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United States Government Accountability Office: 
GAO: 

Report to Congressional Requesters: 

May 2011: 

Safe Drinking Water Act: 

EPA Should Improve Implementation of Requirements on Whether to 
Regulate Additional Contaminants: 

GAO-11-254: 

GAO Highlights: 

Highlights of GAO-11-254, a report to congressional requesters. 

Why GAO Did This Study: 

Under 1996 amendments to the Safe Drinking Water Act, every 5 years 
the Environmental Protection Agency (EPA) is to determine for at least 
five contaminants, such as chemicals, whether regulation is warranted, 
considering those that present the greatest public health concern. 
Since 1996, EPA had not recommended any new contaminants for 
regulation until February 2011, when it reversed its controversial 
2008 preliminary decision to not regulate perchlorate, an ingredient 
in rocket fuel and other products. GAO was asked to (1) evaluate the 
extent to which EPA’s implementation of the 1996 amendments has helped 
assure the public of safe drinking water and (2) review the process 
and scientific analyses used to develop the 2008 preliminary 
regulatory determination on perchlorate. GAO analyzed relevant 
statutory provisions and regulatory determination documents and 
interviewed EPA officials. 

What GAO Found: 

Systemic limitations in EPA’s implementation of requirements for 
determining whether additional drinking water contaminants warrant 
regulation have impeded the agency’s progress in assuring the public 
of safe drinking water. EPA’s selection of contaminants for regulatory 
determination in 2003 and 2008 was driven by data availability—-not 
consideration of public health concern. EPA does not have criteria for 
identifying contaminants of greatest public health concern and based 
most of its final determinations to not regulate 20 contaminants on 
the rationale of little or no occurrence of the contaminants in public 
water systems. Moreover, EPA’s testing program for unregulated 
contaminants—-which can provide key data to inform regulatory 
determinations-—has fallen short in both the number of contaminants 
tested and the utility of the data provided because of management 
decisions and program delays. In addition, EPA has not developed 
policies or guidance for interpreting the amendments’ broad statutory 
criteria for selecting contaminants and making regulatory 
determinations, increasing the potential for inconsistent decision 
making. Also, the credibility of some of EPA’s regulatory 
determinations is limited by a lack of transparency, clarity, and 
consistency of key documents. For example, EPA made decisions on nine 
contaminants relying on tests that were not sensitive enough to detect 
them at the agency’s health risk benchmarks. Furthermore, EPA did not 
clearly and consistently disclose this limitation and its effect on 
EPA’s analysis. 

In making its preliminary regulatory determination on perchlorate in 
2008, EPA used a process and scientific analyses that were atypical, 
lacked transparency, and limited the agency’s independence in 
developing and communicating scientific findings. First, while an 
intra-agency workgroup typically makes recommendations to the 
Assistant Administrator for Water on whether to regulate evaluated 
contaminants, in this case, the Assistant Administrator directed the 
staff to develop a determination to not regulate and to support a 
specified exposure level as protective of all populations. This 
direction was outlined in an agreement between high-level officials at 
EPA and other federal agencies that is not part of the perchlorate 
regulatory determination record. Moreover, EPA adopted the National 
Academies’ 2005 perchlorate health assessment—a foundation for EPA’s 
regulatory determination—without using EPA’s standard internal 
scientific review process. This assessment is controversial, 
especially its sufficiency to protect infants. Also, the credibility 
of EPA’s exposure estimate for perchlorate, which is based on a novel 
analysis, is reduced by the lack of a comprehensive explanation of the 
methodology’s limitations and uncertainties in the preliminary 
determination notice. Finally, according to key EPA scientists, the 
agency mischaracterized important scientific findings on the 
sensitivity of various age groups to perchlorate exposure. EPA 
scientists who managed the sensitivity analysis did not agree that it 
supported the conclusion that the selected exposure level was 
protective of all populations, which was one component of the 
aforementioned agreement between EPA and other federal agencies. 

What GAO Recommends: 

GAO’s 17 recommendations include that the EPA Administrator require 
(1) development of criteria to identify contaminants that pose the 
greatest health risk, (2) improvements in its unregulated contaminants 
testing program, and (3) development of policies or guidance to 
interpret the broad statutory criteria. EPA agreed with 2 
recommendations but took the position that developing guidance and 
taking the other recommended actions are not needed. GAO believes EPA 
needs to adopt all of the recommendations to better assure the public 
of safe drinking water. 

View [hyperlink, http://www.gao.gov/products/GAO-11-254] or key 
components. For more information, contact David C. Trimble at (202) 
512-3841 or trimbled@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

Systemic Limitations in EPA's Implementation of Requirements for 
Determining Whether to Regulate Additional Contaminants Have Impeded 
Progress in Helping Assure the Public of Safe Drinking Water: 

The Process and Analyses EPA Relied on to Support Its Preliminary 
Determination on Perchlorate Were Atypical, Lacked Transparency, and 
Limited the Agency's Independence in Developing and Communicating Its 
Scientific Findings: 

Conclusions: 

Recommendations for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Information on EPA's Regulatory Actions under the 1974 
Safe Drinking Water Act: 

Appendix III: Information on U.S. Public Drinking Water Systems: 

Appendix IV: Calculations EPA Uses to Develop Health Reference Levels 
for Drinking Water Contaminants Being Considered for Regulation: 

Appendix V: Calculations of Relative Source Contribution Using the 
Percentage and Subtraction Methods: 

Appendix VI: Supplemental Information on EPA's 2003 Regulatory 
Determination for Manganese and Its 2008 Determination for Boron: 

Appendix VII: EPA's Evaluation of Perchlorate Occurrence at Two 
Levels--5 Parts and 15 Parts per Billion of Perchlorate in Water: 

Appendix VIII: Supplemental Information on Limitations and 
Uncertainties of EPA's Perchlorate Exposure Analysis: 

Appendix IX: Calculations for the Perchlorate Health Reference Level 
in EPA's 2008 Preliminary Regulatory Determination and the Related 
2010 Journal Article on EPA's Exposure Analysis Methodology: 

Appendix X: Comments from the Environmental Protection Agency: 

Appendix XI: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: EPA's Contaminant Candidate Lists: 

Table 2: Information on EPA's Unregulated Contaminants Testing Program: 

Table 3: Comparison of the Impact on Health Reference Levels of Three 
Different Relative Source Contribution Factors, Assuming a Reference 
Dose of 0.5 Micrograms per Kilogram per Day: 

Table 4: Drinking Water Contaminants with Final EPA Regulatory 
Determinations: 

Table 5: Nine Contaminants Whose Minimum Reporting Levels Exceeded 
EPA's Health Reference Levels: 

Table 6: U.S. Public Drinking Water Systems by Size: 

Table 7: U.S. Public Drinking Water Systems by Source Water: 

Table 8: Hypothetical Data Used in Examples: 

Table 9: Example of How the Relative Source Contribution Is Determined 
Using the Percentage Method: 

Table 10: Example of How the Relative Source Contribution Is 
Determined Using the Percentage Method: 

Table 11: Perchlorate Occurrence and Population Exposure Estimates at 
Various Potential Health Reference Levels Reported in EPA's 
Preliminary Regulatory Determination for Perchlorate: 

Table 12: Comparison of the Health Reference Level Calculations Used 
in EPA's Preliminary Perchlorate Regulatory Determination and Its 
Subsequent Article on the Perchlorate Exposure Methodology the Agency 
Used in Its Preliminary Regulatory Determination, Based on a Reference 
Dose of 0.7 Micrograms per Kilogram per Day: 

Figures: 

Figure 1: Health Reference Level Equation for Contaminants with 
Carcinogenic Health Effects: 

Figure 2: Health Reference Level Equation for Contaminants with 
Noncarcinogenic Adverse Health Effects: 

Figure 3: Health Reference Level Equation: 

Abbreviations: 

ATSDR: Agency for Toxic Substances and Disease Registry: 

CDC: Centers for Disease Control and Prevention: 

DOD: Department of Defense: 

EPA: Environmental Protection Agency: 

HHS: Department of Health and Human Services: 

IRIS: Integrated Risk Information System: 

MTBE: methyl tertiary-butyl ether: 

NASA: National Aeronautics and Space Administration: 

NAWQA: National Water-Quality Assessment: 

NIRS: National Inorganic and Radionuclide Survey: 

OMB: Office of Management and Budget: 

PBPK: physiologically based pharmacokinetic: 

PCE: tetrachloroethylene: 

TCE: trichloroethylene: 

USGS: U.S. Geological Survey: 

VOC: volatile organic compounds: 

[End of section] 

United States Government Accountability Office: 
Washington, DC 20548: 

May 27, 2011: 

The Honorable Barbara Boxer:
Chairman:
Committee on Environment and Public Works:
United States Senate: 

The Honorable Henry A. Waxman:
Ranking Member:
Committee on Energy and Commerce:
House of Representatives: 

The Honorable Edward J. Markey:
House of Representatives: 

The overall goal of the Safe Drinking Water Act, originally enacted by 
Congress in 1974, is to ensure that public drinking water is safe. 
[Footnote 1] Nonetheless, more than 35 years later, the safety of 
drinking water remains a significant concern. For example, according 
to a 2010 Gallup survey on the environment, the safety of drinking 
water continues to be the environmental issue of greatest concern to 
Americans, with 50 percent worrying "a great deal" about drinking 
water pollution. In addition, Members of Congress continue to express 
concerns regarding the impacts of contaminated drinking water on 
public health, particularly on children.[Footnote 2] While 89 
contaminants have been regulated pursuant to the act, the number of 
potential drinking water contaminants is vast.[Footnote 3] For 
example, as many as tens of thousands of chemicals may be used across 
the country, and the Environmental Protection Agency (EPA) has 
identified more than 6,000 chemicals that it considers the most likely 
sources of human or environmental exposure. The potential health 
effects of exposure to most of these chemicals, and the extent of 
their occurrence in drinking water, are unknown. Several studies since 
the 1980s have examined the occurrence of unregulated contaminants in 
public drinking water systems and their source waters. Typically small 
in scale--focusing on 60 or fewer contaminants--these studies have 
nonetheless detected hundreds of unregulated contaminants in public 
drinking water systems and source waters, some of which are known to 
have adverse health effects. 

Under the Safe Drinking Water Act, EPA is authorized to regulate 
contaminants in public drinking water systems. Since 1974, EPA has 
implemented its drinking water program under three separate 
legislative frameworks--first under the initial statute and 
subsequently under major amendments in 1986 and 1996. Under the 1996 
amendments, which remain in effect, EPA is to select for consideration 
those unregulated contaminants that present the greatest public health 
concern, evaluate their occurrence and the potential health risks 
associated with them, and decide whether a regulation is needed for at 
least five contaminants every 5 years. This regulatory determination 
process includes EPA's publication in the Federal Register of a 
preliminary decision on whether the agency will propose a drinking 
water regulation for each contaminant evaluated--called a preliminary 
regulatory determination--and provides for a public comment period, 
followed by a final decision, or regulatory determination, also 
published in the Federal Register. 

In 2003 and 2008, EPA issued final regulatory determinations on a 
total of 20 contaminants, deciding in each case that a drinking water 
regulation was not warranted. Thus, EPA had not recommended any new 
contaminant for regulation under the provisions of the 1996 amendments 
until February 2011, when the agency issued a final determination to 
regulate perchlorate--reversing a separate preliminary determination 
to not regulate perchlorate that the agency had issued in 2008. EPA 
had first formally identified perchlorate, an ingredient in such 
products as rocket fuel and fireworks, as a contaminant that may 
require regulation in 1998. Perchlorate can interfere with the normal 
functioning of the thyroid gland by inhibiting the transport of iodide 
into the thyroid, an essential step in the synthesis of thyroid 
hormones. According to EPA's preliminary and final determination 
notices on perchlorate, iodide uptake inhibition from perchlorate 
exposure has been identified as a concern in connection with 
increasing the risk of neurodevelopmental impairment in fetuses of 
hypothyroid mothers.[Footnote 4] In addition, poor iodide uptake and 
subsequent impairment of thyroid function in pregnant and lactating 
women have been linked to delayed development and decreased learning 
capability in their infants and children. As we recently reported, 
perchlorate has been found in water, soil, and sediment at varying 
levels in 45 states, as well as in the food supply.[Footnote 5] Over 
the last decade, issues surrounding the health risks of and the 
potential drinking water regulation for perchlorate have generated 
considerable interest and debate among such federal agencies as the 
Department of Defense (DOD) and the National Aeronautics and Space 
Administration (NASA) that use perchlorate in carrying out aspects of 
their missions. Moreover, EPA's 2008 preliminary determination to not 
regulate perchlorate in drinking water was controversial, generating 
significant public comment. In August 2009, the EPA Administrator 
announced that the agency would consider additional public comments on 
alternative analyses regarding perchlorate prior to making its final 
regulatory determination. In February 2011, the EPA Administrator 
announced that the agency intends to propose a perchlorate drinking 
water regulation within 24 months of the regulatory determination--
that is, by February 2013. 

In this context, this report responds to your request that we conduct 
a review of EPA's implementation of the Safe Drinking Water Act's 
provisions on unregulated contaminants.[Footnote 6] Our objectives 
were to (1) evaluate the extent to which EPA's implementation of the 
1996 amendments' requirement for determining whether to regulate 
potentially harmful contaminants has helped assure the public of safe 
drinking water and (2) review the process and scientific analyses EPA 
used to develop its 2008 preliminary regulatory determination on 
perchlorate. 

To assess EPA's implementation of the 1996 amendments' requirement to 
determine which potentially harmful drinking water contaminants should 
be regulated, we reviewed the statute, legislative history, and 
relevant amendments and analyzed relevant documentation, such as 
Federal Register notices and regulatory determination support 
documents;[Footnote 7] EPA's information on the potential adverse 
health effects of, and the extent to which the public may be exposed 
to, individual contaminants in public drinking water systems; and 
public comments on EPA's determinations. We interviewed officials from 
EPA's Office of Water and Office of Research and Development. We also 
reviewed health effects and public drinking and source water 
occurrence information from other entities, such as the Department of 
Health and Human Services' (HHS) Agency for Toxic Substances and 
Disease Registry (ATSDR), California's Office of Environmental Health 
Hazard Assessment, and the U.S. Geological Survey (USGS). In 
evaluating EPA's implementation of the regulatory determination 
process, we analyzed information developed under two processes 
integral to the regulatory determination process--development of 
contaminant candidate lists and implementation of the unregulated 
contaminants monitoring rule--but did not evaluate EPA's 
implementation of them. To review the process and scientific analyses 
EPA used to develop a preliminary determination on perchlorate, we 
interviewed officials in EPA's Office of Water and Office of Research 
and Development and reviewed relevant Federal Register notices; public 
comments; and EPA documents, including documentation of the agency's 
review process for its Integrated Risk Information System (IRIS) 
assessment for perchlorate and its scientific analyses of (1) exposure 
to perchlorate in drinking water and related external peer review 
comments and (2) the sensitivity of various age groups to perchlorate 
exposure and related agency documents. Appendix I provides a more 
detailed description of our scope and methodology. We conducted this 
performance audit from March 2009 to May 2011, in accordance with 
generally accepted government auditing standards. Those standards 
require that we plan and perform the audit to obtain sufficient, 
appropriate evidence to provide a reasonable basis for our findings 
and conclusions based on our audit objectives. We believe that the 
evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives. 

Background: 

The following provides information on the act, its requirements and 
amendments, completed regulatory determinations, EPA health 
advisories, and federal advisory committees for drinking water issues. 

The Safe Drinking Water Act: 

Among other things, the Safe Drinking Water Act requires EPA to 
establish legally enforceable standards for public water systems-- 
called national primary drinking water regulations--which generally 
limit the levels of specific contaminants in drinking water that can 
adversely affect public health. States typically have the lead role in 
implementing and enforcing these federal drinking water 
regulations.[Footnote 8] Under state laws, some state environmental 
agencies have the authority to establish more stringent standards than 
federal regulations and regulate additional contaminants than federal 
regulations, while others lack these authorities. 

EPA's regulatory actions under the Safe Drinking Water Act have varied 
over time as the agency's legal authority to determine which drinking 
water contaminants to regulate, if any, has changed from discretionary 
to prescriptive and back to largely discretionary. While the statute 
was enacted in 1974, EPA promulgated most of the existing national 
drinking water regulations under the framework established by the 1986 
amendments, which mandated, among other things, that EPA regulate 
specific contaminants and established a testing program whereby EPA 
was to require public water systems to test for unregulated 
contaminants. As discussed later, with the 1996 amendments, Congress 
established a framework under which EPA is to periodically identify 
contaminants that may warrant regulation, and it revised EPA's 
authority related to the existing testing program for unregulated 
contaminants. The 1996 amendments mandate that EPA focus on 
unregulated contaminants that present the greatest public health 
concern. EPA completed its first cycle of regulatory determinations in 
2003 and a second cycle in 2008, and plans to complete a third cycle 
in 2013.[Footnote 9] As noted earlier, EPA had decided to not regulate 
any additional contaminants since the enactment of the 1996 amendments 
[Footnote 10] until February 2011, when the EPA Administrator 
announced that the agency had made a final determination to regulate 
perchlorate. The Administrator also announced plans to develop a 
regulation addressing a group of carcinogenic volatile organic 
compounds (VOC)--chemicals such as industrial solvents. The announced 
plan to regulate carcinogenic VOCs stemmed from EPA's effort to revise 
the existing drinking water regulations for trichloroethylene (TCE) 
and tetrachloroethylene (PCE) and the Administrator's 2010 Drinking 
Water Strategy that includes a goal of addressing contaminants as 
groups rather than one at a time to enhance drinking water protection 
in a timely and cost-effective manner. According to EPA, the agency 
plans to include up to eight unregulated VOCs in this regulatory 
action covering a group of related contaminants.[Footnote 11] 
(Appendix II provides additional information on EPA's regulatory 
actions under the statute as enacted in 1974, the 1986 amendments, and 
the 1996 amendments.) 

In addition to requiring EPA to periodically make regulatory 
determinations on unregulated contaminants, the 1996 amendments also 
require that EPA identify and publish a list every 5 years of 
unregulated contaminants that may require regulation; the list is 
called the contaminant candidate list. EPA selects the contaminants 
for which it will make regulatory determinations from the relevant 
candidate list.[Footnote 12] EPA has published three candidate lists 
of unregulated contaminants that may warrant regulation: in 1998, 
2005, and 2009 (see table 1).[Footnote 13] 

Table 1: EPA's Contaminant Candidate Lists: 

Contaminant candidate list: 1; 
Date published in the Federal Register: March 2,1998; 
Number of contaminants on the list: 60. 

Contaminant candidate list: 2; 
Date published in the Federal Register: February 24, 2005; 
Number of contaminants on the list: 51. 

Contaminant candidate list: 3; 
Date published in the Federal Register: October 8, 2009; 
Number of contaminants on the list: 116. 

Source: Federal Register notices. 

[End of table] 

For each regulatory determination cycle (2003 and 2008), EPA developed 
a preliminary determination notice that provided its proposed 
determinations for the contaminants addressed in that cycle, as well 
as its rationale and primary support for individual determinations. 
The final determination notice for each cycle addressed public 
comments received on its preliminary determination notice and briefly 
summarized its final determinations. In the two completed cycles to 
date, EPA did not change any determination in response to public 
comments.[Footnote 14] 

EPA's regulatory determinations can have long-term implications for 
the safety of public drinking water. For example, a decision to not 
regulate tends to limit or remove the focus and resources that may be 
applied to further developing and evaluating data on the occurrence of 
the contaminant, as well as on treatment technologies to remove it 
from drinking water. On the other hand, a decision to regulate places 
emphasis on and commits resources: first, to development of a 
regulation and, later, to actions by some public water systems to 
limit public exposure to the contaminant. Specifically, if EPA 
determines that a regulation is needed for a contaminant, under the 
1996 amendments, the agency has 24 months to publish a proposed 
regulation for comment and up to an additional 27 months to promulgate 
a final regulation. With regard to developing drinking water 
regulations, the 1996 amendments added a requirement that EPA conduct 
a cost-benefit analysis as part of the standard-setting process. The 
amendments further require that in carrying out the provisions 
concerning listing, selecting, and regulating contaminants, to the 
degree that an action is based on science, EPA use the best available 
peer-reviewed science and data collected by accepted or best available 
methods. EPA is also to ensure that the presentation of information on 
public health effects is comprehensive, informative, and 
understandable. 

Once established, federal drinking water regulations generally apply 
to the approximately 153,500 public water systems that provide 
drinking water to at least 15 service connections or that regularly 
serve at least 25 people. Nearly 52,000 of these systems are community 
water systems that serve year-round residents, providing drinking 
water to approximately 294 million people. Small systems--those 
serving 3,300 or fewer people--account for most of the community water 
systems, while large systems--those serving more than 10,000 people--
provide drinking water to 82 percent of the population served by 
community water systems. Similarly, more than three-quarters of 
community water systems have groundwater sources, such as underground 
aquifers, but a much larger percentage of the population receives 
water from systems that have surface water sources, such as streams, 
rivers, and lakes. Appendix III provides further information on public 
water system types, sizes, sources, and populations served. 

EPA's Office of Water has primary responsibility for implementing the 
requirements of the Safe Drinking Water Act. Office of Water staff 
have described the agency's process for assessing contaminants being 
evaluated for regulatory determination as one that continues to 
evolve. While the regulatory determination process is not a rulemaking 
process, EPA uses the administrative process it established for 
developing and processing regulations to govern the development and 
processing of its regulatory determinations. Moreover, according to 
EPA, the Office of Management and Budget (OMB) views the regulatory 
determinations as equivalent to "significant" rulemakings under 
Executive Order 12866, which establishes procedures for OMB to review 
certain regulations.[Footnote 15] 

Statutory Criteria for Assessing Drinking Water Contaminants for 
Regulation: 

The 1996 amendments stipulate that EPA assess contaminants against 
statutory criteria to make determinations on whether they warrant 
regulation. In making regulatory determinations, EPA is to consider 
contaminants that present "the greatest public health concern," taking 
into account sensitive populations--such as children--that may be at 
greater risk of adverse health effects from exposure to contaminants 
in drinking water, among other factors. EPA's regulatory 
determinations are to be based on three broad statutory criteria, all 
of which must be met for EPA to decide that a regulation is needed: 

* the contaminant may have an adverse effect on the health of persons; 

* the contaminant is known to occur or there is a substantial 
likelihood that the contaminant will occur in public water systems 
with a frequency and at levels of public health concern; and: 

* in the sole judgment of the Administrator, regulation of such 
contaminant presents a meaningful opportunity for health risk 
reduction for persons served by public water systems. 

Data on Occurrence and Health Risks of Unregulated Contaminants in 
Drinking Water to Support Regulatory Determinations: 

To assess unregulated contaminants against the statutory criteria, the 
Office of Water needs sufficient information on both (1) the 
occurrence of these contaminants in drinking water--called occurrence 
data--to assess the population potentially being exposed and the 
levels of that exposure and (2) the human health effects that may 
result from exposure to the contaminants in drinking water. Regarding 
occurrence data, the agency has stated that it needs occurrence data 
that can provide "a generally representative idea of known and/or 
likely occurrence in public water systems."[Footnote 16] As required 
by the 1996 amendments, EPA has developed a new testing program for 
unregulated contaminants to collect nationally representative samples 
from a subset of public water systems on up to 30 contaminants every 5 
years.[Footnote 17] Thus, the 1996 amendments placed a limit on the 
number of unregulated contaminants that certain public water systems 
would be required to test for in each 5-year testing cycle.[Footnote 
18] In this report, we refer to the unregulated contaminant monitoring 
program as EPA's testing program for unregulated contaminants. EPA 
completed one testing cycle in 2005 and expects to complete the second 
cycle later in 2011. On March 3, 2011, EPA issued a proposed rule for 
the third cycle and plans to publish a final rule in 2012. The 
published testing program rules identify, among other things, the 
contaminants to be tested, the testing (analytic) methods to be used, 
and the time frames for the testing. As shown in table 2, data from 
the first testing cycle was available for EPA to use in developing its 
second cycle of regulatory determinations in 2008, and data from the 
second testing cycle will be available to support EPA's third cycle of 
determinations in 2013. 

Table 2: Information on EPA's Unregulated Contaminants Testing Program: 

Unregulated contaminants testing cycle: Cycle 1; 
Date testing program rules published in Federal Register: September 
1999; 
Date testing program cycle completed[A]: December 2005; 
Related regulatory determination cycle and completion date: Cycle 2, 
2008. 

Unregulated contaminants testing cycle: Cycle 2; 
Date testing program rules published in Federal Register: January 2007; 
Date testing program cycle completed[A]: Fall 2011 (planned); 
Related regulatory determination cycle and completion date: Cycle 3, 
2013 (planned). 

Source: GAO analysis of EPA data. 

[A] We consider completion of a testing program cycle to be the date 
at which EPA presents the final results. 

[End of table] 

Regarding the information EPA needs to assess health risks from 
exposure to unregulated drinking water contaminants, the Office of 
Water generally considers agency-approved health risk assessments, 
such as those available from the agency's Integrated Risk Information 
System (IRIS), sufficient to characterize potential health risks for 
the purpose of making regulatory determinations.[Footnote 19] IRIS 
assessments, which are critical to the drinking water program, provide 
EPA's toxicity assessments of contaminants that may cause cancer and 
those that may cause neurological or other noncancer effects, or both. 

Health Reference Levels That EPA Develops to Assess Contaminants for 
Regulation: 

Using an IRIS or comparable toxicity assessment, the Office of Water 
calculates the health reference level--the estimated level of exposure 
to a contaminant in drinking water below which adverse health effects 
are not likely. The health reference level is critical to EPA's 
implementation of the 1996 amendments because it is the benchmark the 
agency uses to evaluate whether contaminants occur in public drinking 
water at levels of public health concern. That is, levels of 
contaminants in drinking water that exceed the health reference level 
are deemed to represent exposure that is of public health concern. The 
health reference level is determined in one of two ways depending on 
whether the potential health effects are cancer (i.e., carcinogenic) 
or other adverse effects (i.e., noncarcinogenic). For carcinogens, the 
Office of Water generally develops the health reference level using a 
quantitative estimate of carcinogenic risk--from, for example, an IRIS 
assessment--to calculate a concentration in drinking water equivalent 
to a one-in-a-million increased risk of getting cancer from a lifetime 
of exposure to a contaminant. In making this calculation, EPA applies 
its standard metrics for the weight of an adult--70 kilograms (154 
pounds)--and the daily drinking water intake--2 liters (60 fluid 
ounces). For contaminants with noncarcinogenic adverse health effects, 
such as perchlorate and manganese, the Office of Water develops the 
health reference level using the IRIS reference dose, which is an 
estimate of the total daily oral exposure to a contaminant--for 
example, from food and water--that is not likely to cause "appreciable 
risk of deleterious effects during a lifetime" and is expressed as 
milligrams (or micrograms) per kilogram of bodyweight per day (mg/kg/ 
day or µg/kg/day).[Footnote 20],[Footnote 21] EPA generally uses the 
reference dose to calculate a daily safe dose of the contaminant in 
drinking water for a healthy adult by applying (1) its standard 
metrics for the weight of an adult and the daily drinking water intake 
and (2) an allocation of the estimated oral exposure to the 
contaminant from drinking water alone, called the relative source 
contribution. (Stemming from the general assumption that there is no 
safe level of exposure to a carcinogen, EPA has not used the relative 
source contribution in developing health reference levels for 
carcinogenic contaminants.)[Footnote 22] Appendix IV provides examples 
of the calculations for health reference levels for carcinogenic and 
noncarcinogenic adverse health effects. 

The Relative Source Contribution Component of the Health Reference 
Level: 

The Office of Water applies the relative source contribution estimate 
when calculating the health reference level for noncarcinogens to 
ensure that the level of a contaminant in drinking water, when 
combined with other sources of exposure (e.g. food and air) will not 
result in a total exposure for an individual that exceeds the 
reference dose. The relative source contribution has a significant 
impact on the health reference level that the agency derives for 
contaminants with noncancer adverse health effects. As shown in table 
3, the lower the relative source contribution, the lower and more 
protective the health reference level. Conversely, a higher relative 
source contribution results in a higher and less protective health 
reference level. 

Table 3: Comparison of the Impact on Health Reference Levels of Three 
Different Relative Source Contribution Factors, Assuming a Reference 
Dose of 0.5 Micrograms per Kilogram per Day: 

[(Reference dose (micrograms per kilogram per day)[A]: [(0.5; 
x: Body weight) (kilograms): 70); ÷: Drinking water intake] (liters 
per day): 2]; x; Relative source contribution (percentage): 20; =: 
Health reference level (parts per billion)[B]: 3.5. 

[(Reference dose (micrograms per kilogram per day)[A]: [(0.5; 
x: Body weight) (kilograms): 70); ÷; Drinking water intake] (liters 
per day): 2]; x; Relative source contribution (percentage): 50; =; 
Health reference level (parts per billion)[B]: 8.8. 

[(Reference dose (micrograms per kilogram per day)[A]: [(0.5; 
x: Body weight) (kilograms): 70); ÷: Drinking water intake] (liters 
per day): 2]; x; Relative source contribution (percentage): 80; =; 
Health reference level (parts per billion)[B]: 14. 

Source: GAO. 

[A] 1 microgram = 0.001 milligrams. Therefore, 0.5 micrograms per 
kilogram per day also equals 0.0005 milligrams per kilogram per day. 

[B] The parts per billion unit is equivalent to the micrograms per 
liter unit. Therefore, 3.5 parts per billion is the same as 3.5 
micrograms per liter. 

[End of table] 

According to EPA's guidance on methods for developing relative source 
contribution estimates,[Footnote 23] in deciding what method to use, 
the agency must determine whether adequate data are available on the 
extent of exposures to the contaminant from drinking water and all 
other relevant sources, including other oral exposures, inhalation 
exposures, and dermal exposures. According to an Office of Water 
official, in most cases the agency lacks adequate data to fully 
characterize the extent of exposure from the various sources. In the 
absence of sufficient data, the guidance recommends the use of a 
conservative default assumption--that the relative source contribution 
from drinking water is 20 percent, leaving 80 percent of the total 
reference dose to account for all other sources of exposure. With the 
exception of perchlorate, EPA has used the default 20 percent when 
using a relative source contribution to determine the health reference 
level for its regulatory determinations. 

If the agency determines it has adequate exposure data to estimate the 
relative source contribution, rather than applying the default 
assumption, according to the guidance, the agency may choose one of 
two methods--the percentage method or the subtraction method.[Footnote 
24] EPA characterizes the percentage method as conservative in that it 
preserves the proportion of existing daily exposure from drinking 
water relative to other exposure sources when allocating the reference 
dose. That is, if the daily exposure to a contaminant in drinking 
water is currently low compared to food, for example, the portion of 
the reference dose allocated to exposure from drinking water will also 
be relatively low. In contrast, the subtraction method allocates 100 
percent of the reference dose among the various sources of exposure. 
Specifically, under the subtraction method, the daily exposure from 
all nondrinking water sources is first subtracted from the reference 
dose, and the remainder is allocated to drinking water, thereby 
generally resulting in a higher relative source contribution factor 
for drinking water than the percentage method. The guidance generally 
provides that, using either method, the relative source contribution 
selected should not be lower than 20 percent or higher than 80 
percent. (Appendix V provides example calculations of the relative 
source contributions that result from each of these methods.) 

