THE SAFE DRINKING WATER ACT AMENDMENTS OF 1996
Strengthening Protection for America's Drinking Water

The Safe Drinking Water Act Amendments of 1996 was signed on August 6, 1996. The passage of these amendments are bringing substantial changes to the national drinking water program for water utilities, states, EPA, as well as greater protection and information to those served by public water systems.

These changes correct problems and help EPA, states, and water systems prepare for future drinking water safety challenges and assure the sustainable availability of safe drinking water. The amendments increase state flexibility, provide for more efficient investments by water systems, give better information to consumers, and strengthen EPA's scientific work, including the use of risk and cost-benefit considerations in setting drinking water standards.

Four themes characterize the areas of greatest change. Together, they comprise a balanced, integrated framework of reform, and represent a major national commitment to:

1. new and stronger approaches to prevent contamination of drinking water;
2. better information for consumers, (including "right to know");
3. regulatory improvements, (including better science, prioritization of effort, and risk assessment), and
4. new funding for states and communities through the Drinking Water State Revolving Fund.

** Note: The bracketed references in the text below are, first, to the relevant Section of the Amendments (P.L. 104-182), and, after the "slash" (/), to the relevant provision(s) of the Safe Drinking Water Act as newly amended.

The 1996 Safe Drinking Water Act (SDWA) Amendments establish a strong new emphasis on preventing contamination problems through source water protection and enhanced water system management. That emphasis transforms the previous law, with its largely after-the-fact, regulatory focus, into a truly environmental statute that can better provide for the sustainable use of water by our nation's public water systems and their customers. The states will be central: creating and focusing prevention programs, and helping water systems improve operations and avoid contamination problems.

• Source Water Protection: Within 18 months after EPA publishes guidance, states must submit a program for delineating source water areas of public water systems, and for assessing the susceptibility of such source waters to contamination. states may use set asides from the State Revolving Fund (SRF) to pay for source water assessments. Assessment programs may also use data from other, related watershed-type survey activities, which will encourage the efficient use of funds and coordination among the varied programs to gather and analyze water resource-oriented data. Results of completed source water assessments must be made available to the public. These results are a statutory prerequisite for state tailored monitoring programs, because they can provide a good science basis for such tailoring. [132/1453; 1452(k)(1)(C) {SRF}]

  The source water assessment results will also provide the information necessary for water systems to seek help from states in protecting source water, or initiating local government efforts. states may use set asides to protect source water (1) if they choose to adopt source water "petition" programs, under which they may use non-SDWA federal funds, under current eligibilities, to voluntarily reduce existing contamination, (2) to develop or continue other types of source water protection programs, which can focus on preventing contamination, or (3) for loans for certain source water protection activities. EPA must write guidance on state source water partnership programs, including a description of available technical and financial aid. [133/1454; 1452(g)(2)(B), 1452(k)(1)(A) {SRF}]

• Capacity Development: The 1996 Amendments create a program to build nationally on the demonstrated success of several states in strengthening the managerial, technical and financial capacity of water systems to reliably deliver safe drinking water. EPA is required, within 6 months, to review existing state programs and publish guidance that states may use to meet the new requirements of this provision. state programs must have two main components: (1) legal authority to ensure that new water systems have sufficient technical, managerial, and financial capacity to meet drinking water standards; and (2) a strategy to identify and assist existing water systems needing improvements in managerial, technical, or financial capacity or aid to comply with standards. states must also identify water systems in significant noncompliance status within 1 year, and report to EPA on the success of capacity development efforts in assisting such systems.

  states may use an SRF set aside to fund their capacity development and implementation efforts. states that do not meet the provision's requirements are subject to withholding of their SRF allotment (20% for the new system authority, and 10% in year 2001, 15% in 2002, and 20% thereafter for the capacity strategies; but no more than 20% total). For each new regulation, EPA must analyze the likely effect of the regulation on the viability of public water systems. [119/1420; 1452(a)(1)(G)(I), (g)(2)(C), (k)(1)(B) {SRF}]

  States can pursue several objectives here. One may be to better enable states to set priorities for technical and compliance assistance efforts to systems, focusing on those systems identified in the strategy as most in need of assistance. Another may be to help systems review their own characteristics, strengths, and shortcomings in light of their plans and expectations for the future, working with the state or through their own use of the state's capacity analysis. states and systems may also want to use capacity development strategies as a means to engage in integrated resource planning to resolve conflicts over drinking water quality/management issues, or to draw in technical assistance from and coordinate with federal agencies to help in such state conflict resolution efforts.

