congresswoman is to survey

the country and see what States are doing with respect to testing.

Ms. NORTON. In other words, knowing full well that we don’t

have uniformity in anything in this country, you want to do a survey before you decide whether or not there should be annual testing of the water fountains in schools.

Mr. GRUMBLES. We want to make sure whatever is done is done

in a way that is sustainable and really works. It just needs collaborating with our partners. That is it.

Ms. NORTON. We would like to have a timeframe on that one too.

Chairman TOM DAVIS. We have another panel waiting and a limited period of time.

Mr. Van Hollen.

Mr. VAN HOLLEN. Thank you, Mr. Chairman. Ms. Norton covered

some of the areas I wanted to cover but I do want to delve into the

issue of the standard and the action level a little bit more because

as I understand right now you do a test which is already a sample

of the universe out there and if 10 percent are non-compliant, or

under 10 percent, then you still pass the test. In other words, the

system gets an OK. Is that right?

Mr. GRUMBLES. Right.

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Mr. VAN HOLLEN. To make sure I understand, of the 10 percent

of homes that were found to be non-compliant, there is currently

no notice requirement that goes directly to those homes?

Mr. GRUMBLES. Right.

Mr. VAN HOLLEN. This raises a larger issue because it is not just

the 10 percent of homes that were tested, it also means in that

larger universe you would extrapolate, they are 10 percent of the

homes in the entire area, that are non-compliant. That is why this

legislation requires we take another look at this action standard

and it proposes two alternatives. One is to have a minimum national standard at the tap and the alternative is that the EPA determines that not practicable, that they have to develop an actionable level that gives protection somehow to everybody because it is

not the 10 percent of the people in the test not getting informed,

it is also 10 percent of the population that may well have significant lead problems in their water who don’t know it and are not

informed and no change is being made in the system. Why

shouldn’t we revisit that whole issue and isn’t it necessary to revisit that issue?

Mr. GRUMBLES. Congressman, I am fully supportive of revisiting

aspects of the rule including the 90th percentile and the action

level. I am not in a position to commit to a rulemaking. I am in

a position to commit to doing what we want to do and that is to

continue to work with congressional, State and local partners and

the public on saying does this rule, which is about 13 years old,

continue to make sense? There has been success. We have seen reductions in lead in drinking water throughout the country, so we

shouldn’t make light of that or neglect to see that.

When you get into the fine specifics, the percentile approach, the

monitoring, the notification as you point out, the further things

that can be done if not at a national level at a State and local level

with respect to schools, we are welcoming that dialog and we appreciate that. We will work with you and your colleagues.

Mr. VAN HOLLEN. And I appreciate that. You mentioned the rule

was 13 years old and I would just point out that Mr. Waxman is

not here but when this issue was raised 13 years ago, I have the

document from that time, he specifically addressed this question

about this rule would result in not protecting potentially 10 percent

of the people. He said it protects only 90 percent of the households,

what about the other 10 percent? So while it is 13 years old, I

think it is time to go back and relook at the warning Mr. Waxman

raised 13 years ago on this very important question.

Thank you, Mr. Chairman.

Chairman TOM DAVIS. We will let you have the last question,

Ms. Norton, but we have to move to the next panel.

Ms. NORTON. I appreciate your generosity.

Mr. Johnson, I did want to ask you a question. You raised a very

important issue that I think the committee has to take seriously

and I hope WASA will. It came forth in testimony that partial replacement would not do the job and Mr. Johnson has testified rather definitively to that. Indeed, we had testimony that partial replacement may make it worse because the two different metals

could interact and one become a battery for lead.

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I am not going to ask a question since the chairman wants to

move on, but at the very least the kinds of mainstream science you

are working on may well be out of date if in fact partial replacement doesn’t do the job and public utilities are spending millions

of dollars or more to do that and worse, the science says partial replacement may make it worse. Your rule allows partial replacement so it seems to me you are at ground zero when it comes to

looking again at that rule.

Mr. Johnson, I appreciate what WASA has done. It has said to

homeowners, while we are doing the work, we will replace the private section as well but we have had people call our offices to say

they get a single dollar amount rather than a per square foot or

linear foot amount. So it doesn’t enable them to shop around, it is

expensive. I want to ask if you have found a way since it really

does make sense for WASA to do the whole thing while you are

going into the ground, to help homeowners in fact take advantage

of your service if it is the cheapest way to do it or do it some other

way. Have you found a way to deal with this complaint we have

had phoned in to my office?

Mr. JOHNSON. Ms. Norton, I am not familiar with the manner in

which the estimates are given, whether it is on a linear foot basis

or not, but typically we found that our contractor because of the

number of lines they are doing, the sheer volume, are able to do

it much less expensively than a private plumber.

Ms. NORTON. But you give them only 30 days I think to make

the decision.

Mr. JOHNSON. It is 45 days that we require under the EPA rules

to give them to make that decision and then they can come forward. We have also explored with a local bank and are attempting

to establish a consortium of banks an opportunity to provide loans

to homeowners who would be eligible in a low income category to

replace those pipes in the private portion of their property. We also

have looked at changing WASA regulations so that we would establish a per linear foot cost for providing the service from the public

space into the homeowner’s property. That is a rule currently in

the D.C. register for public review and would establish a fixed price

and we would work that on an average basis and work it into the

system on an ongoing basis.

Ms. NORTON. Thank you. We will pass along that information.

Mr. WELSH. May I add very quickly that while we agree that full

lead service line replacement is the most protective, the partial replacements are not without value. Reducing some of the lead reduces some of the risk. So after a proper period of flushing, the

samples do show that the partial line replacement has some benefit

in reducing the lead that comes out the tap.

Ms. NORTON. This is very controversial, Mr. Welsh, because if

that were the case, then one could say at least it helps. It was troubling to hear from experts at our last hearing that partial replacement may make it worse because of the interaction of the two metals and lead acting as a battery, so I am going to ask that you look

closely at that before concluding what your rules already say, do

partial replacement. That has been called into serious scientific

question.

Thank you very much, Mr. Chairman.

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Chairman TOM DAVIS. Thank you very much.

I want to thank this panel for being with us and for answering

questions. We will dismiss you at this time.

We will take a 2-minute recess as we bring our next panel together.

[Recess.]

Chairman TOM DAVIS. We now have time to recognize our second

panel. We have Mr. Howard Neukrug, director, Office of Watersheds, Philadelphia Water Department, from the American Water

Works Association; Ms. Angela Logomasini, director, Risk and Environmental Policy, Competitive Enterprise Institute; Mr. Scott

Rubin, esq., consultant and public utilities expert; Mr. Paul

Schwartz, national policy coordinator, Clean Water Action; and Ms.

Katherine Funk, esq., Parents for Nontoxic Alternatives. I appreciate you all being here.

As you know, it is the policy of the committee that we swear you

in first.

[Witnesses sworn.]

Chairman TOM DAVIS. Try to keep it to 5 minutes. Your entire

statement is in the record, so questions will be based on the entire

statements. We have the light in front of you. There is a button

there that opens your mic when you start.