EPA's Completed Regulatory Determinations: 

EPA completed two cycles of regulatory determinations in 2003 and 2008 
addressing a total of 20 contaminants--in each case, it decided not to 
regulate. In addition, EPA addressed perchlorate in 2011--deciding to 
regulate using an out-of-cycle determination. First, in 2003, EPA made 
final regulatory determinations to not regulate 9 contaminants on its 
1998 candidate list of 60 contaminants. Second, in 2008, EPA made 
final regulatory determinations to not regulate 11 of 51 contaminants 
on its 2005 candidate list and issued a preliminary determination to 
not regulate perchlorate. As discussed earlier, on February 11, 2011, 
EPA reversed its preliminary determination and made a determination to 
regulate perchlorate--representing the first determination to regulate 
a contaminant under the 1996 amendments. Table 4 identifies the 
contaminants for which EPA has made regulatory determinations to date. 

Table 4: Drinking Water Contaminants with Final EPA Regulatory 
Determinations: 

Regulatory determination cycle: Cycle 1 (2003); 
Contaminants: Acanthamoeba, aldrin, dieldrin, hexachlorobutadiene, 
manganese, metribuzin, naphthalene, sodium, and sulfate. 

Regulatory determination cycle: Cycle 2 (2008); 
Contaminants: Boron; dacthal (DCPA) mono-acid degradate; dacthal 
(DCPA) di-acid degradate; DDE; 1,3-dichloropropene; 2,4-dinitrotoluene; 
2,6-dinitrotoluene; EPTC (s-ethyl-dipropythiocarbamate); fonofos; 
terbacil; and 1,1,2,2-tetrachloroethane. 

Regulatory determination cycle: Out of cycle[A] (2011); 
Contaminants: Perchlorate. 

Sources: 68 Fed. Reg. 42898 (July 18, 2003); 73 Fed. Reg. 44251 (July 
30, 2008); 76 Fed. Reg. 7762 (Feb. 11, 2011). 

[A] The 2011 regulatory determination on perchlorate represents the 
first time EPA has made an out-of-cycle determination, issuing it 
while EPA is working on the third cycle of regulatory determinations 
expected to be completed in 2013. 

[End of table] 

EPA's Health Advisories: 

EPA's Office of Water has issued health advisories for different 
durations of exposure for regulated and unregulated drinking water 
contaminants, including some for which EPA made regulatory 
determinations to not regulate.[Footnote 25] According to EPA 
documents, health advisories provide technical guidance on health 
effects, analytical methodologies, and treatment technologies to 
assist EPA regional offices, state governments, and public health 
officials in cases of emergency spills or contamination situations. 
EPA has issued new or updated health advisories for 9 of the 20 
contaminants it determined did not warrant regulation under the 1996 
amendments.[Footnote 26] These advisories establish concentrations of 
contaminants at which adverse health effects are not anticipated to 
occur over specific exposure durations (1 day, 10 days, several years, 
and a lifetime). Drinking water health advisories are not legally 
enforceable standards and, according to EPA, are subject to change as 
new information becomes available. A key difference between the 
utility of health advisories for regulated contaminants and health 
advisories for unregulated contaminants is that states, localities, 
and consumers may obtain testing data on the levels of regulated 
contaminants from their public water systems, but information on 
levels of unregulated contaminants may be outdated or unavailable from 
public water systems because these systems are not typically required 
to test for the presence of unregulated contaminants. 

EPA's Federal Advisory Committees for Drinking Water Issues: 

The Office of Water has two key EPA federal advisory committees that 
can assist it in implementing the numerous requirements of the Safe 
Drinking Water Act. First, EPA's Science Advisory Board's Drinking 
Water Committee, composed of non-EPA technical experts, provides 
independent advice and recommendations to EPA on the technical aspects 
of its drinking water program.[Footnote 27] For example, in 2009, the 
Drinking Water Committee issued a report on EPA's processes for 
developing its third contaminant candidate list.[Footnote 28] In 
addition, EPA's National Drinking Water Advisory Council, a federal 
advisory committee created in 1974 by the Safe Drinking Water Act, 
also provides independent advice and recommendations to EPA on various 
aspects of its drinking water program. The council is composed of 15 
members representing (1) state and local agencies concerned with safe 
drinking water, (2) water-related or other organizations and interest 
groups having an active interest in safe drinking water, and (3) the 
general public. In June 2000, the council provided EPA with 
recommended protocols for evaluating contaminants for regulatory 
determination, including a semiquantitative evaluation tool that 
highlighted the relative importance of various factors in making 
regulatory determinations.[Footnote 29] 

Systemic Limitations in EPA's Implementation of Requirements for 
Determining Whether to Regulate Additional Contaminants Have Impeded 
Progress in Helping Assure the Public of Safe Drinking Water: 

Since the enactment of the 1996 amendments to the Safe Drinking Water 
Act, EPA has made limited progress in prioritizing drinking water 
contaminants on the basis of greatest public health concern, and the 
lack of data on the public's exposure to potentially harmful drinking 
water contaminants and their health effects continues to limit EPA's 
ability to make regulatory determinations. In addition, during the 
nearly 15 years since the 1996 amendments were passed, EPA has not 
developed policies or guidance providing its interpretation of, or 
guiding personnel in how to implement, the broad statutory criteria 
for selecting contaminants and making regulatory determinations on 
them. Moreover, the credibility of some of EPA's regulatory 
determinations is reduced because of a lack of transparency, clarity, 
and consistency in the regulatory determination notices and primary 
support documents. 

EPA Has Neither Identified the Drinking Water Contaminants of Greatest 
Public Health Concern Nor Fully Used Its Authority to Obtain Data for 
Making Regulatory Determinations: 

The 1996 amendments require EPA to consider for regulatory 
determinations contaminants that present the greatest public health 
concern, but the agency has not effectively implemented this 
requirement. In addition, while EPA has made some progress in 
developing the occurrence and health effects data it needs, for many 
contaminants EPA lacks sufficient occurrence and health effects data 
to support regulatory determinations, which continues to limit its 
ability to make these decisions. Further, some management decisions 
and implementation delays have limited the extent and utility of the 
occurrence data EPA collected under its unregulated contaminants 
testing program. Moreover, as a result of the IRIS program's inability 
to provide timely health assessment data, EPA regulatory 
determinations have been delayed on some unregulated contaminants. 

EPA Has Not Effectively Implemented the Act's Requirement to 
Prioritize Its Regulatory Determinations by Selecting for 
Consideration Contaminants of Greatest Public Health Concern: 

In light of the potentially large number of contaminants in public 
drinking water and limited government resources to address them, the 
1996 amendments to the Safe Drinking Water Act directed EPA to 
consider for regulatory determination contaminants that present the 
greatest public health concern. As discussed earlier, the occurrence 
in drinking water and potential health effects of tens of thousands of 
chemicals that may be in use in the United States are largely unknown. 
Although the candidate list represents one level of prioritization by 
having EPA identify contaminants that warrant consideration for 
regulation from a larger universe, EPA officials told us that the 
Office of Water has not (1) further ranked or otherwise prioritized 
the contaminants on the list on the basis of public health concern or 
(2) prioritized contaminants on the basis of public health concern 
when selecting them for regulatory determinations. In fact, for 16 of 
the 20 regulatory determinations made through January 2011, including 
all 11 decisions for the second cycle of determinations completed in 
2008, EPA based its decisions not to regulate on the rationale of no 
or limited occurrence--that is, EPA assessed public exposure to these 
drinking water contaminants as minimal. An EPA official described 
these determinations as addressing the "low hanging fruit"--rather 
than the contaminants of greatest public health concern. In making 
regulatory determinations, EPA has selected contaminants from its 
candidate lists for which it decided that sufficient occurrence and 
health effects data were available.[Footnote 30] Consequently, data 
availability--not consideration of greatest public health concern--has 
been the primary driver of EPA's selection of contaminants for 
regulatory determinations. EPA officials told us that the agency has 
not needed to prioritize among contaminants because a lack of 
occurrence and health effects data, rather than agency resources, has 
limited the number of determinations. According to EPA officials and 
regulatory determination documents, most contaminants on the candidate 
lists have lacked sufficient occurrence data, health effects 
information, or both. 

Lack of Coordinated Occurrence and Health Effects Data Continues to 
Limit EPA's Ability to Make Regulatory Determinations: 

EPA has acknowledged the significant gaps in its data for contaminants 
on its candidate lists. After EPA completed 20 regulatory 
determinations from 1996 through 2008, 40 of the 60 contaminants on 
its 1998 and 2005 candidate lists remained unaddressed as a result of 
insufficient data.[Footnote 31] In 2009, EPA published its third and 
latest candidate list, which contains 116 contaminants[Footnote 32]-- 
including 18 from the previous lists.[Footnote 33] EPA's Federal 
Register notice on the third candidate list indicated that the agency 
lacked sufficient occurrence or health effects data, or both, for 
making regulatory determinations for at least 100 of these 
contaminants. Further, in many cases, gathering sufficient data to 
address contaminants awaiting determinations has taken EPA more than 
10 years, and obtaining data on other contaminants on the current list 
may well take decades. 

Moreover, 17 contaminants that have been on all three candidate lists 
lack the needed occurrence data and health effects information. One 
such contaminant is RDX--a powerful explosive used by the U.S. 
military in thousands of munitions and classified by EPA as a possible 
human carcinogen. Although RDX first appeared on a candidate list in 
1998, EPA still lacks the data it needs to make a regulatory 
determination.[Footnote 34] Specifically, EPA expects to have 
nationally representative occurrence data on RDX from the second 
testing cycle by the fall of 2011, in time for the third cycle of 
regulatory determinations that EPA expects to complete in 2013. 
However, it is not known at this time whether the minimum reporting 
level of the test methods EPA is using to collect occurrence data on 
RDX under its testing program will be sufficiently sensitive to 
identify exposure at the health reference level, because the IRIS 
assessment on which the health reference level will be based is in 
progress. Regarding the IRIS assessment, we have previously reported 
that EPA started an IRIS assessment of RDX in 2000, suspended it to 
await research, and then restarted it in 2007.[Footnote 35] 
Subsequently, EPA's Office of Research and Development placed the 
ongoing IRIS assessment of RDX and other contaminants on hold for 
about a year to enable the IRIS program to focus on completing what it 
defined as its priority assessments.[Footnote 36],[Footnote 37] In 
October 2010, an official from the Office of Research and Development 
told us that the IRIS program had just begun to work on the IRIS 
assessment again and estimated its completion in the third or fourth 
quarter of 2012. Under EPA's IRIS assessment process, this 
approximately 2-year time frame reflects EPA's estimate for completion 
of a standard, noncontroversial assessment.[Footnote 38] However, RDX 
is among the contaminants EPA considers to have a greater level of 
controversy or visibility. As we reported in 2008, several IRIS 
assessments of contaminants of key concern to other federal agencies-- 
stemming from potential impacts on agencies' operations and associated 
environmental cleanup costs--involved extensive interagency reviews 
and ultimately long delays.[Footnote 39] Because RDX is such a 
contaminant of concern, the IRIS assessment may similarly be subject 
to extended reviews and delays.[Footnote 40] Moreover, the potential 
for the continuation of previous IRIS assessment delays for this 
contaminant raises concerns. Thus, the outlook for a regulatory 
determination on RDX in 2013 is uncertain. 

Other contaminants that have been on all three candidate lists that 
lack the needed occurrence and health effects data include terbufos, a 
pesticide that is highly toxic; and methyl tertiary-butyl ether 
(MTBE), a gasoline additive whose potential health effects EPA is 
currently assessing under its IRIS program. EPA has a risk assessment 
for terbufos but does not yet have nationally representative 
occurrence data on it.[Footnote 41] The agency has nationally 
representative occurrence data for MTBE but lacks an IRIS assessment. 
We note that addressing data gaps for regulatory determinations 
generally requires coordinated and timely efforts between the agency's 
testing program and its IRIS program. However, while data on exposure 
and health effects from similar time frames are generally needed to 
develop credible determinations and drinking water regulations, the 
current process is not producing such data, largely because EPA is 
collecting nationally representative occurrence data on some 
contaminants to identify exposure at levels of public health concern 
but is not at the same time actively pursuing IRIS assessments or 
other credible sources for health effects information. For example, in 
the case of RDX, while the Office of Water is obtaining testing data 
on this contaminant, we found that the Office of Water did not list 
RDX among the contaminants for which it needed an IRIS assessment in 
responding to the Office of Research and Development's 2010 survey of 
program offices on IRIS assessments needs for the next few years. 

Some Management Decisions and Implementation Delays Have Limited the 
Extent and Utility of the Occurrence Data EPA Collected under Its 
Unregulated Contaminants Testing Program: 

Although occurrence data on unregulated contaminants are critical for 
informed regulatory determinations and may also help EPA identify 
contaminants of greatest public health concern, EPA has not fully used 
its authority to gather these important data. To obtain information on 
how frequently and in what locations unregulated contaminants occur in 
public water systems for EPA's assessments of public exposure to such 
contaminants, the agency requires a subset of public water systems to 
test for the presence of selected contaminants either two or four 
times during a consecutive 12-month period during a testing cycle. 
[Footnote 42] While the 1996 amendments authorized EPA to require 
certain public water systems to conduct such testing for the presence 
of up to 30 unregulated contaminants every 5 years, EPA's 
implementation of this authority has limited the agency's progress in 
obtaining this important information. Specifically, by the fall of 
2011, EPA expects to have occurrence data for 51 contaminants the 
agency included in its first two testing cycles; however, according to 
the testing provisions in the 1996 amendments, EPA could have (1) 
obtained occurrence data for up to 60 unregulated contaminants and (2) 
begun the process of obtaining such data for up to 30 more.[Footnote 
43] The difference between the occurrence data that EPA could be 
obtaining under its authority to support its regulatory determinations 
and the data it currently has or is in the process of obtaining 
largely stems from the agency not fully using its testing authority, 
not adhering to the testing program schedule, and requiring testing 
for some contaminants that are not on its candidate list. 

First, despite having the authority to require testing for up to 30 
drinking water contaminants in each 5-year cycle, in implementing the 
first two cycles of the testing program, EPA required that only 51 
contaminants be tested--thereby not availing itself of its authority 
to obtain occurrence data for 9 additional contaminants. EPA officials 
who manage the testing program said that EPA chose to limit the number 
of contaminants tested in the first two testing cycles so that, if 
additional emerging contaminants of concern were identified, the 
agency would be able to incorporate them into its testing schedule 
without exceeding the statutory limit of 30 per 5-year cycle. However, 
these officials also said they have now concluded that this approach 
was not practical or necessary, given the logistical and operational 
challenges the agency and water utilities would face in testing for 
additional contaminants and because the 1996 amendments provided other 
authority to test for other emerging contaminants, if needed. In 
August 2010, these officials told us they were likely to recommend 
that the agency use its full testing authority in the next testing 
cycle, and EPA did so--proposing to require testing for 30 unregulated 
contaminants in its March 3, 2011, proposed rule for the third testing 
cycle. 

Second, delays in implementing the testing program have reduced its 
productivity in obtaining occurrence data on contaminants on the 
candidate list. If EPA had met the statutory time frames for the 
testing program,[Footnote 44] it would likely have completed two 
testing cycles and begun the third cycle in 2009 by identifying up to 
30 contaminants for which it would require testing to be conducted. 
Based on the first two rules, the testing would likely have started in 
January 2011. However, as of March 2011, EPA had obtained testing data 
on 26 contaminants from the first testing cycle and was still 
collecting final testing data for the 25 contaminants from the second 
cycle.[Footnote 45] While the reasons for the delays in the testing 
program are outside the scope of this report, EPA officials who manage 
the testing program told us that the delays stemmed from implementing 
the 1996 amendments' new and technically challenging requirements for 
testing unregulated contaminants, including developing testing methods 
for selected contaminants, developing quality assurance and quality 
control standards for the tests, and certifying laboratories to 
conduct the tests. They indicated, however, that they should be in a 
position now to manage the program more efficiently, beginning with 
the planned publication in 2012 of the final list of contaminants to 
be tested in the third cycle and adhering to 5-year cycles in the 
future. 

Third, EPA has required a sample of public water systems to test for 
some contaminants that are not on its candidate lists, which has 
further limited the capacity of the testing program to support EPA's 
regulatory determinations. According to EPA, the purpose of the 
testing program is to provide the data necessary to determine if a 
contaminant occurs with a frequency and at levels of public health 
concern to warrant regulatory determination; the testing program also 
informs the development of candidate lists, EPA's primary mechanism 
for identification of contaminants that may require regulation. 
[Footnote 46] In the second testing cycle, 9 of the 25 contaminants 
selected for testing did not appear on the candidate list. As a 
result, EPA has required a subset of public water systems to test for 
9 contaminants not on the list that represents the primary source from 
which EPA selects contaminants for regulatory determinations.[Footnote 
47] To the extent that EPA has tested for contaminants not on its 
candidate lists, the agency has reduced the capacity of its testing 
program to address the occurrence data gaps that EPA officials said 
have precluded the agency from making regulatory determinations for 
contaminants on the candidate lists. 

EPA Used a Limited Testing Approach for More Than Half of the 
Contaminants Tested: 

In addition to decisions and program delays that have limited the 
total number of contaminants tested, EPA's decisions on the type of 
sampling approach to use have limited the utility of some of the 
testing program data obtained. Regarding sampling, EPA has used two 
approaches--"assessment monitoring" and "screening survey." EPA 
officials described assessment monitoring as "the gold standard" for 
obtaining sufficient data on national occurrence of drinking water 
contaminants to support regulatory determinations. This approach can 
provide nationally representative occurrence data with low levels of 
uncertainty.[Footnote 48] Nonetheless, under the first two testing 
cycles, EPA required assessment monitoring testing--conducted at 
approximately 4,000 public water systems--for less than half (22) of 
the 51 contaminants in the unregulated contaminants testing program. 
[Footnote 49] EPA has used the more limited "screening survey" for a 
majority of the contaminants tested to date--29--under the unregulated 
contaminants testing program.[Footnote 50] The screening survey--which 
required testing at 300 and 1,200 public water systems for the first 
and second cycles, respectively--results in greater uncertainty 
because it tests a smaller sample of public water systems. In fact, 
the Office of Water did not make regulatory determinations for 12 
contaminants tested under the screening survey in the first cycle of 
testing. In EPA's 2008 regulatory determination notice, the agency 
classified these 12 contaminants as having insufficient occurrence 
data for making regulatory determinations. Thus, nearly half of the 
contaminants in the first testing cycle were nonetheless found to have 
insufficient occurrence data for making regulatory determinations. EPA 
stated in a Federal Register notice that it increased the sample size 
of the screening survey in the second testing cycle so that "the data 
can be used to support regulatory determinations and rule development, 
if warranted."[Footnote 51] For example, EPA testing program 
documentation states that if a contaminant is found with some 
significance during the screening survey, EPA may be able to forgo 
assessment monitoring and make a regulatory determination based on 
these data to protect public health more quickly. We note, however, 
that this screening survey will provide estimates with greater 
uncertainty than those provided by assessment monitoring. Despite 
EPA's intent that screening survey data indicating significant 
occurrence of a contaminant may be sufficient to support a regulatory 
determination, whether EPA finds such data to be sufficient will not 
be known until EPA announces whether it will proceed with 
determinations for the contaminants on the second testing cycle 
screening survey list--or why it will not proceed. This is an 
important point as three times as many contaminants on the current 
candidate list (12) will have second testing cycle screening survey 
data as will have the more robust assessment monitoring data (4) for 
EPA to consider as it develops the third cycle of regulatory 
determinations, expected to be finalized in 2013. 

According to an EPA testing program document, assessment monitoring 
was selected for contaminants that could be tested for using 
analytical methods that "utilize widely available technologies," with 
decisions on which testing approach to use for each contaminant based 
primarily on the availability of the analytical methods used and the 
associated issue of laboratory capacity. The document also states that 
the screening survey "primarily targets contaminants with analytical 
methods that generally utilize more sophisticated technology that may 
not be widely established in drinking water laboratories."[Footnote 
52] However, in August 2010, EPA officials who manage the testing 
program said the number of laboratories with the capacity to conduct 
the more sophisticated testing technologies has grown, in part because 
recent concerns about low levels of pharmaceuticals found in drinking 
water increased demand for these more advanced technologies. In August 
2010, the officials told us they now anticipate that most, if not all, 
of the testing under the next cycle will be conducted using assessment 
monitoring. EPA's March 2011 proposed rule for the third testing cycle 
proposes assessment monitoring testing for 28 of the 30 contaminants. 
[Footnote 53] 

EPA's Testing Methods Were Not Sufficiently Sensitive in Some Cases to 
Identify the Presence of Contaminants at EPA's Health Reference Level: 

In some cases, the benefit of the occurrence data collected under the 
testing program was reduced because EPA required public water systems 
to use testing (analytic) methods that were not sufficiently sensitive 
to identify the presence of contaminants at EPA's health reference 
level--the health benchmark that EPA uses in assessing whether to 
regulate specific contaminants. For 9 of the 20 contaminants for which 
EPA made regulatory determinations in 2003 and 2008, the minimum 
reporting level--the lowest level of a contaminant at which detections 
can be reported under testing protocols--exceeded EPA's health 
reference level.[Footnote 54] As a result, occurrence of these 9 
contaminants at a level higher than the health reference level but 
lower than the minimum reporting level may not have been detected. 
[Footnote 55] For four of the nine contaminants, EPA obtained 
occurrence data in the first cycle of its testing program.[Footnote 
56] According to EPA officials, the minimum reporting levels were 
developed for these contaminants before the health reference levels 
were developed. These officials told us that the agency used its best 
professional judgment and the information available at the time in 
developing the minimum reporting levels that, in retrospect, were 
higher than the health reference levels.[Footnote 57] According to a 
2010 USGS report that presents information from that agency's National 
Water-Quality Assessment Program--a long-term effort to assess the 
status and trends of national water quality conditions[Footnote 58]-- 
the reporting level for contaminant occurrence data should be below 
the human health benchmark, which is analogous to EPA's health 
reference level,[Footnote 59] to ensure that the tests are adequate to 
detect concentrations relevant to human health. Further, USGS has 
reported that when the reporting level exceeds the health benchmark, a 
contaminant may be present at a concentration greater than the health 
benchmark but remain undetected, resulting in greater uncertainty in 
evaluating the contaminant concentration in the context of public 
health. We note that EPA's testing program obtains data using minimum 
reporting levels that are often higher than those used by USGS in its 
National Water-Quality Assessment Program--ranging from 2 to more than 
600 times higher.[Footnote 60] In addition to the potential for 
underestimating occurrence at the health reference level, using high 
minimum reporting levels also prevents EPA from obtaining information 
on lower levels of contamination--such as at one-half the health 
reference level, as recommended by EPA's National Drinking Water 
Advisory Council, or the 1/10th health reference level used by USGS. 
According to the USGS report, these lower levels can provide "early 
and conservative indications of contaminant concentrations that may at 
some time approach or exceed benchmarks." While EPA may have different 
factors to consider in selecting methods for use in its testing 
program than USGS, the USGS report shows that more sensitive methods 
for testing unregulated contaminants have been available. 

The IRIS Program's Inability to Provide Timely Health Assessment Data 
Has Delayed Some Regulatory Determinations: 

The other key gap in data that are critical for informed regulatory 
determinations is a lack of health assessment data on drinking water 
contaminants. This gap has been largely caused by long-standing 
productivity problems in EPA's IRIS program, which is managed by the 
Office of Research and Development. EPA established the IRIS program 
in 1985 to develop EPA consensus opinions about the health effects 
that may result from chronic exposure to various substances found in 
the environment, thereby helping EPA program offices reduce 
inconsistency in toxicity assessments and, therefore, risk 
assessments. The IRIS database contains toxicity assessments providing 
health effects data for more than 540 chemicals. The Office of Water 
typically uses these assessments, along with exposure assessments, to 
characterize the public health risks of exposure to a chemical or 
contaminant in drinking water.[Footnote 61] IRIS assessments are a 
cornerstone of scientifically sound EPA decisions, policies, and 
regulations under a variety of statutes and programs, such as the Safe 
Drinking Water Act, the Clean Air Act, and the Superfund program. 
[Footnote 62] We reported in March 2008 that EPA has not been able to 
keep its existing chemical toxicity assessments current or to complete 
assessments of the most important chemicals of concern.[Footnote 63] 
We subsequently added transforming EPA's processes for assessing and 
controlling toxic chemicals as a high-risk area in our January 2009 
report on governmentwide high-risk areas requiring increased attention 
by executive agencies and Congress, and we published our biennial 
update report on the high-risk areas in February 2011.[Footnote 64] In 
2009, EPA issued a revised IRIS assessment process in response to our 
recommendations.[Footnote 65] 

The inability of EPA's Office of Research and Development to provide 
the Office of Water with new and updated assessments in a timely 
manner has impeded effective implementation of EPA's regulatory 
determinations. From 1998 through 2008, the Office of Water lacked 
current IRIS assessments or other sufficient health information for 24 
chemical contaminants on its candidate lists, and the Office of 
Research and Development completed assessments for only 2 of the 
24.[Footnote 66],[Footnote 67] Moreover, the Office of Water's needs 
for health effects information for contaminants on the current 
candidate list, which contains about twice as many contaminants as the 
prior lists, have roughly doubled. Specifically, when publishing the 
third candidate list in 2009, EPA identified health effects 
information gaps for 44 of the 104 chemicals on the list. Further, 
this number may be understated because it excludes 24 contaminants for 
which EPA does not have an IRIS assessment or for which an IRIS 
assessment is either in progress or has not yet begun. It is not clear 
why EPA has not also categorized these contaminants as having health 
effects information gaps, given the challenges that the IRIS program 
continues to face in timely completion of assessments and the related 
uncertainty as to when these ongoing and planned assessments may be 
completed. Further, most of the 44 contaminants with health effects 
information gaps that EPA did identify (1) are not on the IRIS agenda 
(i.e., assessments are neither under way nor planned) and (2) have not 
been identified by the Office of Water as priorities for IRIS 
assessments. For about half of the 44 contaminants with health effects 
information gaps, EPA has indicated that assessments containing 
sufficient toxicity information to initiate an IRIS toxicity 
assessment may be available from other government entities, such as 
the World Health Organization, ATSDR, and the California Environmental 
Protection Agency.[Footnote 68] 

While problems with the IRIS program are beyond the purview of the 
Office of Water, to some extent the Office of Water's failure to 
develop and communicate its assessment priorities to the Office of 
Research and Development during this period may have contributed to 
the Office of Water's inability to obtain sufficient health effects 
information. Specifically, the Office of Research and Development 
periodically requested that program offices identify their IRIS 
priorities and needs throughout the 2000s, and as we reported in 2008, 
some EPA program offices responded and specifically requested that 
IRIS program management focus its resources on expediting the 
completion of specific ongoing IRIS assessments important to their 
missions.[Footnote 69] However, our review of program offices' 
responses to the Office of Research and Development's periodic 
requests for priorities showed that the Office of Water did not 
respond to the requests. Further, while Office of Water officials told 
us that they met with Office of Research and Development staff to 
request status updates of key IRIS contaminants "on a number of 
occasions," the officials confirmed they did not take the initiative 
to communicate the office's IRIS assessment needs in writing. We note, 
however, that the Office of Water did respond to the IRIS program's 
request for input on IRIS assessment priorities in 2010. Also, in 
November 2010, EPA Office of Water officials said that the office is 
developing health assessments for some contaminants internally in lieu 
of depending solely on the IRIS program, a situation that highlights 
the need for EPA to effectively implement its revised IRIS assessment 
process. That is, when EPA lacks an effective IRIS process, individual 
EPA program offices may respond by developing health risk assessments 
of contaminants, using varying assessment methods and potentially 
producing different risk estimates--a problem EPA hoped to mitigate by 
creating the IRIS program. 

EPA Lacks Policies or Guidance on Applying the Broad Statutory 
Criteria for Selecting Contaminants for Regulatory Determinations and 
Making the Determinations: 

Although the Safe Drinking Water Act requires EPA to select 
contaminants for regulatory determinations that present the greatest 
public health concern, EPA has not developed policies or guidance 
defining the characteristics that would constitute a contaminant of 
greatest public health concern or established a process for 
identifying such contaminants. Moreover, the Office of Water has not 
developed guidance on when and how to conduct additional analyses 
focused on the effects of drinking water contaminants on children and 
other sensitive subpopulations. While the statutory criteria from the 
1996 amendments that EPA is to apply in making regulatory 
determinations are generally broad and open to interpretation, EPA has 
not developed policies or guidance for applying them. Finally, EPA has 
not developed guidance on, or a process for, reconsidering final 
regulatory determinations to not regulate. 

EPA Has Not Defined Characteristics of Contaminants of Greatest Public 
Health Concern for the Purpose of Selecting Them for Regulatory 
Determinations: 

EPA has not defined the characteristics of contaminants of greatest 
public health concern or developed a process for prioritizing the 
contaminants on its candidate list for regulatory determination on 
this basis. As a result, EPA lacks criteria and a process for 
identifying those contaminants on its candidate list that pose the 
greatest public health concern. Contaminants of greatest public health 
concern could be defined on the basis of various characteristics. For 
example, a contaminant that poses a significant health hazard, such as 
cancer or a serious adverse neurological effect, could be considered a 
contaminant of greatest health concern. Along these lines, a 1993 EPA 
report to Congress on the drinking water program discussed criteria 
the agency could use in selecting additional contaminants for 
regulation, including that "contaminants posing acute risks or very 
potent chronic health risks would be more likely to be regulated even 
if occurrence tended to be low."[Footnote 70] In addition, the 
occurrence or likely occurrence of a contaminant in many public 
drinking water systems or in source water could also characterize a 
contaminant of greatest public health concern. For example, an 
extensive USGS report[Footnote 71] on the quality of source water from 
public-supply wells based on tests of water samples for 215 regulated 
and unregulated contaminants conducted from 1993 through 2007 
identified 10 contaminants that occurred most frequently above USGS 
health benchmarks[Footnote 72]--5 of the 10 were unregulated 
contaminants.[Footnote 73] These USGS data are limited to the source 
water for public water systems served by groundwater, but they 
nonetheless represent the type of data available for EPA to consider 
in identifying contaminants on its candidate lists as those of 
greatest public health concern.[Footnote 74] 

Moreover, EPA's Science Advisory Board has recommended that EPA 
prioritize among the contaminants on the candidate list. Specifically, 
in a 2009 report on the agency's draft third candidate list, EPA's 
Science Advisory Board said that the draft list of 104 contaminants 
was too large to effectively prioritize for the purpose of making 
regulatory determinations. The Science Advisory Board recommended that 
EPA prioritize the contaminants on the list to help the agency meet 
its goal of selecting contaminants that "have the greatest opportunity 
to improve the safety of drinking water and protect public health." In 
its 2009 Federal Register notice publishing the final candidate list, 
EPA stated that it would continue to work to prioritize the 116 
contaminants on the third candidate list, both for regulatory 
determination and for additional research and data collection. As 
noted earlier, it is important that such efforts relating to IRIS 
assessments and the unregulated contaminants testing program be 
effectively coordinated--that is, focused on priority contaminants of 
greatest public health concern. 