• Operator Certification: Ensuring the knowledge and skills of public water system operators is widely considered one of the most important, cost-effective means to strengthen drinking water safety. To that end, the Amendments require all states to carry out a program of operator certification. Each state must either: (a) implement a program that meets the guidelines established by EPA, or (b) enforce an existing state program, provided it is substantially equivalent to or meets the overall public health objectives of EPA's guidelines. states are allowed to use a set aside from the SRF to carry out their operator certification program. EPA is required to withhold 20% of SRF funds from states that do not meet the requirements of the operator certification provision. For systems serving 3,300 persons or fewer, EPA is required to provide reimbursement (through states) for the cost of training and certification for operators required by this provision to undergo training. [123/1419; 1452(a)(1)(G)(ii), (g)(2)(D) {SRF}]

  This program does not require that every water system operator be certified. That is not always necessary for proper system operation, nor is it a flexible or efficient approach. Rather, the objective of the program should be to ensure every water system has (directly, under contract, or in conjunction with other systems,) an operator to perform certain key compliance functions, and who is trained and certified to the right level that each state determines is appropriate to the functions, facilities and operations of that system.

In addition to the much-discussed new requirement for systems to prepare consumer confidence reports, the Amendments frequently specify that the public be provided with or given access to other data collected, analyses done or implementation strategies developed under new SDWA programs. These consumer information provisions herald a new era of public involvement in safe drinking water, founded on the idea that the understanding and support of the public will be vital to address and prevent the growing threats to drinking water quality in the years ahead.

• Consumer Confidence Reports: Within two years, EPA must issue regulations requiring all community water systems to prepare and mail to each customer at least annually a report with information about the system's source water and the level of contaminants in the drinking water purveyed. Each Governor may allow systems serving between 500 and 10,000 people to publish the report in a newspaper rather than mail it. Systems serving less than 500 people, whose Governor has not required mailing, may elect to give effective public notice that the report is available, rather than mail or publish it. [114(a)/1414(c)(4)]

  As required by this provision, EPA will consult closely with the drinking water community, risk communication experts, environmental and public interest groups, and interested parties in developing these regulations. This consultation will help ensure that the reports meet the aim of usefully informing the public, as well as the broader aim of encouraging an informed and engaged public to work with water suppliers and drinking water programs at all levels of government in the effort to secure safe drinking water.

• Some other provisions for improved consumer information: Persons served by a public water system must be given notice of any violation of a national drinking water standard "that has the potential to have serious adverse effects on human health as a result of short-term exposure" within 24 hours after the violation by at least one effective means, and written notice of any other violation of a national standard or monitoring requirement within one year. states must "make readily available to the public" an annual report to the Administrator on violations of national primary drinking water regulations by public water systems within the state. [114(a)/1414(c)(1) - (3)]

  Each state's triennial report to the Governor on the effectiveness of and progress under the capacity development strategy must also be available to the public. [119/1420(c)(3)] EPA must make the information from the occurrence database "available to the public in readily accessible form." [126/1445(g)(5)] The public must be provided with notice and an opportunity to comment on the annual priority list of projects eligible for State Revolving Fund (SRF) assistance that states will publish as a part of their SRF intended use plans. [130/1452(b)(3)(B)] states "shall make the results of the source water assessments ... available to the public." [132(a)/1453(a)(7)] And under the Administrative Procedures Act and several specific provisions of the SDWA Amendments, EPA must publish and make all regulations, and most guidance and information documents, available for public notice and comment.