Mr. Neukrug, we will start with you and move straight on down

the line. Again, thank you for your patience. We appreciate all of

you being here. Thank you.

STATEMENTS OF HOWARD NEUKRUG, DIRECTOR, OFFICE OF

WATERSHEDS, PHILADELPHIA WATER DEPARTMENT, THE

AMERICAN WATER WORKS ASSOCIATION; ANGELA

LOGOMASINI, DIRECTOR, RISK AND ENVIRONMENTAL POLICY, COMPETITIVE ENTERPRISE INSTITUTE; SCOTT RUBIN,

CONSULTANT AND PUBLIC UTILITIES EXPERT; PAUL

SCHWARTZ, NATIONAL POLICY COORDINATOR, CLEAN

WATER ACTION; AND KATHERINE FUNK, PARENTS FOR

NONTOXIC ALTERNATIVES

Mr. NEUKRUG. Thank you very much and good morning.

Thank you for this opportunity to present the views of the American Water Works Association on lead contamination in drinking

water.

AWWA is the largest and oldest drinking water, scientific and

technical association in the world. This morning we had 57,000

members but I think after hearing Ms. Norton’s remarks, I think

we are going to offer her an honorary membership to the American

Water Works Association and make that 57,001 members representing all areas of the drinking water profession; 4,800 utilities

and 80 percent of the Nation’s drinking water supply are members

of the American Water Works Association. We have an extremely

long history with the lead and copper rule.

I would like to offer for the record an AWWA Research Foundation report showing $3.4 million of research that has been conducted on the issue of lead and copper and $2.5 million of new research that is about to begin in the area of corrosion control.

Personally, I am from the Philadelphia Water Department and

I ran pilot studies for lead and copper about 10 years ago; 15 years

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ago I was involved with development of the original lead and copper rule, so I have quite a history with this rule.

Nationally, I believe that the lead and copper rule has been extremely successful and the EPA’s oversight of that rule has been

tough and consistent. This is despite or because of possibly the

highly complicated nature of this rule when in its sampling process, in its ownership of service lines issues, optimization and the

education of the public about the issues, all are extremely complicated issues.

I would like to remind everyone that lead exposure is a national

issue and comes from many different sources including lead paint,

leaded gasoline and lead solder and all of those have resulted in

the work that is happening at the EPA and in Congress and across

the Nation which has really reduced children’s blood lead levels

over the years. We are on a very big mission now to eliminate

these lead levels completely but there is a lot of good work that has

already been done.

I respectfully suggest that the CDC or some organization like

that take a new look at understanding all the remaining exposure

pathways to lead in drinking water and from other sources and

from that develop a comprehensive national, educational and action

plan for dealing with the issue of lead, particularly in children.

With respect to drinking water and the route of exposure, AWWA

has consistently advocated a three-pronged approach. One is public

education. Two is optimization of corrosion control and three is the

reduction of lead materials in distribution systems. With respect to

public education and outreach, extensive programs already exist

nationwide. I think a key lesson I am certainly hearing this morning and is clear from the recent past is that a review is appropriate

at this point of the education and outreach programs that exist for

drinking water and lead issues and to look at the consistency of

these programs.

In terms of optimization of corrosion control, all systems should

be optimizing for corrosion control. Drinking water is the universal

solvent and every water is different, not just for lead but there are

other issues for corrosion control including copper, including cast

iron pipes and other issues of infrastructure which all require a

well managed utility to optimize for corrosion control.

Chemistry, as we heard this morning, varies widely by location,

by type of water, it can vary daily, it can vary seasonally and studies are needed to understand from both the literature point of view,

lab and pilot point of views, and what corrosion control optimization works best and to slowly implement full scale implementation

of this. Every utility should be reviewing corrosion control practices

both over time and with changes in treatment.

Replacement of leaded materials where needed, there has been

a tremendous success already with the lead free solder. We are not

even lking about the solder issue at this point and it just shows

the success that Congress and Safe Drinking Water have had in

dealing with that issue.

Caution over removing of lead service lines, nationally we are

talking about $10 billion. This goes on top of a $500 billion gap

that the EPA has already recognized for drinking water and waste

water utilities and infrastructure spending. I testified a few weeks

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ago on the issue of infrastructure and I talked about a crisis in priorities. We have limited funding and where to spend that and the

question I think this panel is looking toward is where does lead fit

into the priorities of the infrastructure issues in the industry.

Finally, the issues in D.C. remind us all of the importance of understanding the cross links of all drinking water regulations. This

is highly recognized in most of the regulations coming out particularly recently from the EPA but everything needs to be based upon

good science and deliberately looked at over time. We need to do

active monitoring, continuous verification of the effectiveness of

corrosion control, disinfection byproducts and other issues.

In summary, I would like to commend Delegate Norton for the

spirit of the legislation of H.R. 4268. I will not call it premature

but I will say I hope that the EPA, the drinking water industry

and other parties have the opportunity to discuss and implement

something through the regulatory process prior to legislative action

on those issues.

Mr. Chairman, I would request that this report from the American Water Works Research Foundation be entered into the record.

Chairman TOM DAVIS. Without objection, it will be entered into

the record.

Mr. NEUKRUG. Thank you.

[The prepared statement of Mr. Neukrug follows:]

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Chairman TOM DAVIS. Thank you very much.

Ms. Logomasini.

Ms. LOGOMASINI. Good morning. Thank you for having me to testify today.

I am Angela Logomasini of the Competitive Enterprise Institute.

We are a public policy group focusing on free market and local solutions to a variety of public problems.

I am going to start with somewhat of a different angle on this.

I think everyone has been focusing on whether the regulations

were sufficient, whether we need more regulations. I would argue

that more regulations are not going to be the solution. Certainly

Delegate Norton has wonderful intentions and I think probably nobody in the Congress cares more about people in D.C. than she

does, but I am not sure this is the right approach.

Looking at the issue in a larger perspective, with drinking water

regulations the problem is they are not flexible enough. Drinking

regulations affect different communities in different ways and this

issue goes beyond the boundaries of D.C. and may end up having

impacts that have serious consequences for people in communities

around the Nation. Part of the problem is some communities that

are smaller are going to be paying very high costs than they do

today and make high tradeoffs for the regulations they have to

meet. CBO did a study a few years back about this and sometimes

there is actually a net loss to public health. As Delegate Norton

noted, there are a lot of other issues that need to be addressed by

the government and costs can be transferred from one area to another. For individuals, extremely high rates may mean difficulty

paying insurance and things of that nature.