The Office of Water Has Not Developed Guidance on Considering Adverse 
Health Effects of Drinking Water Contaminants on Children and Other 
Sensitive Subpopulations to Identify Contaminants of Greatest Concern 
or in Making Determinations: 

In selecting contaminants that present the greatest public health 
concern, under the Safe Drinking Water Act, EPA is to consider the 
effect of these contaminants on subpopulations at greater risk of 
adverse health effects, such as children. Further, Office of Water 
officials stated they are required to consider effects on sensitive 
subpopulations in making regulatory determinations. Such 
subpopulations, which may be at greater risk for adverse health 
effects from exposure to drinking water contaminants, may include 
infants, children, those with kidney or liver diseases or weakened 
immune systems, and the elderly. In fact, some of these 
subpopulations, such as children and individuals with liver or kidney 
disease, are identified as sensitive subpopulations for many of the 
contaminants EPA determined did not warrant regulation. For example, 
according to EPA documents, because children consume more water per 
unit of body weight than adults, they may be more highly exposed to 
toxic substances in drinking water and therefore at greater risk of 
adverse health effects than adults. In addition, children may have 
increased susceptibility following exposure to drinking water 
contaminants because they continue to develop both behaviorally and 
physiologically throughout childhood. 

In 1995, EPA published its Policy on Evaluating Health Risks to 
Children, which states that the agency will "consider the risks to 
infants and children consistently and explicitly as a part of risk 
assessments generated during its decision making process," and to "the 
degree permitted by available data in each case, the Agency will 
develop a separate assessment of risks to infants and children or 
state clearly why this is not done."[Footnote 75] In 2006, EPA 
developed a general guidance document for all EPA program offices on 
implementing its 1995 children's health policy,[Footnote 76] as well 
as several technical guidance documents (in 2005, 2006, and 2008) that 
could help the Office of Water develop its own guidance specific to 
assessing the sensitivity of children to drinking water contaminants. 
[Footnote 77] For example, EPA's 2005 guidance on assessing childhood 
exposures to environmental contaminants in general recommends that 
chronic risks be assessed by summing time-weighted exposures that 
occur at each life stage and states that adjustments for variations in 
toxicity may also need to be made for different age groups.[Footnote 
78],[Footnote 79] Finally, EPA has stated that in making a regulatory 
determination, "the [act] requires EPA to take into consideration the 
effect contaminants have on subgroups that comprise a meaningful 
portion of the general population (such as infants, children, pregnant 
women, the elderly, individuals with a history of serious illness or 
other subpopulations) that are identifiable as being at greater risk 
of adverse health effects than the general population." 

Notwithstanding the requirements of the Safe Drinking Water Act and 
EPA's 1995 children's health policy, in developing the 2008 regulatory 
determinations, the Office of Water did not implement a specific 
approach to considering children's health. In addition, the Office of 
Water has not developed guidance for when and how to analyze the 
effects of drinking water contaminants on children--or other sensitive 
subpopulations--for the purposes of identifying the drinking water 
contaminants of greatest concern on which to make regulatory 
determinations and to ensure it consistently and explicitly considers 
risks to children in making these determinations. While EPA identified 
children as a sensitive population in 11 of the 20 regulatory 
determinations it completed in 2003 and 2008, Office of Water 
officials confirmed that for these 20 determinations, EPA did not 
develop separate health reference levels for children or make 
adjustments to its health assessments. Office of Water officials said, 
however, that they believe their evaluation of the health risks of 
contaminants takes into account sensitive subpopulations, including 
children, as required by the Safe Drinking Water Act. For example, the 
officials said that if they had determined children were "particularly 
sensitive" to the adverse health effects of contaminants being 
considered for regulatory determinations, they could have developed a 
separate assessment of risks for that population, using weight and 
drinking water intake for children, rather than the agency's standard 
approach using an adult's weight and water intake.[Footnote 80] Office 
of Water officials said that, alternatively, they could have adjusted 
the reference dose to account for increased sensitivity. As discussed 
later, EPA's regulatory determination documentation does not explain 
how or whether the agency determined that a separate assessment for 
children or an adjustment to the health reference level was not 
warranted. In light of the children's risk issues discussed earlier--
their consumption of more water per unit of body weight and other 
susceptibilities that may occur during childhood--EPA's approach to 
considering sensitive subpopulations in regulatory determinations may 
not fully account for the risks to children of exposure to drinking 
water contaminants and does not align with current agency guidance. 

EPA Has Not Developed Policies or Guidance for Applying the Broad 
Statutory Criteria for Making Regulatory Determinations: 

The 1996 amendments also provide three broad criteria for EPA to use 
in making regulatory determinations, all of which must be met for EPA 
to determine that regulation is warranted. Notably, two of the 
criteria are so broadly stated that they could potentially be 
interpreted so as to lead to regulating all of the contaminants on 
candidate lists, some of them, or none of them. Specifically, the 
second statutory criterion--that a contaminant is "known to occur or 
there is a substantial likelihood that the contaminant will occur in 
public water systems with a frequency and at levels of public health 
concern"--is susceptible to varying interpretations. For example, 
different people may reasonably have differing views on the frequency 
and levels of occurrence that represent a public health concern. The 
third criterion--that regulation of the contaminant presents "in the 
sole judgment of the Administrator ... a meaningful opportunity for 
health risk reduction"--is expressly discretionary, and similarly open 
to differing interpretations. Importantly, the Office of Water has not 
developed policies or guidance to help EPA staff apply these broad 
criteria. Guidance that might help EPA staff apply the criteria 
transparently and consistently could, among other things, (1) define 
or set thresholds or parameters for assessing whether a contaminant 
occurs, or is substantially likely to occur, in public water systems 
with a frequency and at levels of public health concern and (2) 
provide factors or characteristics of situations that would present 
meaningful opportunities for health risk reduction. We note that such 
guidance could also serve as the basis for an internal review 
mechanism to help EPA ensure consistent implementation of the 
statutory criteria. Office of Water officials could not describe 
examples of what would meet the three criteria beyond stating that 
"there are no bright lines" and that they would "know it when we see 
it." Without clarifying guidance, EPA's regulatory determinations lack 
transparency, and EPA is at risk of making inconsistent 
determinations, undermining the program's credibility and the agency's 
ability to assure the public of safe drinking water. 

We note that, in 2000, EPA's National Drinking Water Advisory Council 
provided EPA with a suggested approach for making regulatory 
determinations, including a tool to transparently and 
semiquantitatively evaluate relevant data on known or likely 
occurrences of contaminants in drinking water. Under this approach, 
data on both known occurrences and the substantial likelihood of 
occurrence would be identified and weighted on the basis of such 
factors as number of detections in excess of the health reference 
level as well as in excess of one-half the health reference level, 
geographic distribution of occurrence, trends in the production and 
use of the chemicals, and direct releases into surface waters. 
[Footnote 81] While EPA has generally provided the types of occurrence 
data identified by the council in its regulatory determination 
documents, it has not adopted a quantitative or other systematic 
method that would transparently identify how and to what extent these 
data are used to support the agency's determinations. 

While the Office of Water has not established regulations or guidance 
for applying the broad statutory criteria, EPA appears to apply an 
informal policy that contaminants warranting regulation should occur 
in public water systems on a "national" scale. That is, as illustrated 
in the following examples, EPA officials and regulatory determination 
documents indicate that occurrence is, at least to some extent, 
evaluated from a national perspective. 

* Some EPA officials serving on regulatory determination workgroups 
told us that a contaminant must occur "nationally" to warrant a 
determination to regulate. 

* Documents supporting EPA's first cycle of regulatory determinations 
state that the consideration of geographic distribution "is important 
because the agency is charged with developing national regulations, 
and it may not be appropriate to develop [national primary drinking 
water regulations] for regional or local contamination problems." 

* In response to public comments about certain preliminary regulatory 
determinations, EPA stated that contaminants "were evaluated in terms 
of national significance" and that EPA considers "both the extent of 
national occurrence and the severity of health effects" when deciding 
if a regulation would provide a meaningful opportunity for health risk 
reduction. 

* In addressing public comments from a state that had requested EPA 
reconsider its preliminary determination to not regulate two 
contaminants (2,4-dinitrotoluene and 2,6-dinitrotoluene), EPA stated 
that these chemicals did not occur "nationally in public drinking 
water systems at health levels of concern" and that if a contaminant 
appears to be "highly localized," it does not meet the statutory 
criterion. 

In the cases of 2,4-dinitrotoluene and 2,6-dinitrotoluene, the state 
requesting reconsideration of the preliminary determination reported 
to EPA that it had found high levels of 2,4-dinitrotoluene in 
groundwater (in one case, 200,000 times greater than EPA's health 
reference level) in numerous locations in their state, including 
around ammunition and military sites.[Footnote 82] EPA's Federal 
Register notice does not disclose that the state detections reported 
to the agency, as well as the one detection of 2,4-dinitrotoluene 
identified by EPA's unregulated contaminants testing program, involved 
levels of the contaminant significantly in excess of EPA's health 
reference level.[Footnote 83] In issuing its final regulatory 
determination, EPA declined to change its decision and referred the 
state to its revised drinking water health advisory, issued in 
conjunction with the determination. EPA's health advisory for these 
contaminants presented some data on contamination at military sites in 
two states, stating that these data demonstrate the risk for 
contamination of groundwater at military bases where dinitrotoluene 
munitions have been used or stored. Guidance addressing such issues as 
what circumstances would meet an occurrence characterization of 
"highly localized" could help EPA reach consistent judgments over time 
in cases such as these. Further, while EPA's regulatory determination 
notice acknowledges that the agency was aware that these contaminants 
may be found at some military sites, the notice and support documents 
do not discuss how and whether this information was used to assess 
occurrence and gauge the likelihood of occurrence, which might include 
considering how many military and industrial sites may potentially be 
contaminated with 2,4-and 2,6-dinitrotoluene.[Footnote 84] We note 
that EPA's occurrence testing methodology is not designed to identify 
localized but high contaminant occurrences in public water systems 
that stem from specific land uses that may be associated with likely 
contamination--such as military and industrial activities--or 
associated with Superfund sites with known contamination and releases 
of these contaminants reported to EPA under its Toxics Release 
Inventory. 

Notably, the Safe Drinking Water Act does not require that 
contaminants be found in public water systems on a national basis for 
an Administrator to find a meaningful opportunity for health risk 
reduction. In fact, other parts of the statute provide for relief from 
monitoring and flexibilities for instances in which a contaminant 
occurs in certain areas but not in others. Moreover, there is nothing 
in the act's committee reports suggesting that a contaminant need 
occur nationally to support a decision to regulate. Without EPA 
guidance providing a definition or parameters, an informal "national 
occurrence" standard is open to shifting interpretations, potentially 
affecting the consistency and credibility of EPA's decision making. 
Importantly, to the extent EPA is informally applying an unspecified 
national occurrence requirement for contaminants to be evaluated as 
occurring "with a frequency and at levels of public health concern," 
EPA is implementing a critical policy and interpretation of the Safe 
Drinking Water Act that has neither been defined nor subjected to 
public review. 

Further, aside from stating in its regulatory determination notices 
that applying the third statutory criterion involves evaluating a 
contaminant's potential health effects and the related occurrence and 
exposure estimates at the "health level of concern," EPA has not 
articulated guidelines or thresholds for how it is to assess whether 
regulating a specific contaminant would provide a meaningful 
opportunity for health risk reduction. The absence of guidelines on 
what scenario or scenarios might illustrate "a meaningful opportunity 
for health risk reduction" increases the potential for inconsistent 
decision making and reduces the decisions' transparency. 

EPA Has Not Developed Policies or Guidance on When the Agency Would 
Reconsider a Regulatory Determination to Not Regulate and What Process 
EPA Would Use to Do So: 

Office of Water officials told us that EPA could subsequently 
reconsider a determination to not regulate a contaminant on the basis 
of new scientific data. Office of Water officials said, for example, 
that a new IRIS health assessment on a contaminant could lead to a re- 
evaluation of a prior regulatory determination to not regulate that 
contaminant. EPA has not, however, developed any guidance on the 
circumstances that would trigger such a re-evaluation or on the 
process the agency would use in conducting a re-evaluation. In fact, 
in at least one instance--1,1,2,2-tetrachloroethane--new or revised 
scientific data became available after EPA's determination to not 
regulate, but the agency has not announced whether it will reconsider 
the determination. Specifically, subsequent to its negative regulatory 
determination in 2008, EPA's IRIS program finalized an updated health 
assessment in 2010, reclassifying this contaminant from a "possible" 
to a "likely" human carcinogen and decreasing the concentration in 
drinking water equivalent to a one-in-a-million increased risk of 
getting cancer. The new assessment would have produced a more 
stringent health reference level than the one EPA used in assessing 
the health risks of exposure to 1,1,2,2-tetrachloroethane for the 
regulatory determination. In addition, this contaminant is a VOC 
related through either production of, or degradation to, several other 
VOCs--namely, trichloroethylene (TCE), tetrachloroethylene (PCE), and 
vinyl chloride--that are (1) also associated with cancer, (2) 
currently regulated by EPA, and (3) among those contaminants EPA 
announced in February 2011 would be included in a planned new drinking 
water regulation of a group of VOCs. As there is no policy or 
guidance, it is not clear whether EPA will re-evaluate 1,1,2,2-
tetrachloroethane as a result of the updated IRIS assessment or the 
planned action on carcinogenic VOCs in drinking water. EPA cannot 
ensure consistency in its re-evaluations of completed regulatory 
determinations in the absence of guidance on the circumstances under 
which, and the process the agency will use, to reconsider 
determinations. For example, potential process choices may include 
reconsidering such contaminants as a part of the agency's current 
regulatory determination cycle, adding the contaminants to the 
existing or next candidate list, or in the case of a planned 
regulation for a group of chemicals, adding the contaminant to that 
regulatory action. 

The Credibility of Some of EPA's Regulatory Determinations As 
Presented in Federal Register Notices and Support Documents Is Limited 
by a Lack of Transparency, Clarity, and Consistency: 

The Safe Drinking Water Act requires EPA to ensure that, in its 
regulatory determinations, among other things, the presentation of 
information on public health effects is comprehensive, informative, 
and understandable. In addition, to the extent that EPA's regulatory 
determination notices and key support documents are transparent, 
clear, and consistent regarding the occurrence and health effects data 
the agency relied on, the credibility of the determinations is 
enhanced. However, for the regulatory determinations that EPA has made 
to date, some of the notices and support documents lack these key 
qualities. 

EPA's Presentation of Health Effects Information on Some Contaminants 
Lacked Clarity, Consistency, and Transparency: 

EPA discussed the health risks to infants of exposure to manganese in 
drinking water in an inconsistent and, at times, incomplete manner in 
its regulatory determination documents. For example, EPA's 2003 
regulatory determination support document for manganese states 
unequivocally that there are "no data to indicate children are more 
sensitive to manganese than adults." However, EPA's 2003 health 
effects support document for manganese discusses studies that identify 
an association between exposure to manganese in drinking water and 
learning disabilities in children and concludes that additional 
studies are needed to investigate the possibility that children are 
more sensitive than adults. In addition, while EPA's regulatory 
determination support document for manganese notes that infants and 
newborns may be potentially susceptible to manganese toxicity, this 
key document does not disclose that newborns may be exposed to high 
levels of manganese from infant formula or that these high levels of 
manganese in formula can be magnified when it is reconstituted with 
manganese-contaminated water. In contrast, the health advisory EPA 
issued in conjunction with the regulatory determination notice on 
manganese identifies "concerns for differences in manganese content in 
human milk and formula and the possibility of higher absorption and 
lower excretion in young infants." At a minimum, EPA's varying 
statements on the health risk that exposure to manganese in drinking 
water may pose to infants and children do not comport with the act's 
requirement to present information on health effects in a 
comprehensive, informative, and understandable manner. 

In addition, EPA's presentation of the health risks of exposure to 
boron in the documents supporting its 2008 regulatory determination is 
also inconsistent and lacking in clarity. For example, in its 
regulatory support document, the Office of Water identified the 
primary adverse effects identified from studies of animals after 
chronic exposure to low doses of boron as generally involving the 
testes and the developing fetus. In this document, EPA stated that 
animal studies identify the developing fetus as potentially sensitive 
to boron and concluded that boron concentrations greater than the 
health reference level "might" have an effect on prenatal development. 
[Footnote 85] In contrast, the Office of Water's May 2008 Drinking 
Water Health Advisory for Boron--developed in conjunction with the 
regulatory determination and published just 2 months before the 
regulatory determination was published--states that there are 
"compelling lines of evidence to suggest that the testicular 
morphological effects" reported in studies of animals are applicable 
to children. In this document, EPA also concluded that exposure to 
boron between birth and puberty may result in adverse cellular effects 
that would "affect testicular function" and that "testicular toxicity 
in males is the most sensitive endpoint relevant to children." In 
addition, a third related document--EPA's Summary Document from the 
Health Advisory for Boron and Compounds--provides an important warning 
regarding infants' exposure to boron in drinking water that is not 
included in either EPA's drinking water advisory for boron or its 
regulatory determination support document. Specifically, the summary 
document states that water containing boron "at levels above the HA 
[health advisory]" should not be used to prepare food or formula for 
infants. EPA does not identify which of the exposure duration health 
advisories it is referring to in this warning.[Footnote 86] 

EPA's Regulatory Determination Notices Lack Transparency and Clarity 
Regarding the Limitations of Health Advisories Issued in Conjunction 
with 10 Decisions to Not Regulate: 

As discussed earlier, EPA has issued new or updated health advisories 
for 9 of the 10 contaminants it determined did not warrant regulation 
under the 1996 amendments but which it decided warranted the issuance 
of health advisories. In its regulatory determination notices, EPA 
identified the purpose of the advisories variously, such as providing 
"guidance to communities that might be exposed to elevated 
concentrations" of the contaminants and "information to any states 
with public water systems that may have" contaminants at levels above 
the health reference level.[Footnote 87] However, EPA's discussions of 
these health advisories in the regulatory determination notices for 
the contaminants lack clarity and transparency regarding the 
limitations of the advisories.[Footnote 88] Specifically, the 
regulatory determination notices do not acknowledge that when EPA 
determines regulation is not warranted but a health advisory is 
needed, it will generally be up to states, localities, and consumers 
to determine whether such contaminant levels are found in public water 
systems in their jurisdiction. Importantly, because public water 
systems are not typically required to test for the presence of 
unregulated contaminants, information on the levels of the 
contaminants in individual public water systems may be outdated or 
unavailable. Some regulatory determination notices do, however, state 
that EPA "encourages" those states with public water systems that have 
contaminants at concentrations greater than the health reference level 
"to evaluate site-specific protective measures and to consider whether 
state-level guidance (or some other type of action) is appropriate." 
EPA officials have noted that individual states can promulgate their 
own drinking water regulations, but some states have legal or other 
constraints on their ability to regulate contaminants that EPA does 
not. For example, while some states--such as California and 
Massachusetts--have issued drinking water standards for contaminants 
that EPA has not regulated, others are statutorily prohibited from, or 
otherwise constrained in, enacting more stringent regulations than EPA 
has promulgated or promulgating their own drinking water regulations 
for contaminants that EPA does not regulate.[Footnote 89] In addition, 
it would be difficult for many people to determine how much of these 
unregulated contaminants are present in their drinking water, which 
would be required, for example, to heed EPA's warning in some cases to 
not use drinking water with contaminants in excess of certain levels 
to prepare infant food or formula. As EPA has acknowledged in some of 
its health advisory documents, individuals may have to have their 
water tested by a laboratory for the presence of the contaminants 
since EPA typically does not require water systems to test for them. 
Moreover, according to EPA officials, the agency releases its drinking 
water advisories by posting them on its Web site and does not issue 
public notification of them, such as a press release, which 
potentially limits awareness of the health advisories. 

EPA Explanations of the Occurrence Data EPA Relied on to Assess Known 
and Likely Occurrence of Contaminants in Drinking Water Lack 
Transparency, Clarity, and Consistency: 

EPA's regulatory determination notices and support documents generally 
lacked transparency and clarity and, in some cases, consistency, 
regarding the occurrence data the agency used in supporting its 
determinations. For example, in its preliminary regulatory 
determination notices, the Office of Water provided occurrence data on 
the number of public water systems, and the populations served by 
them, with contaminant detections (1) greater than the health 
reference level and (2) greater than one-half of the health reference 
level.[Footnote 90] However, in its notices and support documents, EPA 
provides other data potentially relevant to assessing known or likely 
occurrence of contaminants in drinking water, such as data on releases 
to the environment as reported in the Toxics Release 
Inventory[Footnote 91]; contamination at Superfund (National 
Priorities List) sites; and other data such as those provided by 
states, USGS, and others. The regulatory determination documents lack 
transparency because they do not explain the extent to which, if any, 
EPA used these data in its assessment of the contaminants' known or 
likely occurrence in public water systems. In addition, we found that 
EPA does not consistently disclose information about the occurrence of 
the contaminants at Superfund sites. For example, the regulatory 
determination notices and support documents did not report that ATSDR 
had found a particular contaminant at more than 50 percent of 
Superfund sites, while EPA did report such information from ATSDR 
about some contaminants found less frequently. 

In addition, while EPA's regulatory determination notices for the 20 
determinations completed in 2003 and 2008 present actual detections 
from unweighted occurrence data from public water systems that tested 
for the contaminants--rather than extrapolated estimates of national 
occurrence--EPA includes extrapolated estimates of national occurrence 
in its support documentation. However, it is not clear whether and to 
what extent EPA used these national occurrence estimates in assessing 
occurrence at levels of public health concern. For example, EPA's 
explanation in the notices that it does not provide estimates of 
national occurrence because presenting the data on actual detections 
is "the most straightforward and accurate way" to present the 
occurrence data does not address or clarify how the extrapolated data 
are used, if at all. Additionally, focusing on the actual detections 
rather than national projections in its determination notices has the 
effect of downplaying the potential occurrence of the contaminants 
nationally. For example, for manganese, EPA highlighted in the 
regulatory determination notice that 3.2 percent of groundwater public 
water systems serving approximately 39,000 people had at least one 
detection above the level of public health concern. In its support 
document for manganese, EPA reported that, according to its national 
estimates based on these groundwater data alone, approximately 2.3 
million people could be affected. 

Regulatory Determination Documents Lack Transparency and Clarity 
Regarding How EPA Determined Its Health Reference Levels Were 
Protective of Children: 

As noted earlier, EPA identified children as a sensitive subpopulation 
for 11 of the 20 contaminants with final regulatory determinations. 
[Footnote 92] However, the regulatory determination notices and 
support documents in these cases lack clarity regarding how EPA 
determined that the health reference levels used to assess public 
health risk were adequately protective of this sensitive 
subpopulation. For example, in its 2003 regulatory determination 
notice addressing seven contaminants for which children were 
identified as a sensitive subpopulation, EPA stated that the agency 
had not yet determined a protocol for making a regulatory 
determination for a chemical for which body weight and drinking water 
intake of infants or a particular childhood age group would be the 
basis of a regulatory action. As discussed earlier, health assessments 
based on adult weight and drinking water intake may not fully account 
for the risks to children of exposure to drinking water because they 
consume more water per unit of body weight and may have other 
susceptibilities, as well. However, in its 2003 determination notice, 
EPA did not explain the potential effect of not developing separate 
health reference levels for children (or not making adjustments to its 
health assessments to reflect increased sensitivity) on its ability to 
ensure that the health reference levels used in the regulatory 
determinations were protective of children. In contrast to its 2003 
determination notice, EPA was silent on the issue of separate 
assessments for children in its 2008 notice that included four 
contaminants for which children were identified as a sensitive 
subpopulation. As discussed earlier, Office of Water officials told us 
they would have developed separate assessments for children if they 
had determined children were "particularly sensitive" to the adverse 
health effects of contaminants being considered for regulation. 
However, EPA did not explain in its regulatory determination notices 
or support documents the basis for its determinations that children 
were not particularly sensitive to the adverse health effects of the 
contaminants considered for regulation--even for those contaminants 
that EPA had determined children are sensitive subpopulations; EPA 
also did not explain how the sensitivity of children can be evaluated 
in the absence of a separate assessment based on the weight and 
drinking water intake of children. 

EPA's Regulatory Determinations Lack Clarity Regarding Its Reliance on 
Outdated and Limited Occurrence Data to Support Some Determinations: 

EPA relied primarily on nationally representative but older data from 
its National Inorganic and Radionuclide Survey (NIRS) on systems 
served by groundwater to assess (1) manganese occurrence in public 
water systems in 2003 and (2) boron occurrence in 2008. Discussing the 
use of the NIRS data (from the 1980s) in its 2003 Health Effects 
Support Document for Manganese, EPA said "these estimates are based on 
very limited and outdated data. The possibility exists that the number 
of people served by groundwater with [manganese] levels above the HRL 
[health reference level] could be higher than these estimates; however 
the data are lacking at this time to develop a more timely 
assessment." Moreover, EPA acknowledged that it did not have national 
data on manganese or boron occurrence in public water systems that use 
surface water--systems that, according to EPA, serve about 70 percent 
of community water system customers. As discussed in appendix VI, 
which provides additional information on the regulatory determinations 
for manganese and boron, the supplementary data EPA provided on 
surface water systems in its support documents for these contaminants 
were limited and, in the case of manganese, presented in a manner that 
may have understated the occurrence. For example, EPA acknowledged 
that the industry-sponsored survey data on boron were not 
statistically representative. Also, the agency characterized drinking 
water occurrence data on manganese from five states as showing 
"substantial low-level manganese occurrence," but did not reconcile 
this assessment with the data it presented showing that the 
percentages of state populations served by public water systems with 
levels that exceed the health reference level as ranging from 2.4 
percent to 27.2 percent.[Footnote 93] EPA's regulatory determination 
documents did not explain why, in light of these data deficiencies, it 
(1) deemed the occurrence data it relied on as sufficient for purposes 
of making regulatory determinations on these contaminants and (2) 
decided not to obtain current, nationally representative data on both 
ground and surface water occurrence of these contaminants through its 
unregulated contaminants testing program. 

Regulatory Determination Documents Lack Transparency and Clarity 
Regarding EPA's Reliance on Minimum Reporting Levels Greater Than Its 
Health Reference Levels: 

As discussed earlier, for nine of EPA's 20 regulatory determinations, 
EPA based its conclusions on occurrence data for which some or all of 
the minimum reporting levels were above the health reference levels. 
[Footnote 94] However, EPA's 2003 and 2008 regulatory determination 
documents for these contaminants lack transparency and clarity 
regarding the agency's use of minimum reporting levels in these cases 
and its potential effect on EPA's occurrence analyses. As table 5 
shows, in these nine cases, the minimum reporting levels were from 
1.25 to 2,200 times greater than the health reference levels. 

Table 5: Nine Contaminants Whose Minimum Reporting Levels Exceeded 
EPA's Health Reference Levels: 

Contaminant: Aldrin[A]; 
Health reference level (micrograms per liter - µg/L): 0.002; 
Minimum reporting level or range (micrograms per liter - µg/L): 0.1 - 
0.84[B]; 
Extent to which minimum reporting level was greater than health 
reference level: 50 to 420 times. 

Contaminant: DDE[C]; 
Health reference level (micrograms per liter - µg/L): 0.2; 
Minimum reporting level or range (micrograms per liter - µg/L): 0.8; 
Extent to which minimum reporting level was greater than health 
reference level: 4 times. 

Contaminant: 1,3-Dichloropropene[C]; 
Health reference level (micrograms per liter - µg/L): 0.4; 
Minimum reporting level or range (micrograms per liter - µg/L): 0.5; 
Extent to which minimum reporting level was greater than health 
reference level: 1.25 times. 

Contaminant: Dieldrin[A]; 
Health reference level (micrograms per liter - µg/L): 0.002; 
Minimum reporting level or range (micrograms per liter - µg/L): 0.02 - 
4.4[B]; 
Extent to which minimum reporting level was greater than health 
reference level: 10 to 2,200 times. 

Contaminant: 2,4-Dinitrotoluene[C]; 
Health reference level (micrograms per liter - µg/L): 0.05; 
Minimum reporting level or range (micrograms per liter - µg/L): 2; 
Extent to which minimum reporting level was greater than health 
reference level: 40 times. 

Contaminant: 2,6-Dinitrotoluene[C]; 
Health reference level (micrograms per liter - µg/L): 0.05; 
Minimum reporting level or range (micrograms per liter - µg/L): 2; 
Extent to which minimum reporting level was greater than health 
reference level: 40 times. 

Contaminant: Hexachlorobutadiene[A]; 
Health reference level (micrograms per liter - µg/L): 0.9; 
Minimum reporting level or range (micrograms per liter - µg/L): 0.05 - 
10[D]; 
Extent to which minimum reporting level was greater than health 
reference level: Up to 11 times at upper end of range. 

Contaminant: Hexachlorobutadiene[A]; 
Health reference level (micrograms per liter - µg/L): 0.9; 
Minimum reporting level or range (micrograms per liter - µg/L): 0.1 - 
1.5[B]; 
Extent to which minimum reporting level was greater than health 
reference level: Up to 1.7 times at upper end of range. 

Contaminant: Sulfate[A]; 
Health reference level (micrograms per liter - µg/L): 500,000; 
Minimum reporting level or range (micrograms per liter - µg/L): 1 - 
800,000[B]; 
Extent to which minimum reporting level was greater than health 
reference level: Up to 1.6 times at upper end of range. 

Contaminant: 1,1,2,2-Tetrachloroethane[C]; 
Health reference level (micrograms per liter - µg/L): 0.4; 
Minimum reporting level or range (micrograms per liter - µg/L): 0.01 - 
10[D]; 
Extent to which minimum reporting level was greater than health 
reference level: Up to 25 times at upper end of range. 

Contaminant: 1,1,2,2-Tetrachloroethane[C]; 
Health reference level (micrograms per liter - µg/L): 0.4; 
Minimum reporting level or range (micrograms per liter - µg/L): 0.1 - 
2.5[B]; 
Extent to which minimum reporting level was greater than health 
reference level: Up to 6.25 times at upper end of range. 

Source: GAO analysis of EPA data. 

[A] Contaminant from regulatory determination Cycle 1, 2003. 

[B] Unregulated contaminant monitoring program round 2 data. EPA 
provided estimates of the wide range of minimum reporting levels 
reported by states. 

[C] Contaminant from regulatory determination Cycle 2, 2008. 

[D] Unregulated contaminant monitoring program round 1 data. EPA 
provided estimates of the wide range of minimum reporting levels 
reported by states. 

