Abstract
In the United States, the Safe Drinking Water Act (SDWA) regulates most groundwater used for drinking water. The Act covers most urban areas but because it does not cover small water systems, it implicitly exempts nearly half of those living in rural America. In large measure, monitoring required by the SDWA has illustrated the prevalence of naturally occurring arsenic in groundwater in concentrated areas throughout the country. Even though many in Congress seem aware of this threat and have, indeed, supported more stringent arsenic standards, Congress, on the whole, has failed to update the SDWA to cover those water systems left unprotected by the Act. Conventional political science theory suggests that effective congressional oversight depends on Congress creating both active (e.g., hearings and commissioned studies) and passive oversight mechanisms (i.e., citizen suits and opportunities for constituent feedback). In this case, Congress had, in fact, created sufficient tools to detect a serious problem but, having identified it, nevertheless failed to respond. Why? In exploring Congress’s inaction, we find something unexpected: the structure of the SDWA has created perverse incentives not only for unregulated water systems but also for regulated systems to push to keep exempted water systems unregulated. The outcome is that those outside of the SDWA’s protections remain outside and continue to drink contaminated water by the glass full. So, while Congress created a loophole, it may have inadvertently tied a noose.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
The SDWA authorizes the EPA to identify contaminants in drinking water that pose a risk to human health and establish maximum contaminant levels. Besides arsenic other inorganic contaminants include barium, cadmium, chromium, lead and mercury (for an overview, see Calabrese et al. 1990).
The 2001 decision to introduce a MCL of 10 ppb was based upon a balance between the modeled adverse risks to human health (e.g., lung and bladder cancer) and the financial costs of various technologies for arsenic remediation. During the initial discussions regarding an appropriate revised standard, EPA proposed a MCL of 5 ppb and requested comments also on a MCL of 3, 10, and 20 ppb. According to the EPA, it would not be feasible to go below 3 ppb because of treatment costs and the availability of reliable analytical methods. At the same time, EPA established a “health-based, non-enforceable Maximum Contaminant Level Goal (MCLG) for arsenic of zero”. See http://www.epa.gov/fedrgstr/EPA-WATER/2001/January/Day-22/w1668.htm (Last retrieved on March 3, 2008).
42 USCS § 300f(5). Additionally, we say ‘implicitly exempts’ because the SDWA only expressly applied to water systems that served at least this number of connections. In the remainder of the paper we intend “exempts” to mean “implicitly exempts.”
The NRC study found that the prior standard of 50 ppb could lead to a 1-in-100 risk of cancer (Jehl 2001).
This reference includes congressional materials (e.g., bills, speeches, and committee reports) from the 1970s into the beginning of the 1980s.
In fact, resistance to environmental laws in the 1970s from rural interests generally, and agriculture specifically, resulted in widespread exceptions and loopholes in most environmental laws passed by Congress at the time (Adelman and Barton 2002).
Due to time and space restrictions, we omitted another detail that bears on Congress’s oversight. Specifically, in addition to not addressing the water systems that fall out of the federal regulation due to the implicit exemption in the SDWA for small water systems, Congress has also facilitated conflicts which undermine its oversight of the small systems the SDWA purports to cover. Specifically, Congress has continually extended and expanded a loophole in the SDWA for states to provide water system exemptions and variances in meeting federal standards. This is particularly the case for water systems that serve fewer than 10,000 people. Additionally, while pressing for compliance with the SDWA—and particularly the federal arsenic standard—Congress has pushed the EPA to create a less rigorous standard based on costs of compliance for water systems that serve fewer than 10,000 people (something made possible by the 1996 amendments to the SDWA). So, in many ways the problems facing water systems carved out of the SDWA are often extended to those systems Congress purports to regulate.
This is not to suggest that all small water systems have problems. For example, taken as a whole, naturally occurring arsenic does not pose major problems for most water systems in North Carolina. However, some regions of the state are greatly affected by this pollutant. Much of this variance depends upon the particular geology of the region.
The NC state toxicologist has made this recommendation (see Reid et al.).
One study found that “the new drinking water standard for arsenic may be the most costly regulation ever passed” whereby the costs of each life saved ranges from $5 M-$23.9 M (Siegel et al. 2004).
For details, see Maine Bureau of Health’s (2002b) report on Healthy Maine 2010.