A decade of experience under the 1986 SDWA revealed several areas where responsible, science-based flexibilities and a better prioritization of effort could improve protection of public health compared to the one-size-fits-all approach of the 1986 statute.

• New risk-based contaminant selection: The requirement that EPA regulate an additional 25 contaminants every 3 years is eliminated. Instead, EPA has the flexibility to decide whether or not to regulate a contaminant after completing a required review of at least 5 contaminants every 5 years. EPA must use three criteria to determine whether or not to regulate a contaminant: that the contaminant adversely affects human health; it is known or substantially likely to occur in public water systems with a frequency and at levels of public health concern; and regulation of the contaminant presents a meaningful opportunity for health risk reduction. [102/1412(b)(1)]

  This provision departs dramatically from the approach of the previous law. The "25 every three years" mandate allowed little risk prioritization by EPA or anyone else, and the mandate to regulate 83 specified contaminants allowed essentially none. The new provision makes risk prioritization dominant in selecting contaminants to regulate. EPA will work in partnership with the states, water systems, environmental and public health groups, the scientific community and the public to identify and closely scrutinize unregulated contaminants that are most prevalent in drinking water, present the most serious threat to health and can be most productively and effectively controlled. It is flexible enough to be neither over- nor under-inclusive. Sizeable contaminant clusters (similar to the disinfection byproducts/microbial cluster, 13 contaminants proposed ) can be reviewed, other contaminants added for analysis -- with only those that meet the three criteria receiving a determination to regulate.

• Occurrence information: unregulated contaminants, national database, information collection: The collection, organization and ready availability of contaminant occurrence data takes on unprecedented importance under the new law's risk-based regulatory framework. Accordingly, the statute includes several responsive provisions. EPA must issue regulations establishing criteria for monitoring of unregulated contaminants, and, within 3 years after enactment, and every 5 years thereafter, must issue a list of no more than 30 such contaminants for which monitoring is required. Significant changes from previous law include a provision that the states may (and if they decline, EPA shall) develop a plan for monitoring by a representative sample of systems serving fewer than 10,000 people (to ensure an understanding of contaminant occurrence in different size systems), and a provision requiring that persons served by the system must be notified of the availability of monitoring results. [125(c)/1445(a)(2)]

  For the first time, a national occurrence database covering regulated and unregulated contaminants will be established, primarily using compliance monitoring detection data and information from the unregulated contaminant monitoring program. The principal use of the database will be for EPA to make occurrence determinations on whether or not to regulate a certain contaminant, but it may also be useful for such purposes as state tailoring of system monitoring and source water protection. The occurrence database will also improve public understanding and participation in drinking water protection because the data must "be available to the public in readily accessible form." [126/1445(g)]

  In addition, without first issuing a regulation, EPA may now require systems to submit information for individual system compliance purposes as well as to establish new regulations. In the latter case, EPA must pay for any requirements to install treatment equipment or process changes, to test treatment technology, or to analyze or process monitoring samples. [125(a)/1445(a)(1)] A key benefit of this for the regulatory process will be the ability to gather data that systems have already collected but were not required to. This will advance risk assessment by enabling EPA, with the smallest impact on systems, to decide whether to undertake, and if needed, how to focus further inquiry.

• Cost-benefit analysis and research for new standards: For all future drinking water standards, EPA is to conduct a thorough cost-benefit analysis and provide comprehensive, informative, and understandable information to the public. EPA is also required to use the "best available, peer-reviewed science and supporting studies" in carrying out actions within the standard setting section "to the degree that an Agency action is based on science." [103/1412(b)(3)]

  To ensure that adequate scientific information is developed to support these new requirements, $10 million annually is to be set aside from the SRF for top priority health effects research. [130/1452(n)] Several programs of research and funding are separately authorized for disinfection byproducts/microbial pathogens ($87.5 million over 7 years) [137/1458(c)]; waterborne disease occurrence ($15 million over 5 years) [137/1458(d)]; subpopulations at greater risk [137/1458(a)]; and biological mechanisms by which contaminants affect human health [137/1458(b)]; as well as in support of drinking water program activities generally ($186.2 million over 7 years) [201].