[End of table] 

The regulatory determination notices for four of the contaminants from 
the 2003 regulatory determination cycle with minimum reporting levels 
greater than the health reference levels did not disclose that the 
occurrence data EPA provided as a basis for its conclusions could be 
understated because of this detection issue. The understatements could 
occur in these cases because some or all of the tests supporting the 
data presented were not sufficiently sensitive to detect occurrence at 
the agency's level of health concern (i.e., the health reference 
level).[Footnote 95] Specifically, the regulatory determination 
notices present the occurrence data for the contaminants addressed in 
this determination cycle in a table identified as containing 
occurrence data for the number of systems with detections greater than 
the health reference level and one-half the health reference level, as 
well as the population served by these systems. However, there is no 
disclosure in the notice, the table, or a table note that, for four of 
the contaminants, the detections reported represent detections at 
minimum reporting levels that are higher than the identified health 
reference levels. In some cases, the undisclosed minimum reporting 
levels were significantly greater than the health reference levels. 
For example, for dieldrin, the agency relied on testing data obtained 
using minimum reporting levels ranging from 10 to 2,200 times higher 
than EPA's health reference level. Using these data, dieldrin was 
detected in 0.06 percent of samples (0.09 percent of public water 
systems). Using more sensitive tests with minimum reporting levels 
near and below EPA's health reference level, USGS's subsequent testing 
of source water for drinking water wells detected dieldrin in 3.1 
percent of public well samples.[Footnote 96] Importantly, essentially 
all of the detections were at levels above the health reference level, 
yet below EPA's minimum reporting levels. Thus, dieldrin would not 
have been found in these groundwater well samples if USGS had used the 
minimum reporting levels EPA used for its regulatory determination. 
[Footnote 97] Further, while related regulatory determination support 
documents for the four contaminants with minimum reporting levels 
greater than EPA's health reference levels in some cases disclose the 
fact that the data provided are detections above the minimum reporting 
level, EPA's explanations are unclear and incomplete. Specifically, 
the documents state that the detections above the health reference 
level represent detections above minimum reporting levels because (1) 
the estimated health reference levels are lower than the minimum 
reporting levels or (2) a simple meaningful summary statistic is not 
available to describe the various reported minimum reporting levels, 
and to avoid confusion, minimum reporting levels are not reported. 
Importantly, the documents do not identify the minimum reporting 
levels, explain the impact of this limitation on EPA's occurrence 
analyses and its reliability, or explain why EPA considered these 
reporting levels appropriate for assessing occurrence at levels of 
public health concern. 

The other five contaminants with some or all minimum reporting levels 
greater than EPA's health reference level were addressed in the 2008 
regulatory determination cycle. For these contaminants, all of which 
are classified as possible or likely carcinogens, EPA did disclose in 
its determination notices that the minimum reporting levels used in 
the testing program were greater than the health reference levels--and 
that it therefore evaluated occurrence and exposure to the 
contaminants at the minimum reporting levels.[Footnote 98] However, 
EPA did not clearly explain the effect that this approach has on the 
reliability of its analysis or clearly explain why the minimum 
reporting levels were appropriate for assessing occurrence at levels 
of health concern. That is, EPA explained in the regulatory 
determination notices that, for each of these contaminants, the 
minimum reporting levels were "within the 10-4 to the 10-6 cancer risk 
range," without providing the specific risk level value associated 
with the minimum reporting level for each contaminant. This range 
represents an increased risk of cancer to 1 in 10,000 persons (the 10-
4 risk level) to 1 in 1 million persons (the 10-6 risk level). Since 
the minimum reporting levels of the different contaminants fall at 
different points within the risk range, EPA's assessments of 
occurrence and public exposure to contaminants at levels of public 
health concern for carcinogens are based on differing risk levels. For 
two contaminants for which we calculated the specific risk level 
values, the minimum reporting levels would limit cancer risk to 
approximately 1 in 25,000 persons; in contrast, EPA generally 
establishes health reference levels to limit cancer risk to 1 in 1 
million persons. EPA also is not clear in its determination documents 
about (1) its rationale for applying risk standards for some 
contaminants that are less stringent than for others to identify 
occurrence at levels of public health concern or (2) the effect of the 
differing standards on the reliability of its estimates of occurrence 
at levels of public health concern. 

EPA Lacked Consistency and Clarity in Making Determinations When IRIS 
Assessments Were Either in Process or Needed to Be Updated: 

An EPA document listing 14 contaminants the agency was evaluating for 
regulatory determinations in 2008 indicated that there was a "strong 
possibility" that several of the contaminants may not make the cutoff 
date for regulatory determinations because of outstanding risk 
assessments. In fact, the agency decided not to consider MTBE or 
bromobenzene for regulatory determination in 2008 because risk 
assessments for these contaminants were in process. However, EPA did 
make a regulatory determination in 2008 on 1,1,2,2-tetrachloroethane 
despite an update to an existing IRIS assessment being underway, 
without explaining why the agency did not await its completion. 
[Footnote 99] As discussed earlier, the IRIS assessment for 1,1,2,2-
tetrachloroethane was finalized in 2010 and would have produced a more 
stringent health reference level than the one EPA used to assess the 
health risks of exposure to this contaminant in its 2008 regulatory 
determination. 

The Process and Analyses EPA Relied on to Support Its Preliminary 
Determination on Perchlorate Were Atypical, Lacked Transparency, and 
Limited the Agency's Independence in Developing and Communicating Its 
Scientific Findings: 

An understanding of the process and analyses EPA used to develop its 
2008 preliminary determination to not regulate perchlorate can provide 
context for EPA's 2011 decision to reverse its preliminary 
determination. In addition, key analyses EPA relied on for its 
preliminary determination to not regulate perchlorate remain relevant 
to EPA's subsequent determination to regulate perchlorate. We found 
that in making its preliminary determination on perchlorate, EPA used 
a separate process that was less inclusive, less transparent, and more 
directive than the process it used to develop its other regulatory 
determinations. In addition, the agency used nontraditional approaches 
to three key analyses it relied on to support its preliminary 
determination. First, in developing an IRIS assessment for 
perchlorate, EPA established a reference dose on the basis of 
recommendations from the National Academies[Footnote 100],[Footnote 
101] but subjected it to a more limited review than the agency's 
standard IRIS assessment review process. Second, to determine the 
relative exposure to perchlorate from drinking water versus food, EPA 
relied on an exposure estimate that it developed using a novel 
analysis and then used a nontraditional method to calculate the 
relative source contribution. Third, according to key EPA scientists, 
the agency mischaracterized important scientific findings that emerged 
from the novel analysis it conducted to determine the sensitivity of 
various age groups, particularly infants and children, to the agency-
calculated health reference level. Furthermore, EPA's independence in 
developing and communicating its scientific findings was limited by 
the agency's acceptance of external input on its preliminary 
determination notice for perchlorate. 

EPA Used a Less Inclusive, Less Transparent, and More Directive 
Process in Developing Its Preliminary Regulatory Determination on 
Perchlorate Than Its Usual Process: 

Perchlorate was initially among the contaminants EPA was evaluating in 
its second cycle of regulatory determinations, which were to be 
finalized by 2008. However, in 2007, when EPA published its 
preliminary determinations on these contaminants, which the agency was 
reviewing under its usual process for developing regulatory 
determinations, EPA indicated that it was not making a preliminary 
determination on perchlorate at that time, stating that additional 
information may be needed to more fully characterize perchlorate 
exposure. EPA stated that it would continue to seek and evaluate the 
information it needed--primarily regarding exposure to the 
contaminant--and would issue a preliminary determination on 
perchlorate either in time for it to be finalized along with the other 
contaminants' determinations in 2008 or as soon as possible following 
final determinations for the other contaminants. In conjunction with 
EPA's decision to issue a separate preliminary regulatory 
determination for perchlorate, EPA officials decided that the agency's 
continuing deliberations would be conducted using a different process, 
which differed substantially from its usual process "because of the 
sensitive nature of the perchlorate regulatory determination." 

In developing its regulatory determinations for the first two 
determination cycles (2003 and 2008), EPA used its usual process, 
which the Office of Water initiated by establishing intra-agency 
regulatory determination work groups.[Footnote 102] The work groups 
were composed of professional staff with relevant expertise from 
various EPA program, support, and regional offices.[Footnote 103] 
Under this process, the intra-agency work groups identified 
contaminants on the candidate list for which it determined sufficient 
information was available to characterize both the potential health 
effects and the known or likely occurrence of the contaminants in 
drinking water; analyzed the health effects information and occurrence 
data for each selected contaminant with respect to the three statutory 
criteria; presented regulatory determination options[Footnote 104] for 
each contaminant to the Office of Water's Assistant Administrator and 
the Assistant and Regional Administrators from offices participating 
on the work group, who selected a final option for the regulatory 
determination; and developed draft notices for review and obtained 
written position statements, generally in the form of concurrence 
memorandums, from all Assistant and Regional Administrators from 
participating offices.[Footnote 105] 

Under this usual process, after obtaining concurrence within EPA on 
the draft regulatory determinations, the Office of Water sent draft 
notices of its preliminary determinations to OMB for review, which 
could solicit and coordinate input from other federal agencies. Upon 
addressing comments from OMB and other federal agencies, as 
applicable, and receiving final clearance from OMB and final approval 
from the EPA Administrator, EPA published the preliminary regulatory 
determinations in the Federal Register, provided a public comment 
period, and subsequently published the final regulatory determinations 
in the Federal Register.[Footnote 106] Throughout this process, EPA 
documented the meetings and decisions of the intra-agency work group, 
concurrence memos from office leadership, and communications between 
EPA and external reviewers. 

In contrast to EPA's usual process, which is managed by a work group 
of professional staff with relevant expertise from across the agency, 
EPA officials decided that the agency's continuing deliberations on 
perchlorate would be managed by a less inclusive, small group of high-
level officials, such as the Deputy Administrator and several 
Assistant Administrators.[Footnote 107] This group of high-level 
officials managed the regulatory determination process for perchlorate 
both within EPA and externally with the Perchlorate Interagency 
Working Group,[Footnote 108] whose work was coordinated by the Council 
on Environmental Quality.[Footnote 109] According to an EPA briefing 
document, the Perchlorate Interagency Working Group was established in 
2002 "to identify and help resolve perchlorate science and science 
policy issues."[Footnote 110] EPA officials told us that one of the 
aims of the Perchlorate Interagency Working Group was a "no-surprises 
policy" concerning any issues related to perchlorate. Thus, in 
addition to reviewing EPA's activities and analyses related to the 
perchlorate preliminary regulatory determination, the Perchlorate 
Interagency Working Group reviewed multiple products such as articles 
for scientific journals prior to dissemination by researchers and 
scientists from EPA and other agencies, such as the Centers for 
Disease Control and Prevention (CDC) and Food and Drug Administration. 
In addition, while the usual process for regulatory determinations 
provides multiple opportunities for input from participating EPA 
offices and results in documentation of meetings and analyses, the 
activities and decisions of the small group of high-level officials 
managing perchlorate were less inclusive and transparent. That is, 
relevant EPA staff, such as Office of Water managers, scientists 
conducting perchlorate analyses requested by the Assistant 
Administrator of the Office of Research and Development and the 
Perchlorate Interagency Working Group, officials from the Office of 
Children's Health Protection, and regional office staff from areas 
with extensive perchlorate contamination, had limited input into the 
preliminary regulatory determination. Moreover, according to an EPA 
official, meetings of the small group of high-level officials were not 
documented, and while the usual process involved developing a document 
providing the supporting analysis for the determination for each 
contaminant, EPA did not prepare such a document for the perchlorate 
preliminary determination. Also, in contrast to EPA's usual process, 
according to EPA officials, the Office of Water provided updates on 
the status of the perchlorate regulatory determination to the 
leadership of the EPA program and regional offices not included in the 
small group--such as the Office of Prevention, Pesticides, and Toxic 
Substances and the 10 regional offices--rather than seeking input and 
agreement from them. Specifically, agency program and regional offices 
were not asked by the small group of high-level officials to provide 
concurrence on the draft preliminary perchlorate determination. 

EPA further limited participation by relevant EPA staff. For example, 
EPA did not include the Office of Children's Health Protection in its 
small group of high-level officials despite EPA's and the National 
Academies' conclusion that iodide uptake inhibition from perchlorate 
exposure had been identified as a concern in connection with 
increasing the risk of neurodevelopmental impairment in fetuses of 
pregnant women with iodine deficiency and to developmental delays and 
decreased learning capability in infants and children.[Footnote 111], 
[Footnote 112] The lack of participation by the Office of Children's 
Health Protection in developing the preliminary regulatory 
determination for perchlorate is noteworthy for two reasons: (1) This 
office was established in 1997 to work with EPA program and regional 
offices to promote a safe and healthy environment for children by 
ensuring that all regulations, standards, policies, and risk 
assessments take into account risks to children[Footnote 113] and (2) 
the Safe Drinking Water Act directs EPA to consider at several key 
points in the regulatory determination process the effect of 
contaminants on such subpopulations as infants, children, pregnant 
women, and others that may be at greater risk of adverse health 
effects than the general population as a result of exposure to those 
contaminants, among other factors.[Footnote 114] Overall, by excluding 
relevant EPA offices from a more participatory role, the agency did 
not avail itself of the expertise that resides in those offices. 

Finally, in contrast to the usual process EPA used for its regulatory 
determinations, in which EPA staff with relevant expertise develop and 
submit options to the Assistant Administrator for the Office of Water 
for review and selection, the Assistant Administrator directed the 
Office of Water staff in developing the preliminary determination for 
perchlorate. Specifically, according to officials in the Office of 
Water and the Office of General Counsel, in August 2008 the Assistant 
Administrator directed the staff to draft a preliminary determination 
that reflected the agency's decision to not regulate perchlorate and 
to support it with a detailed and specific rationale that EPA and 
other members of the Perchlorate Interagency Working Group had agreed 
to, under the leadership and coordination of the Council on 
Environmental Quality.[Footnote 115] EPA Office of Water officials 
told us that they believed this agreement--which is not part of the 
record for the preliminary regulatory determination--was developed by 
senior officials from the Council of Environmental Quality, the 
Department of Health and Human Services (HHS), EPA, OMB, and the U.S. 
Department of Agriculture. The agreement focused on how EPA should 
address the key science issues concerning perchlorate in its 
preliminary regulatory determination and specified (1) a health 
reference level of 15 parts per billion of perchlorate in drinking 
water and (2) the rationale for EPA to support the conclusion that 
this health reference level would be protective of pregnant women and 
their fetuses as well as of infants and children. 

EPA Established a Reference Dose for Perchlorate on the Basis of the 
National Academies' Recommendations, but Subjected It to a More 
Limited Review Than the Agency's Standard IRIS Assessment Review 
Process: 

In developing an IRIS assessment of perchlorate, EPA established a 
reference dose on the basis of the National Academies' 
recommendations, but subjected it to a more limited review than the 
agency's standard IRIS assessment review process. Typically, to 
establish a reference dose for a contaminant, EPA conducts an IRIS 
assessment, a draft of which undergoes internal and external 
scientific peer reviews and is also made available for public comment 
in the Federal Register before being finalized. In its initial effort 
to develop an IRIS assessment of perchlorate, EPA followed its usual 
process, and in 2002, the agency provided a draft IRIS assessment to 
the public for comment. 

EPA's 2002 draft IRIS assessment of perchlorate--which proposed a 
reference dose of 0.03 micrograms per kilogram of body weight per day 
and a related drinking water equivalent level of 1 part per billion 
[Footnote 116]--drew significant attention, including from such 
federal agencies as DOD, the Department of Energy, and NASA, because 
of the implications such a level could have on their operations if EPA 
were to develop a drinking water regulation for perchlorate.[Footnote 
117] According to a senior EPA official, the controversy that arose 
over the draft IRIS assessment of perchlorate "was like nothing I had 
ever seen or have seen since." As a result of the divergent views 
between EPA and the other federal agencies, the Administrator of OMB's 
Office of Information and Regulatory Affairs urged the four interested 
agencies to convene a National Academies panel to review the draft 
IRIS assessment. Convened in October 2003, the panel conducted this 
review and issued its report in January 2005.[Footnote 118] 

In its 2005 report, the National Academies made several key 
recommendations to EPA on the basis of a different study from those on 
which EPA had based its draft IRIS assessment. The National Academies' 
recommended reference dose was more than 20 times higher than the one 
proposed in EPA's 2002 draft IRIS assessment and, according to an IRIS 
official, was a recommendation that EPA neither specifically requested 
nor expected the panel to issue.[Footnote 119] However, the IRIS 
official also told us that in discussions regarding the National 
Academies' recommendations, EPA management indicated that quickly 
incorporating the National Academies' perchlorate recommendations into 
the IRIS assessment would help the agency bring some closure to the 
controversy surrounding its draft assessment. In February 2005, just 5 
weeks after the National Academies issued its report, EPA adopted the 
National Academies' recommendations with unprecedented expediency, 
finalizing its IRIS assessment on perchlorate using the National 
Academies' recommended reference dose. Other EPA officials told us 
that this swift action was possible because the National Academies had 
"taken the unprecedented step of completing what amounted to a 
toxicological review itself and derived a recommended reference dose." 

EPA's final internal review of the revised IRIS assessment for 
perchlorate--termed a consensus review--differed from the agency's 
usual consensus review process for IRIS assessments at that time in 
terms of scope, time frames, and public comment. The scope of the 
review was limited in that the IRIS program did not seek input from 
consensus reviewers on the scientific basis for the assessment as it 
typically does. Instead, the IRIS program director stated in the 
request for consensus reviews that because the assessment had 
undergone several external peer reviews, including a recent review by 
the National Academies, the purpose of the consensus review of the 
revised IRIS assessment for perchlorate was to "ensure that the 
science in the IRIS Summary is clearly summarized and not inconsistent 
with the major conclusions of the [National Academies'] report." 
[Footnote 120] At least two EPA offices essentially opted out of the 
consensus review process because of this limitation, which was a 
significant departure from the usual IRIS consensus practice.[Footnote 
121] For example, the Office of Children's Health Protection's 
response to the IRIS program's request for consensus review stated 
that because the IRIS assessment did not represent the "traditional 
end-of-process consensus review for IRIS," that office chose to 
neither approve nor disapprove the IRIS assessment, opting instead to 
identify concerns about the consideration of children's health in the 
IRIS perchlorate assessment, as discussed later. A second difference 
between the consensus review for the draft IRIS assessment and the 
typical consensus review was the speed with which it was conducted. 
The IRIS program allowed reviewers only 1 week--rather than the 45 
days that is typically afforded--to complete their reviews before 
finalizing the revised assessment and posting it on its Web site. 
[Footnote 122] Finally, while EPA had provided a public comment period 
for its 2002 draft IRIS assessment before the National Academies 
review began, it did not offer a public comment period on the 2005 
revised assessment, even though it was based on different data than 
the 2002 draft assessment. Specifically, EPA's 2002 draft assessment 
was based primarily on data from several toxicological (animal) 
studies, while the National Academies' 2005 assessment was based 
primarily on the results of a single 14-day clinical study from 2002--
the Greer study, which was funded by the National Institutes of Health 
and perchlorate manufacturers and users.[Footnote 123] 

EPA has received both internal and external criticisms of its decision 
to accept the National Academies' recommended reference dose as its 
IRIS assessment. These criticisms--which generally focused on 
limitations of the 2002 Greer study from which the National Academies 
derived its reference dose and the extent to which EPA mitigated those 
limitations to help ensure that sensitive subpopulations were 
adequately protected--were communicated to EPA before it finalized its 
IRIS assessment and 3 years before the agency issued its preliminary 
determination for perchlorate. For example, in 2005, the Office of 
Children's Health Protection articulated concerns in a memorandum to 
the IRIS program director during the week allowed for consensus review 
for the IRIS assessment that the uncertainty factor[Footnote 124] of 
10 that the National Academies used in developing its proposed 
reference dose might not sufficiently protect the sensitive 
subpopulations, which the National Academies identified as including 
fetuses, preterm newborns, infants, and developing children. The 
National Academies concluded this uncertainty factor was sufficient 
because its recommended reference dose was based on a nonadverse 
effect that was a precursor to any adverse effects that may result 
from exposure to perchlorate. However, the Office of Children's Health 
Protection stated in its memorandum to the IRIS program that the Greer 
study--which examined the effect of perchlorate exposure on iodide 
uptake inhibition of the thyroid in 37 healthy adults--did not provide 
data to consider variability among humans at different life stages, 
during pregnancy, and as a result of health status (such as 
hypothyroidism)--or even to consider variations among healthy adults. 
(In fact, the National Academies' recommended reference dose was 
derived from data on a subgroup of study participants comprised of 
seven healthy, nonpregnant adults.[Footnote 125]) As a result, the 
Office of Children's Health Protection expressed its concern that the 
uncertainty factor of 10 the National Academies' recommended to 
account for variations among humans may not be adequately protective 
of sensitive subpopulations. The Office of Children's Health 
Protection also stated concerns that the effects observed during the 2-
week Greer study may not be indicative of potential effects from 
lifelong exposure to perchlorate. Consensus reviewers from two other 
EPA offices identified similar concerns. For example, a consensus 
reviewer from a regional office, while expressing an understanding 
that accepting the National Academies' reference dose reflected "the 
best course of action for the agency, given the history of this 
compound," nonetheless provided substantive comments on a number of 
scientific issues, including the uncertainty factor. This reviewer 
stated that the National Academies' uncertainty factor apparently 
reflects a conclusion that pregnant women, pregnant women with 
subclinical hypothyroidism, preterm infants, and newborns would be no 
more sensitive to perchlorate than nonpregnant adult women and men--a 
conclusion the reviewer stated was questionable. Nonetheless the IRIS 
Summary that EPA posted on its Web site shows that the agency adopted 
the National Academies' reasoning, including its recommended 
uncertainty factor, which did not address the concerns raised by the 
Office of Children's Health Protection or reviewers from other offices. 

In addition, in September 2005--3 years prior to EPA's preliminary 
determination for perchlorate--public health officials from 
Connecticut and Maine published a detailed critique of the Greer study 
that expressed concerns similar to those raised by the Office of 
Children's Health Protection, as well as additional concerns.[Footnote 
126] For example, these public health officials stated that the 
National Academies' consideration of uncertainties was insufficient. 
They said, among other things, that in addition to the uncertainty 
factor of 10 that the National Academies applied to account for 
variability among humans, an additional 3-to 10-fold uncertainty 
factor was warranted to account for the potential for greater toxicity 
to breastfeeding newborns,[Footnote 127] as well as the potential for 
greater perchlorate toxicity resulting from exposure lasting more than 
2 weeks.[Footnote 128] These state public health officials concluded 
that risk assessors should carefully evaluate whether the IRIS 
reference dose was the most appropriate value for assessing 
perchlorate risk. 

The concerns regarding the reference dose in the IRIS assessment noted 
earlier continued to be raised when EPA issued its preliminary 
regulatory determination for perchlorate in 2008. This preliminary 
determination generated substantial public comment regarding EPA's 
assessment of the health risks to sensitive subpopulations--issues 
that had been raised when EPA first adopted the reference dose. For 
example, in official comments on EPA's preliminary regulatory 
determination on perchlorate, officials from the states of Washington 
and Oregon asked EPA to reconsider its decision, citing, among other 
things, their view that the 10-fold uncertainty factor EPA used to 
derive a reference dose and to formulate a health-based drinking water 
level was insufficient. As with other comments, the officials stated 
that a higher uncertainty factor was warranted given the data gaps in 
the limited studies available on perchlorate. The state officials 
noted that the state of Massachusetts's risk assessment of perchlorate 
used a higher uncertainty factor--100 versus EPA's 10. In fact, two 
states that promulgated perchlorate limits for drinking water and one 
state that proposed such limits each relied primarily on the Greer 
study but, because of variations among the states regarding the values 
they chose for three key variables,[Footnote 129] developed more 
stringent limits than EPA's assessment. Specifically, EPA's health 
reference level for purposes of its preliminary regulatory 
determination was 15 parts per billion of perchlorate per liter of 
water, while California's health limit is 6 parts per billion, 
Massachusetts's is 2 parts per billion, and New Jersey's proposal was 
5 parts per billion.[Footnote 130] Nonetheless, in its public comment 
response document associated with EPA's February 2011 final regulatory 
determination for perchlorate, EPA stated that it "believes that the 
[reference dose] indicated by the [National Academies] is 
appropriate." In its determination notice, EPA used the National 
Academies' reference dose--which EPA had adopted as its IRIS 
assessment for perchlorate in 2005--and life stage-specific exposure 
information to derive a range of health reference levels for 14 life 
stages (age groups). EPA stated in its final determination notice that 
it considers these potential alternative health reference levels--
which range from 1 to 47 parts per billion--levels of public health 
concern for purposes of its final determination. 

EPA Relied on an Estimate of the Relative Exposure to Perchlorate from 
Drinking Water and Food That It Derived from a Novel Analysis and Used 
a Nontraditional Method to Calculate the Relative Source Contribution: 

EPA conducted a novel analysis to develop estimates of exposure to 
perchlorate for various subpopulations that it would use to calculate 
the relative source contribution--the allocated exposure to 
perchlorate from drinking water alone. Independent scientists who 
reviewed EPA's analysis noted that it had several limitations--in 
particular, uncertainties specific to the exposure estimate for 
pregnant women. Nonetheless, EPA relied on the exposure estimate for 
pregnant women to calculate the relative source contribution, stating 
that the National Academies had identified pregnant women and their 
fetuses as the most sensitive subpopulation.[Footnote 131] Further, in 
calculating the relative source contribution, EPA used a 
nontraditional method--the subtraction method--that was less 
conservative than the default approach it had used for its other 
completed regulatory determinations, and was less conservative than 
other available methods. While EPA identified some of the limitations 
of the exposure analysis in its preliminary regulatory determination 
notice for perchlorate, it did not discuss the effects of the 
limitations on EPA's exposure analysis. Moreover, although the 
agency's guidance for calculating the relative source contribution 
cautions against using the subtraction method in the absence of 
adequate data representative of at-risk populations--and EPA lacked 
data to estimate exposure to perchlorate for certain populations--the 
agency did not explain that the method it used to calculate the 
relative source contribution for perchlorate was the subtraction 
method or its reasoning for selecting this method. 

Developing the Perchlorate Exposure Estimates: 

In developing its 2008 preliminary determination for perchlorate, EPA 
sought information on actual perchlorate exposure from food to enable 
EPA to estimate a "better informed relative source contribution and 
health reference level that is more appropriate for fetuses of 
pregnant women (the most sensitive subpopulations identified by the 
NRC [the National Academies])." EPA decided to obtain data on 
perchlorate exposure after it evaluated the extent of perchlorate 
occurrence in public water systems using the 20 percent default 
relative source contribution it used for its other regulatory 
determinations. The default relative source contribution resulted in a 
health reference level of 5 parts per billion. In evaluating exposure 
at this level, some agency officials concluded that perchlorate 
warranted regulation.[Footnote 132] (See appendix VII for more 
detailed information about EPA's evaluation of exposure at this 
level.) According to an Office of Water official, EPA had not obtained 
data for other regulatory determinations because the conservative 
default relative source contribution had not previously resulted in 
occurrence analyses that suggested regulation was warranted. In 
commenting on the exposure analysis, another Office of Water official 
explained that "there were too many stakeholders with high interest in 
the outcome" of the perchlorate regulatory determination for EPA "not 
to go out and get the data [it] needed."[Footnote 133] This interest 
arose, in part, because a federal drinking water standard for 
perchlorate could also serve as a possible basis for environmental 
cleanup goals, potentially affecting some federal agencies' and 
perchlorate manufacturers' cleanup requirements at Superfund and other 
contaminated sites. [Footnote 134] 

The primary data sources EPA used to develop perchlorate exposure 
estimates were (1) CDC's National Health and Nutrition Examination 
Survey (CDC's biomonitoring study),[Footnote 135] which included 
information on perchlorate exposure for a nationally representative 
sample of 2,820 U.S. residents, and (2) perchlorate occurrence data 
from EPA's testing program for drinking water contaminants. Merging 
CDC's biomonitoring data with perchlorate occurrence data from EPA's 
testing program for drinking water contaminants--a methodology EPA 
described as novel--EPA developed estimates of daily exposure to 
perchlorate from drinking water for various age and gender groups. EPA 
stated in its preliminary determination notice that the analysis of 
the merged data provides the best available information to 
characterize non-drinking-water exposures to perchlorate for what it 
identified as the most sensitive subpopulation--pregnant women and 
their fetuses. EPA also noted that the primary contribution of using 
this new exposure methodology is that the biomonitoring data can 
provide more direct estimates of exposure to the perchlorate that 
individuals consume in their diets. EPA also considered an alternative 
method for estimating perchlorate exposure in food that does not use 
biomonitoring data. In this method, perchlorate intake from food was 
estimated by combining two sets of estimates--FDA's estimates of 
perchlorate levels in different food groups[Footnote 136] and USDA's 
estimates of food and beverage consumption--for different age and 
gender groups. 

Although EPA's exposure analysis had several key limitations that were 
identified by peer reviewers, the extent to which the agency 
identified them and explained their significance in its preliminary 
regulatory determination notice was limited. Prior to its 2008 
preliminary determination for perchlorate--in which EPA relied on the 
results of this exposure analysis--EPA had the analysis peer reviewed 
by three independent scientists. EPA also received comments from CDC 
officials, including the official who conducted the CDC biomonitoring 
study and co-authored, with an EPA scientist, the subsequently 
published 2010 article in the Journal of Exposure Science and 
Environmental Epidemiology that presented the exposure analysis 
methodology EPA used to support its preliminary determination for 
perchlorate.[Footnote 137] In general, reviewers commented that EPA's 
exposure analysis using the merged CDC and EPA data was a novel and 
defensible approach to examining perchlorate exposure from food and 
water, but they also recognized a number of limitations. EPA 
identified a few of the significant limitations of its analysis from 
the peer review in its 2008 preliminary regulatory determination 
notice that was published in the Federal Register, but did not explain 
the effect of these limitations on the analysis. Further, the Federal 
Register notice did not include some important limitations of this 
novel methodology. Some of these limitations were raised by reviewers 
before EPA issued its preliminary determination, and others were 
subsequently identified in the 2010 journal article.[Footnote 138] 

On the basis of our review of the Federal Register notice, reviewers' 
comments, and the journal article, we found that the lack of a 
comprehensive explanation for the methodology's limitations and 
uncertainties reduce the credibility of EPA's use of the methodology 
to support its decision. Three key limitations are highlighted: 

* First, because data were not available to assess the exposure to 
perchlorate of infants and children younger than 6 years of age, 
[Footnote 139] EPA's analysis of perchlorate exposure using 
biomonitoring data does not include some age groups that are also 
sensitive subpopulations. Nonetheless, EPA stated that all sensitive 
subpopulations are protected by the health reference level of 15 parts 
per billion that the agency used as its level of public health concern 
in its 2008 preliminary regulatory determination for perchlorate. EPA 
did not identify or discuss this limitation of the biomonitoring data 
(e.g., lack of data on infants and children) in its presentation of 
the exposure analysis in the preliminary determination notice. EPA did 
a separate sensitivity analysis to justify the protectiveness of the 
health reference level for infants, as described later. The Office of 
Children's Health Protection noted in its comments regarding the 
exposure analysis that since the "real target life stage for EPA to 
protect are newborn infants," its usefulness may be limited. In 
addition, reviewers stated that infants who are breast feeding may 
have a much higher exposure than the populations analyzed in the study 
(children 6 years of age or older and adults) because, for example, 
data demonstrate that perchlorate in breast milk may be 10 times more 
concentrated than perchlorate found in urinary estimates. Further, 
according to a 2007 study EPA cited in its determination notice, 
perchlorate was measured in infant formula at levels as high as 4 
parts per billion. As a result, the perchlorate dose to which formula-
fed infants are exposed could be further increased if the formula is 
prepared with water contaminated with perchlorate. We note that, in a 
different section of EPA's preliminary regulatory determination for 
perchlorate, the agency showed that formula-fed infants can be exposed 
to more than twice the dose that breast-fed infants receive. However, 
the implications of this information were not discussed in the context 
of EPA's exposure analysis for perchlorate. 