References
Adelman, D. E., & Barton, J. H. (2002). Environmental regulation for agriculture: Towards a framework to promote sustainable intensive agriculture. Stanford Environmental Law Journal, 21, 3–43.
Barabak, M. (2001). LAT poll shows plurality supports bush on environment but disagrees with arsenic, Kyoto decisions. Los Angeles Times, April 30.
Calabrese, E. J., Gilbert, C. E., & Pastides, H. (1990). Safe Drinking Water Act: Amendments, regulations and standards. Chelsea, MI: Lewis Publishers.
Center for Disease Control. (2003). Fact sheet: Arsenic and drinking water from private wells. Washington, D.C.: Government Printing Office. Available at http://www.cdc.gov/ncidod/dpd/healthywater/factsheets/pdf/arsenic.pdf. Accessed on December 24, 2007.
Congressional Budget Office. (1995). The Safe Drinking Water Act: A case study of an unfunded federal mandate. Washington, D.C.: Government Printing Office.
Congressional Research Service, Environment and Natural Resources Policy Division. (1982). A legislative history of the Safe Drinking Water Act. Washington, D.C.: Government Printing Office.
Connecticut Division of Environmental Health. (2002). Fact sheet: Naturally occurring arsenic in private well water. Hartford, CT: Division of Environmental Health.
Copeland, C. (1999). Rural water supply and sewer systems: Background information. Washington, D.C.: Congressional Research Service.
Copeland, C. (2007). Rural water supply and sewer systems: Background information. Washington, D.C.: Congressional Research Service.
Environmental Protection Agency. (1999). National characteristics of drinking water systems serving populations under 10,000. Washington, D.C.: Environmental Protection Agency.
Environmental Protection Agency. (2001). National primary drinking water regulations: Arsenic and clarifications to compliance and new source contaminants monitoring. Federal Register, 66, 20580.
Environmental Protection Agency. (2002). Drinking water from household wells. Washington, D.C.: Environmental Protection Agency.
Environmental Protection Agency. (2003). Water on tap: What you need to know. Washington, D.C.: Environmental Protection Agency.
Environmental Protection Agency. (2007). Drinking water in schools and child care facilities. Available at http://www.epa.gov/OGWDW/schools/guidance.html. Accessed on February 27, 2008.
Fialka, J. J. (2001). Arsenic and wild space: Green activists from across spectrum unite against bush. Wall Street Journal, April 11, A20.
Gibbons, Rep. [NV]. (2001). Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act. Congressional Record – House, 147, 4748.
Hughes, M. F., Kenyon, M., & Kitchin, K. T. (2007). Research approaches to address uncertainties in the risk assessment of arsenic in drinking water. Toxicology and Applied Pharmacology, 222, 399–404.
International Agency for Research on Cancer. (2004). Some drinking-water disinfectants and contaminants, including arsenic (Vol. 88). World Health Organization.
Jehl, D. (2001). E.P.A. to Abandon New Arsenic Limits for Water Supply. New York Times, March 21.
Maine Bureau of Health. (2002a). Have you tested your well for arsenic? Augusta, ME: Department of Human Services. Available at http://www.maine.gov/dhhs/eohp/wells/documents/ASBROCH3.pdf. Accessed on December 24, 2007.
Maine Bureau of Health. (2002b). Healthy Maine Report 2010. Augusta, ME: Department of Human Services. Available at http://www.maine.gov/dhhs/boh/healthy_maine_2010.htm. Accessed on December 24, 2007.
McCubbins, M. D., & Schwartz, T. (1984). Congressional oversight overlooked: Police patrols versus fire alarms. American Journal of Political Science, 28, 165–179. doi:10.2307/2110792.
Miller, G. J. (2005). The political evolution of principal-agent models’. Annual Review of Political Science, 8, 203–225. doi:10.1146/annurev.polisci.8.082103.104840.
Moe, T. M. (1984). The new economics of organization. American Journal of Political Science, 28, 739–777. doi:10.2307/2110997.
Moe, T. M. (1985). Control and feedback in economic regulation: The NLRB. The American Political Science Review, 79, 1094–1116. doi:10.2307/1956250.
Moe, T. M. (1987). Interests, institutions and positive theory. In K. Orren & S. Skowronek (Eds.), Studies in American political development (pp. 236–299). New Haven, CT: Yale University Press.