There may be a couple reasons why D.C. didn’t send out the notification quickly, maybe there are reasons why people aren’t testing

as frequently as we would like. I think the law, because it has such

inflexible, rigid regulations, may scare communities into trying to

avoid having to trigger those regulations and having to avoid making sacrifices from other programs to pay for them. In this case,

lead in drinking water poses some risk but lead in paint poses a

bigger risk. Maybe resources in communities ought to be dedicated

toward bigger risks, even beyond the lead issue. Maybe communities want to be spending their money on taking care of getting

that emergency supply equipment but if they are triggering these

regulations, they can’t. Maybe they could find a better way to address the lead issue. Maybe use of filters in the homes is the answer but the regulations are going to trigger line replacements and

they are not even sure the line replacements are going to work. So

there are a lot of complicated factors. I think the law is contributing to that. Certainly the media coverage is something we all can’t

control, but it is sounding off an alarm too that may be more severe

than warranted.

I think the D.C. government, although I am sure they are not

perfect and make mistakes, didn’t want to set off an alarm because

they knew the cost to the city could be dramatic and they knew

that there might be more affordable ways and also didn’t want to

scare people needlessly. There may be reasons for that. You have

to think about this in terms of other sacrifices. Price Waterhouse

did a study a few years ago basically surveying communities and

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showing that communities were making big sacrifices to meet a

whole host of Federal mandates. Families too make these sacrifices.

It was asked earlier if the EPA considers affordability and the

tradeoffs of this one size fits all policy and it is supposed to but the

way the law works what they consider affordable or feasible is silly

for some communities. For instance, affordability to a household is

determined as 2.5 percent of the median income. That is $1,000

and that is for 1 year of drinking water regulation. So if you have

80 some regulations and the EPA can have a regulation that goes

up to $1,000 a year for a family, you can see that is not workable.

Feasibility standards, whether a regulation is economically feasible, is determined based on the size, based on what is feasible for

the bigger systems but there are a lot of small systems that need

some flexibility and there are provisions in the law that are supposed to allow for flexibility but they are rarely employed. What we

need now more than ever is some flexibility for communities to deal

with problems rather than more government regulations with more

unintended consequences, for instance, the change in disinfection

was an unintended consequence, not anticipated, probably not easily anticipated, so what we should be looking for is finding ways

to assist rather than trying to find ways to regulate in the future

where we have limited information.

Thank you.

[The prepared statement of Ms. Logomasini follows:]

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Chairman TOM DAVIS. Thank you very much.

Mr. Rubin, thanks for being with us.

Mr. RUBIN. Good morning, Mr. Chairman.

Thank you for inviting me to be here today. I will mention that

I am appearing today at my own expense and not on behalf of any

client and I am doing that to ask you to focus on the larger problem of setting priorities for public health protection, particularly for

the millions of low income households in this country. Then I will

discuss how H.R. 4268 fits into this picture.

Initially, I would emphasize that nothing in my testimony should

be used to decrease our commitment to controlling the exposure of

infants and children to lead. I am concerned however, about the allocation of our limited resources for public health protection particularly for low income families. The health of low income families

may be jeopardized by various environmental problems including

lead exposure but their health is even more severely impacted by

their lack of money to pay for essential services. One out of every

five households in this country has an annual income less than

$20,000. Most households with incomes below this level face serious challenges in attempting to meet their families’ basic needs.

Many low income families are faced with having to make serious

tradeoffs that directly affect their family’s health.

For example, the Census Bureau estimates that 10 million

households are not able to pay their energy bill each month, 7 million aren’t able to see a dentist when they need to, 6 million can’t

see a doctor, 5 million go hungry at some point during the year,

4 million have their telephone service disconnected, 2 million have

their gas or electric service disconnected and nearly 2 million families have to leave small children alone because they can’t afford

child care. The plight of low income families raises important questions about our national drinking water policies, including how

much more should you ask these families to pay for drinking water.

Will an incremental improvement in the safety of their water provide benefits at least equal to the cost and will the tradeoffs the

family must make result in improved or worsened public health

overall?

Because there are so many low income families who will be affected by an increase in water costs, we need to be sure that the

costs of paying for new drinking water requirements would at least

equal the benefits from that measure. If they don’t, then we run

the risk of harming the health of low income households because

many of them will have to cut back on some other necessity in

order to pay the higher water bills.

With this understanding, I have a few concerns about H.R. 4268.

First, the bill mandates a course of action without first determining

its costs and benefits. The bill would require water utilities that experience an elevated lead reading to replace all lead containing

service lines in their system. I don’t know the total cost of such an

effort. I would estimate it would cost at least $1,000 per line and

probably several times that amount in many instances. I don’t

know how many utilities would be subject to the requirement or

how many service lines would need to be replaced. Very importantly, we also don’t know the public health benefit that will be derived from this effort. Will the benefits from reduced lead exposure

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more than offset the reduced access to food, heat, medical care and

child care that we can expect low income households to experience?

Second, I am concerned about the relationship between some of

the requirements in the bill and the funding provision. While the

legislation requires a 10-year line replacement program, it authorizes funding for only 5 years. Moreover, the bill’s mandate exists

without regard to the actual availability of funding. Even if the

utility does not receive a grant, the utility would still have the obligation to replace service lines. Thus, while the prospect of $1 billion in Federal funding is certainly a positive aspect of the legislation, I don’t know if this

amount is sufficient to meet the mandates set out in the bill and

because of that, we can’t assess the impact of the legislation on the

water bills paid by low income families. If we don’t know that, we

can’t determine the ultimate public health consequences of the requirement.

Please don’t misunderstand me. I am not saying that we should

do nothing about the lead problem either here in the District or

elsewhere. I have been arguing for more than a decade that we

need to provide much better and more understandable notice to the

public. I think the legislation takes an important step in that regard, but we also need to make sure we are spending our money

wisely. We need to make sure we are using our resources to enhance the overall level of public health protection, particularly to

low income families.

The 1996 amendments to the Safe Drinking Water Act require

the EPA to balance the cost and benefits of any proposed regulations. I continue to support that as being a reasonable approach to

ensuring that we spend our dollars wisely. If we properly consider

both the benefits and consequences of investments in our drinking

water utilities, I am hopeful that we can improve the quality of life

for 20 million low income households in this country.

Again, I appreciate the opportunity to be here and I look forward

to your questions.

Thank you.

[The prepared statement of Mr. Rubin follows:]

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Chairman TOM DAVIS. Thank you very much.

Mr. Schwartz, good to have you with us. Thanks for being here.

Mr. SCHWARTZ. Good morning.

Thank you, Mr. Chairman and members of the committee, for

giving Clean Water Action a chance to testify on this important

issue here in the District of Columbia and nationally. Clean Water

Action is an advocacy organization in some 25 States and here in

the District with over 700,000 members. We seek to take lessons

we have learned at the local level trying to fix problems and inject

them into the policy debate at the State and Federal levels.

We wholeheartedly support H.R. 4268, the Lead Free Drinking

Water Act of 2004. The legislative approach used in this bill builds

on lessons learned and that we are still learning in the District

over the past 41⁄2 months and upon concerns with shortcomings of

the lead copper rule since its inception as Congressman Van Hollen

noted in 1991.

H.R. 4268 is a cost effective, pro-active, strengthening that gives

the EPA regulatory flexibility while giving the lead and copper rule

more teeth. A recent EPA survey of available State information

shows that 22 community water suppliers, including DCWASA,

serving over 5 million people have exceeded the action levels for

lead at least one time since 2000. There is no data for 15 percent

of the systems serving populations above 50,000.

