[Senate Report 110-483]
[From the U.S. Government Publishing Office]
Calendar No. 1054
110th Congress Report
SENATE
2d Session 110-483
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PERCHLORATE MONITORING AND RIGHT-TO-KNOW ACT OF 2008
_______
September 24 (legislative day, September 17), 2008.--Ordered to be
printed
_______
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 24]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred the bill (S. 24) to amend the Safe Drinking Water Act
to require a health advisory and monitoring of drinking water
for perchlorate, reports favorably thereon with an amendment
and recommends the bill (as amended) do pass.
Purpose and Summary of the Legislation
The purpose of S. 24, the Perchlorate Monitoring and Public
Right-To-Know Act of 2008 is to require monitoring, a health
advisory, and public right-to-know for perchlorate in drinking
water. The bill would require large public water system to
monitor for the presence of perchlorate in drinking water. It
would also require consumer confidence reports required under
the federal Safe Drinking Water Act to include a disclosure of
any perchlorate in drinking water at the level of detection.
The bill would require such report to also include a discussion
of the health impacts of perchlorate on vulnerable persons,
including pregnant women, infants, and children. The bill would
also require EPA to create a public health advisory for
perchlorate that is fully protective, with an adequate margin
of safety, of the health of vulnerable persons, including
pregnant women, infants, and children, taking into
consideration body weight, exposure patterns and all routes of
exposure.
Background and Need for the Legislation
BACKGROUND
Perchlorate is a salt used to create flares, fireworks, and
other items. It also occurs naturally in some areas, including
in fertilizers imported from Chile. Once released into the
environment, perchlorate can move through soil, into water, and
then into food. Peoples' health may be harmed by exposure to
perchlorate, through eating food or drinking water contaminated
with this toxic substance. According to the National Academy of
Sciences (NAS), certain exposure levels of perchlorate can
affect ``thyroid hormone production by inhibiting the uptake of
iodine. . ..''\1\ Also, according to the NAS: ``Thyroid
hormones are critical for normal growth and development of the
central nervous system of fetuses and infants.'' Vulnerable
persons, including pregnant women, infants, and children are
especially vulnerable to perchlorates impact on iodine uptake
in the body.
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\1\National Research Council, National Academy of Sciences, Health
Implications of Perchlorate Ingestion (2005), available online at
http://www.nap.edu/catalog.php?record_id=11202
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In 2005 the Government Accountability Office (GAO) found
395 sites in 35 states with more than 4 parts per billion (ppb)
of perchlorate. The Environmental Protection Agency (EPA) knows
of 160 serving almost 17 million people in 26 states with
perchlorate levels of at least 4 ppb. The State of California
knows of perchlorate contamination in 274 active or standby
water wells at levels of at least 4 ppb.
In 2005, the National Academy of Sciences (NAS) report
found that low levels of perchlorate may pose health risks and
recommended a safe level of exposure to perchlorate from all
sources--contaminated drinking water and food.\2\
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\2\Ibid.
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Since 2005, several studies show widespread perchlorate
exposure. In October 2006, researchers at the federal Centers
for Disease Control (CDC) found detectable levels of
perchlorate in all urine samples taken during the 2001-2002
National Health and Nutrition Examination Survey (NHANES) of
U.S. residents age six and older, with significantly higher
levels found in children than in adults.\3\ In December 2006,
researchers at the CDC published a follow up study that showed
that there was a ``significant'' relationship between the
amount of urinary perchlorate and two different thyroid
hormones in women. It was the first study to show a
correlation.\4\
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\3\Blount, et al.; Perchlorate Exposure of the U.S. Population,
2001-2002; Journal of Exposure Science and Environmental Epidemiology
(2007) 17, 400-407; doi:10.1038/sj.jes.7500535; published online 18
October 2006.
\4\Blount, et al.; Urinary Perchlorate and Thyroid Hormone Levels
in Adolescent and Adult Men and Women Living in the United States;
Environmental Health Perspectives Volume 114, Number 12, December 2006.