  Standard setting has new flexibility compared to the previous law. After first defining a maximum contaminant level (MCL) or treatment technique standard based on affordable technology, as previously, EPA must determine whether the costs of that standard would be justified by the benefits. If not, then EPA may adjust an MCL to a level that "maximizes health risk reduction benefits at a cost that is justified by the benefits." The authority to adjust the MCL cannot be used if the costs to large systems are justified by the benefits, and other systems are likely to receive variances. The rationale is that affordability problems for smaller systems should not change a national standard if those systems would receive a variance from that national standard anyway, based on affordability grounds. Flexibility to "minimize the overall risk of adverse health effects" is also authorized where certain means of controlling one contaminant may increase the risk from another contaminant ("risk-risk" balancing situations). [104/1412(b)(4) - (6)]

  The cost-benefit provision was included mainly to address the concern that the health protection benefits of certain future standards might not be "worth" their costs, even if large systems could afford to meet such standards through their economies of scale. The new standard-setting retains the previous law's approach to defining an affordable technology standard, but subjects that standard in every case to the "justified" test. EPA can proceed with a standard based on the affordable technology approach, or may adjust an affordable technology-based MCL to a level that is "justified". In the latter case, the new law's further requirement that the MCL must also maximize health benefits ensures that health protection remains the paramount consideration in standard setting.

• Small system technologies, variances, and exemptions: A fundamental problem with the previous law was that, in setting standards based on technology that large systems could afford, it did not recognize the often-different economics of small systems. The new law contains multiple remedies. First, as part of a new drinking water standard, EPA is to identify technologies that comply with the standard and are specifically affordable for each of three groups of smaller systems. [105/1412(b)(4)(E)] Second, where such technologies do not exist for a certain group of smaller systems or quality of source water, a "variance" technology must be identified that need not meet the standard but must provide the maximum protection affordable for such groups of smaller systems and source waters. [111/1412(b)(15)] Within 2 years, EPA must identify affordable compliance and, where appropriate, variance technologies for existing regulations, and issue regulations for small system variances.

  states with primacy will make decisions on affordability variances for specific systems serving up to 3,300 persons, while EPA must also approve variances for systems between 3,300 and 10,000. The variance decision must include consideration of whether the system could comply with the standard through water treatment, alternative water supplies, or restructuring or consolidation. EPA is also required to publish information states can use to make affordability determinations. Consumers may petition EPA to object to a variance proposed by a state, and EPA must respond to petitions within 60 days. If EPA objects to a variance, it cannot be granted until the state makes the requested changes or responds in writing to each objection. [116/1415(e)]

  The statute also authorizes "source water" variances from a standard on condition that the systems install affordable compliance technology. This gives the certainty of a variance to any size system able to install treatment, but whose unavoidably poor source water quality may prevent it from meeting the standard even with treatment. [115/1415(a)(1)(A)]

  These new provisions create a logical and workable hierarchy of options for small systems. Most small systems whose source water quality does not meet a national standard will be able to comply if they are allowed to use treatment specifically affordable for systems of their size. For those systems which cannot afford such treatment, the state (with EPA review if applicable) will assess whether other changes -- e.g., source water, restructuring, or connection to another system -- could enable them to meet the standard. Only if such changes are not practicable can a system be authorized to provide drinking water that does not fully meet a national standard. And that authorization will only be for the most protective technology the system can afford, which will give much more protection than was actually provided under the all-or-nothing regime of the previous law.