The situation in D.C. surfaces a number of problems with the

lead and copper rule some of which have been touched on earlier

today, its enforcement and its implementation. In my remaining 3

minutes, I hope to illustrate some problems and show how this

needed bill provides tools to correct the problem.

We are happy with the fact that the Washington Aqueduct Division and DCWASA and others are now moving more aggressively

forward on a number of fronts but they are operating in an inefficient and haphazard crisis mode which could have been avoided if

the EPA had been more aggressive and proactive in its oversight

and enforcement role. The lead and copper rule is not a self implementing rule and without enforcement, it provides the public little

protection.

In D.C. and in some other cities, elevated lead levels in drinking

water were soft pedaled in the right to know reports or consumer

confidence reports and other mandatory notes. Parents and even

city officials didn’t learn about the problem until well after the fact.

The bill fixes this problem by requiring more effective notification

and public education and mandatory swift notification to people

whose water is tested. The bill also requires that the effectiveness

of the notices must be evaluated.

In D.C. and many other cities, the water systems were allowed

by the EPA’s rules to reduce the number of homes they tested for

lead and the frequency of testing. D.C. and Boston also apparently

invalidated or tried to invalidate samples to avoid exceeding the action levels for lead. These problems contributed to the delay in detecting the lead problem and allowed unnecessary exposure of

many kids and pregnant moms. The bill fixes that by ordering

more aggressive statistically valid and frequent monitoring.

In D.C., changes in treatment apparently triggered more corrosion as we heard this morning and resulting in lead level increases

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but no changes in corrosion control. The bill requires a detailed review of corrosion control when other treatment changes are made.

In D.C. and other cities, the water system partially replaced the

lead service lines in homes with elevated lead levels in water but

studies as we have heard have now shown that for a period of time

after the lead service lines were replaced, lead levels actually increased and then eventually come down. If replacement of the lead

service line is indicated, then only full lead service line replacement as called for in the bill brings the level of lead down to a minimum.

There are many other problems which I don’t have the time to

get into that are addressed by this bill but I do want to take my

remaining minute to address the issue of funding because I think

that is an important issue. Nationally, as we have heard from Howard, the EPA estimates there exists a half trillion water and wastewater infrastructure gaps over the next 20 years. Our old drinking

water treatment systems such as the Washington Aqueduct need to

be updated. Duquesne distribution systems, whose pipes are reaching the end of their useful life spans, need to be repaired and replaced.

If we are going to have simultaneous compliance, we need to look

at not doing the cheapest thing but doing the right thing that gets

us simultaneous multiple benefits, so we need to look, for instance,

within the Army Corps of Engineers and around the country at the

Washington Aqueduct and around the country at using modern filtration and treatment alternatives, granular activated carbon, ultraviolet and other technologies that frankly are not in widespread

usage in this country but are throughout Europe, Japan and most

of the rest of the developing world. That is why we are supporting

the creation of the Clean Water Trust Fund, full funding of the

Clean Water and Drinking Water State Revolving Fund accounts,

a water help program which we would invite AWWA and Scott and

other people to join us in supporting a program from the Federal

Government to low income consumers and why we are excited

about the $1 billion in funding which certainly doesn’t cover the

whole gap but is a start in acknowledging the Federal role and responsibility in dealing with some of the lead problems here in the

District and around the country.

Thank you.

[The prepared statement of Mr. Schwartz follows:]

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Chairman TOM DAVIS. Thank you very much.

Ms. Funk, thanks for being with us.

Ms. FUNK. Thank you.

Good afternoon. My name is Katherine Funk and I am an antitrust attorney here in Washington for a large national law firm but

today I sit here in two other roles, first, as a homeowner in the District of Columbia and most importantly, as the mother of a 5-

month-old daughter who is with me here today but is apparently

out to lunch.

Thank you, Chairman Davis, for holding this hearing. I would

also like to thank Delegate Norton for her leadership on this public

health crisis.

Today, I would like to discuss real life situations that I and other

D.C. homeowners and parents have faced and to urge support for

and passage of the Lead Free Drinking Water Act of 2004 which

would help prevent the recurrence of these problems in D.C., often

referred to as the Nation’s laboratory, and in other cities with

aging water infrastructures. Further, this is not a partisan issue.

As Senator Crapo of Idaho, a Republican, told me in my living

room last month at a public gathering on this issue, in his opinion,

safe, clean drinking water is the No. 1 environmental problem facing the United States.

Thousands of homes in D.C. have tested for lead levels in drinking water far above the EPA action level of 15 ppb. Our home, just

a few blocks from here on Capital Hill, is one of them. In February,

WASA tested our lead levels at 29 ppb on the first draw and 100

ppb on the second draw. Many of our neighbors have tested higher.

The problem is twofold. First, that in 2004 this problem even exists

in this Nation’s Capital and second, in the maddeningly unresponsive response to the problem by WASA, the EPA, the Corps of Engineers and the D.C. government have basically given the D.C.

residents the stiff arm. Most unfortunately, current law and regulations let them do it. I will give you a few examples and point out

how this legislation would help.

WASA, the EPA and D.C. health officials knew for at least 2

years that water samples throughout the city were showing wildly

elevated levels of lead, yet despite some test results showing levels

in the hundreds and even thousands of ppb, the people at WASA,

the EPA and the D.C. government did not inform the people in the

homes that tested high, let alone the general public. Why? As it

turns out, the current law and regulations do not require that such

results be shared unless 10 percent of the test results are elevated.

Why does this matter? When I was pregnant last year, I drank

glass after glass after glass of D.C. water daily for 9 months just

as my doctor ordered. Every evening, I took my prenatal vitamin

with a glass of D.C. tap water. Who would have thought that these

acts which should have been good for my child could instead have

been endangering her development? If WASA had only announced

that its testing showed elevated blood levels and that certain persons, pregnant and nursing women and small children should take

precautions, I would have been able to make an informed decision

about my health and that of my daughter. This legislation requires

notification to persons in all homes that test above the EPA action

level, a relatively cost free solution.

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WASA’s lack of knowledge of its own inventory which hinders its

ability to solve its problems and its unwillingness to fill in its information gaps is the second issue. As I mentioned, our water has elevated lead levels, yet WASA does not know and has taken no steps

to determine whether our water level service line is lead. According

to published reports, tens of thousands of other homes in D.C. are

in the same position. Why is this information important? Because

as an unknown, WASA has not offered to us any other remedial efforts, including filters, despite the fact that we had elevated lead

levels and an infant in the home and I am nursing. Even in today’s

Washington Post story, WASA officials only mention those homes

with lead service lines, completely ignoring us unknowns. This legislation requires local water agencies to maintain up to date information about their service line inventory. Again, a relatively low

cost solution.