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A 2007 study in the Proceedings of the National Academy of
Sciences found that perchlorate concentrates in breast milk. A
January 2008 broad study by the U.S. Food and Drug
Administration found perchlorate in 74% of all foods tested,
including baby food, and the study found: ``Infants and
children demonstrated the highest estimated intakes of
perchlorate on a body weight basis.''
While science increasingly raises health concerns about
perchlorate, EPA has not issued a drinking water standard for
perchlorate and has ended monitoring requirements for
perchlorate in drinking water, stating that the agency believed
that it had adequate monitoring data,. In February 2005, EPA
issued perchlorate drinking water guidance of 24.5 parts per
billion that failed to account for perchlorate exposures from
food and water combined, and the guidance failed to lower
levels of allowed exposure to account for childhood exposures
or non-drinking water exposures. In August 2006, EPA issued
perchlorate cleanup guidance, which EPA's Children's Health
Protection Advisory Committee stated ``is not protective of
children's health.''
In 2007, EPA decided not to begin the process to regulate
perchlorate in public drinking water, and said that in the
future it would continue to evaluate new scientific information
and make a final determination at a later date. EPA also ended
drinking water monitoring requirements for perchlorate, stating
that the agency believed that it had adequate monitoring data.
The Agency said that it expected to make an initial
determination of whether to regulate perchlorate in drinking
water in 2008.
NEED FOR LEGISLATION
EPA has known about perchlorate's health risks since before
2002. Scientific studies since that time have demonstrated that
perchlorate contamination of drinking water and food sources is
widespread, and that current levels of exposure in some areas
are sufficient to affect the hormone system of vulnerable
persons.
In the face of this scientific information, States have
taken action, including California and Massachusetts, to create
perchlorate drinking water standards. EPA has not taken action
and eliminated perchlorate monitoring requirements.
S. 24 will help to ensure that the public is informed about
perchlorate exposures from drinking water and the potential
health effects from such exposures.
Summary of Major Provisions of the Bill
S. 24, the Perchlorate Monitoring and Public Right-To-Know
Act of 2008 would require EPA to create a public health
advisory for perchlorate that is fully protective, with an
adequate margin of safety, of the health of vulnerable persons,
including pregnant women, infants, and children, taking into
consideration body weight, exposure patterns and all routes of
exposure.
The bill would require large public water system to
monitoring for the presence of perchlorate in drinking water.
S. 24 would also ensure the public is fully informed about
perchlorate in their drinking water supplies by requiring
consumer confidence reports issued under the federal safe
Drinking Water Act to include a disclosure of any perchlorate
in drinking water at the level of detection. The bill would
also require such report to also include a discussion of the
health impacts of perchlorate on vulnerable persons, including
pregnant women, infants, and children.
Section-by-Section Analysis
Section 1. Short title
Section 1 establishes the short title of the Act as the
``Perchlorate Monitoring and Right-to-know Act of 2008''.
Section 2. Findings
This section contains findings related to perchlorate
contamination and health effects.
Section 3. Monitoring and health advisory for perchlorate
Section 3 amends section 1412 of the Safe Drinking Water
Act by requiring EPA to create a health advisory for
perchlorate that is fully protective, with an adequate margin
of safety, of the health of vulnerable persons, including
pregnant women, infants, and children, taking into
consideration body weight, exposure patterns and all routes of
exposure. This section would also require large public water
systems to monitor for perchlorate in their drinking water and
would require sampling of a subset small water systems for
perchlorate.
This section would require consumer confidence reports
issued under the federal safe Drinking Water Act to include a
disclosure of any perchlorate in drinking water at the level of
detection. The bill would also require such report to also
include a discussion of the health impacts of perchlorate on
vulnerable persons, including pregnant women, infants, and
children.