  Moreover, a system serving 3,300 persons or fewer may receive exemptions from a standard for up to nine years (three years are now allowed) if it serves an economically disadvantaged community, is reasonably likely to get financial assistance to comply during the exemption term, and cannot comply by an alternative water source or by management or restructuring changes. Exemptions are meant to enable a system to avoid a continuing violation of a standard if it cannot now comply but will in the near future. [117(a)/1416]

• Compliance time frames: The Amendments extend to 3 years the previous, unworkably short 18-month deadline for systems to comply with new regulations, unless EPA determines an earlier date is "practicable." EPA or states (for individual systems) may give an additional 2 years if necessary for capital improvements. [108/1412(b)(10)]

• Monitoring reforms: States may grant "interim monitoring relief" to systems under 10,000 (exempting them from additional quarterly monitoring) if monitoring done at the time of "greatest vulnerability to the contaminant" fails to detect it, and the state finds that further monitoring is unlikely to detect it. This relief may not cover any microbiological contaminants (or their indicators), disinfectants, or disinfection or corrosion byproducts. [125(b)/1418(a)]

  States with an approved program for source water assessments may implement tailored, alternative monitoring requirements for any contaminant for which interim relief may be granted (except unregulated microbiological contaminants or indicators). This provision strikes a balances encompassing two key aims of the new law: more flexibility for states to craft a drinking water program that responds to local conditions and needs, and the assurance that both regulation and deregulation under that program will be solidly founded on good science. The new law also explicitly protects "existing authorities" available to states to alter monitoring requirements through waivers or other EPA initiatives, such as the chemical monitoring reform process now underway. [125(b)/1418(b)-(d)]

• Enforcement: The Amendments streamline processes for administrative compliance orders and penalties up to $5000, raise the administrative and emergency penalty caps, make enforceable many SDWA provisions and requirements imposed under them by EPA or primacy states, and give up to a 2 year enforcement moratorium for violations being remedied by a specific plan to consolidate with another system. states must also adopt administrative penalty authority for primacy. These measures will facilitate more effective enforcement, encouraging compliance while keeping safeguards for systems. [113/1414]

• Radon, Arsenic, Disinfection Byproducts (DBP)/Cryptosporidium, Sulfate:

  Arsenic: EPA is required to conduct additional research on arsenic, particularly the health effects at low levels of exposure, after consultation with NAS and others. EPA must propose a regulation not later than January 1, 2000, and issue a final regulation 12 months later. The objective is to provide for a better understanding of arsenic's characteristics in drinking water that may create chronic health effects, within a time frame to regulate that is limited but longer than permitted under the previous law. As the conference report suggests, EPA has already initiated a research partnership on this issue with the American Water Works Association Research Foundation, and intends to continue in that direction under the statutory timetable. [109(a)/1412(b)(12)(A)]

  Radon: EPA is to arrange for a risk assessment by NAS, issue a cost-benefit analysis within 30 months, and issue a proposed regulation within 36 months. If the resulting MCL for radon is "more stringent than necessary to reduce the contribution to radon in indoor air from drinking water to a concentration that is equivalent to the national average concentration of radon in outdoor air," then EPA must establish an alternative MCL at a level that would reduce such contribution to the level equivalent to outdoor air radon. Water systems may comply with the alternative level if their state develops and implements a program for multi-media radon risk reduction that achieves risk reduction benefits equal to or greater than those that would be achieved under the MCL promulgated using the cost-benefit analysis. In states without an approved multi-media mitigation program, systems may submit a local program to EPA under the same criteria, conditions and approval process applicable to states. [109(b)/1412(b)(13)]

  This multi-media approach is consistent with the basic philosophy of the new statute, to enable cost-effective risk reduction to be used for each contaminant. Compared to the contribution from drinking water, indoor air is generally the dominant form of exposure to radon, and the new law permits states and systems to reduce risk through that avenue of exposure where it would be more cost-effective than through drinking water.

  DBPs/Cryptosporidium The negotiated schedule for disinfection byproducts/Cryptosporidium is established in the law, and the Explanatory Statement of the Conference Committee addresses both the process of and the substance adopted by the regulatory negotiation for DBPs/Cryptosporidium. The new law allows EPA to use the risk-risk authority but precludes use of the new 1412(b)(6) cost-benefit provision to regulate DBPs, and deems the "considerations used in the development of the [DBP] proposal" as consistent with the risk-risk authority for the purposes of the Stage I and Stage II DBP rules. [102(a)/1412(b)(2)(C); 104(a)/1412(b)(6)(C); 104(b)]