Third, when water samples return test results putting WASA

over the threshold for replacing service lines, WASA began nullifying results. Incredibly the EPA, which has the role of oversight,

allowed them to do this. Let us call it what it is and I am not being

hysterical. It is a cover up and it puts thousands of D.C. children

and pregnant women at risk. Additionally, the entire testing protocol is inadequate. The number of samples required is not consistent

with accepted scientific protocols. This legislation eliminates the

existing loopholes that allow systems to avoid replacing lead service lines by conducting water tests and it mandates sampling at a

sufficient level to obtain an accurate measure of the situation.

Today’s story in the Post makes it seem that this is a problem

merely of water chemistry. However, the story presents a stark

choice, on the one hand, too much lead, on the other hand, chlorine,

a known carcinogenic. The real problem is the presence of lead in

the service lines and in home plumbing which leads me to my final

two points, the misinformation and outright lies promulgated by

WASA, the D.C. government, including bizarrely its Department of

Health.

Since the day the toxicity of the D.C. drinking water became public notice, WASA and D.C. government officials have sought to minimize the problem. In public forums, WASA officials describe the

EPA action level as a level at which water is safe. Further, filters

have not been delivered, contrary to what Mr. Welsh testified

today.

With regard to the pilot program for replacing some lead service

lines in the city, WASA has misled residents as to how, when, what

and the cost to the consumer of the replacement. Now WASA won’t

take telephone calls from residents seeking clarification or more information. This legislation establishes baselines for public education about the risk posed by lead contamination. Further, it sets

out a protocol for lead line replacement, clearly marking each participant’s role and their responsibilities.

Finally, the problem is not entirely with the water agencies because lead free doesn’t really mean lead free. When defending their

actions, WASA officials blamed excess levels on home plumbing fixtures. WASA may actually have a point. Currently the Safe Drinking Water Act defines lead free as 8 percent lead. This legislation

would define lead free as 0.2 percent and going forward, it would

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be unlawful to install plumbing fixtures and components with lead

levels higher than that in any residence. Again, it is a relatively

costly solution. I remind them that the goal of U.S. public health

agencies since at least the 1980’s has been zero exposure to lead

and I ask them, why not take action to address the source of the

problem?

Some might think this is a D.C. problem and one that does not

affect their constituents and their families. I ask them, has your

local water agency tested your water lately? Has the EPA let them

nullify results? How old is your city’s infrastructure? What are

your water service lines made of? In the interest of all of our children, shouldn’t we know the answers to these questions?

Some say the answers cost too much and are too burdensome on

water agencies, but as I have demonstrated here, it really isn’t that

expensive. When experts do cost benefit analyses, they certainly

don’t include their children on the cost side of the equation. Further, D.C. consumers, rich and poor, are spending lots of money on

bottled water, filters and pitchers and more importantly, I ask

them, what monetary value do they place on the mental development of a fetus and a growing child? What is the long term cost

of children with learning disabilities and young adults with schizophrenia?

I urge you to pass this legislation so that 1 day in your district,

you don’t have to face the mother of a child who is developmentally

delayed because of lead exposure and have to say to her, I am

sorry, I could have fixed the problem when I had a chance but I

thought it cost too much.

Thank you.

[The prepared statement of Ms. Funk follows:]

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Chairman TOM DAVIS. Thank all of you very much.

We don’t have closure on this with the panel. We have some different opinions but I want to just explore a few. Ms. Funk, let me

start with you. Do you know what your water bill is at this point?

Ms. FUNK. Interesting that you would ask because we just re- ceived our water bill 2 days ago and it is about $25 a month.

Chairman TOM DAVIS. I know out in my district, I go in to buy

a case of water and water is almost as expensive as gasoline and

people pay for this stuff and yet if you had a good water system,

I guess the ultimate question is how much more are you willing to

pay to get water out of the tap and have to go and pay more for

gasoline when you buy it at the store? That is kind of an inquiry

but the answer is I think people are buying water that is bottled

not just for convenience but because they think it is in some way

safe. If they could pay more at the tap and get that clean water,

would they save a lot of money?

Ms. FUNK. For example, a case of water at the local grocery store

costs $7. You figure you buy two or three cases a month, that is

another $21. In addition, there is the cost of the Brita filters that

we use in the pitcher in our refrigerator so that we can use clean

water to cook with. Further, we have a water filter on our kitchen

tap that costs $35 and each replacement cartridge I think is another $15.

Chairman TOM DAVIS. Just for the record, the water that you are

drinking there, we bought that water but the ice, I think, is regular

ice.

Mr. Schwartz, did you want to say anything on that?

Mr. SCHWARTZ. I just wanted to say that many low income D.C.

residents are currently spending lots of money on bottled water

and many residents continue to do things like boil their water with

the notion that is what it takes to make their water safe.

Chairman TOM DAVIS. That doesn’t do anything for lead, does it?

Mr. SCHWARTZ. It makes the lead problem worse. I think what

we are facing is maybe a little bit of an untenable position. It is

not that cost doesn’t matter, cost does matter and there are certainly not unlimited funds. The question is a question of priorities.

I think we heard that from other panelists.

Chairman TOM DAVIS. Let me ask this. I guess this is a fundamental question. The tape within a residence and the line leading from the main line to the residence, whose line is that, who

should be responsible because, if that is lead, is that the city’s

problem or is that the individual’s problem? I guess I would ask all

of you how you view that because if you change all the public lines

but the lines leading up to the house are still bad, you still have

a problem. Who wants to start?

Ms. FUNK. Currently, Mr. Chairman, the EPA regulations require the water utilities to be placed at the lead service line on

public property. On Capital Hill, most public property starts at the

edge of a homeowner’s house which leaves the homeowner with

several inches of lead line to replace. As Delegate Norton pointed

out, the connection of a non-lead service line to a lead service line

actually might exacerbate the problem because of some scientific

reaction that I probably learned about in high school but couldn’t

tell you about now.

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Chairman TOM DAVIS. We are lawyers, not scientists.

Ms. FUNK. So whose responsibility is it? I would say it is the

water authority’s responsibility. If there is a problem with your

phone line, the phone company can come in and fix the phone line.

So if there is a problem with your water line, why doesn’t the

water company fix it?

Chairman TOM DAVIS. If it is on your property, they will charge

you.

Ms. FUNK. Charging is one thing. I am not suggesting that you

shouldn’t bear the cost.

Chairman TOM DAVIS. OK. Thanks.

Mr. Schwartz.

Mr. SCHWARTZ. One thing I would refer to is the 1993 and 1996

Washington Post articles that indicate a bit of a disagreement between the Federal managers of Washington, D.C. and the residents

over the installation of the lead service lines here in D.C. originally. Those lines were in large part installed over the objections

of the population who were living here at the time. We think there

is a special Federal responsibility in D.C. because of that decision

to mitigate the financial cost to the population here.

In addition to that, to get more to the point of your question nationally, I think it is worse than doing nothing to only do partial

service line replacement. We really need to, as the bill says, do full

service line replacement and we need to figure out the right funding mechanisms. I am not sure what all those are but they include

for those who are unable to pay and for those systems that have

stress, some support nationally so that we meet public health

needs. That is what this law is about, meeting public health goals.