The section also clarifies that perchlorate is not one of
the three regulated contaminants described in clause (vi) of
section 1414(c)(4)(B).
Legislative History and Votes
On July 31, 2008, the Committee on Environment and Public
Works held a business meeting to consider S. 24, among other
pieces of legislation. The Committee on Environment and Public
Works considered Chairman Boxer's amendment in the nature of a
substitute to S. 24. The Committee favorably adopted the bill
by a voice vote, with Senators Inhofe and Alexander both going
on record as opposing passage of the bill.
On May 6, 2008, the Committee held a legislative hearing
titled, ``Perchlorate and TCE in Drinking Water''. On April 29,
2008 the Committee held a hearing titled, ``Oversight on EPA
Toxic Chemicals Policies.'' On February 6, 2007, the Committee
held a hearing titled, ``Oversight on Recent EPA Decisions,''
at which perchlorate was discussed.
Rollcall Votes
S. 24 passed the Committee by voice vote on July 31, 2008,
with Senators Inhofe, Alexander, and Craig recorded as voting
No.
Regulatory Impact Statement
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes evaluation of
the regulatory impact of the reported bill. Based on
information from EPA, CBO estimates that the total cost to
regulated entities for monitoring drinking water and disclosing
results would be about $1 million annually, and that the bill
authorizes funding to help cover many of these costs.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4), the Committee finds that, in accordance with
CBO estimates, the total cost of the requirements to monitor
drinking water and disclose results would be about $1 million
annually, which would fall well below the annual thresholds
established in UMRA for intergovernmental and private-sector
mandates ($68 million and $136 million in 2008, respectively,
adjusted annually for inflation). In addition, the bill would
authorize EPA to provide funding to help cover small system
costs.
August 28, 2008.
Hon. Barbara Boxer,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 24, the Perchlorate
Monitoring and Right-to-Know Act of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 24--Perchlorate Monitoring and Right-to-Know Act of 2008
S. 24 would require the Environmental Protection Agency
(EPA), no later than 90 days after the bill's enactment, to
issue a health advisory for perchlorate in drinking water that
fully protects susceptible populations, including pregnant
women, infants, and children, taking into consideration body
weight, exposure patterns, and all routes of exposure.
(Perchlorate is a chemical used in rocket fuel.) EPA also would
be required to establish a final regulation requiring drinking
water to be monitored for the presence of perchlorate. Finally,
this legislation would require that consumer confidence reports
currently issued by public water suppliers include information
on the presence of perchlorate in their drinking water and its
potential health effects.
Based on information from EPA, CBO estimates that
implementing S. 24 would cost about $3 million over the 2009-
2011 period, subject to the availability of appropriated funds.
That funding would be used to support five additional personnel
as well as contractor costs needed to meet the requirements of
this legislation.
Enacting the legislation would not affect direct spending
or revenues.
By requiring public water systems serving more than 10,000
individuals and a representative sample of smaller public water
systems to monitor for perchlorate, S. 24 would impose
intergovernmental and private-sector mandates, as defined in
the Unfunded Mandates Reform Act (UMRA). The bill also would
require those systems to disclose in their consumer confidence
reports the presence of perchlorate in drinking water and its
health risks to vulnerable populations. Based on information
from EPA, CBO estimates that the total cost of the mandates
would be about $1 million annually, which would fall well below
the annual thresholds established in UMRA for intergovernmental
and private-sector mandates ($68 million and $136 million in
2008, respectively, adjusted annually for inflation). In
addition, the bill would authorize EPA to provide funding to
small systems to cover those costs.
The CBO staff contacts for this estimate are Susanne S.
Mehlman (for federal costs), Burke Doherty (for the state and
local impact), and Amy Petz (for the private-sector impact).