* Second, the exposure estimates that resulted from EPA's analysis of 
the CDC biomonitoring data--particularly those for pregnant women-- 
reflect some significant uncertainties associated with inherent 
limitations in the method used for extrapolating an estimate of daily 
exposure to perchlorate from CDC's biomonitoring data. Specifically, 
to estimate daily exposure to perchlorate, EPA had to make an 
adjustment--called a creatinine adjustment--to the CDC biomonitoring 
data because only one urine sample was collected from each 
participant--called spot testing. This adjustment is especially 
uncertain when made for pregnant women because of the numerous 
physical changes women undergo during pregnancy. The 2010 journal 
article on the exposure assessment states that some caution should be 
used when interpreting perchlorate exposure estimates for pregnant 
women, noting the "profound changes in a woman's body during 
pregnancy." In addition, a technical addendum to the journal article 
identifies other problematic aspects of applying the creatinine 
adjustment to pregnant women that make the exposure estimates 
"tenuous." EPA officials said they believed EPA disclosed all 
significant uncertainties of the exposure assessment that the agency 
was aware of at the time it used the assessment in supporting its 
preliminary regulatory determination notice. However, other reviewers 
that commented on the study prior to EPA's 2008 preliminary 
determination expressed similar concerns about the reliability of the 
creatinine adjustment for pregnant women. While a single statement in 
EPA's preliminary regulatory determination notice regarding these 
uncertainties reflects EPA's recognition of these issues, EPA does not 
explain or assess them: "A limitation is in the use of NHANES' [CDC 
biomonitoring study's] spot urine testing, and creatinine corrections 
for a population with diverse physiological characteristics to 
calculate the daily perchlorate dose." This statement does not 
identify, for example, the "population"--pregnant women--to which it 
is referring and does not identify the effects of these limitations on 
EPA's exposure analysis. This lack of disclosure is significant 
because of the direct impact the exposure estimates have on the 
relative source contribution calculation, which, in turn, directly 
affects the health reference level--the benchmark EPA uses to 
determine whether perchlorate occurs in drinking water with a 
frequency and at levels of public health concern. 

* Third, EPA relied on an exposure estimate that the agency itself had 
identified as anomalous as the basis for calculating its relative 
source contribution. According to the principal EPA scientist 
conducting the analysis, EPA expected that the perchlorate exposure 
for individuals in the group exposed to perchlorate from food and 
water would be greater than from food or water alone. FDA's findings 
from its 2006 Total Diet Study that perchlorate is widespread in the 
food supply seem to corroborate this as a logical and reasonable 
assumption. For most of the age and gender groups, the data met this 
expectation. However, at both the mean and the 90th percentile, 
pregnant women's exposure to perchlorate from food alone was higher 
than for pregnant women exposed to perchlorate from both food and 
water. Specifically, in a table in EPA's preliminary regulatory 
determination, the agency estimated that, at the 90th percentile, 
pregnant women's exposure to perchlorate from food only was 0.263 
micrograms per kilogram per day, while the exposure for those who 
ingested perchlorate through both food and water was 0.121. While EPA 
stated in its draft preliminary regulatory determination sent to OMB 
that such anomalous results added uncertainty to this exposure 
analysis, this disclosure was deleted during OMB's review and thus did 
not appear in EPA's 2008 preliminary regulatory determination notice. 
Some reviewers specifically questioned the analysis's conclusions 
regarding pregnant women's exposure to perchlorate in drinking water 
and stated that issues identified in their comments would need to be 
addressed before this approach was used in a larger context. 

Further, in response to reviewers' comments, the authors of the 2010 
journal article on this methodology removed four data points that were 
determined to be outliers--two of which were data points that 
corresponded to women. As a result, in the article the authors 
reported pregnant women's exposure to perchlorate from food alone at 
0.198 micrograms per kilograms per day--compared with EPA's 0.263 
estimate. Even with this downward adjustment in the food exposure 
estimate for pregnant women, the anomalous relationship between 
exposure from food alone and from food and water likely persisted. 
However, readers of the journal would not be aware of such an anomaly 
because for pregnant women--the population of greatest significance in 
this study, according to EPA--the authors included only the data for 
those most likely to have been exposed to perchlorate through food 
alone and omitted data for those who were more likely to have been 
exposed to perchlorate through food and water. For all other 
populations in the study, such as children aged 6 to 11 and women aged 
15 to 44, the authors report all exposure data. Appendix VIII provides 
greater detail on these and other limitations of EPA's perchlorate 
exposure analysis. In addition, we found that while the downward 
adjustment in the food exposure estimate for pregnant women in 2010 
resulted in a relative source contribution estimate for perchlorate 
exposure from water of 72 percent compared with the 62 percent 
relative source contribution derived for EPA's preliminary 
determination in 2008, the 2008 and 2010 analyses both specifically 
support the same health reference level of 15 parts per billion--the 
level EPA and the Perchlorate Interagency Working Group agreed to. 
Appendix IX shows how making small changes in the standard assumptions 
for weight and drinking water intake that were used to calculate the 
health reference levels in 2008 and 2010 allowed EPA and the journal 
authors to maintain consistency in the health reference levels 
reported. 

Calculating the Relative Source Contribution: 

Notwithstanding the limitations of the exposure analysis discussed 
earlier, EPA used the exposure estimate for pregnant women to 
calculate a relative source contribution for perchlorate using a 
nontraditional method--that is, the subtraction method--rather than 
applying the default 20 percent relative source contribution it has 
used for its other regulatory determinations. EPA officials said they 
used the subtraction method for perchlorate because they had the data 
to estimate exposure for perchlorate, whereas they had not for other 
contaminants. As previously discussed, however, according to EPA's 
guidance on methods for developing relative source contribution 
estimates,[Footnote 140] if the agency determines that it has adequate 
exposure data to estimate the relative source contribution, rather 
than apply the default assumption, either of two methods may be 
applicable--the percentage method or the subtraction method. 

EPA's decision to use the subtraction method rather than the 
percentage method to calculate the relative source contribution had a 
significant effect on the resulting health reference level, and 
consequently on EPA's evaluation of whether (1) perchlorate occurred 
at a frequency and at levels of public health concern and (2) the 
regulation of perchlorate would provide a meaningful opportunity for 
public health risk reduction. Significant differences in the resulting 
health reference levels can occur because the subtraction method 
allows health reference levels to be set at the highest levels short 
of exceeding the reference dose. In contrast, the percentage method 
allows for a cushion between actual exposure levels and the reference 
dose, allowing for other sources of exposure and risk assessment 
uncertainties, including uncertainties related to the exposure data. 
For example, using EPA's exposure estimates for people 20 years of age 
or older,[Footnote 141] the health reference level for perchlorate 
would be 19.6 parts per billion using the subtraction method.[Footnote 
142] In contrast, the health reference level would be 5 parts per 
billion using the percentage method.[Footnote 143] The sensitivity of 
the resulting health reference level--which can drive policy 
decisions--underscores the need for transparency in EPA's regulatory 
determination notices regarding the relative source contribution 
methodology the agency selects. 

EPA's guidance on relative source contribution methods indicates that 
the subtraction method may be used in some cases in which data are 
available--relevant to and representative of populations at risk--to 
describe central tendencies and high-end exposure. Further, the 
guidance generally advises that the subtraction method should be used 
with caution because it removes any cushion between existing exposure 
levels and the reference dose.[Footnote 144] An Office of Water 
official said that it is extremely rare for EPA to have the exposure 
data it needs to use the subtraction method. 

Because EPA did not document a determination that it had sufficient 
data, it is not clear why EPA deemed it appropriate to use the 
subtraction method to calculate the relative source contribution for 
perchlorate in light of the exposure analysis's lack of data on 
infants--another sensitive subpopulation identified by the National 
Academies and EPA--as well as the uncertainties in EPA's exposure 
analysis of pregnant women. In November 2010, Office of Water 
officials told us that they believe the use of available exposure 
information using the subtraction method for relative source 
contribution was consistent with the requirement in the Safe Drinking 
Water Act to use "the best available, peer-reviewed science and 
supporting studies conducted in accordance with sound and objective 
practice." Office of Water officials also said that EPA's 2000 
guidance on when to use the percentage and subtraction methods "does 
not reflect more current thinking."[Footnote 145] We note, however, 
that EPA's 2008 preliminary regulatory determination notice on 
perchlorate did not expressly disclose (1) that the agency was using 
the subtraction method, (2) that this was the first use of this method 
in a preliminary (or final) regulatory determination, or (3) any 
guidance or rationale for the use of the subtraction method. Office of 
Water officials told us that the choice of relative source 
contribution methodology was either using the 20 percent default 
assumption when exposure information is not available or using the 
subtraction method in cases where information is available to develop 
estimates of exposure to drinking water contaminants from multiple 
sources. However, without EPA documentation, it remains unclear 
whether this position is consistent with the Office of Water's 
existing guidance on relative source contribution, which provides that 
there may be a choice between the use of the percentage or subtraction 
method--depending, in part, on the scope and quality of the exposure 
data. 

Throughout the time that the agency was considering its course of 
action regarding a relative source contribution for perchlorate, the 
small group of high-level EPA officials--in accordance with the 
Perchlorate Interagency Working Group's "no-surprises policy"--was 
sharing preliminary information and analyses with OMB and other 
members of the Perchlorate Interagency Working Group, and receiving 
direction and feedback from OMB. For example, documents we reviewed 
indicated that OMB officials, along with EPA management, directed the 
Office of Water to obtain additional data on sources of perchlorate 
exposure in order to estimate the relative source contribution rather 
than rely on the more conservative 20 percent default. In addition, 
the documents show that, as early as 2006, OMB had concluded that the 
exposure data EPA was in the process of obtaining and analyzing would 
support a determination not to regulate perchlorate. Further, 
according to these documents, OMB expected that EPA would be able to 
strengthen its case for not regulating perchlorate by 2007, when the 
agency was expected to make its second cycle of regulatory 
determinations. 

According to Key EPA Scientists, the Agency Mischaracterized Important 
Scientific Findings That Emerged from Its Novel Analysis of the 
Sensitivity of Various Age Groups to Perchlorate in Drinking Water: 

In early 2008, EPA used a physiologically based pharmacokinetic (PBPK) 
model[Footnote 146] to (1) evaluate the relative sensitivity of 
sensitive subpopulations to the health reference level the agency had 
developed based on pregnant women and their fetuses and (2) address 
concerns that some sensitive subpopulations, such as infants, exposed 
at the health reference level may receive concentrations of 
perchlorate above the reference dose.[Footnote 147] For its 
preliminary regulatory determination, the agency used the model in a 
novel way and, according to some key EPA scientists, mischaracterized 
the findings of the modeling analyses by selecting and presenting 
information in such a way as to support the agreed-upon conclusion 
that a health reference level of 15 parts per billion was protective 
of all sensitive subpopulations, including infants.[Footnote 148] 

Specifically, in January 2008, EPA's Office of Water asked the Office 
of Research and Development to review the PBPK model--which had 
recently been used by other scientists to estimate the effects of 
exposure to perchlorate and how the body processes it[Footnote 149], 
[Footnote 150]--to determine whether (1) that model represented the 
best available science and (2) there were scientifically defensible 
applications of the PBPK model for EPA's purpose of assessing the 
risks of exposure to perchlorate. Office of Research and Development 
officials told us that this was different from how PBPK models are 
traditionally used because in this case, EPA was using the model to 
estimate an effect--that of perchlorate exposure on inhibition of 
iodide uptake on the thyroid at specific drinking water 
concentrations--rather than to estimate the amount of perchlorate (the 
dose) that would adversely affect the thyroid. After examining the 
model in detail and making some minor adjustments to it, the Office of 
Research and Development concluded that it was appropriate to use the 
PBPK model for assessing exposure risks. Over the next several months, 
the Office of Research and Development used the model to conduct 
numerous sensitivity analyses for sensitive subpopulations, applying 
various sets of assumptions. As it conducted this work, the Office of 
Research and Development kept the Office of Water apprised of its 
results, some of which indicated that to prevent some infants from 
receiving a perchlorate dose greater than the reference dose, the 
concentration of perchlorate in water should not exceed 2 parts per 
billion. During this time, members of EPA's small group of high-level 
officials continued to meet with the Perchlorate Interagency Working 
Group, and, in early July 2008, the Assistant Administrator of the 
Office of Research and Development told his staff that the Perchlorate 
Interagency Working Group had requested a particular analysis using 
the PBPK model. Specifically, the Perchlorate Interagency Working 
Group asked EPA to use the model to show the iodide uptake inhibition 
rate for each sensitive subpopulation at water concentrations of 20 
and 15 parts per billion. According to the Assistant Administrator, 
this was an effort to explore ways the PBPK model could be used to 
evaluate the effects of perchlorate exposure "instead of using default 
approaches." 

EPA presented the results of such a PBPK analysis in its October 2008 
preliminary regulatory determination for perchlorate to support its 
conclusion that a health reference level of 15 parts per billion was 
protective of all sensitive subpopulations, including infants, and 
stated that using the model in this way could reduce some of the 
uncertainty regarding the sensitivities of subpopulations other than 
pregnant women. The analysis EPA presented in its preliminary 
regulatory determination compared the (1) estimated iodide uptake 
inhibition rate predicted by the model for various age groups with the 
(2) iodide uptake inhibition rate corresponding to the no-observed- 
effect level for the seven healthy adults from which the reference 
dose was derived (point of departure), at the health reference level 
of 15 parts per billion. From this comparison, the agency concluded 
that the 2.2 percent iodide uptake inhibition rate estimated by the 
model for the formula-fed infant--the age group with the highest 
inhibition rate--was comparable to the 1.8 percent inhibition rate for 
a healthy adult, noting that the difference in the inhibition rates 
was "within the statistical uncertainty in the data." 

According to Office of Research and Development officials overseeing 
this work, however, this comparison was "misleading and incomplete" 
because it does not account for the uncertainty and variability 
inherent in comparisons of the responses of adults with those of other 
age groups, such as infants and children. These officials also stated 
that the comparison in the preliminary determination notice of the 
model-predicted iodide uptake inhibition to the iodide uptake 
inhibition associated with the point of departure[Footnote 151] 
identified by the National Academies was inappropriate. They also said 
that a comparison of the model-predicted iodide uptake inhibition 
would also need to be made with the iodide uptake inhibition 
associated with the reference dose to understand whether a drinking 
water concentration of 15 parts per billion would be protective of all 
subpopulations. Further, Office of Research and Development officials 
said they disagreed with the way EPA presented the information in its 
preliminary regulatory determination notice, saying the agency did not 
sufficiently explain the uncertainties and limitations, instead 
presenting the information more conclusively than was appropriate. In 
discussing these issues regarding the comparison with Office of Water 
officials, however, they said the comparison was valid on the basis 
that EPA agrees with the National Academies identification of iodide 
uptake inhibition as a valid measure to protect against the potential 
for an adverse health effect from perchlorate.[Footnote 152] 

While EPA relied on the modeling results and comparison discussed 
earlier to support its conclusion that a health reference level of 15 
parts per billion was protective of all subpopulations, the table EPA 
published in the preliminary regulatory determination notice 
presenting the results of this analysis also included data that may 
not be consistent with that conclusion. That is, while the table 
providing the estimated daily dose of perchlorate to which infants and 
children up to age 2 would be exposed at a drinking water 
concentration of 15 parts per billion did not present a comparison of 
these estimated exposures with the reference dose, the table did 
provide sufficient data for informed readers of the preliminary 
determination to calculate such comparisons. Such calculations show 
that infants and young children could be exposed to doses of 
perchlorate at levels as high as 5.5 times greater than the reference 
dose, supporting the concern that infants and young children may, in 
fact, be more vulnerable to perchlorate exposure. Moreover, while EPA 
stated in the notice that "for some [subpopulations], the modeled 
exposure exceeds the [reference dose]," the agency was not explicit 
about the extent to which the reference dose is exceeded--as 
calculated above--and did not explain the implications of this result 
on its conclusion that the health reference level of 15 parts per 
billion is protective of all subpopulations. In providing comments on 
the draft notice to the Office of Water, an Office of Research and 
Development scientist noted that the agency's failure to present a 
comparison of the estimated daily exposure with the reference dose 
constituted a "serious omission," and characterized the infants' 
estimated exposure as "substantially higher" than the reference dose. 

As previously mentioned, in addition to the modeling analysis 
discussed above, the Office of Research and Development had conducted 
numerous other sensitivity analyses with the PBPK model that were not 
presented or discussed in EPA's October 2008 preliminary regulatory 
determination for perchlorate. Some of the analyses were subsequently 
presented in a May 2009 EPA report on the sensitivity analyses 
following an independent peer review and public comment period of the 
analyses.[Footnote 153] One of the analyses included in the report was 
an explicit comparison between estimated perchlorate doses received by 
all population groups and the existing reference dose that a senior 
EPA scientist had identified in September 2008 (a month before the 
preliminary determination was published) as "necessary for an adequate 
health risk characterization for perchlorate exposures from drinking 
water." According to an Office of Research and Development official, 
another analysis included in the report that compared the model- 
predicted iodide uptake inhibition of sensitive subpopulations with 
the model-predicted iodide uptake inhibition of an average adult at 
the no-observed-effect level dose identified by the National Academies 
was more appropriate than the analysis presented in the Federal 
Register notice. In this comparison, the PBPK model estimated an 
iodide uptake inhibition rate for the age group with the highest 
inhibition rate--again the 7-day-old formula-fed infant--of 4.3 
percent, compared with a rate of 1.6 percent for an average adult. In 
contrast, the PBPK analysis EPA used for its preliminary regulatory 
determination predicted a 2.2 percent iodide uptake inhibition for a 7-
day-old formula-fed infant that EPA concluded was "comparable" to the 
1.8 percent iodide uptake inhibition that the National Academies 
recommended as the point of departure for calculating the reference 
dose. This analysis showing a greater disparity between the iodide 
inhibition rates in adults and infants was available before EPA issued 
its preliminary determination. 

EPA's limited presentation of the numerous PBPK analyses conducted by 
the Office of Research and Development in its preliminary regulatory 
determination notice validated the concern expressed at the time by 
Office of Research and Development scientists who conducted the 
analyses: that individual analyses could be used out of context in a 
way that could be misleading. Accordingly, Office of Research and 
Development scientists conducting the PBPK analyses said it was 
important to present the different analyses in the interest of 
informed and transparent decision making. An Office of Research and 
Development official articulated in September 2008 that while his 
office and the Office of Water had developed careful and sophisticated 
PBPK analyses to support the agency's preliminary regulatory 
determination, "the use of these science results in [the] draft 
regulatory determination is seriously flawed and misleading." The 
official further noted that the draft interpreted these analyses 
indicating the absence of a perchlorate health risk for infants, but 
that the results actually indicated that infants would receive a 
perchlorate dose "approximately an order of magnitude greater than the 
reference dose." As a result, Office of Research and Development 
officials and scientists that conducted the analyses concluded that 
the PBPK analysis done by the office did not support the draft 
preliminary regulatory determination's suggested health reference 
level of 15 parts per billion as being health protective for all 
sensitive subpopulations of concern to EPA. While these Office of 
Research and Development officials and scientists communicated their 
disagreement regarding the fundamental implications of, and the 
agency's presentation of the PBPK modeling results in the draft 
preliminary regulatory determination to the Office of Water--which was 
managing revisions to the notice as it underwent OMB review--they were 
not given an opportunity to review the final draft of the preliminary 
determination notice, and some key changes that they suggested were 
not reflected in the notice that was published in October 2008. 

EPA stated in its preliminary determination notice that it planned to 
issue a final determination by December 2008. In August 2009, however, 
instead of finalizing its 2008 preliminary regulatory determination 
after evaluating public comments--which is the typical practice--EPA 
decided to seek a second round of public comments through a Federal 
Register notice, specifically requesting input on sensitive 
populations. In this notice, EPA indicated that it was reevaluating 
how to best incorporate PBPK modeling into its evaluation of 
perchlorate, if at all, and presented an alternative PBPK analysis 
discussed earlier that explored the relative sensitivity of the 
various life stages to a fixed dose (the no-observed-effect level 
dose)--an analysis that EPA scientists who conducted the PBPK modeling 
believed should have been included in the 2008 preliminary regulatory 
determination in order to present the science correctly. This analysis 
showed, for example, that the model-predicted iodide uptake inhibition 
is approximately one and one-half-fold higher for the formula-fed 
infant compared with the average adult. In addition, EPA reported in 
this notice that infants less than 6 months in age generally consume 
five to eight times more water than pregnant women or women of child 
bearing age on a per body weight basis, and thus will receive a higher 
dose for any given drinking water concentration. EPA stated in its 
February 2011 final determination to regulate perchlorate that it is 
evaluating the alternative health reference levels it had developed in 
its August 2009 notice--based on exposure information for 14 life 
stages--and considers them to be levels of public health concern for 
purposes of its regulatory determination. 

EPA's Independence in Developing and Communicating Its Scientific 
Findings Was Limited by Its Acceptance of External Input on the 
Preliminary Determination Notice: 

Compounding scientists' concerns about the mischaracterization and 
lack of transparency regarding relevant scientific analyses, key 
language in EPA's preliminary regulatory determination notice appears 
to have been drafted by OMB rather than EPA. In working to finalize 
the preliminary regulatory determination notice, EPA's Office of Water 
worked with OMB, whose clearance of the notice was required per EPA's 
policy implementing Executive Order 12866 before the Office of Water 
could provide it to the EPA Administrator for review, approval, and 
publication in the Federal Register.[Footnote 154] According to the 
Office of Water, in four iterations of review, OMB sent EPA a 
substantial number of comments on the notice; in response, EPA 
"clarified its description of the supporting analysis and strengthened 
the rationale for the determination." The following example highlights 
OMB's role in reviewing and approving the specific wording of EPA's 
scientific analyses regarding perchlorate exposure in infants and 
children: 

Text EPA provided to OMB: "Because infants and children eat and drink 
more on a per body weight basis than adults, eating a normal diet and 
drinking water with 15 [micrograms per liter] of perchlorate is likely 
to result in exposure that is greater than the reference dose in these 
groups." 

Revised text provided to EPA by OMB: "Because infants and children eat 
and drink more on a per body weight basis than adults, eating a normal 
diet and drinking water with 15 [micrograms per liter] of perchlorate 
may result in exposure that is greater than the reference dose in 
these groups." 

By changing three words, OMB downplayed EPA's characterization of the 
health risks of perchlorate exposure. Importantly, the EPA scientist 
who wrote the text provided to OMB noted to EPA reviewers--before it 
was sent to OMB in August 2008--that the PBPK model actually showed 
exposures at levels "much higher" than the reference dose, but also 
said that he believed describing the exposure scenario as "likely" was 
the strongest characterization that might be retained through OMB 
review. In addition, in September 2008, during its review of the draft 
preliminary determination notice and before clearing it for 
publication, OMB reminded EPA that it expected the notice to "state a 
clear conclusion that the HRL [health reference level] is protective 
of all subpopulations, as agreed to in the August framework"--and 
accordingly, this conclusion appeared in the agency's October 2008 
preliminary determination notice.[Footnote 155] 

Overall, the changes EPA made in response to OMB's extensive comments 
through the external review process downplayed the health risks of 
exposure to perchlorate and presented EPA's conclusions with greater 
certainty than key EPA scientists stated they were comfortable 
supporting. In addition, it is difficult to identify the nature and 
extent of OMB's changes to the 2008 preliminary regulatory 
determination notice on perchlorate because OMB provided four 
iterations of comments, resulting in substantial revisions; EPA did 
not make OMB's actual comments on the regulatory determinations part 
of the public record. Rather, an Office of Water official developed a 
statement for the record briefly summarizing the nature and extent of 
the comments. EPA included a copy of this statement, the draft 
determination notice that was sent to OMB for clearance, and a copy of 
the final version of the draft determination notice for publication in 
the public record. We note that the approach used by the Office of 
Water to make OMB's comments on regulatory determinations part of the 
public record is different from that used in other programs, such as 
the IRIS program, which makes actual comments on draft assessments 
provided by OMB and other federal agencies available to the public. 
This latter approach is more transparent and supports a clear 
understanding of the nature and extent of OMB's proposed changes. 
Moreover, the practice of fully disclosing individual comments 
promotes transparency, which is one of EPA's core values established 
in its strategic plan, and which the Administrator emphasized in a 
2009 memorandum on the importance of transparency sent to all EPA 
employees.[Footnote 156] The memorandum established transparency 
guidelines intended to maintain the fairness and openness of EPA 
operations and thus strengthen public confidence in EPA decisions. 
[Footnote 157] 

Conclusions: 

Enacted with the goal of assuring the safety of public drinking water, 
the Safe Drinking Water Act authorizes EPA to regulate contaminants in 
public drinking water systems. Since the enactment of the 1996 
amendments to the act, EPA had not recommended any new contaminants 
for regulation until February 2011, when it, among other things, 
reversed its 2008 preliminary decision to not regulate perchlorate. 
Systemic limitations in its implementation of the 1996 amendments' 
requirements for determining whether additional contaminants in public 
drinking water warrant regulation have impeded EPA's progress in 
helping assure the public of safe drinking water. Specifically, EPA 
lacks (1) criteria and a process for identifying those contaminants on 
its candidate list that pose the greatest public health concern and 
(2) a coordinated process to obtain occurrence and health effects 
information to support informed regulatory determinations, resulting 
in regulatory determinations on contaminants selected on the basis of 
available data rather than on the basis of public health concern. 

In addition, while the unregulated contaminants testing program 
mandated by the 1996 amendments provided EPA with the authority and a 
structure to obtain consistent, high-quality occurrence data that 
could effectively support regulatory determinations on individual 
contaminants, the extent and utility of the occurrence data this 
program generates to support EPA's drinking water program is reduced 
because the agency has not (1) taken full advantage of its statutory 
authority to require testing for the maximum number of contaminants 
allowed, 30, under each 5-year testing cycle, and (2) used 
sufficiently sensitive analytic tests in some cases. We recognize that 
EPA may not always know the health reference level for a contaminant 
at the time the analytic method is being selected because a health 
risk assessment may be in progress. However, until the agency resolves 
this timing challenge--such as by the use of the more sensitive tests 
USGS has used for many years--EPA may be unable to routinely develop 
occurrence data at appropriately low detection levels to support 
informed regulatory determinations. Also, EPA's decision to use the 
more limited screening survey for a majority of the contaminants 
tested, which can provide national occurrence data with greater 
uncertainty than those provided by assessment monitoring, has to date 
limited the utility of some of the testing data obtained, and it 
remains unclear whether EPA will find these data sufficient for future 
determinations. 

Importantly, EPA's Office of Water has not developed policies and 
guidance that can help agency staff interpret and apply the 1996 
amendments' broad statutory criteria, or developed a protocol to 
follow in making regulatory determinations that can both guide staff 
and incorporate accountability into the process. Without such policies 
and guidance, the basis for EPA's regulatory determinations--and the 
quality of the documentation the agency uses to support them--can 
fluctuate over time with changes in agency leadership and staff. Also, 
without guidance, EPA lacks thresholds or parameters for applying the 
broad statutory criteria to ensure their consistent application. For 
example, EPA is informally applying an unspecified national occurrence 
requirement for contaminants to meet the statutory criterion of 
occurring "with a frequency and at levels of public health concern." 
This national occurrence requirement has not been defined or vetted 
internally or externally, yet its use represents a critical 
interpretation of the Safe Drinking Water Act that has important 
implications for the safety of public drinking water in the United 
States. Moreover, without guidance on such things as the 
characteristics of occurrence data and health effects information that 
are adequate to support regulatory determinations, methods and 
analyses to evaluate the health effects on sensitive subpopulations, 
and a process to ensure that the presentation of occurrence data and 
health effects information in regulatory determination notices and 
support documents is comprehensive, consistent, informative, and 
understandable, EPA's support for its regulatory determinations will 
continue to lack transparency, clarity, and consistency--affecting 
their credibility. For example, such information cannot be 
comprehensive without clear explanations of key information, such as 
whether and how EPA used various data, the relative source 
contribution method the agency used to calculate the health reference 
level, instances in which the minimum reporting levels for data used 
in assessing contaminants' occurrence in drinking water were not 
sufficiently sensitive to detect occurrence at the level of public 
health concern, and any exceptions to existing guidance reflected in 
the agency's support for its regulatory determinations. In addition, 
as illustrated by EPA's preliminary determination on perchlorate, 
information on the relative source contribution method the agency uses 
to calculate the health reference level is also key to providing a 
comprehensive understanding of regulatory determinations. Moreover, in 
light of the importance of the regulatory determinations to ensure the 
safety of public drinking water and protect public health, the lack of 
guidance hampers EPA's ability to consistently apply and document (1) 
the statutory requirement to consider sensitive subpopulations--such 
as infants and children, those with kidney and liver disease, those 
with compromised immune systems, and the elderly--when selecting 
contaminants for regulatory determination, and (2) EPA's children's 
health policy, which specifies how health risks to infants and 
children should be analyzed when the agency is developing a policy, 
regulatory action, or decision. As demonstrated by the preliminary 
determination for perchlorate, EPA also had not determined how to use 
the expertise of officials and scientists in relevant offices, 
including the Office of Children's Health Protection, in making 
decisions regarding drinking water contaminants, such as by ensuring 
that, to the extent possible, such offices consistently participate in 
regulatory determination work groups. 

In the absence of guidance defining the circumstances and process 
under which EPA may want to reconsider final determinations to not 
regulate, it is unclear whether and to what extent EPA would 
consistently do so. In addition, in issuing policies and guidance, EPA 
could be better assured that the guidance would address identified 
shortcomings by having an independent review of any proposed guidance 
by an entity with scientific and technical credibility, such as either 
of EPA's two standing drinking water advisory committees. Importantly, 
guidance alone may not ensure that EPA conducts future regulatory 
determinations in a consistent manner without an internal review 
mechanism to ensure the application of any guidance. Such a mechanism 
could be instrumental in preventing the use of an atypical process 
such as the one used for the preliminary determination on perchlorate--
which lacked transparency and limited the agency's independence in 
developing and communicating its scientific findings. 

EPA has posted health advisories on its Web site to inform states, 
localities, and public water systems that action on their parts may be 
required to protect public health from exposure in public drinking 
water to 9 of the 20 contaminants the agency has decided not to 
regulate. However, because EPA does not require public water systems 
to monitor for these unregulated contaminants, current data on the 
occurrence of these contaminants in the nation's public water systems 
are generally not available. The lack of actual comprehensive data on 
the occurrence of these contaminants in public water systems, 
widespread state and local government budget constraints, and, in some 
cases, limitations in states' ability to require systems to conduct 
testing, are factors that could hamper efforts by states and 
localities to use the health advisories in a timely and effective 
manner to protect public health. Further, while not directed to 
consumers, the health advisories in some cases contain warnings about 
using public water to prepare formula and food for infants and 
children containing the contaminants at certain levels. Because many 
consumers would have to find and pay a laboratory to have their water 
tested to be informed of the occurrence of these contaminants in their 
drinking water, it would also be difficult for them to effectively use 
the advisories to protect their health and that of their families. 

Finally, EPA currently submits its regulatory determinations to OMB 
for review and clearance pursuant to executive order and OMB policy, 
but for the 2008 preliminary regulatory determination on perchlorate--
and for the prior 20 determinations--OMB's individual comments and 
direction are not transparently identified in the public record. This 
information is key to understanding the degree to which EPA is 
maintaining its independence in developing and communicating the 
results of its scientific analyses. Moreover, the lack of transparency 
of OMB's overall review and clearance is important because, for 
example, in discussing complex scientific analyses and conclusions, 
changes that appear to be minor can actually significantly alter the 
conclusions presented in the determinations--conclusions can be made 
to appear more certain than they actually are or, conversely, can be 
made to appear less important than EPA scientists assess them to be. 