  Sulfate: EPA must conduct, jointly with the Centers for Disease Control and Prevention, a dose-response study for sulfate within 30 months. Sulfate will thereafter be considered in the first round of the new contaminant selection process. If EPA determines to regulate sulfate, such regulation shall include the flexible compliance options similar to those proposed by EPA in November, 1994. This approach serves the purpose for sulfate that the new contaminant selection process does for the drinking water program as a whole: to allow for the better prioritization of the nation's resources to the severity of the risks. [109(a)/1412(b)(12)(B)]

The creation of a Drinking Water State Revolving Fund (SRF), to assist communities in installing and upgrading safe drinking water treatment facilities, is among the new statute's most dramatic departures from the past, and among the most important changes in the nation's drinking water program since passage of the original SDWA in 1974. President Clinton proposed this SRF in 1993 to advance the same kind of national commitment to safe drinking water as America has made to wastewater treatment and clean water.

• Drinking Water State Revolving Fund: The SRF is authorized at $599 million for Fiscal Year 1994, and $1 billion annually thereafter through Fiscal Year 2003. The full span of this authorization is meaningful because the law permits appropriation in future years of any funds authorized but not appropriated in prior years. Funds are allotted to all primacy states (Wyoming is grandfathered) through Fiscal Year 1997 based on the current formula for Public Water System Supervision grants, and thereafter based on the results of the most recent SRF needs survey. EPA must publish the first needs survey within 180 days. A minimum allotment of 1% will be available for all states, and the required state match is 20 percent. One and one-half percent of the SRF can be used for grants to Indian Tribes and Alaska Native villages. Community water systems and non-profit non-community water systems are eligible, but federal systems are not. Projects, including associated land "integral to a project," are eligible if they "will facilitate compliance with" applicable national drinking water regulations or will "significantly further the health protection objectives" of SDWA. states will annually prepare intended use plans identifying eligible projects and their priority, based on seriousness of health risk, compliance needs (including filtration), and system economic need calculated on a per-household basis. states may provide loan subsidies and loan forgiveness to disadvantaged communities for up to 30% of the annual SRF capitalization grant. [130/1452(a) - (b), (d)]

  Before Fiscal Year 2002, State Governors may shift up to 33% of the SDWA capitalization grant into the Clean Water SRF, or up to an equivalent dollar amount from the Clean Water SRF into the Safe Drinking Water SRF. [302]

• SRF Grants to states for Prevention Programs and Projects: One of the most notable features of new law is the authorization to states to use SRF funds for the new prevention programs. Up to 10% of their capitalization grants may be used for source water protection, capacity development, and operator certification programs, as well as for the state's overall drinking water program (for which annual grants of $100 million are separately authorized elsewhere in the law [124/1443(a)(7)]). Up to another 15% (no more than 10% for any one purpose) can be used for prevention projects in water systems, including source water protection loans, technical and financial aid for capacity development, source water assessments, and wellhead protection. [130/1452(g)(2), (k)]

  These authorizations reflect not only Congress' intention to provide funding for new mandates, but also the high priority and importance placed on these prevention activities -- some of which are discretionary for states and systems. The success of these activities will determine whether the new law's potential as a preventive, environmental statute is realized, and how far we as a nation can advance under it towards the sustainable use of water. Appropriately, extremely wide discretion is assured to states in both the design and implementation of these activities, and in the allocation of SRF grant funds to them. This will enable states to further state priorities, and to coordinate with other state and local activities that may help meet the objectives of the new prevention programs.

  The authorization of funds for these programs and activities also reflects the broader balance struck on funding priorities in the new law. The SDWA needs surveys will define needs requiring substantial levels of SRF funding if the new loan program is to be effective in helping to address those needs on a sustainable, long-term basis (that is, if the SRF is to revolve at a level responsive to the needs). Because prevention programs are cost-effective means to avoid the need for treatment, they also are vital to prevent capital compliance needs from growing unmanageably. The structure of the new SRF can meet both objectives -- and assure safe drinking water for decades to come -- if we make a sustained commitment to sufficient funding to achieve the promise of this critical program.

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