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
MINORITY VIEWS
Safe and affordable drinking water is a critical component
for healthy and economically prosperous communities. The Safe
Drinking Water Act is the legal authority for the Environmental
Protection Agency (EPA) to ensure that Americans continue to
receive the safest water in the world for consumption and also
adequately address new drinking water contaminants and
concerns. The Safe Drinking Water Act provides significant
opportunity for transparent scientific review and processes for
regulatory determinations. S. 150, the Protecting Pregnant
Women and Children from Perchlorate Act of 2007, disregards
scientific review, critical drinking water act processes, and
is misleading in the bill's findings. For these reasons, we
oppose this legislation.
The bill's findings are disingenuous and ignore several
important facts. The findings strongly suggest the Department
of Defense (DOD) and industry are responsible for any
perchlorate found in water. Research by the Centers for Disease
Control (CDC) and others indicates that perchlorate is found as
a naturally occurring substance and shows up in many areas
around the country, even where there is no, and never has been,
a DOD or industrial presence. Further, a recent collaborative
effort in California found that 100% of DOD sites pose ``No
Threat'' to drinking water.
Naturally occurring perchlorate has been found in large
quantities in West Texas and from unknown sources in Hills,
Iowa. Perchlorate doesn't only appear in water, but is also
commonly found in the food supply. A recent Food and Drug
Administration (FDA) study found that when people with diets
high in perchlorate were tested, the sensitive subpopulations
were below the reference dose established by the National
Academy of Sciences (NAS). The study included sampling
populations that had high levels of perchlorate in their
drinking water.
The Environmental Protection Agency (EPA) knows of 160
drinking water systems in 26 states with perchlorate levels of
at least 4 ppb. EPA states: ``There are approximately 156,000
public drinking water systems,'' and ``perchlorate was detected
at levels above the minimum reporting level of 4 parts per
billion (ppb) in approximately 2 percent of the more than
34,000 samples analyzed.'' Those numbers are very similar to
the findings in a 2005 GAO report.
The findings dismiss the National Academy of Sciences'
recommended daily dosage of perchlorate. The NAS reference dose
of 24.5 parts per billion (ppb) is fully protective of the most
sensitive subpopulations and is very conservative as it uses a
precursor to an adverse health effect as a jumping off point.
In 2005, a panel of the National Academy of Sciences (NAS)
concluded that perchlorate caused no observable health effects,
adverse or otherwise, at levels as high as 0.007 mg/kg/day,
equivalent to drinking water levels of 245 parts per billion
(ppb). To ensure an adequate margin of safety for even
potentially vulnerable subpopulations (e.g., pregnant and
nursing mothers and their children) the NAS panel applied a
ten-fold safety factor, resulting in a perchlorate reference
dose of 0.0007 mg/kg/day, equivalent to a drinking water level
of 24.5 ppb.
The CDC does not suggest that people in the United States
are suffering health consequences at doses lower than the
current EPA reference dose of 24.5 ppb. The underlying bill's
findings do not take into account new and ongoing studies of
perchlorate. Additional work is needed to determine whether
some unknown factor associated with perchlorate exposure might
be the cause of the observed changes in thyroid function. In
addition, the EPA's Children's Health Protection Advisory
Committee's (CHPAC) August 2006 statement referenced in the
committee report is not fully inclusive of all current
scientific findings available. For instance, the CHPAC
statement was unable to consider the 2007 findings of a study
that measured perchlorate and iodine levels in the milk of 57
lactating Boston-area women. No correlation was found between
breast milk perchlorate and iodine levels. Additionally, the
lack of correlation between breast milk perchlorate and iodine
levels seemingly corroborates the Chilean findings which were
unfortunately discounted in the CHPAC letter.
According to Jonathan Borak (MD, FACP, FACOEM), Clinical
Professor of Epidemiology and Public Health at Yale School of
Medicine, ``The ongoing public debate about environmental
perchlorate exposure has led to misstatements and
misinterpretations of the relevant scientific findings. The
current state of knowledge should be clear. There is no
evidence of excessive perchlorate in the U.S. diet and little
likelihood that routine perchlorate ingestion would exceed the
EPA and NAS Reference Dose. There is no evidence that
perchlorate is a human carcinogen. There is evidence that the
U.S. diet contains sufficient iodine, and sufficient iodine
intake is protective against effects that might result from
perchlorate excess.''