We need to meet those goals.

Chairman TOM DAVIS. Let me ask the other panelists what you

think in terms of the private plumbing. What should be the States’

burden in that vis-a-vis the homeowners. Ms. Funk said we could

facilitate it, at least, make it available to come in and maybe do

the bills. Mr. Schwartz takes a larger view, particularly for D.C.

given the history of this that it is a State responsibility, State

meaning government. What are your thoughts on that? I would ask

each of you.

Mr. RUBIN. Legally, I think the utilities’ property and responsibility ends at the end of the public right of way. In the District

there might not be that much land between the end of the public

right of way and the home. When you get into other communities,

you might be talking several hundred feet and it is a large part of

the expense and certainly a very high percentage of the service line

is owned by the customer and not by the utility.

Part of that problem which makes it even worse is the whole

landlord/tenant problem. If the landlord is paying the water bill

and owns the service line and is responsible for the service line but

isn’t the one who is drinking the water or going out and buying

bottled water or filters to replace it, is the landlord really going to

incur that expense, especially if there is rent control or some other

way he can’t pass that cost along to the tenant.

Chairman TOM DAVIS. Not if he can help it, right?

Mr. SCHWARTZ. Yes. I think that is going to be a very difficult

problem. So there is the legal side of it which says once the public

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right of way ends, it is the customer’s property and the customer’s

responsibility, but the policy implications of that I think, especially

with landlord/tenant issues, are very difficult.

Chairman TOM DAVIS. We face that with a lot of different utilities but, in point of fact, in this case, if you don’t do the last 20

feet, 100 feet or 200 feet, you really don’t solve the problem.

Mr. SCHWARTZ. That is true.

Chairman TOM DAVIS. Whatever the expenditure is on everything else.

Mr. SCHWARTZ. Yes, we are facing the same kind of problem in

the nature gas industry where they are finding certain types of old

pipes that were installed that are prone to leaks and ultimately explosions but the gas utility only controls a small portion of that line

and gas utilities around the country are fighting with the same

problem, can they require homeowners to replace the line?

Chairman TOM DAVIS. I guess one difference here is WASA is a

governmental organization and gas lines are private. There is a different privity. Ms. Logomasini, do you have any thoughts on that?

Ms. LOGOMASINI. Yes. I think this highlights the point I have

been making all along, that it is a question of who is responsible.

It is not clear that this can be solved in Washington. Every community may have a different answer. Because utilities are responsible

for water as it comes out of the tap, even though they don’t own

all the lines, they are in a difficult situation and it may be that

in each locality, the decisions are going to be different, it is going

to be negotiated and some may cover part of the costs and in some

cases, if costs are passed on to homeowners, maybe homeowners

should be given opportunities to find other solutions because this

isn’t a few inches of line, this could be a dramatic disruption in

their lives, there could be problems at the tap as well. So maybe

what they need to be able to do is make priority judgments as to

whether or not filters would be more efficient or whatnot, but it is

not going to be an easy answer from Washington. There has to be

some flexibility.

Chairman TOM DAVIS. It would be a huge unfunded mandate for

Congress to say this to water authorities across the country. I

think Mr. Schwartz’s comment is that in D.C., particularly going

back to the 1890’s when a lot of this stuff was installed, there really was a dispute over who was going to take it, is that fair to say?

Not to bind you but I think you said, whatever you feel about nationally mandating this, the District has a peculiar situation that

may indeed set it apart however you agree with the other part?

Mr. SCHWARTZ. I think the bill addresses a suite of solutions to

deal with lead problems and lead service line replacement is one

of the lead elimination solutions in the bill and the bill seeks to remove the cause of the problem. The bill is not proscriptive and it

is looking at giving the EPA lots of flexibility in coming to terms

with this problem. I think the important thing is to recognize that

the communities that are on a short watch list on lead because

they have been at, near or one point per billion under the action

level like New York City or Newark, NJ, or Massachusetts Water

Resources Authority where Boston is, problems in St. Paul, Bangor,

Madison, these are very similar to Washington, D.C. in terms of

the configuration of the communities.

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I think we also have to look at the organic reality of where the

lead service line problem is and we need to find out more about

that and we need to find out more about that in the District as

well. I don’t think we even have an accurate picture here yet. So,

yes, there is a particular situation for the District, I agree with

that, but I also think there is a national point to be taken here.

Chairman TOM DAVIS. Mr. Neukrug.

Mr. NEUKRUG. Thank you.

There are so many different issues here and so many different

ways to answer this question. There are issues of ownership and

who owns what, responsibility beyond ownership, location, where

are these lead service lines, and finally, does it solve the problem?

When you replace a lead service line, does that now mean the citizens are going to start drinking the water and not boil the water,

not use the filters, or are those cost issues still going to persist?

I am not really sure if that solves the problem.

One other point is that we have been very successful in removing

the introduction of new leaded materials into society, whether it be

lead paint, leaded gasoline, lead solder, lead pipe or fixtures. Removing any of those from our environment has proven to be very

difficult and it is interesting that this discussion and a lot of the

discussion in D.C. lately revolves around the lead pipe versus

issues of lead solder, issues of the fixtures, issues of the paint and

all these things need to be considered together.

Chairman TOM DAVIS. We addressed the solder issue in the last

hearing giving the chemicals that are coming in and out and the

effects, but I understand.

Let me ask one other question to anybody who may know anything about this, I asked the EPA about the situation in the city

of Cincinnati where it replaced all of its lead service lines at enormous cost but, from what I have read, it didn’t significantly reduce

the levels of lead in the water. Does anybody know anything about

this? Tell us about the wholesale replacement or maybe they didn’t

do the last 20 feet. Obviously it is a whole host of issues that could

cause levels to spike and rise and fall. Does anyone know anything

about Cincinnati?

Mr. NEUKRUG. We will be glad to find out.

Chairman TOM DAVIS. We would be happy if you have those resources. Thank you for being here and I am going to recognize Ms.

Norton.

Ms. NORTON. I want to thank all of today’s witnesses. It is important to hear from all of those concerns and trying to figure out how

to proceed.

Mr. Chairman, I would like to submit for the record the testimony of a resident of the District of Columbia who like Ms. Funk,

was kind enough to invite public officials to his home, to take that

kind of initiative in order to be heard and to tell us what he

thought should be done, Robert Vinson Brannum, he is here today.

I ask that it be submitted for the record.

Chairman TOM DAVIS. Without objection, so ordered. It will be

made a part of the record.

Ms. NORTON. Thank you very much, Mr. Chairman.

We were just discussing the complicated issue of who pays for replacement. Not withstanding my bill, I want to understand that to

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be a central question. As indicated in my opening remarks, we

tried to write a bill based on what needs to be done when you get

down to brass tacks, then you do what you can do. By the way, Ms.

Logomasini, there is something that could be done in Washington

and something that I am pleased this Congress has continued to

do. I don’t know if it fits here but one thing we could do is provide

a tax credit to homeowners who indeed proceeded on lead line replacement.