Musil, R. K. (2001). Arsenic on tap. New York Times, April 24, A18.
New Jersey Geological Survey & Bureau of Safe Drinking Water. (2005). Arsenic water treatment for residential wells in New Jersey. Trenton, NJ: Department of Environmental Protection. Available at http://www.nj.gov/dep/pwta/Arsenic_Treatment.pdf. Accessed on December 24, 2007.
National Research Council. (1999). Arsenic in drinking water. Washington, D.C.: National Academy Press.
National Research Council. (2001). Arsenic in drinking water. Washington, D.C.: National Academy Press.
North, D. C. (1990). Institutions, institutional change, and economic performance. Cambridge, UK: Cambridge University Press.
Reed, S. [RI]. (2002). Statements on introduced bills and joint resolutions. Congressional Record – Senate, 148, 10678.
Reid, Sen. [NV]. (2001). Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act. Congressional Record – Senate, 147, 8557.
Reid, J. C., Pippin, C. G., & Haven, W. T. Assessing the source for arsenic in groundwater. North Carolina, Piedmont. Available at http://h2o.enr.state.nc.us/gwp/documents/ArsenicstudyReidetal.pdf. Accessed on March 3, 2008.
Shogren, E. (2001). House OKs measure to cut arsenic in water. Los Angeles Times, July 28, A1.
Siegel, M., Hinkebein, T., Dwyer, B., & Brady, P. (2004). Arsenic in the groundwaters of New Mexico: Challenges and potential solutions. Available at http://www.unm.edu/~cstp/Reports/H2O_Session_4/4-2_Siegel.pdf. Accessed on December 28, 2007.
Sunstein, C. R. (2002). The arithmetic of arsenic. The Georgetown Law Journal, 90, 2255–2303.
Sunstein, C. R. (2003). Beyond the precautionary principles. University of Pennsylvania Law Review, 151, 1003–1058. doi:10.2307/3312884.
Tiemann, M. (1996). Safe Drinking Water Act: Implementation and reauthorization. Washington, D.C.: Congressional Research Service.
Tiemann, M. (2005). Arsenic in drinking water: Regulatory developments and issues. Washington, D.C.: Congressional Research Service.
Tiemann, M. (2006). Safe Drinking Water Act: Issues in the 109th congress. Washington, D.C.: Congressional Research Service.
U.S. House Committee of Conference. (2001). Making appropriations for the Department of Veterans Affairs and Housing and Urban Development, and for sundry independent agencies, boards, commissions, corporations, and offices for the fiscal year ending September 30, 2002 and for other purposes. Washington, D.C.: Government Printing Office.
U.S. Senate. (2002). 107th Congress, 2nd session. 2002. S. 3127, Private Well Testing Assistance Act of 2002. Available at: http://www.govtrack.us/congress/billtext.xpd?bill=s107-3127. Accessed on October 10, 2002.
University of Maine Cooperative Extension. (1999). Fact sheet #2: Home well water quality. Augusta, ME: Department of Agriculture.
Walsh, Rep. [NY]. (2001). Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act. Congressional Record – House, 147, 4743–4744
Weingast, B. R. (1984). The Congressional Bureaucratic System: A principal-agent perspective (with applications to the SEC). Public Choice, 44, 147–188. doi:10.1007/BF00124821.
Weingast, B. R., & Morgan, M. J. (1983). Bureaucratic discretion or congressional control? Regulatory policymaking by the Federal Trade Commission. The Journal of Political Economy, 91, 765–800. doi:10.1086/261181.
Welch, A. H., Westjohn, D. B., Helsel, D. R., & Wanty, R. B. (2000). Arsenic in groundwater of the United States: Occurrence and geochemistry. Ground Water, 38, 589–604. doi:10.1111/j.1745-6584.2000.tb00251.x.
Acknowledgements
This work was supported by U.S. Department of Agriculture Cooperative State Research Education and Extension Service Grant NCW-2006-03956. The authors share equal responsibility for the content and analysis herein. They gratefully acknowledge comments and suggestions from Avner Vengosh, an anonymous reviewer and the editors.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Daniels, B., Weinthal, E. & Hudson, B. Is an exemption from US groundwater regulations a loophole or a noose?. Policy Sci 41, 205–220 (2008). https://doi.org/10.1007/s11077-008-9064-0
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11077-008-9064-0