The Environmental Protection Agency currently possesses the
authorities to publish health advisories and/or require
monitoring of public water systems for perchlorate if the
agency determines the science justifies such action. Currently,
EPA is weighing the various scientific studies in accordance
with the Safe Drinking Water Act to determine whether a health
advisory or further monitoring and reporting are warranted. We
do not believe Congress should undermine the sanctity of the
Safe Drinking Water Act process by politicizing the outcome of
whether rules and regulations are warranted without allowing an
agency to adequately reflect on the best available science.
Safe Drinking Water Act procedures were enacted to discontinue
this type of Congressional intervention and to base rules and
regulations on science, not political gains.
Larry E. Craig.
Jim Inhofe.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
* * * * * * *
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SAFETY OF PUBLIC WATER SYSTEMS (SAFE DRINKING WATER ACT)
* * * * * * *
SHORT TITLE
Sec. 1400. This title may be cited as the ``Safe Drinking
Water Act''.
Part A--* * *
* * * * * * *
Sec. 1412. (a)(1) Effective on the enactment of the Safe
Drinking Water Act Amendments of 1986, each national interim or
revised primary drinking water regulation promulgated under
this section before such enactment shall be deemed to be a
national primary drinking water regulation under subsection
(b). No such regulation shall be required to comply with the
standards set forth in subsection (b)(4) unless such regulation
is amended to establish a different maximum contaminant level
after the enactment of such amendments.
(2) * * *
* * * * * * *
(b) Standards.--
(1) Identification of contaminants for listing.--
(A) General authority.--* * *
* * * * * * *
(12) Certain contaminants.--
(A) Arsenic.--
(i) Schedule and standard.--* * *
* * * * * * *
(B) Sulfate.--
(i) Additional study.--* * *
* * * * * * *
(C) Perchlorate.--
(i) Health advisory.--Notwithstanding
any other provision of this section,
not later than 90 days after the date
of enactment of this subparagraph, the
Administrator shall publish a health
advisory for perchlorate that is fully
protective, with an adequate margin of
safety, of the health of vulnerable
persons (including pregnant women,
infants, and children), taking into
consideration body weight, exposure
patterns, and all routes of exposure.
(ii) Monitoring regulations.--
(I) In general.--The
Administrator shall propose
(not later than 60 days after
the date of enactment of this
subparagraph) and promulgate
(not later than 120 days after
the date of enactment of this
subparagraph) a final
regulation pursuant to section
1445(a)(2) requiring--
(aa) each public
water system serving
more than 10,000
individuals to monitor
for perchlorate
beginning not later
than 180 days after the
date of enactment of
this subparagraph; and
(bb) the collection
of a representative
sample of public water
systems serving 10,000
individuals or fewer to
monitor for perchlorate
in accordance with
section 1445(a)(2).
(II) Duration.--The
regulation shall be in effect
until monitoring for
perchlorate is required under a
national primary drinking water
regulation for perchlorate.
(iii) Consumer confidence reports.--
(I) In general.--Subject to
subclause (II), by regulation
promulgated simultaneously with
the promulgation of the final
regulation under clause (ii),
the Administrator shall require
that each consumer confidence
report issued under section
1414(c)(4) shall disclose the
presence of any perchlorate in
drinking water, and the
potential health risks of
exposure to perchlorate in
drinking water to vulnerable
persons (including pregnant
women, infants, and children),
consistent with regulations
promulgated by the
Administrator.
(II) Exception.--
Notwithstanding subclause (I),
perchlorate shall not be
considered to be 1 of the 3
regulated contaminants
described in the matter
following clause (vi) of
section 1414(c)(4)(B).
* * * * * * *
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