I would like to know if we might reach in this set of witnesses,

all of whom have given valuable testimony in good faith albeit from

perhaps different perspectives but all I think have agreed that lead

in the water is not what anybody here thinks needs to happen in

this country and may have to decide how much you can afford. Ms.

Logomasini talked about tradeoffs. Life is about tradeoffs, so you

teach a child from the child is the time of Ms. Funk’s baby about

tradeoffs. There is no question about that. But life is also about priorities. One way to decide the issue of priorities of tradeoffs is to

decide what is really important to you.

I would like to look at where all the witnesses stand on a set of

very narrowly focused questions, recognizing that we would have

vast array of answers on various aspects, for example, of our bill

or of any regulatory approach. As to mothers, the one thing I think

there is agreement about is if you live to get as old as I am, you

ought to take your lead to the grave with you and don’t worry

about it. The public health folks still say zero but you don’t see me

clamoring. We have Ms. Funk here and you have heard directly

from someone who has gone through the D.C. experience. Could we

agree that at the very least there ought to be a clear warning to

every person in a given jurisdiction who may be affected following

testing on the assumption that at least some of those residents will

be people like Ms. Funk who are pregnant, who are nursing and/

or who have small children on the question alone of notice I am

asking. I am not even getting to the question of what you ought

to do for Ms. Funk or people like her. On the question of letting

people like Ms. Funk or any other resident who may in fact be affected, regardless of what normal realities force us to do with respect to remediation, can we agree that everybody who may be affected with lead in the water should have notice on the assumption

that they are more like Ms. Funk out there? Can we get agreement

on the panel on that baseline?

Chairman TOM DAVIS. Let us go down the line.

Mr. NEUKRUG. I agree with you, Ms. Norton, and I think the only

thing I disagree on is that you seem to limit it to a certain geographic area and I think it is a worldwide, nationwide issue, exposure, prenatal care, exposure to lead in drinking water.

Ms. NORTON. I am talking about following testing. Let me be

clear. You testified about an education campaign. I am talking

about following testing, I am talking about the 10 percent rule, I

am talking about when you have to remediate and when not and

action levels. I am putting all that aside for the moment.

Mr. NEUKRUG. I would agree with you there.

Chairman TOM DAVIS. If you find bad results.

Mr. NEUKRUG. If you find bad results, you report it.

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Ms. LOGOMASINI. There is notice required now and I think the

question is how quickly.

Ms. NORTON. There is not notice required of everybody who is affected and that is why I asked this question.

Ms. LOGOMASINI. If there is a public health issue that is imminent and a serious threat, absolutely people should know but I

think there needs to be some flexibility in communities to make

judgment calls as to when there is a serious health threat and

when there is something that is not as serious and doesn’t require

immediate action. Sometimes there is time necessary to collect information to make sure that you are providing the right information. I think there is a lot built into the system that encourages

people to sound alarms and then we get overreactions and people

get scared and maybe the response is not appropriate. I also think

the way the law is working now, and this is a conclusion I have

been coming to listening earlier today, that maybe we are not getting the proper notice because communities are afraid of the repercussions on the regulatory front. They don’t have flexibility in how

they are going to handle it, so maybe they are going to try to not

do it as quickly. So we do have a flaw there. People need to get

good information and they need to get it in a timely fashion.

In a private system, you would have competing companies and

that would provide some regulation in the private fashion. We don’t

have that here. We have a political system and we have a lot of

bad incentives.

Ms. NORTON. We have a lot of competition for people.

Chairman TOM DAVIS. Ms. Logomasini, can you give a yes or no

to this?

Ms. LOGOMASINI. I think it should be determined more locally. I

don’t think you need to pass a Federal law to do that.

Chairman TOM DAVIS. How about conceptually? Conceptually

would you agree it ought to be done?

Mr. RUBIN. The simple answer is yes, absolutely and the key is

notice that is effective and understandable which usually is not the

case now.

Chairman TOM DAVIS. Yes, it gets buried.

Mr. Schwartz.

Mr. SCHWARTZ. My answer is yes and I would just note that if

WASA hadn’t been trying to gain the actual replacement of lead

service lines and so did a bigger sample, we never would have

found out the true extent of the problem. When you look at cities

like Boston who only have a 25 household sample per year, it

raises the question whether we really know what is going on out

there. I think we really have to take a hard look at the information

the agency has. I don’t think the rule is providing the right context

to even get to the point of public notification because I don’t think

we know what is going on, positive or negative.

Chairman TOM DAVIS. Ms. Funk, you have already spoken to

this, but in answer?

Ms. FUNK. I would say of course and as to whether or not notification that the lead in your water might be too high, might cause

panic, I find that an outrageous, pedantic statement. Parents every

day are called on to make health decisions on the part of their children. This Congress passes laws about parental notification. I

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think parents are equipped to make an informed decision when it

comes to their child’s health.

Chairman TOM DAVIS. Thank you.

Ms. NORTON. I really do think in good faith all of us really do

believe that and I understand the question the notice may trigger

cost, notice may trigger, but I want to separate the question of notice because that is low cost. I want to concede Ms. Logomasini’s

point that once you get to what to do, there may well be different

strokes for different folks. That is why I confine myself to the notion of those 10 percent, none of whom may know which doesn’t

seem to me to be very American way to approach things. Most people, whether free market people or whatever, want everybody to

know so they can then decide what to do. I think that is the whole

notion, frankly, of the market system.

Let me ask you another question designed to get agreement, if

I can get it. Since the population that appears to be at risk, perhaps not but appears to be at risk, is the youngest population, children now go to be educated beginning at 3 years old because they

go to day care centers and to elementary schools and the rest, do

you think it makes sense to say to every community you have to

decide how to do this but every water supply, normally a water

fountain of some kind used by children should be tested once a

year? I say once a year, I pulled that out of the hat. I don’t know

if the scientifically appropriate way would be less or more, I am

simply saying you can count, when I put this child in school, they

are going to look on a frequent and regular basis to see whether

there is lead in the water? Could I go down the line on that one,

please?

Chairman TOM DAVIS. Can I dovetail on that? Let me ask this.

There is obviously a cost-benefit to doing that kind of thing with

school water fountains. Do you really get any bang for the buck by

factoring any consumption from school water fountains?

Mr. NEUKRUG. I think it is important to understand that. I think

there are other ways of doing it than once a year. I think the original Safe Drinking Water Act addressed it by the type of water

fountain, whether that had lead parts exposed in it. I think in general, yes, you should have a very good idea for every water fountain, particularly in a school, whether or not there is lead.

Just one quick anecdote is that my son is at Philadelphia public

school and he doesn’t have water. That is the solution.

Chairman TOM DAVIS. It is a solution sometimes.

Mr. NEUKRUG. The priority is no lead in the water but the priority is other things, books and other things, rather than providing

water.

Ms. NORTON. What does he do if he gets thirsty in the middle

of the day? I understand that solution.

Mr. NEUKRUG. Bottled water.