Recommendations for Executive Action: 

To increase EPA's consistency, transparency, and clarity in 
implementing the Safe Drinking Water Act in a way that better assures 
the public of safe drinking water, we recommend that the Administrator 
of EPA take the following 17 actions. 

To systematically implement the statutory requirement to consider for 
regulation the contaminants that present the greatest public health 
concern, we recommend that the EPA Administrator require that the 
Office of Water: 

* develop criteria and a process for identifying those contaminants on 
its candidate list that present the greatest public health concern, 
and: 

* develop a coordinated process for obtaining both the occurrence and 
health effects data that may be needed for the agency to make informed 
regulatory determinations on these priority contaminants. 

To take full advantage of the opportunities provided by the testing 
program mandated by the statute and thereby obtain high-quality 
occurrence data on the authorized number of unregulated contaminants, 
we recommend that the EPA Administrator require the Office of Water to 
take the following steps: 

* Use its full statutory authority to test for the 30 contaminants 
allowed under each 5-year testing cycle. 

* Conduct testing for most or all of the selected contaminants using 
the assessment monitoring program, rather than the more limited 
screening surveys, to obtain robust occurrence data, from which 
national estimates with high confidence levels can be derived. 

* Select minimum reporting levels for testing selected unregulated 
contaminants that are sufficiently sensitive to reliably (1) detect 
the known and likely occurrence of contaminants in public water 
systems at levels of public health concern and (2) provide useful and 
credible information on the occurrence of the contaminants in public 
drinking water systems. 

To support the development of regulatory determinations that are 
transparent, clear, and consistent and that follow applicable agency 
policy, we recommend that the EPA Administrator require the Office of 
Water to expeditiously develop, and make available to the public, 
policies or guidance that clearly articulates the agency's 
interpretation of the act's broad statutory criteria for making 
regulatory determinations and provides a protocol for making such 
determinations. 

In particular, the guidance should: 

* specify any thresholds or parameters that the agency requires to be 
met to support a positive finding for each criterion to ensure their 
consistent application. 

* include factors for determining when the occurrence and health 
effects data the agency identifies are adequate to support a 
regulatory determination. 

* establish a process to ensure that the presentation of health 
effects and occurrence information in regulatory determination notices 
and support documents is comprehensive, consistent, informative, and 
understandable and that it includes clear explanations of key 
information, such as: 

- whether and how EPA used various data, 

- the relative source contribution method the agency used to calculate 
the health reference level, 

- instances in which the minimum reporting levels for data used in 
assessing contaminants' occurrence in drinking water are above the 
health reference level (e.g., are not sufficiently sensitive to detect 
occurrence at the level of public health concern) and the limitations 
of using such occurrence data to support regulatory determinations, 
and: 

- any exceptions to existing guidance reflected in the agency's 
support for its regulatory determinations. 

* establish the approaches, such as methods and analyses, as 
appropriate, to evaluate the health effects on sensitive 
subpopulations, including such groups as infants and children, those 
with kidney and liver disease, those with compromised immune systems, 
and the elderly, and to comply with applicable agency policy and 
guidance for assessing children's health risks. 

* specify that appropriate stakeholders--that is, EPA offices with 
relevant expertise such as the Office of Children's Health Protection 
and regional offices that have known or likely occurrence of the 
contaminants being evaluated in public water systems within their 
areas of jurisdiction--be encouraged and have the opportunity to 
participate in the regulatory determination work groups. 

* define the circumstances under which, and the process EPA will use, 
to reconsider whether to regulate a contaminant for which it 
previously issued a determination not to regulate and, in the context 
of the recommended guidance, consider whether the agency needs to re-
evaluate any of its past determinations to not regulate. 

We further recommend that a draft of the guidance we are recommending 
EPA develop be reviewed by the Science Advisory Board's Drinking Water 
Committee or the National Drinking Water Advisory Council and that EPA 
consider the committee's comments before finalizing the guidance. In 
addition, we recommend that the EPA Administrator develop and 
implement an internal review mechanism to help ensure that EPA's 
regulatory determinations are consistent with the guidance. 

In light of EPA's decisions to issue health advisories in conjunction 
with determinations to not regulate certain contaminants that have 
been detected in some public water systems at levels of public health 
concern, we recommend that the EPA Administrator (1) determine whether 
the Office of Water's use of health advisories provides sufficient 
information on these unregulated contaminants to support timely and 
effective actions by states, localities, public water systems, and the 
public to ensure the safety of public drinking water, and (2) if not, 
direct the Office of Water to develop a plan to more effectively 
communicate such information to these entities. 

To improve transparency and help EPA ensure that it maintains the 
fairness and openness of its operations and thus strengthens public 
confidence in its decisions, we recommend that the EPA Administrator 
require the Office of Water to include in the public record OMB's and 
other federal agencies' comments on and revisions to regulatory 
determination notices and support documents. 

Agency Comments and Our Evaluation: 

We provided a draft of this report to the Administrator of EPA for 
review and comment. In commenting on the draft report, EPA did not say 
whether it agreed or disagreed with our findings. EPA agreed with two 
of our recommendations regarding its drinking water health advisories, 
stating that it would evaluate their utility and determine whether and 
how to revise the advisories to better serve states, localities, 
public water systems, and the public. However, EPA did not agree to 
adopt the remaining 15 recommendations we made to improve EPA's 
implementation of the Safe Drinking Water Act's requirements for 
determining whether additional drinking water contaminants warrant 
regulation. These recommendations are largely aimed at developing 
basic guidance to support clear and consistent agency actions to help 
assure the public of safe drinking water. 

Regarding our recommendation to develop criteria and a process for 
identifying those drinking water contaminants on its candidate lists 
that present the greatest public health concern, EPA took the position 
that no action is needed, as the agency's candidate list itself 
represents the contaminants of greatest public health concern. We 
acknowledge in our report that the candidate list represents one level 
of prioritization, but we also identify the need for EPA to further 
prioritize the 116 contaminants on its current candidate list to 
obtain coordinated and timely health effects and occurrence data and 
make regulatory determinations on contaminants of greatest public 
health concern. We also report that in 2009, EPA's Science Advisory 
Board concluded that the candidate list is too large to effectively 
prioritize contaminants for the purpose of making regulatory 
determinations. Especially in light of increased fiscal constraints 
and programmatic demands, we believe it is of utmost importance for 
EPA to prioritize the contaminants on its candidate list to identify 
those of greatest public health concern so that the agency can 
effectively target its limited resources to obtain the data it needs 
to support regulatory determinations on priority contaminants. EPA 
noted that the agency "is prioritizing" contaminants from the 
candidate list for the next cycle of regulatory determinations. The 
implication of this statement is that EPA will, in fact, prioritize 
contaminants, but without having established criteria and a process 
for so doing. We continue to believe that establishing criteria and a 
process for identifying contaminants on the candidate lists that 
present the greatest public health concern is important to provide 
transparency and credibility to EPA's implementation of the statutory 
requirement for prioritizing. 

Regarding our recommendation to develop a coordinated process for 
obtaining the occurrence and health effects data needed to make 
informed regulatory determinations on the contaminants of greatest 
public health concern, EPA's response describes its current efforts 
for obtaining these data--such as engaging in "internal and external 
discussions about data gaps that need to be filled" and participating 
in the Office of Research and Development's planning process to 
prioritize health effects research for the next 5 years--and does not 
acknowledge that any further steps are needed. As we reported, the 
approaches EPA has used, and advocates continued reliance on, have 
resulted in the agency's making limited progress in filling data gaps 
since the 1996 amendments. Moreover, the data gaps for contaminants on 
its current candidate list are substantial--EPA identified a lack of 
sufficient occurrence or health effects data, or both, for at least 
100 of the 116 contaminants on the list. Therefore, we continue to 
believe that the Office of Water needs to develop a coordinated 
process for obtaining both occurrence and health effects data for 
those contaminants on its candidate list that present the greatest 
public health concern. 

EPA did not agree to implement our recommendations that the EPA 
Administrator require the Office of Water to fully and effectively 
utilize the testing program by (1) using EPA's full statutory 
authority to test for the 30 contaminants allowed under each 5-year 
testing cycle; (2) conducting testing for most or all of the selected 
contaminants using the assessment monitoring program; and (3) 
selecting minimum reporting levels that are sufficiently sensitive to, 
for example, reliably detect the occurrence of contaminants in public 
water systems at levels of public health concern. While we understand 
from its response that EPA currently supports fully utilizing this 
important program, EPA has not done so in the past; we believe it is 
important for EPA to implement our recommendations and thereby 
institutionalize the agency's commitment to fully and effectively 
using the unregulated contaminants testing program going forward. 

To support the development of regulatory determinations that are 
transparent, clear, and consistent and that follow applicable agency 
policy, we made an overarching recommendation that EPA develop 
policies or guidance that clearly articulate the agency's 
interpretation of the Safe Drinking Water Act's broad statutory 
criteria, as well as eight additional recommendations identifying 
specific components of this guidance and calling for review of the 
draft guidance by one of EPA's independent advisory committees and the 
establishment of an internal review mechanism to help ensure the 
determinations are consistent with the guidance. EPA did not agree to 
implement these nine recommendations. Specifically, EPA said it 
believed that establishing policies or guidance for regulatory 
determinations was not "practicable" because of the many combinations 
of health effects factors and potential ranges of frequencies and 
levels of contaminants measured in drinking water. We do not believe 
that the existence of variables or complexities is a basis for not 
developing guidance for EPA staff to implement the statutory 
requirements for regulatory determinations. In fact, the complexities 
cited would argue for, rather than against, the need to develop 
guidance for staff on applying the criteria. EPA also did not agree 
with these recommendations on the basis that policies or guidance 
could "inhibit its ability to continually improve its actions." This 
perspective suggests that guidance per se lacks flexibility. We do not 
agree that guidance and flexibility are incompatible or that 
developing guidance would inhibit EPA's ability to improve its 
actions. Rather, flexibility can and should be incorporated into 
guidance by establishing parameters or options for areas in which 
flexibility is deemed appropriate. Moreover, consistency and 
accountability are lacking in this important program because EPA has 
not developed guidance on the application of the broad statutory 
criteria, which are susceptible to varying interpretations. As stated 
in our report, the statutory criteria are so broadly stated that they 
could potentially be interpreted so as to lead to regulating all the 
contaminants on the candidate list, some of them, or none of them. In 
its comments, EPA highlighted that, under these criteria, ultimately 
it is the Administrator's judgment as to whether regulation of a 
contaminant in drinking water presents a meaningful opportunity for 
health risk reduction, after considering the information presented by 
agency staff. It is precisely for this reason that we believe it is 
essential for the staff to have sufficient guidance on applying the 
broad criteria consistently and transparently so that the 
Administrator's judgment can be based on sound and consistent 
information. Without such guidance, the basis for EPA's determinations 
and the quality of the documentation the staff use to support them can 
fluctuate over time as a result of, among other reasons, changes in 
agency leadership and staff. 

Regarding our recommendation that EPA develop guidance that would 
specify any thresholds or parameters that the agency requires to be 
met, EPA stated that there is not a "one size fits all" model for 
evaluating contaminants for drinking water regulation. We agree, but 
we do not believe that this precludes the development of useful and 
important guidance, particularly with regard to interpreting 
contaminant occurrence "with a frequency and at levels of public 
health concern" that would provide "a meaningful opportunity for 
health risk reduction." We believe EPA should be able to conceptualize 
the key scenarios that could reasonably meet these criteria, as well 
as anticipate, for various situations, the types of analyses 
appropriate to the evaluation. In our report, we cited a 1993 EPA 
report that provides some potential scenarios for regulating drinking 
water contaminants. As we said, this report could serve as a starting 
point in developing this important guidance. Moreover, if in fact EPA 
does not believe any thresholds or parameters are applicable to its 
regulatory determinations, the agency should expressly state this in 
guidance. The Safe Drinking Water Act does not require that 
contaminants be found in public water systems on a national basis for 
an Administrator to find a meaningful opportunity for health risk 
reduction; it also provides for relief from monitoring and for 
flexibilities for instances in which a contaminant occurs in certain 
areas but not in others. As we reported, EPA's informal use of a 
national occurrence requirement has significant implications for the 
safety of public drinking water, but EPA has not defined or vetted 
this critical interpretation of the statutory criterion internally or 
externally. 

Regarding our recommendations for EPA to (1) develop guidance that 
includes factors for determining when the occurrence and health 
effects data the agency identifies are adequate to support a 
regulatory determination and (2) establish a process to ensure that 
the presentation of health effects and occurrence information is 
comprehensive, consistent, informative, and understandable, and that 
it includes clear explanations of key information we outlined, EPA 
stated that it will strive to improve the clarity and transparency of 
its support documents and Federal Register notices so that the public 
better understands the information and data being considered, any 
potential limitations or exceptions, how it uses this information to 
make decisions, and the rationale for its decisions. However, we 
continue to believe that the guidance we recommend is integral to 
EPA's accomplishing and sustaining the improvements it recognizes are 
needed. 

Regarding our recommendation to establish approaches, such as methods 
and analyses, to evaluate the health effects on sensitive populations--
including such groups as infants and children, those with kidney and 
liver disease, those with compromised immune systems, and the elderly--
and to comply with applicable agency policy and guidance for assessing 
children's health risks, EPA states it will consider how to 
incorporate the elderly into its evaluations and to continue to 
coordinate with the Office of Children's Health Protection to improve 
the methods it uses to assess health effects for regulatory 
determinations. These actions are not responsive to our recommendation 
and provide no assurance that EPA will not continue to assess 
sensitive populations in a manner that lacks transparency and internal 
consistency. 

In response to our recommendation that additional guidance is needed 
to specify that appropriate stakeholders be encouraged to, and have 
the opportunity to, participate in the regulatory determination work 
groups, EPA stated it did not believe additional guidance is needed, 
opting to continue to rely on its existing administrative process (the 
Action Development Process) to fill this role. However, we believe 
that in some cases a more proactive approach is needed to ensure that 
appropriate stakeholders--EPA offices with relevant expertise and 
regional offices in areas with known or likely occurrence of the 
contaminants being evaluated--participate in the regulatory 
determination work groups. As we reported, officials from the Office 
of Children's Health Protection said they were involved only 
informally and intermittently in the first two regulatory 
determination work groups largely as a result of staff and resource 
limitations. As a result, in some cases, the Office of Water may need 
to augment the voluntary approach of the administrative process by 
identifying relevant stakeholders and working with their management, 
if need be, to encourage their participation. 

Furthermore, EPA stated that it does not believe guidance is needed to 
define the circumstances under which it will reconsider whether to 
regulate a contaminant it has determined not to regulate, and the 
process EPA will use to do so, because its candidate list process 
allows for re-evaluation of contaminants for which EPA has previously 
made negative regulatory determinations if new health effects or 
occurrence information becomes available. We believe good management 
necessitates specific guidance on how and when the agency will 
reconsider determinations to ensure that this is done consistently and 
in a timely manner. Also, we continue to believe that EPA should 
consider, in the context of the guidance we recommended that EPA 
develop, whether it needs to re-evaluate any of its past 
determinations to not regulate in light of the systemic and individual 
shortcomings we have identified in this report. 

In response to our recommendation regarding the independent review of 
the recommended guidance--which EPA has said is not "practicable" to 
develop--EPA states that it will "plan to seek input" from its 
National Drinking Water Advisory Council on how to improve 
transparency and clarity of its regulatory determinations "at an 
appropriate stage of the process during the agency's (next or future) 
regulatory determinations effort." We continue to believe it is 
essential for EPA to develop the guidance we recommend and that the 
most efficient and effective way to obtain input from one of EPA's 
drinking water advisory committees is to have it review EPA's draft 
guidance. Regarding the recommendation for EPA to develop and 
implement an internal review mechanism to help ensure that EPA's 
regulatory determinations are consistent with the guidance we 
recommend, EPA states that it will continue to use its Action 
Development Process and agency work group to ensure that 
determinations are clear, transparent, and "as consistent as 
possible." Our report shows that these mechanisms have not been 
effective to date. Consequently, we continue to believe that EPA needs 
to develop and implement an internal review mechanism to help ensure 
that the agency's regulatory determinations are consistent with the 
guidance we recommend. 

Finally, in response to our recommendation that the EPA Administrator 
require the Office of Water to include in the public record 
communications with OMB and other federal agencies during the 
development of regulatory determinations and associated notices and 
scientific analyses, EPA states that Executive Order 12866 does not 
require that every communication with OMB or other federal agencies be 
included in the public record. EPA also states that unless otherwise 
required by law, it does not believe that including these documents in 
the docket is a good policy because the predecisional documents may be 
confusing to the public, undermine the ultimate policy choice, and 
inhibit deliberations. We continue to believe that to improve 
transparency of these determinations, which are by law committed to 
the Administrator's judgment, EPA should consistently provide in the 
public record documentation of OMB's and other federal agencies' 
comments on and revisions to EPA regulatory determination documents, 
regardless of whether there is a specific legal requirement for 
disclosure. As a result of EPA's comments on the scope of our 
recommendation, we have revised it to focus on the transparency of 
OMB's and other federal agencies' comments on and revisions to EPA's 
regulatory determination notices and support documents. EPA also 
provided technical comments, which we incorporated as appropriate. 
Appendix X contains the full text of the agency's comments. 

As agreed with your offices, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 30 days 
from the report date. At that time, we will send copies to the 
appropriate congressional committees, Administrator of EPA, Office of 
Management and Budget, and other interested parties. In addition, the 
report will be available at no charge on the GAO Web site at 
[hyperlink, http://www.gao.gov]. 

If you or your staffs have any questions about this report, please 
contact me at (202) 512-3841 or trimbled@gao.gov. Contact points for 
our Offices of Congressional Relations and Public Affairs may be found 
on the last page of this report. GAO staff who made major 
contributions to this report are listed in appendix XI. 

Signed by: 

David C. Trimble Acting Director:
Natural Resources and Environment: 

[End of section] 

Appendix I: Objectives, Scope, and Methodology: 

Our objectives were to (1) evaluate the extent to which the 
Environmental Protection Agency's (EPA) implementation of the 1996 
amendments' requirement to determine which potentially harmful 
contaminants to regulate has helped assure the public of safe drinking 
water and (2) review the process and scientific analyses EPA used to 
develop its 2008 preliminary regulatory determination on perchlorate. 

To assess EPA's implementation of the 1996 amendments' requirement to 
determine which potentially harmful drinking water contaminants to 
regulate, we reviewed the statute, legislative history, and relevant 
amendments and analyzed relevant documentation, such as Federal 
Register notices announcing EPA's regulatory determinations, 
contaminant candidate lists, and unregulated contaminant monitoring 
rules; EPA regulatory determination work group documents; regulatory 
determination support documents[Footnote 158]; and relevant policy and 
guidance documents such as EPA's policy regarding the estimation of 
relative source contributions, as well as the agency's guidance for 
considering children's health when developing EPA actions. We reviewed 
the primary support documents for the 20 contaminants with final 
regulatory determinations from the 2003 and 2008 cycles and related 
drinking water health advisories; reports by the Department of Health 
and Human Services' (HHS) Agency for Toxic Substances and Disease 
Registry (ATSDR) and the National Academies; and Integrated Risk 
Information System (IRIS) assessments, as applicable. We reviewed 
EPA's information on the potential adverse health effects of, and 
extent to which the public may be exposed to, individual contaminants 
in public drinking water systems, as well as public comments on EPA's 
determinations. We judgmentally selected 6 of the 20 contaminants with 
completed regulatory determinations (boron; dieldrin; 2,4- 
dinitrotoluene; 2,6-dinitrotoluene; manganese; and 1,1,2,2- 
tetrachloroethane) to review how EPA presented its rationale and 
support for its determinations in its regulatory determination notices 
and key support documents. We selected contaminants that, taken 
together, provided coverage for the following five variables: (1) 
contaminants from each of the regulatory determination cycles; (2) 
contaminants whose occurrence data came from one of the three primary 
data sources (National Inorganic and Radionuclide Survey, Unregulated 
Contaminant Monitoring Rounds 1 and 2, and EPA's first Unregulated 
Contaminants Monitoring Rule); (3) contaminants with cancer adverse 
health effects as well as contaminants with noncancer adverse health 
effects; (4) contaminants whose occurrence data had minimum reporting 
levels higher than the health reference levels, as well as those whose 
occurrence data had minimum reporting levels lower than the health 
reference levels; and (5) contaminants detected at levels in excess of 
the health reference level at 1 percent or more of public water 
systems sampled, as well as contaminants with fewer such detections. 

In addition, we reviewed health effects information and public 
drinking and source water occurrence data from other entities, such as 
ATSDR, California's Office of Environmental Health Hazard Assessment, 
and the U.S. Geological Survey (USGS). We interviewed officials from 
EPA's Office of Water, Office of Research and Development, and Office 
of Children's Health Protection to obtain their perspectives on, among 
other things, the regulatory determination process and the health 
effects and contaminant occurrence research used to support 
determinations. We interviewed officials at the Association of State 
Drinking Water Administrators and the American Water Works Association 
to obtain their perspectives on EPA's regulatory determinations 
process and decisions. Overall, the focus of this review has been on 
EPA's regulatory determination process. While this work included 
reviewing information developed under two other processes integral to 
the regulatory determination process--the development of contaminant 
candidate lists and implementation of the unregulated contaminants 
monitoring rule--we did not evaluate EPA's implementation of these 
processes. 

To review the process and scientific analyses EPA used to develop its 
2008 preliminary regulatory determination on perchlorate, we analyzed 
the 2008 Federal Register notice announcing EPA's preliminary 
determination and the 2009 Federal Register notice--EPA's supplemental 
request for comments. We reviewed the process EPA used in adopting the 
National Academies' risk assessment of perchlorate in its IRIS 
database, as well as other key scientific analyses EPA relied on in 
making its preliminary determination: its analysis of exposure to 
perchlorate from food and water and its sensitivity analysis of 
various age groups to perchlorate exposure. We analyzed the related 
peer reviews on these analyses and public comments on EPA's 
preliminary regulatory determination. In addition, we reviewed 
relevant documentation of communications among EPA officials and 
between EPA officials and officials from other federal agencies 
related to perchlorate. Further, we interviewed key officials in EPA's 
Office of Water and Office of Research and Development who were 
involved in the development of EPA's preliminary determination. In 
addition, we interviewed officials from EPA's Office of Water, Office 
of Research and Development, and Office of Children's Health 
Protection to obtain information on EPA's decision making, support 
documents, and analyses regarding the perchlorate decision, as well as 
to obtain their perspectives on the determination. 

In addition, to provide supplemental information on EPA's 
implementation of the Safe Drinking Water Act of interest to the 
requesters, we reviewed EPA's regulatory actions from 1974 to 2010 
that occurred in response to the major amendments and provide this 
information in the background section of the report, with additional 
details provided in appendix II. We also reviewed a key EPA Report to 
Congress from 1993, which discussed the implementation of the act 
under the first two legislative frameworks, as well as the conditions 
preceding the 1996 amendments to the act. We visited a drinking water 
treatment facility and laboratory to obtain a contextual understanding 
of public drinking water systems and contaminant occurrence testing, 
as well as the system operators' perspectives on emerging contaminants 
and EPA's regulatory determinations process. In addition, we attended 
the Association of State Drinking Water Administrators' Annual 
Conference in October 2009 and the American Water Works Association's 
Water Quality Technology Conference in November 2009 to obtain 
perspectives on drinking water treatment and regulations, as well as 
to familiarize ourselves with emerging contaminants of concern and 
other water quality issues. We conducted this performance audit from 
March 2009 to May 2011, in accordance with generally accepted 
government auditing standards. Those standards require that we plan 
and perform the audit to obtain sufficient, appropriate evidence to 
provide a reasonable basis for our findings and conclusions based on 
our audit objectives. We believe that the evidence obtained provides a 
reasonable basis for our findings and conclusions based on our audit 
objectives. 

[End of section] 

Appendix II: Information on EPA's Regulatory Actions under the 1974 
Safe Drinking Water Act: 

EPA's regulatory actions under the Safe Drinking Water Act have varied 
over time as the agency's legal authority to determine which drinking 
water contaminants to regulate, if any, has changed from discretionary 
to prescriptive and back to largely discretionary. 

The Act's Original Framework Gave EPA Broad Discretion in Deciding 
Whether to Regulate Specific Contaminants: 

In light of increased awareness of widespread water quality problems 
and health risks, Congress passed the Safe Drinking Water Act in 1974. 
The act directed the EPA Administrator to develop regulations for 
drinking water contaminants that "in his judgment" may have adverse 
human health effects and provided substantial discretionary authority 
to carry out this mission by not legally mandating the regulation of 
any specific contaminants or class of contaminants. EPA interpreted 
the law as providing the agency with discretion to select contaminants 
for regulation on the basis of their potential for causing an adverse 
health effect.[Footnote 159] In contrast to current statutory 
requirements, the original act did not require EPA to demonstrate the 
presence of contaminants with potential adverse health effects in 
public drinking water systems or evaluate public exposure to them. 
From 1974 to 1986, the act outlined a three-step framework for 
developing regulations, starting with quickly promulgating interim 
regulations that would be subject to future revision as national 
primary drinking water regulations. In addition, EPA was to arrange 
for a study by the National Academies[Footnote 160] to assess the 
health effects of contaminants in drinking water and to develop 
proposals for maximum contaminant level goals[Footnote 161]--levels at 
which there are no known or anticipated adverse human health effects--
for those contaminants that may cause adverse health effects. Finally, 
on the basis of the National Academies' study, EPA was to propose and 
promulgate maximum contaminant level goals and enforceable maximum 
contaminant levels that were to be set as close as feasible to the 
goals for the contaminants that EPA determined may have adverse health 
effects. 

Under this original framework, from 1974 until the 1986 amendments to 
the act, EPA established interim regulations for 23 contaminants, most 
of which stemmed from previously established Public Health Service 
standards.[Footnote 162] EPA did not, however, propose or promulgate 
national primary drinking water regulations, referred to as revised 
regulations, before Congress amended the act in 1986. The National 
Academies issued reports in 1977, 1980, and 1982 addressing drinking 
water contaminants of concern; however, the reports did not provide 
the required maximum contaminant level goals for these contaminants, 
noting that the development of such goals represented a regulatory 
function more appropriate for EPA. In 1982 and 1983, EPA issued two 
Advanced Notices of Proposed Rulemaking based on the National 
Academies' reports and other scientific sources that together 
identified 83 contaminants the agency planned to evaluate for 
regulation; the 83 contaminants included 22 contaminants for which EPA 
had set interim regulations and 61 additional contaminants.[Footnote 
163] EPA requested public comments on the appropriateness of 
regulating the identified contaminants, as well as on the agency's 
proposed regulatory approach. By 1986, when the act was amended, EPA 
had not completed evaluating the 83 contaminants. 

The 1986 Amendments Mandated the Regulation of 83 Specific 
Contaminants, Most of Which EPA Accomplished, but Not within the 
Prescribed Time Frames: 

According to a key EPA report, Congress enacted major amendments to 
the Safe Drinking Water Act in 1986 because of continuing concerns 
about drinking water quality and frustration with the pace at which 
the agency was working to develop drinking water regulations.[Footnote 
164] Importantly, the amendments mandated that by June 1989 EPA 
regulate the 83 contaminants the agency had previously identified. The 
amendments also required EPA to regulate a minimum of 25 additional 
contaminants every 3 years after 1989, known as the "25 in 3" 
requirement. By directing EPA to regulate 83 specific contaminants and 
requiring a minimum number of additional regulations every 3 years, 
Congress curtailed the broad discretion that the 1974 act had 
initially provided to EPA. 

EPA struggled to promulgate the regulations mandated by the 1986 
amendments within the prescribed time frames. While EPA did not meet 
the 1989 deadline, by 1996 the agency had regulated 77 of the mandated 
contaminants.[Footnote 165] EPA regulated 6 more of the mandated 
contaminants by 2001; EPA has not regulated 2 of the 83--radon and 
sulfate.[Footnote 166] Further, by 1996, EPA had not regulated any 
additional contaminants as part of the "25 in 3" requirement but had 
regulated 1 additional contaminant not statutorily required[Footnote 
167] and had initiated regulations for 8 additional contaminants, 
which were finalized in 1998 and 2000. 

In addition to the requirements to regulate certain contaminants, the 
1986 amendments directed EPA to establish a program to test for 
unregulated contaminants. Specifically, pursuant to the amendments, 
EPA was required to promulgate regulations requiring every public 
water system to conduct testing for unregulated contaminants at least 
once every 5 years.[Footnote 168] The regulations were to list the 
unregulated contaminants for which public water systems may be 
required to test and include criteria by which states could show cause 
for addition or deletion of contaminants from the list based on an 
assessment of the contaminants' potential to be found in the system. 
Accordingly, EPA required two cycles of public water system testing 
from 1988 to 1992 and from 1993 to 1997. Through this testing, EPA 
obtained occurrence data--information about where, how frequently, and 
at what concentrations contaminants are found--on 62 unregulated 
contaminants from 40 states in the first round and on 48 unregulated 
contaminants from 35 states in the second round. 

By the early 1990s, EPA, states, and drinking water officials had 
become concerned that continuing the rapid regulatory pace required by 
the 1986 amendments might overburden drinking water systems and states 
and hinder effective implementation of the regulations. Consequently, 
EPA and others called for reforms to better enable the agency to focus 
on contaminants of greatest public health concern. 

The 1996 Amendments Largely Restored EPA's Discretion in Deciding 
Whether to Regulate Specific Contaminants, and EPA Selected No 
Contaminants for Regulation until February 2011, When It Determined It 
Will Regulate Perchlorate: 

In 1996, in the midst of concerns about the number and pace of 
regulations required under the 1986 amendments and the need to better 
focus limited resources on contaminants of greatest public health 
concern, Congress again enacted significant amendments to the Safe 
Drinking Water Act, largely restoring EPA's regulatory discretion. In 
the 1996 amendments, Congress removed the statutory requirement that 
EPA regulate 25 new contaminants every 3 years; rather, the agency is 
now required only to decide whether or not to regulate at least 5 
contaminants every 5 years--called the regulatory determination 
process. In making regulatory determinations, EPA is to consider 
contaminants that present "the greatest public health concern," taking 
into account sensitive populations, among other factors. EPA's 
regulatory determinations are to be based on three broad statutory 
criteria, all of which must be met for EPA to decide that a regulation 
is needed: 

* the contaminant may have an adverse effect on the health of persons; 

* the contaminant is known to occur or there is a substantial 
likelihood that the contaminant will occur in public water systems 
with a frequency and at levels of public health concern; and: 

* in the sole judgment of the Administrator, regulation of such 
contaminant presents a meaningful opportunity for health risk 
reduction for persons served by public water systems. 