Ms. NORTON. So your child has to bring it to school?

Mr. NEUKRUG. Yes.

Ms. NORTON. He’s in a public school?

Mr. NEUKRUG. Yes, and just for the record, since I was sworn in,

he is now in a private school in fourth grade, but yes, in kindergarten to third grade, he brought in water every day.

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Ms. LOGOMASINI. I am not sure in every case that would make

sense. Again, the cost benefit angle is important here. If the school

doesn’t have lead lines and low risk, they have to be able to decide,

the community needs to decide do we want to spend our money

here, do we want to spend it somewhere else. There may be an

asthma problem in that school and they may need to test for that.

It may be a more imminent threat.

Ms. NORTON. So we said if it had lead lines you should?

Ms. LOGOMASINI. I am not sure. Again, they may decide to go

with a filtration system instead.

Ms. NORTON. I have asked a very particular question. I work in

the Congress where Tom Davis and I have to get agreement if we

want to get a bill or if I want to get a bill, you are not going to

change my question now. I am saying because I accept your amendment, if in fact your school because it is very expensive to change

lead service lines and there may not be a problem because there

may be no corrosion, I am asking whether or not the once a year

testing of the fountains in those schools where the fountains are attached to lead service lines would be an appropriate thing to do?

Ms. LOGOMASINI. I am saying that I don’t think the Federal Government should make that determination. I am saying that needs

to be a school by school, community by community decision. They

need to look at all of their concerns.

Chairman TOM DAVIS. Fine. Thank you.

Mr. Rubin.

Mr. RUBIN. Simple answer, yes. I don’t know if 1 year is right,

probably focused on elementary schools and day care centers but

sure, we ought to know what is going on.

Mr. SCHWARTZ. I think we need to have a serious review with detailed auditing by the EPA of the implementation of the Lead Contamination Control Act to see if the provisions there have been

fully implemented and if we have had real reductions in lead that

is available in schools and if reductions have been made and to

what extent. That will help us figure out the answer about what

the nature and extent of the problem is.

I want to amend one other thing. I think it is important to know

that kids are certainly at risk, pregnant mothers and nursing

mothers but there are several other vulnerable populations who are

really at risk for lead exposure including frail elderly and other

people with weakened immune systems. I just don’t want to minimize that lead can be a problem for people at all stages of their

lives.

Chairman TOM DAVIS. Ms. Funk.

Ms. FUNK. I would suggest if a school or day care center could

show they don’t have a lead service line and then their plumbing

fixtures have lead in them, then perhaps instead of testing every

year, they could be absolved from testing unless there was some

sort of community issue that had been raised. If, however, a day

care center or school can’t show that it doesn’t have a lead service

line or that all of its plumbing fixtures do not contain lead, then

I would suggest those centers and schools be tested regularly.

Chairman TOM DAVIS. Thank you.

Ms. Norton.

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Ms. NORTON. We have enough problems, Ms. Funk will attest,

trying to encourage parents to trust our public schools not to add

lead service lines to the mix.

The chairman certainly doesn’t want to miss the Tyson’s Corner

Lion’s Club engagement he has now, so I have asked him for one

question only and he has been extremely generous. The last thing

I am going to do is try to take advantage of it because I have only

one more questions for all of you.

I am concerned with nullifying results. I would like to talk to you

afterwards about the whole notion of nullifying results. We are trying to restore confidence in our water supply, we are trying to get

people to move to the District of Columbia. When they hear you

can nullify the results and say can I just change this, that is a concern of mine.

Partial replacement, the way in which the EPA operates has

been called in serious question. A small number of samples, 50

samples, for a 600,000 person jurisdiction, all of which leads me to

ask the EPA, WASA and everyone, just kind of begin again. Why

not and just look at it again through rulemaking because whatever

you do is going to be what it is after you receive comment.

I do want to ask one more question again. I am a consensus person particularly when it comes to legislation. This has nothing to

do with the public expense, this has to do with how our market system operates. You can sell pipe to WASA and to homeowners that

says lead free and it can contain as much as 8 percent lead. Should

lead free in fact at least be close to lead free before it is sold to

public works in Philadelphia and Fairfax, D.C. and to homeowners

across the country? Final question, down the line.

Mr. NEUKRUG. Theoretically, I absolutely agree. I don’t really

know how far down you can get to lead free and still have a good

plumbing product.

Ms. NORTON. I should say as practicable. I am not even assuming

zero.

Mr. NEUKRUG. Absolutely.

Ms. LOGOMASINI. Maybe this is a fraud or legal issue for the Federal Trade Commission. Maybe they need to have a different term

because it does sound misleading when you say lead free.

Mr. RUBIN. I don’t know. I think the real problem is with plumbing fixtures more than with pipe and I don’t know what you need

in order to make plumbing fixtures the way people want to buy

them.

Ms. NORTON. Perhaps you want to buy something that has 8 percent. Perhaps it is cheaper. I don’t know. I am only going to the

question like my first question, if you are looking after the D.C.

water crisis for equipment that has no lead in it, should lead free

mean as much as 8 percent lead?

Mr. RUBIN. Congresswoman, one concern I have is we don’t know

what impact if any that would have on public health.

Ms. NORTON. We don’t but we know this much. I think I am buying a lead free product and that is my only question.

Mr. RUBIN. And I am saying I don’t know the answer to that. If

the scientific studies say if you have less than some threshold level

of lead, effectively it is lead free because the lead is never going

to come out of there and if you want us to reduce it from 8 percent

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to 0.2 percent, that is going to triple the cost, then we have to be

concerned about that. I don’t know.

Ms. NORTON. My understanding is that no scientific study would

say that lead free means as much as 8 percent. I would agree with

you. If in fact, there is a study that says lead free can mean as

much as 8 percent, I absolutely agree with you, then to use that

would be scientifically valid.

Mr. SCHWARTZ. Your question is right on. California and many

water systems now require nearly zero lead and I think we ought

to take a look at their experience which was prompted by Proposition 65, the Safe Drinking Water and Toxics Act that passed in

California many years ago. We would think this is probably one

issue that most witnesses could agree on. We have experience. We

should take a look at the experience that has been operating out

there. If it works for 10 percent of the population in California, it

might work out here.

Ms. FUNK. The FTC has something called truth in labeling and

I think this squarely falls under it. If it says lead free, then it

should be as close as lead free as you can get; 8 percent is not lead

free, so 8 percent shouldn’t say lead free, 8 percent should say 8

percent lead.

Ms. NORTON. Thank you very much.

Thank you, Mr. Chairman.

Chairman TOM DAVIS. I appreciate this panel for a very lively

discussion on this. We appreciate it. We will leave the record open

for 10 days if anyone has any additional thoughts you would like

to incorporate, Members’ statements and the like.

The hearing is adjourned.

[NOTE.—Additional information is on file with the committee.]

[Whereupon, at 12:51 p.m., the committee was adjourned, to reconvene at the call of the Chair.]

[The prepared statement of Hon. Henry A. Waxman and additional information submitted for the hearing record follow:]

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