While the 1996 amendments largely restored discretion in EPA's 
regulatory authority, they also specified two other requirements 
related to identification and evaluation of contaminants that present 
the greatest public health concern. First, the act established a new 
requirement for EPA to identify and publish every 5 years a list of 
unregulated contaminants that may pose risks through drinking water, 
called the contaminant candidate list, from which EPA is to select 
contaminants for regulatory determinations.[Footnote 169] Second, the 
amendments modified the authority EPA had under the 1986 amendments to 
require public water systems to test for unregulated contaminants. 
Specifically, the 1996 amendments limited both the number of small 
public water systems that EPA could require to conduct testing and the 
number of unregulated contaminants for which systems must test. While 
EPA retained its authority to require that all large public water 
systems (those serving more than 10,000 people) test for certain 
unregulated contaminants, it may now only require a representative 
sample of small public water systems (those serving 10,000 or fewer 
people) to test for those contaminants. In addition, whereas the 1986 
amendments placed no limit on the number of unregulated contaminants 
that EPA could require public water systems to test, the 1996 
amendments limited EPA to requiring testing for a maximum of 30 
unregulated contaminants every 5 years. EPA has implemented these 
requirements through its testing program for unregulated contaminants. 
In contrast to the testing previously required by EPA and conducted by 
public water systems pursuant to the 1986 amendments, which relied on 
varying protocols, EPA's implementation of the testing requirements 
under the 1996 amendments uses standardized testing protocols it has 
developed to help ensure more consistent data quality and 
comparability. 

Under the 1996 amendments, if EPA decides through its regulatory 
determination process that a drinking water regulation is warranted, 
the agency has 24 months to publish a proposed rule and an additional 
18 to 27 months to issue a final drinking water rule setting an 
enforceable limit for the contaminant--the maximum contaminant level. 
With regard to developing maximum contaminant levels, the 1996 
amendments added a requirement that EPA conduct a cost-benefit 
analysis as part of the standard-setting process. The amendments 
further require that in carrying out the provisions concerning 
listing, selecting, and regulating contaminants, to the degree that an 
action is based on science, EPA use the best available, peer-reviewed 
science and data collected by accepted or best available methods. EPA 
is also to ensure that the presentation of information on public 
health effects is comprehensive, informative, and understandable. 

In addressing the requirement to make decisions on whether to regulate 
at least 5 contaminants every 5 years, EPA made regulatory 
determinations on 20 contaminants in 2003 and 2008, deciding in each 
case not to regulate. EPA had not decided to regulate any additional 
contaminants since the enactment of the 1996 amendments[Footnote 170] 
until February 2011 when the EPA Administrator announced that the 
agency made a determination to regulate perchlorate as well as a group 
of carcinogenic volatile organic compounds (VOC), which include 
chemicals such as certain industrial solvents. This planned regulatory 
action stems from EPA's effort to revise the existing drinking water 
regulations for trichloroethylene (TCE) and tetrachloroethylene (PCE), 
and the Administrator's plan to address contaminants as groups rather 
than one at a time to enhance drinking water protection in a timely 
and cost-effective manner. According to EPA, the agency plans to 
include 8 regulated contaminants, as well as 8 unregulated VOCs that 
are on its current candidate list. 

Regarding the requirement to develop, every 5 years, a contaminant 
candidate list, EPA issued such lists in 1998, 2005, and 2009. 
Pursuant to its authority to require testing of unregulated 
contaminants, EPA mandated one cycle of testing, which was completed 
in 2005; a second cycle is expected to be completed in mid-2011, 
according to EPA officials. 

[End of section] 

Appendix III: Information on U.S. Public Drinking Water Systems: 

The following tables provide detailed information from the U.S. 
Environmental Protection Agency (EPA) on public drinking water systems 
in the United States. EPA's Office of Water Web site defines three 
types of public water systems: 

* Community Water System: a public water system that supplies water to 
the same population year-round. 

* Non-Transient Non-Community Water System: a public water system that 
regularly supplies water to at least 25 of the same people at least 6 
months per year, but not year-round. Some examples are schools, 
factories, office buildings, and hospitals that have their own water 
systems. 

* Transient Non-Community Water System: a public water system that 
provides water in a place such as a gas station or campground where 
people do not remain for long periods of time and is open at least 60 
days a year. 

Table 6 provides information on the number of systems and population 
served, including percentages, by system type and size. Table 7 
provides information on the number of systems and population served, 
including percentages, by system type and source water. 

Table 6: U.S. Public Drinking Water Systems by Size: 

Community water systems: 

Category of system: Very small systems[A]; 
Number of systems: 28,804; 
Percentage of systems: 56%; 
Population served: 4,820,949; 
Percentage of population served: 2%. 

Category of system: Small systems[B]; 
Number of systems: 13,820; 
Percentage of systems: 27%; 
Population served: 19,806,741; 
Percentage of population served: 7%. 

Category of system: Medium systems[C]; 
Number of systems: 4,871; 
Percentage of systems: 9%; 
Population served: 28,402,697; 
Percentage of population served: 10%. 

Category of system: Large systems[D]; 
Number of systems: 3,746; 
Percentage of systems: 7%; 
Population served: 106,856,965; 
Percentage of population served: 36%. 

Category of system: Very large systems[E]; 
Number of systems: 410; 
Percentage of systems: 1%; 
Population served: 134,452,529; 
Percentage of population served: 46%. 

Category of system: Total: Community water systems; 
Number of systems: 51,651; 
Percentage of systems: 100%; 
Population served: 294,339,881; 
Percentage of population served: 100%. 

Non-transient non-community water systems: 

Category of system: Very small systems; 
Number of systems: 15,619; 
Percentage of systems: 85%; 
Population served: 2,195,162; 
Percentage of population served: 35%. 

Category of system: Small systems; 
Number of systems: 2,625; 
Percentage of systems: 14%; 
Population served: 2,704,116; 
Percentage of population served: 43%. 

Category of system: Medium systems; 
Number of systems: 132; 
Percentage of systems: 1%; 
Population served: 699,947; 
Percentage of population served: 11%. 

Category of system: Large systems; 
Number of systems: 18; 
Percentage of systems: less than 1%; 
Population served: 440,980; 
Percentage of population served: 7%. 

Category of system: Very large systems; 
Number of systems: 1; 
Percentage of systems: less than 1%; 
Population served: 203,000; 
Percentage of population served: 3%. 

Category of system: Total: Non-transient non-community water systems; 
Number of systems: 18,395; 
Percentage of systems: 100%; 
Population served: 6,243,205; 
Percentage of population served: 100%. 

Transient non-community water systems: 

Category of system: Very small systems; 
Number of systems: 80,703; 
Percentage of systems: 97%; 
Population served: 7,147,163; 
Percentage of population served: 54%. 

Category of system: Small systems; 
Number of systems: 2,681; 
Percentage of systems: 3%; 
Population served: 2,598,895; 
Percentage of population served: 20%. 

Category of system: Medium systems; 
Number of systems: 87; 
Percentage of systems: less than 1%; 
Population served: 471,533; 
Percentage of population served: 4%. 

Category of system: Large systems; 
Number of systems: 11; 
Percentage of systems: less than 1%; 
Population served: 360,715; 
Percentage of population served: 3%. 

Category of system: Very large systems; 
Number of systems: 2; 
Percentage of systems: less than 1%; 
Population served: 2,725,000; 
Percentage of population served: 20%. 

Category of system: Total: Transient non-community water systems: 
Number of systems: 83,484; 
Percentage of systems: 100%; 
Population served: 13,303,306; 
Percentage of population served: 100%. 

All public water systems: 

Category of system: Very small systems; 
Number of systems: 125,126; 
Percentage of systems: 82%; 
Population served: N/A[F]; 
Percentage of population served: N/A[F]. 

Category of system: Small systems; 
Number of systems: 19,126; 
Percentage of systems: 12%; 
Population served: N/A[F]; 
Percentage of population served: N/A[F]. 

Category of system: Medium systems; 
Number of systems: 5,090; 
Percentage of systems: 3%; 
Population served: N/A[F]; 
Percentage of population served: N/A[F]. 

Category of system: Large systems; 
Number of systems: 3,775; 
Percentage of systems: 2%; 
Population served: N/A[F]; 
Percentage of population served: N/A[F]. 

Category of system: Very large systems; 
Number of systems: 413; 
Percentage of systems: greater than 1%; 
Population served: N/A[F]; 
Percentage of population served: N/A[F]. 

Category of system: Total: All public water systems; 
Number of systems: 153,530; 
Percentage of systems: 100%; 
Population served: N/A[F]; 
Percentage of population served: N/A[F]. 

Source: EPA. 

[A] Very small water systems serve 25-500 people. 

[B] Small water systems serve 501-3,300 people. 

[C] Medium water systems serve 3,301-10,000 people. 

[D] Large water systems serve 10,001-100,000 people. 

[E] Very large water systems serve more than 100,000 people. 

[F] Populations are not summed because some people are served by 
multiple systems and counted more than once. 

[End of table] 

Table 7: U.S. Public Drinking Water Systems by Source Water: 

Community water systems: 

Category of system: Groundwater[A]; 
Number of systems: 40,025; 
Percentage of systems: 78%; 
Population served: 88,032,021; 
Percentage: of population: 30%. 

Category of system: Surface water[B]; 
Number of systems: 11,617; 
Percentage of systems: 22%; 
Population served: 206,264,490; 
Percentage: of population: 70%. 

Category of system: Total: Community water systems; 
Number of systems: 51,642; 
Percentage of systems: 100%; 
Population served: 294,296,511; 
Percentage: of population: 100%. 

Non-transient non-community water systems: 

Category of system: Groundwater; 
Number of systems: 17,688; 
Percentage of systems: 96%; 
Population served: 5,415,937; 
Percentage: of population: 87%. 

Category of system: Surface water; 
Number of systems: 702; 
Percentage of systems: 4%; 
Population served: 820,476; 
Percentage: of population: 13%. 

Category of system: Total: Non-transient non-community water systems; 
Number of systems: 18,390; 
Percentage of systems: 100%; 
Population served: 6,236,413; 
Percentage: of population: 100%. 

Transient non-community water systems: 

Category of system: Groundwater; 
Number of systems: 81,492; 
Percentage of systems: 98%; 
Population served: 10,754,201; 
Percentage: of population: 81%. 

Category of system: Surface water; 
Number of systems: 1,978; 
Percentage of systems: 2%; 
Population served: 2,548,200; 
Percentage: of population: 19%. 

Category of system: Total: Transient non-community water systems; 
Number of systems: 83,470; 
Percentage of systems: 100%; 
Population served: 13,302,401; 
Percentage: of population: 100%. 

All categories of systems: 

Category of system: Groundwater; 
Number of systems: 139,205; 
Percentage of systems: 91%; 
Population served: N/A[C]; 
Percentage: of population: N/A[C]. 

Category of system: Surface water; 
Number of systems: 14,297; 
Percentage of systems: 9%; 
Population served: N/A[C]; 
Percentage: of population: N/A[C]. 

Category of system: Total: All categories of systems; 
Number of systems: 153,502; 
Percentage of systems: 100%; 
Population served: N/A[C]; 
Percentage: of population: N/A[C]. 

Source: EPA. 

[A] Groundwater: Groundwater comes from natural underground 
formations, often consisting of sand or gravel, that contain water. 
These formations are called aquifers. 

[B] Surface water: Surface water sources include lakes, streams, 
rivers, and reservoirs. Groundwater sources under the direct influence 
of surface water are also included in this category. 

[C] Populations are not summed because some people are served by 
multiple systems and counted more than once. 

[End of table] 

[End of section] 

Appendix IV: Calculations EPA Uses to Develop Health Reference Levels 
for Drinking Water Contaminants Being Considered for Regulation: 

This appendix provides information on the method EPA generally has 
used to compute the health reference level for drinking water 
contaminants that are carcinogenic and the method it uses for 
contaminants with noncarcinogenic adverse health effects, such as 
neurological disorders. 

Figure 1: Health Reference Level Equation for Contaminants with 
Carcinogenic Health Effects: 

[Refer to PDF for image: equation] 

Health reference level: equals: 

Concentration in drinking water equivalent to one-in-a-million (10-6) 
cancer risk; equals: 

(Risk[A] x body weight[B]) divided by: 
(Slope factor[C] x drinking water intake[D]). 

Source: EPA. 

[A] Expression of increased cancer risk from a lifetime of exposure: 1 
person in a million = 10-6 = 0.000001. 

[B] Adult body weight, assumed to be 70 kilograms. 

[C] Slope factors result from EPA modeling of linear low-dose 
extrapolations. A slope factor is an upper bound, approximating a 95 
percent confidence limit, on the increased cancer risk from a lifetime 
exposure to an agent by ingestion. This estimate is usually expressed 
in units of proportion (of a population) affected per milligram of 
substance per kilogram of body weight per day (mg/kg/day). 

[D] Amount of water consumed by an adult per day, assumed to be 2 
liters. 

[End of figure] 

Figure 2: Health Reference Level Equation for Contaminants with 
Noncarcinogenic Adverse Health Effects: 

[Refer to PDF for image: equation] 

Health reference level: equals: 

(Reference dose[A] x body weight[B]) divided by: 
drinking water intake[C]; (Drinking water equivalent level[D]) 
multiplied by: 

Relative source contribution[E]. 

Source: EPA. 

[A] An estimate of a daily exposure to the human population (including 
sensitive subpopulations) that is likely to be without an appreciable 
risk of deleterious effects during a lifetime, generally expressed in 
units of milligrams per kilogram of body weight per day (mg/kg/day). 

[B] Adult body weight, assumed to be 70 kilograms. 

[C] Amount of water consumed by an adult per day, assumed to be 2 
liters. 

[D] Estimated exposure to a contaminant that is assumed to be 
protective for noncarcinogenic health effects during a lifetime of 
exposure, generally expressed in units of milligrams per liter (mg/L). 
It is calculated by multiplying the reference dose times body weight 
and dividing that result by drinking water intake. 

[E] The estimate of the exposure to a contaminant from drinking water 
relative to overall exposure from other sources (e.g., food and 
ambient air), expressed as a percentage. 

[End of figure] 

[End of section] 

Appendix V: Calculations of Relative Source Contribution Using the 
Percentage and Subtraction Methods: 

As discussed in the report, to determine a health reference level for 
a contaminant with adverse noncarcinogenic health effects for use in 
its regulatory determinations, EPA typically applies a relative source 
contribution factor--the allocation of the oral exposure to the 
contaminant from drinking water alone--in its equation (see figure 3). 

Figure 3: Health Reference Level Equation: 

[Refer to PDF for image: equation] 

Health reference level: equals: 

(Reference dose[A] x body weight[B]) divided by: 
drinking water intake[C]; (Drinking water equivalent level[D]) 
multiplied by: 

Relative source contribution[E]. 

Source: EPA. 

[A] An estimate of a daily exposure to the human population (including 
sensitive subpopulations) that is likely to be without an appreciable 
risk of deleterious effects during a lifetime, generally expressed in 
units of milligrams per kilogram of body weight per day (mg/kg/day). 

[B] Adult body weight, assumed to be 70 kilograms. 

[C] Amount of water consumed by an adult per day, assumed to be 2 
liters. 

[D] Estimated exposure to a contaminant that is assumed to be 
protective for noncarcinogenic health effects during a lifetime of 
exposure, generally expressed in units of milligrams per liter (mg/L). 
It is calculated by multiplying the reference dose times body weight 
and dividing that result by drinking water intake. 

[E] The estimate of the exposure to a contaminant from drinking water 
relative to overall exposure from other sources (e.g., food and 
ambient air), expressed as a percentage. 

[End of figure] 

According to EPA policy, if the agency determines that it has adequate 
data to estimate the relative source contribution--instead of applying 
a default assumption--to calculate a health reference level, it may 
use one of two methods--the percentage or subtraction method.[Footnote 
171] Tables 9 and 10 illustrate the differences in the health 
reference levels that result when each of these methods is applied 
using the hypothetical exposure data and reference dose in table 8. 

Table 8: Hypothetical Data Used in Examples: 

Estimated exposure from water (Ew) = 0.15 µg/kg/day. 

Estimated exposure from food (Ef) = 0.15 µg/kg/day. 

Total estimated exposure from; water and food (Ew+Ef=Etot) = 0.3 
µg/kg/day. 

Reference dose (RfD) = 0.5 µg/kg/day. 

Source: GAO. 

[End of table] 

Example 1: Percentage Method: 

The percentage method is a comparison of multiple sources of exposure 
with one another to estimate their relative contribution to the total. 
It is intended to reflect the exposure to a contaminant from drinking 
water relative to other sources of exposure, as well as the likelihood 
for ever-changing levels in each of the sources of exposure (due to 
ever-changing sources of emissions and discharges). Importantly, it is 
based on an assumption that there may be enough relative variability 
in exposure such that an apportionment (relating that percentage to 
the RfD) is a reasonable way of accounting for the uncertainty 
regarding that variability. Using the percentage method, the relative 
source contribution is determined by (1) calculating the relative 
proportion of exposure from water as a percent of the total observed 
exposure and then (2) applying that percentage as the relative source 
contribution in the health reference level equation. See example in 
table 9. 

Table 9: Example of How the Relative Source Contribution Is Determined 
Using the Percentage Method: 

Step 1: Calculate the relative proportion of exposure from water as a 
percent of the total observed exposure. 

Estimated exposure from water (EW): 0.15 µg/kg/day; ÷ Total estimated 
exposure (ETOT): 0.3 µg/kg/day; = Relative source contribution: 0.5 
(50 percent). 

Step 2: Apply relative source contribution percentage in health 
reference level equation. 

Health reference level (parts per billion): 8.8; = [(Reference dose 
(µg/kg/day): [(0.5; x; Body weight) (kilograms): 70) ÷ Drinking water 
intake]: (liters per day): 2]; x Relative source contribution 
(expressed as a percentage): 50. 

Source: GAO. 

[End of table] 

Example 2: Subtraction Method: 

The subtraction method allocates the entire reference dose to the 
known sources of exposure by subtracting the known nontarget sources 
of exposure and allocating the remainder of the reference dose to the 
target--in this case, drinking water--even in cases (such as this 
example) where the total estimated exposure is less than the reference 
dose. This method has the effect of removing any cushion between the 
existing exposure levels and the reference dose. Therefore, using this 
method may allow drinking water exposures in excess of levels 
currently found in public water systems. To calculate the relative 
source contribution using the subtraction method: (1) subtract all non-
drinking-water exposures from the reference dose to determine the 
amount of the reference dose "available" for exposure through drinking 
water, (2) determine what percentage of the reference dose that 
remainder represents, and (3) apply the resulting percentage as the 
relative source contribution in the health reference level equation. 
See example in table 10. 

Table 10: Example of How the Relative Source Contribution Is 
Determined Using the Subtraction Method: 

Step 1: Subtract nonwater exposures from reference dose. 

Reference dose (RfD): 0.5 µg/kg/day; - Estimated exposure from food 
(EF): 0.15 µg/kg/day; = Remainder of reference dose "available" for 
water: 0.35 µg/kg/day. 

Step 2: Determine the amount of the reference dose "available" for 
exposure from drinking water by dividing the result from Step 1 by the 
reference dose and multiplying by 100 to convert to a percentage. 

Remainder "available" for water: 0.35 µg/kg/day; ÷ Reference dose 
(RfD): 0.5 µg/kg/day; = Relative source contribution: 0.7 (70 percent). 

Step 3: Apply the relative source contribution percentage in the 
health reference level equation. 

Health reference level (parts per billion): 12.3; = [(Reference dose 
(µg/kg/day): [(0.5; x Body weight) (kilograms): 70); ÷ Drinking water 
intake]: (liters per day): 2]; x Relative source contribution 
(expressed as a percentage): 70. 

Source: GAO. 

[End of table] 

[End of section] 

Appendix VI: Supplemental Information on EPA's 2003 Regulatory 
Determination for Manganese and Its 2008 Determination for Boron: 

This appendix provides supplemental information on the agency's use of 
outdated and limited occurrence data and inconsistent consideration 
and presentation of potential health risks in its regulatory 
determination notices and support documents for manganese and boron. 

EPA's 2003 Regulatory Determination to Not Regulate Manganese: 

Occurrence Data: 

A ubiquitous, naturally occurring element found in certain rocks and 
sediments, manganese is also produced and used in a wide variety of 
industrial processes and consumer products, resulting in widespread 
manmade releases of manganese and manganese compounds into the 
environment.[Footnote 172] EPA made its decision in 2003 to not 
regulate manganese using data on the occurrence and likely occurrence 
of manganese in drinking water that the agency acknowledged was 
outdated and limited. Specifically, EPA relied primarily on older 
(1980s), but nationally representative, data from its National 
Inorganic and Radionuclide Survey to assess manganese occurrence in 
public water systems fed by groundwater sources.[Footnote 173] In its 
regulatory determination support document for manganese, EPA reported 
that 3.2 percent of groundwater public drinking water systems exceeded 
EPA's health reference level for manganese--affecting an estimated 2.3 
million people. In addition, EPA reported that 4.6 percent of 
groundwater systems exceeded one-half the health reference level-- 
affecting an estimated 3.9 million people. In its Health Effects 
Support Document for Manganese, EPA stated that it "should be noted 
that these estimates are based on very limited and outdated data. The 
possibility exists that the number of people served by groundwater 
with manganese levels that are above the health reference level could 
be higher than these estimates; however, the data are lacking at this 
time to develop a more timely assessment."[Footnote 174] Moreover, the 
use of older data is problematic because of significant increases in 
releases of manganese and manganese compounds to the environment; 
according to EPA's 2003 regulatory determination support 
documentation, the increases since the 1990s have been dramatic in 
some years. Despite EPA's acknowledgment of significant deficiencies 
in the underlying data, and its decision not to update these data 
through its testing program, EPA's notice did not explain why it 
nonetheless proceeded with a regulatory determination for manganese. 
Further, as discussed in the body of this report, EPA has not issued 
guidance on what threshold levels of occurrence would satisfy the 
second statutory criterion for a decision to regulate. In this case, 
EPA decided that levels of manganese in excess of the health reference 
level in at least 3.2 percent of groundwater drinking water systems 
did not warrant regulation.[Footnote 175] 

Moreover, EPA did not have national data on manganese occurrence in 
public water systems that use surface water--according to EPA, surface 
water systems serve about 70 percent of community water system 
customers. While EPA limited its occurrence estimates to groundwater 
systems in its 2003 manganese regulatory determination notice, its 
support document for manganese discusses some USGS data on ground and 
surface source water and manganese occurrence data from five states, 
but in a manner that does not explain the determination in light of 
this potentially inconsistent data.[Footnote 176],[Footnote 177] For 
example, the agency characterized drinking water occurrence data on 
manganese from five states as showing "substantial low-level manganese 
occurrence," but did not reconcile this assessment with the occurrence 
data it presented for these five states that show the following 
percentages of state populations served by public water systems with 
levels of manganese that exceed the health reference level: 2.4 
percent, 3.2 percent, 9.1 percent, 14.7 percent, and 27.2 percent. 
[Footnote 178] In addition, EPA described USGS detections in excess of 
its health reference level at groundwater sites (14 percent of 
samples) and surface water sites (10 percent of samples) as "modest" 
occurrence and "relatively low" occurrence, respectively. 

Further, EPA did not include information about the large number of 
Superfund sites known to be contaminated with manganese in its 
regulatory determination documents. According to ATSDR, manganese has 
been found in at least 51 percent of EPA's 1,699 Superfund (National 
Priorities List) sites, which include some of the most seriously 
contaminated hazardous waste sites in the nation.[Footnote 179] 
ATSDR's Public Health Statement for Manganese notes that this 
information is important because the manganese at these sites may be 
harmful to the public. Moreover, EPA's regulatory determination 
documents do not mention that DOD's emerging contaminants program has 
been monitoring manganese. Under this program, a DOD team on 
"materials of evolving regulatory interest" is focusing on a number of 
contaminants, including manganese, to develop actions to respond to 
such potential factors as health impacts, cleanup costs, compliance 
costs, readiness impacts, and facilities life-cycle costs.[Footnote 
180] 

Health Effects Data: 

Relying on the third statutory criterion of presenting a meaningful 
opportunity for health risk reduction for this determination, EPA 
concluded that because manganese is generally not considered to be 
very toxic when ingested with the diet (i.e., food), and since 
drinking water accounts for a relatively small proportion of manganese 
intake, regulation would not likely present a meaningful opportunity 
for health risk reduction for persons served by public drinking water 
systems. However, EPA does not explain how this determination relates 
to information EPA had indicating that manganese in drinking water 
could have significant adverse health effects on sensitive 
populations, including children. Specifically, EPA's 1996 IRIS 
assessment identified children, pregnant women, elderly people, iron-
or calcium-deficient individuals, and individuals with liver 
impairment as potentially sensitive populations. Individuals in these 
populations may have an increased potential for excessive amounts of 
manganese in the body because of increased absorption or altered 
clearance mechanisms. 

EPA's 1996 IRIS assessment notes that differences in absorption and 
clearance mechanisms may be of particular importance for those exposed 
to manganese by multiple routes. Regarding oral exposure, the IRIS 
assessment states that there is some evidence that infants absorb more 
manganese from the gastrointestinal tract than adults, that newborns 
are less able to excrete absorbed manganese, and that the absorbed 
manganese more easily passes the blood-brain barrier in infants. 
[Footnote 181] EPA's IRIS assessment also states that there is a 
concern for infants fed formula because it typically has a much higher 
concentration of manganese than human milk, and if powdered formula is 
made with drinking water, any manganese in the water would represent 
an additional source of intake.[Footnote 182] The IRIS assessment 
states that these considerations concerning increased exposure in an 
important population group "warrant caution until more definitive data 
are available," noting in addition the likelihood that any adverse 
neurological effects of manganese are likely to be irreversible and 
not manifested for many years after exposure. 

The 1996 IRIS assessment cites scientific literature up to 1994; since 
then, additional studies have identified health risks for children, 
particularly infants, from manganese-contaminated water. For example, 
a recent risk assessment journal article on the health risks to 
children from exposure to manganese in drinking water highlighted four 
epidemiological studies and two case reports published between 1994 
and 2007 that demonstrate a plausible association between elevated 
manganese concentrations in drinking water and altered neurological 
function in children.[Footnote 183] Effects that were identified 
include reduced intellectual function and lower performance scores on 
behavioral tests.[Footnote 184] In addition, a 2006 report by the 
National Academies, Spacecraft Water Exposure Guidelines for Selected 
Contaminants, stated that a survey of the literature on manganese 
toxicity strongly indicates, among other things, "hypersusceptibility" 
of infants and newborns and the elderly. Moreover, on the basis of 
information obtained from literature reviews conducted between 2001 
and 2003 on chemicals with existing assessments to determine if new 
scientific information might change a current IRIS assessment, the 
IRIS program decided that manganese should be reassessed.[Footnote 
185] Studies continue to identify children as particularly sensitive 
to manganese contamination in drinking water.[Footnote 186] 

Although the IRIS assessment had identified newborns as a potential 
sensitive subpopulation that warranted caution until more definitive 
data became available--and new data continued to identify concerns for 
infants and children--the Office of Water did not develop a specific 
health reference level for infants or children and did not make other 
adjustments to its health reference level to assess the sensitivity of 
children to manganese in drinking water. For example, Office of Water 
officials told us that one way it can assess sensitive populations is 
by adjusting the health reference level downward to account for 
increased sensitivity or by developing a separate risk assessment for 
the sensitive population. However, the Office of Water derived its 
drinking water health reference level--0.3 milligrams of manganese per 
liter of water--from the IRIS reference dose without any additional 
adjustment for sensitive populations beyond those factored into the 
reference dose. Specifically, the health reference level was 
calculated using EPA's 1996 reference dose[Footnote 187] in its 
standard formula to develop a drinking water equivalent level, using 
the average weight and daily water consumption of a healthy adult. 
[Footnote 188] 

Moreover, EPA discussed the health risks to infants in an inconsistent 
and, at times, incomplete manner in its regulatory determination 
documents. For example, EPA's 2003 regulatory determination support 
document for manganese states unequivocally that there are "no data to 
indicate children are more sensitive to manganese than adults." 
However, EPA's 2003 health effects support document for manganese 
discusses studies that identify an association between exposure to 
manganese in drinking water and learning disabilities in children and 
concludes that additional studies are needed to investigate the 
possibility that children are more sensitive than adults. In addition, 
while EPA's regulatory determination support document for manganese 
notes that infants and newborns may be potentially susceptible to 
manganese toxicity, this key document does not disclose that newborns 
may be exposed to high levels of manganese from infant formula or that 
these high levels of manganese in formula can be magnified when it is 
reconstituted with manganese-contaminated water. The support document 
contains only the following statement on manganese in breast milk and 
infant formula: "Although the manganese content in a soy-based formula 
is higher than the manganese content in human milk, the actual 
absorption of manganese from the formula may not be substantially 
greater, since soy milk is high in phytate[Footnote 189] and vegetable 
protein." Importantly, EPA's health effects support document also 
contains the prior statement but then specifically cites the results 
of several studies that "argue against this possibility"--that is, the 
cited studies contradict the hypothesis presented in the regulatory 
determination support document. Further, while EPA's health effects 
document discloses that infant formula typically contains a much 
higher concentration of manganese than human or cows' milk and that 
powdered formula reconstituted with drinking water represents an 
additional source of manganese intake for a potentially sensitive 
population, its regulatory determination support document omits this 
important exposure information. 

Overall, EPA presented the health risks of exposure to manganese in a 
manner that downplayed the potential risks in part by highlighting a 
concern about manganese deficiency. Specifically, EPA states multiple 
times in its regulatory determination and support documents that 
because manganese is an essential nutrient, concern over potentially 
toxic effects from high oral exposure must be balanced against concern 
for adverse effects from manganese deficiency. However, according to a 
National Academies' report,[Footnote 190] there is no recommended 
daily allowance for manganese because it is available in numerous food 
sources to various degrees and "no natural deficiency of manganese in 
humans has been encountered." Moreover, in the context of deciding 
whether manganese in drinking water should be regulated, EPA's concern 
about the potential for adverse effects from manganese deficiency 
seems to be inconsistent with the fact that EPA already has 
established a secondary drinking water standard for manganese that 
addresses aesthetic problems--largely discoloration--of 0.05 
milligrams per liter.[Footnote 191] This recommended standard is 6 
times more stringent than the health reference level of 0.3 milligrams 
per liter that EPA used in its regulatory determination. Thus, the 
basis for EPA's concern about manganese deficiency stemming from a 
possible health-based national primary drinking water standard is not 
clear. 

Although EPA concluded that dietary intake of manganese was not very 
toxic, the agency determined that there was a need to issue a health 
advisory in conjunction with the regulatory determination on 
manganese. According to the advisory, it is to provide "guidance to 
communities that may be exposed to drinking water contaminated with 
high manganese (Mn) concentrations" and also "provides guidance on the 
concentrations below which potential health and organoleptic[Footnote 
192] problems would unlikely occur." The advisory provides a 10-day 
health advisory of 1 milligram of manganese per liter of water for 
acute exposure for children. However, EPA recommends that manganese 
exposure for infants younger than 6 months should be limited to the 
agency's lifetime (chronic) health advisory level of 0.3 milligrams 
per liter of water--even for acute exposure--"because of the concerns 
for differences in manganese content in human milk and formula and the 
possibility of a higher absorption and lower excretion in young 
infants." As discussed, manganese levels in excess of the health 
reference level of 0.3 milligrams per liter of water have been 
detected in a number of public water systems. However, EPA's health 
advisories do not provide information on which public water systems 
may contain levels in excess of these standards. While some systems 
may test manganese voluntarily or to meet state requirements, current 
manganese levels may not be available for many systems. The potential 
lack of monitoring data for a particular system, along with the lack 
of public notification of health advisories by EPA's Office of Water, 
may make it difficult for consumers to become aware of any related 
risks. 

EPA's 2008 Regulatory Determination to Not Regulate Boron: 

Occurrence Data: 

Boron is a naturally occurring element, and both naturally occurring 
and manmade borate compounds are used in many products, such as glass, 
ceramics, soaps, fire retardants, pesticides, cosmetics, photographic 
materials, and high-energy fuels. According to EPA's regulatory 
determination documents, the potential adverse health affects that may 
be associated with exposure to boron in drinking water include adverse 
effects on male reproductive systems.[Footnote 193] 

As it had for manganese 5 years year earlier, for its 2008 regulatory 
determination for boron, EPA used nationally representative occurrence 
data from its National Inorganic and Radionuclide Survey (NIRS) of 
drinking water systems fed by groundwater sources--data that EPA 
described in 2003 as "outdated and limited."[Footnote 194] 
Importantly, EPA had limited data on occurrence in systems that use 
surface water, which serve about 70 percent of the population served 
by community water systems. That is, EPA's conclusions on the 
occurrence of boron in public water systems that use surface water 
relied on a 2004 voluntary, industry-sponsored survey by the American 
Water Works Research Foundation that provided data on 113 samples of 
untreated surface water analyzed for boron.[Footnote 195],[Footnote 
196] While none of the 113 samples had levels of boron in excess of 
one-half of EPA's health reference level, EPA acknowledged the survey 
was not statistically representative. As a result, these data may not 
correctly represent the extent or magnitude of boron in surface water. 
Along these lines, we note that while the 189 utilities participating 
in the study were located in 41 states, 41 percent of them were 
located in 3 states--California, Illinois, and Indiana. Also, unlike 
EPA's testing program for unregulated contaminants, which requires all 
public water systems serving more than 10,000 people and a randomly 
selected sample of public water systems serving 10,000 or fewer people 
to conduct either two or four tests during a period of 12 consecutive 
months, water utilities responding to this survey conducted one test 
per source. According to EPA's unregulated contaminants testing 
program documentation, multiple samples during a year are necessary to 
capture the annual variability in contaminant occurrence to approach 
an adequate characterization of potential exposure. Further, results 
were not provided for 16 percent of the samples, and data were not 
provided on the number of public water systems associated with the 113 
tests. 

In addition, EPA did not address whether and how anthropogenic 
(manmade) releases of boron might affect the uncertainty associated 
with the surface water occurrence data. For example, while EPA's 
regulatory determination acknowledges that the manufacture and use of 
products containing boron compounds add to the release of boron into 
the environment, and presents information about environmental releases 
of boron identified in EPA's Toxics Release Inventory, EPA does not 
explain in its regulatory determination documents whether these 
manmade releases are relevant to its regulatory determination. 
Further, EPA's regulatory determination support document for boron 
does not acknowledge that, according to ATSDR, boron contamination is 
present at 10 percent or more of the nation's current or former 
Superfund sites, some of which could be contaminating actual or 
potential drinking water sites.[Footnote 197] ATSDR data also show 
that the average surface water boron concentration in the United 
States is lower than EPA's health reference level--0.1 milligrams per 
liter and 1.4 milligrams per liter, respectively--but that surface 
water concentrations vary greatly depending on boron content of local 
geologic formations as well as manmade sources. 

On the basis of the dated but nationally representative groundwater 
data, EPA reported in support documents that approximately 1.7 percent 
of groundwater public water systems serving about 400,000 people had 
detections of boron above the health reference level, and 
approximately 4.3 percent of water systems serving about 2.5 million 
people had detections in excess of one-half the health reference 
level. In its regulatory determination notice, however, EPA reported 
the unweighted sampling data in NIRS, identifying exposure to about 
6,400 people above the health reference level and about 42,700 above 
one-half the health reference level. Considering the data on 
groundwater sources and the industry research foundation's finding 
that boron was not detected above one-half the reference level in 
surface water, EPA provided the following rationale for not regulating 
boron: 

"Taking this surface water information into account, the agency 
believes the overall occurrence and exposure from both surface and 
groundwater systems together is likely to be lower than the values 
observed for the NIRS groundwater data. Because boron is not likely to 
occur at levels of concern when considering both surface and 
groundwater systems, the agency believes that a national public 
drinking water regulation does not present a meaningful opportunity 
for health risk reduction." 

This rationale appears to downplay the potential health risk to those 
served by systems with groundwater sources and suggests that the 
agency uses a national threshold for occurrence at levels of health 
concern in making its regulatory determinations. Moreover, it is not 
clear why EPA did not take advantage of its testing program to obtain 
more current and complete occurrence data before making its regulatory 
determination. 

Health Effects Data: 

EPA's presentation of the health risks of exposure to boron in its 
regulatory determination support documents and the health advisory it 
developed concurrent with its regulatory determination differ both in 
terms of the potential for adverse health effects and the levels in 
drinking water identified as generally safe. Regarding the potential 
health risks, in its regulatory support document, EPA stated that 
animal studies identify the developing fetus as potentially sensitive 
to boron and concluded that boron concentrations greater than the 
health reference level of 1.4 milligrams of boron per liter of water 
"might" have an effect on prenatal development.[Footnote 198] In this 
document, the Office of Water also states that the primary adverse 
effects identified from studies of animals after chronic exposure to 
low doses of boron generally involve the testes and the developing 
fetus. The Office of Water's May 2008 Drinking Water Health Advisory 
for Boron (published just 2 months before the regulatory determination 
for boron) provides this same information, but states more strongly 
that there is "compelling evidence" to suggest that the "testicular 
morphological effects" reported in studies of animals are applicable 
to children and concluded that exposure to boron between birth and 
puberty may result in adverse cellular effects that would "affect 
testicular function." In addition, a third related document--EPA's 
Summary Document from the Health Advisory for Boron and Compounds--
provides an important warning regarding infants' exposure to boron in 
drinking water that is not included in either EPA's drinking water 
advisory for boron or its regulatory determination support document. 
Specifically, the summary document states that water containing boron 
"at levels above the HA [health advisory]" should not be used to 
prepare food or formula for infants. EPA does not identify which of 
the exposure duration health advisories it is referring to in this 
warning.[Footnote 199] 

Despite considering children to be a sensitive population and EPA's 
children's health policy suggesting that assessments for infants and 
children be conducted or--if not conducted, an explanation be provided 
as to why assessments are not warranted--the Office of Water did not 
include an assessment for children exposed to boron at the health 
reference level as part of its regulatory determination. Further, as 
discussed earlier, during the 2000s, EPA developed technical guidance 
that can assist the Office of Water in assessing the sensitivity of 
children to drinking water contaminants. EPA officials told us that 
the Office of Water had not decided how to include the Office of 
Children's Health Protection guidance in its assessments at the time 
of the regulatory determination on boron. 

In addition, the health reference level that the Office of Water used 
to assess an adult's risk of daily, chronic exposure to boron in 
drinking water for its regulatory determination process--1.4 
milligrams of boron per liter of water--is widely divergent from the 
level that the office concurrently developed for the health advisory 
it prepared in conjunction with its regulatory determination. 
Specifically, the health advisory's chronic risk level for adults was 
5 milligrams of boron per liter of water.[Footnote 200] The 
assessments differ primarily because EPA used the percentage method 
and the standard default assumption in developing the health reference 
level, whereas it used the subtraction method in developing the health 
advisory. In discussing these different assessments with us, EPA 
officials said the health advisory and health effects support document 
for the regulatory determination were "out of sync" because of lengthy 
administrative processes. The officials said new information was 
identified and included in the health advisory that was not available 
at the time the regulatory determination on boron was made. As a basis 
for using the subtraction method for its health advisory, EPA's 
advisory cited its 2000 Methodology for Deriving Ambient Water Quality 
Criteria for the Protection of Human Health. This document cautions 
that the subtraction method generally results in health exposure 
levels that are significantly higher than those that would be derived 
using the percentage method. Further, on the basis of the exposure 
data EPA presented in its regulatory determination documents, it is 
not clear that the agency had the adequate exposure data from all 
sources that the guidance specifies is a prerequisite for using the 
subtraction method instead of the more conservative default value. 

Moreover, EPA's health advisory does not explain why the agency used 
the subtraction method for the advisory at the same time the agency 
was using the percentage method for the regulatory determination. The 
effect of using the subtraction method is significant because EPA's 
regulatory determination document stated that the highest observed 
concentration of boron in groundwater was approximately 3.3 milligrams 
per liter--a level below the health advisory level of 5 milligrams per 
liter but above the health reference level of 1.4 milligrams. 

Further, because boron is not regulated by EPA, and EPA does not 
currently require public water systems to test for boron, it would be 
difficult for most people to determine how much boron is present in 
their drinking water--requisite information for heeding EPA's warning 
to not use drinking water from some public water systems to prepare 
infant food or formula. Except in the states that have issued drinking 
water guidelines for boron, such as the six identified by EPA, 
individuals would generally have to have their water tested by a 
laboratory for the presence of boron. 

[End of section] 

Appendix VII: EPA's Evaluation of Perchlorate Occurrence at Two 
Levels--5 Parts and 15 Parts per Billion of Perchlorate in Water: 

As discussed earlier, before EPA made its preliminary regulatory 
determination for perchlorate on the basis of the health reference 
level of 15 parts per billion of perchlorate in drinking water 
(calculated using a relative source contribution of 62 percent), the 
Office of Water had calculated a health reference level of 5 parts per 
billion using the 20 percent default relative source contribution. 
Table 11 shows the impact of various relative source contribution 
factors and their related health reference levels on EPA's 
characterization of the exposure to perchlorate in drinking water at 
levels of public health concern, based on a similar table the agency 
included in its preliminary regulatory determination notice. In 
particular, the table includes the exposure estimates related to the 
two health reference levels discussed above--the health reference 
level of 5 parts per billion that EPA initially developed using the 20 
percent default relative source contribution and the health reference 
level of 15 parts per billion that EPA subsequently developed for its 
preliminary regulatory determination using data from its novel 
exposure analysis and the subtraction method. 

At a health reference level of 5 parts per billion, EPA found that 3.2 
percent of public water systems had at least one detection in excess 
of that level, which EPA estimated could expose 14.6 million people to 
perchlorate at the level of public health concern. According to some 
EPA officials, this amount of public exposure to perchlorate at levels 
above the health reference level would suggest that a regulation was 
warranted. In contrast, the amount of public exposure to perchlorate 
at levels above the 15 parts per billion health reference level was 
significantly lower. Specifically, at a health reference level of 15 
parts per billion, less than 1 percent of public water systems had at 
least one detection above the health reference level, which EPA 
estimated could expose about 2 million people to perchlorate in 
drinking water at the level of public health concern. 

Table 11: Perchlorate Occurrence and Population Exposure Estimates at 
Various Potential Health Reference Levels Reported in EPA's 
Preliminary Regulatory Determination for Perchlorate: 

Potential health reference level (parts per billion): 4; 
Relative source contribution[A]: 16%; 
Public water systems with at least one detection greater than the 
health reference level: 4.0%; 
Population served by public water systems with at least one detection 
greater than the health reference level (millions of people): 16.6 
million. 

Potential health reference level (parts per billion): 5; 
Relative source contribution[A]: 20%; 
Public water systems with at least one detection greater than the 
health reference level: 3.2%; 
Population served by public water systems with at least one detection 
greater than the health reference level (millions of people): 14.6 
million[B]. 

Potential health reference level (parts per billion): 7; 
Relative source contribution[A]: 29%; 
Public water systems with at least one detection greater than the 
health reference level: 2.1%; 
Population served by public water systems with at least one detection 
greater than the health reference level (millions of people): 7.2 
million. 

Potential health reference level (parts per billion): 10; 
Relative source contribution[A]: 41%; 
Public water systems with at least one detection greater than the 
health reference level: 1.4%; 
Population served by public water systems with at least one detection 
greater than the health reference level (millions of people): 5.0 
million. 

Potential health reference level (parts per billion): 12; 
Relative source contribution[A]: 49%; 
Public water systems with at least one detection greater than the 
health reference level: 1.1%; 
Population served by public water systems with at least one detection 
greater than the health reference level (millions of people): 3.6 
million. 

Potential health reference level (parts per billion): 15; 
Relative source contribution[A]: 62%[C]; 
Public water systems with at least one detection greater than the 
health reference level: 0.8%; 
Population served by public water systems with at least one detection 
greater than the health reference level (millions of people): 2.0 
million[D]. 

Potential health reference level (parts per billion): 17; 
Relative source contribution[A]: 69%; 
Public water systems with at least one detection greater than the 
health reference level: 0.7%; 
Population served by public water systems with at least one detection 
greater than the health reference level (millions of people): 1.9 
million. 

Potential health reference level (parts per billion): 20; 
Relative source contribution[A]: 82%; 
Public water systems with at least one detection greater than the 
health reference level: 0.5%; 
Population served by public water systems with at least one detection 
greater than the health reference level (millions of people): 1.5 
million. 

Potential health reference level (parts per billion): 25[E]; 
Relative source contribution[A]: 100%; 
Public water systems with at least one detection greater than the 
health reference level: 0.4%; 
Population served by public water systems with at least one detection 
greater than the health reference level (millions of people): 1.0 
million. 

Source: GAO analysis of EPA data. 

[A] We calculated the relative source contribution factors using EPA's 
equation for calculating health reference levels, using EPA's default 
assumptions for body weight and drinking water intake. 

[B] Exposure to perchlorate that EPA estimated at a health reference 
level of 5 parts per billion that EPA developed using the 20 percent 
default relative source contribution. 

[C] Using EPA's default assumptions for body weight and drinking water 
intake to calculate the relative source contribution that corresponds 
with a perchlorate concentration in drinking water of 15 micrograms 
per liter results in a relative source contribution of 61.2 percent. 
We report 62 percent because that is the relative source contribution 
EPA derived based on the agency's exposure analysis. 

[D] Exposure to perchlorate that EPA estimated at a health reference 
level of 15 parts per billion that EPA developed using data from its 
novel exposure analysis and the subtraction method to calculate the 
relative source contribution. 

[E] This value reported by EPA represents the drinking water 
equivalent level of 24.5 parts per billion rounded to the nearest 
whole number. A health reference level equal to the drinking water 
equivalent level assumes that all exposure to the contaminant is from 
drinking water--hence a relative source contribution of 100 percent. 

[End of table] 

[End of section] 

Appendix VIII: Supplemental Information on Limitations and 
Uncertainties of EPA's Perchlorate Exposure Analysis: 

To support its preliminary regulatory determination, EPA developed 
perchlorate exposure estimates using a novel methodology that merged 
biomonitoring data from CDC's National Health and Nutrition 
Examination Survey (CDC biomonitoring data) with perchlorate 
occurrence data from EPA's testing program. Using this methodology, 
EPA developed exposure estimates of daily perchlorate exposure from 
drinking water for various age and gender groups,[Footnote 201] 
focusing largely on the perchlorate exposure of pregnant females 
because, EPA stated, the National Academies and EPA considered 
pregnant women and their fetuses to be the most sensitive population. 
In addition to the three limitations discussed in this report, 
reviewers noted additional limitations related to (1) the way in which 
participants were placed into groups that represented their potential 
for exposure to perchlorate from drinking water and food and (2) the 
adjustment--called a creatinine adjustment--that EPA had to make to 
estimate daily exposure to perchlorate from a single urine sample. 

Limitations and Uncertainties Related to Grouping Participants 
According to Their Potential Exposure to Perchlorate from Drinking 
Water and Food: 

After merging the data sets, EPA separated study participants into 
three groups, according to their potential for exposure to perchlorate 
through drinking water and food: participants whose exposure to 
perchlorate most likely comes from food and water, participants whose 
exposure most likely comes only from food, and participants whose 
exposure is unknown because occurrence data were not available. Study 
participants residing in the same counties as public water systems 
that had at least one detection of perchlorate during the sample 
period were considered to be most likely exposed to perchlorate in 
both food and water. Study participants were placed in the group most 
likely exposed to perchlorate from food alone on the basis of meeting 
one or more of the following criteria: (1) they resided in counties 
where there were no quantified detections of perchlorate in public 
drinking water systems sampled under EPA's occurrence testing program, 
(2) they self-reported that they had not consumed public drinking 
water in the past 24 hours, or (3) they reported using a reverse 
osmosis filter at home (which can reduce perchlorate in drinking 
water). By placing participants into these two groups, EPA could 
estimate the relative contributions of food and water to perchlorate 
exposure. The remaining study participants were excluded from the 
analysis because EPA lacked data on perchlorate occurrence in drinking 
water to which they could be linked. However, as can be seen in the 
following examples, the data EPA had available to determine the group 
in which each study participant should be placed--exposure from food 
only or from food and water--and some criteria EPA applied in making 
these placements, introduce uncertainties into the exposure assessment 
that were not transparently acknowledged and explained in the agency's 
2008 preliminary regulatory determination notice for perchlorate. 

* EPA's testing program used a relatively insensitive minimum 
reporting level of 4 micrograms of perchlorate per liter of water. 
[Footnote 202] As a result, EPA's analysis of perchlorate exposure of 
CDC biomonitoring study participants placed in the group assumed to be 
exposed to perchlorate from food only--characterized by the study's 
authors as the "most important category" for the purpose of 
investigating the dose of perchlorate in food--could overstate the 
number of participants who met the criterion to be placed into this 
group because the group could include people exposed to perchlorate at 
concentrations up to 4 micrograms of perchlorate per liter of water. 
Further, to the extent participants in the food-only group were 
exposed to perchlorate in drinking water at levels below the minimum 
reporting level, the estimates of exposure from food alone are 
overstated. According to one reviewer, the minimum reporting level of 
4 micrograms per liter introduces an uncertainty into the analysis 
that needs to be appropriately characterized, indicating that its use 
would underestimate perchlorate exposure for participants in the food 
and water group and inappropriately place individuals in the food-only 
group who should have been placed in the food and water group. 

* EPA's perchlorate exposure estimates for participants placed in the 
food-only and food and water groups may also be subject to error 
because data limitations did not enable EPA to link participants to 
the perchlorate occurrence test results for their public water 
systems; rather, the data enabled each participant to be matched only 
to perchlorate occurrence test results for a public water system in 
the county in which the participant resides.[Footnote 203] As a 
result, some participants who were not actually exposed to perchlorate 
from their public water system may have been erroneously placed in the 
group exposed to perchlorate in food and water. 

* As noted by some reviewers, EPA's criterion for placing participants 
in the group exposed to perchlorate from food alone if they reported 
they had not consumed tap water in the past 24 hours may have caused 
some participants to be erroneously placed in this group because these 
individuals may have nonetheless been exposed to perchlorate in 
drinking water that was used in the preparation of food, such as 
juice, soup, or coffee. 

* Another source of uncertainty that reviewers raised is the extent to 
which the analysis of the merged data is nationally representative. If 
the results of the analysis are weighted toward areas with known high 
or low perchlorate concentration in drinking water rather than being 
nationally representative, this limitation and its effects should be 
identified. However, EPA's preliminary regulatory determination and 
the journal article on this analysis provide no information on the 
geographic coverage of the merged data, such as the number of states 
and the number of public water systems[Footnote 204] represented by 
the merged CDC biomonitoring and EPA occurrence data. 

Limitations and Uncertainties Related to the Creatinine Adjustment: 

To estimate each participant's daily exposure to perchlorate from a 
single urine sample, EPA performed a creatinine adjustment on each 
sample. Making this adjustment required the following information for 
each participant: age, sex, weight, height, race, and lean body mass. 
As can be seen in the following examples, some of the assumptions that 
EPA applied in making these adjustments introduce uncertainties into 
the exposure assessment that were not transparently acknowledged and 
explained in the agency's 2008 preliminary regulatory determination 
notice for perchlorate. 

* A key assumption EPA used in making the creatinine adjustment was 
that 100 percent of ingested perchlorate is eliminated in urine within 
a 24-hour period. However, this is not a settled issue in the 
scientific community. The 2010 journal article detailing the 
methodology EPA used identifies several studies that report lower 
percentages of perchlorate excreted in urine within 24 hours of 
exposure.[Footnote 205] For example, the journal article states that 
"several recent" perchlorate exposure studies report that 
approximately 70 percent of a perchlorate dose is excreted in urine. 
The estimates in the studies cited range from 50 percent to 100 
percent. The cited studies were published between 2000 and 2007 and, 
consequently, were available at the time EPA was developing its 
relative source contribution factor for its preliminary regulatory 
determination on perchlorate. 

* Other limitations related to the creatinine adjustment that 
introduce uncertainty into the exposure estimates stem from 
differences among individuals in the timing of urine sample 
collections relative to when they most recently consumed food and 
water, as well as the expected variability among individuals' intake 
and excretion related to their dietary and water consumption patterns 
(e.g., some individuals may excrete more or less of what they eat or 
drink). 

[End of section] 

Appendix IX: Calculations for the Perchlorate Health Reference Level 
in EPA's 2008 Preliminary Regulatory Determination and the Related 
2010 Journal Article on EPA's Exposure Analysis Methodology: 

The exposure estimates for pregnant women that EPA presented in its 
2008 preliminary determination for perchlorate differed from those 
presented in the 2010 journal article that presented the exposure 
analysis methodology EPA used to support its preliminary 
determination.[Footnote 206] This difference occurred because, in 
response to reviewers' comments, the authors of the 2010 journal 
article removed four data points that were determined to be outliers-- 
two of which were data points that corresponded to women. As a result, 
in the article they reported pregnant women's exposure to perchlorate 
from food alone at 0.198 micrograms per kilogram per day--compared 
with EPA's 0.263 estimate. This downward adjustment in the exposure 
estimate for pregnant women in 2010 resulted in a change in the 
relative source contribution estimate for perchlorate from 62 percent 
to 72 percent.[Footnote 207] Nonetheless, the 2008 and 2010 exposure 
analyses both support the same health reference level of 15 parts per 
billion--the level EPA and other federal agencies agreed to. As shown 
in table 12, this consistency in the health reference level was 
maintained because key assumptions were changed in calculating the 
health reference level. 

Table 12: Comparison of the Health Reference Level Calculations Used 
in EPA's Preliminary Perchlorate Regulatory Determination and Its 
Subsequent Article on the Perchlorate Exposure Methodology the Agency 
Used in Its Preliminary Regulatory Determination, Based on a Reference 
Dose of 0.7 Micrograms per Kilogram per Day: 

Health reference level (parts per billion, rounded): 15; = [(Reference 
dose (micrograms per kilogram per day): [(0.7; x Body weight) 
(kilograms): 70); ÷ Drinking water intake] (liters per day): 2]; x 
Relative source contribution[A] (expressed as a percentage): 62; 
Source and date: EPA's preliminary regulatory determination, 2008. 

Health reference level (parts per billion, rounded): 15; = [(Reference 
dose (micrograms per kilogram per day): [(0.7; x Body weight) 
(kilograms): 66); ÷ Drinking water intake] (liters per day): 2.21]; x 
Relative source contribution[A] (expressed as a percentage): 72; 
Source and date: Journal of Exposure Science and Environmental 
Epidemiology article, 2010. 

Source: GAO. 

Notes: If EPA's 2008 calculation of the health reference level had 
retained the 62 percent relative source contribution factor but used 
the body weight and drinking water intake assumptions reflected in the 
journal article, the health reference level would have been 13 parts 
per billion. Conversely, using the 72 percent relative source 
contribution factor from the results reported in 2010 and the default 
estimates for body weight and drinking water intake that EPA used in 
2008, the health reference level would be 18 parts per billion. 

[A] EPA calculated the relative source contribution using the 
subtraction method. 

[End of table] 

As shown in the table, in its preliminary regulatory determination, 
EPA derived a relative source contribution of 62 percent on the basis 
of pregnant women's exposure to perchlorate from drinking water and 
used the agency's default assumptions for weight (70 kilograms) and 
drinking water intake (2 liters per day) to calculate the health 
reference level of 15 parts per billion. In the 2010 journal article, 
the authors support a health reference level of 15 parts per billion, 
but in this case, it is derived on the basis of a 72 percent relative 
source contribution that reflects both the data corrections the 
authors made in the exposure analysis and alternate assumptions for 
weight (66 kilograms) and drinking water intake (2.21 liters per day.) 
These calculations illustrate how sensitive the outcomes of risk 
assessment methodologies can be to sometimes minor changes in basic 
assumptions. The sensitivity of the outcome--which then drives policy 
decisions--to these changes in assumptions, underscores the need for 
transparency and consistency in EPA's selection of assumptions for a 
given risk assessment. 

[End of section] 

Appendix X: Comments from the Environmental Protection Agency: 

United States Environmental Protection Agency: 
Office of Water: 
Washington, D.C. 20460: 
[hyperlink, http://www.epa.gov] 

May 3, 2011: 

Mr. David C. Trimble: 
Acting Director: 
Natural Resources and Environment: 
U.S. Government Accountability Office: 
Washington, D.C. 20548: 

Dear Mr. Trimble: 

Thank you for the opportunity to review and respond to GAO's draft 
report entitled, "EPA Should Improve Implementation Requirements on 
Whether to Regulate Additional Contaminants" (Report Number GA0-11-
254). You make 17 recommendations in the report to increase 
consistency, transparency and clarity in implementing the Safe 
Drinking Water Act in a way that assures the safety of public drinking 
water. 

EPA is in the midst of the third iteration of the unregulated 
contaminant evaluation steps required by the 1996 Safe Drinking Water 
Act (SDWA) Amendments. EPA has completed the third contaminant 
candidate list (CCL 3), proposed the third unregulated contaminant 
monitoring rule (UCMR 3), and is developing the third round of 
regulatory determinations. EPA committed to a sound scientific basis 
for these actions and to assuring transparency and clarity of the
Agency's decision making. EPA's approaches to these actions have been 
informed by recommendations and review from the National Academies of 
Sciences (NAS), the National Drinking Water Advisory Council (NDWAC) 
and the EPA Science Advisory Board (SAB). 

EPA is committed to improvement in each of these actions. In the third 
CCL, EPA took a major step forward by developing and utilizing a more 
transparent and reproducible process than was used for previous lists. 
On March 3, 2011, EPA proposed a third UCMR that would fully utilize 
the authority to require monitoring for up to 30 contaminants. The 
Agency published on February 11, 2011, a final determination to 
regulate perchlorate. This final determination was developed by a work 
group that included representatives from the Office Children's Health 
Protection and from EPA Regions. As the Agency develops the third round
of regulatory determinations, we are focusing our attention on the 
CCL3 contaminants that are likely to pose the biggest public health 
concern and are most likely to be found in public water systems. 

To respond to your recommendations, the Agency will continue to focus 
future contaminant candidate lists on those contaminants that present 
the greatest health concern and to fully utilize the statutory 
authority to require unregulated contaminant monitoring. We will 
continue to improve the transparency and clarity of our regulatory 
determinations. However, given the many combinations of health effects 
factors such as the potency of the contaminant and the severity of 
health effects, as well as the potential ranges of frequencies and 
levels of contaminants measured in drinking water, EPA does not 
believe that establishing more specific policies or guidance for 
regulatory determinations is practicable. In fact it could inhibit our 
ability to continually improve our actions. Instead, we will work to 
improve the transparency of the Federal Register notices and support 
documents for the regulatory determinations so the public can better 
understand how EPA came to its conclusions. EPA will work to improve 
the utility of our Health Advisories. To do so, we will seek input 
from stakeholders and will determine whether and how the format and 
content of future Health Advisories should be revised. 

Attached are the Agency's more detailed responses to the 17 specific 
recommendations contained in your report. We have also provided a list 
of technical corrections to the draft report. 

Once again, thank you for the opportunity to respond to this draft 
report. 

Sincerely, 

Signed by: 

Nancy K. Stoner: 
Acting Assistant Administrator: 

Attachment: 

[End of letter] 

Attachment A - EPA's Responses to GAO's Specific Recommendations: 

GAO Recommendations 1 and 2: 

To systematically implement the statutory requirement to consider for 
regulation the contaminants that present the greatest public health 
concern, we recommend that the EPA Administrator require the Office of 
Water to: 

1) develop criteria and a process for identifying those contaminants 
on its candidate list that present the greatest public health concern 
and; 
	
2) develop a coordinated process for obtaining both the occurrence and 
health effects data that may be	needed for the agency to make informed 
regulatory determinations on these priority contaminants. 

EPA Response to Recommendations 1 and 2: 

Response to Recommendation Jr EPA agrees with the concept outlined by 
the GAO and developed and implemented an improved process for 
identifying unregulated priority contaminants of public concern in 
drinking water. This new process, the third Contaminant	Candidate 
List, published in October of 2009, builds on evaluations used for 
previous CCLs and was based on substantial expert input and 
recommendations from the National Academy of Science's National 
Research Council (NRC) and the National Drinking Water Advisory 
Council	(NDWAC). The classification process itself allows for 
identifying contaminants that present the greatest public health 
concern related to exposures from drinking water. Also as part of the 
CCL classification process, the Agency developed technical support 
documents and tables which describe the criteria and data used to 
select the contaminants for the CCL. In selecting contaminants for the 
CCL3, both the severity and toxicity of the health effect and 
anticipated occurrence (magnitude, prevalence, and 
persistence/mobility) were evaluated. The CCL3 is considered to be 
representative of those contaminants with the greatest public health 
concern. The health effects and occurrence data/information used to 
classify contaminants for CCL3 are provided in the supporting 
documentation and in the "Final CCL3 Contaminant Information	Sheets" 
in the CCL3 docket and on the EPA website. EPA identified those 
contaminants of greatest public health concern as part of the CCL 
classification process and therefore believes that additional criteria 
and process are unnecessary. 
	
Additionally, for the next round of regulatory determinations, EPA is 
prioritizing contaminants based on health concerns and likelihood of 
occurrence in drinking water. 

Response to Recommendation 2: The Office of Water (OW) communicates 
and coordinates with the Office of Research and Development and 
external organizations (e.g., the Department of	Health and Human 
Services' National Toxicological Program and the Water Research	
Foundation) to initiate relevant research projects, when feasible; 
engage in periodic discussions about the status of the projects; and 
conduct briefings on the findings of the research projects. 

When the Office of Water engages in internal and external discussions 
about the data gaps that need to be filled to inform regulatory 
drivers (e.g., such as CCL regulatory determinations, Six Year Review, 
etc), we specify the priority contaminants and share the timeframe for 
which information, such as occurrence and health effects data, is 
needed to support our regulatory program. 

The Office of Water also works closely with the Office of Research and 
Development's (ORD) National Center for Environmental Research (NCER) 
and looks for opportunities for OW's research needs to be addressed 
through the Science to Achieve Results (STAR) program. When developing 
request for applications (RFAs) related to drinking water research, 
NCER solicits input from OW prior to posting the RFA on their website. 
NCER's past and present RFAs have included health effects research and 
analytical method development research, which is a critical	
prerequisite to gathering information on contaminant occurrence. 

In addition, the Office of Water searches the available literature and 
participates in scientific meetings to identify evolving science that 
may support evaluation of health effects. Scientific staff members 
have begun evaluating the potential for using high throughput and in 
vitro	methods to support risk assessment processes. Work plans have 
been developed in concert with the Office of Chemical Safety and 
Pollution Prevention (OCSPP) and the Office of Research and	
Development for integrating new 21st Century techniques into OW risk 
assessment processes. This approach was recommended by the National 
Academy of Sciences to expand the availability of data, inform 
targeted testing, and enhance the ability to regulate chemicals as 
groups. This process also includes identifying the potential for 
incorporating modeled exposure values into assessments. OW is 
participating in planning processes with other EPA Offices to 
prioritize health effects research by ORD for the next five years. 

More specifically and in regards to obtaining occurrence data, the 
Office of Ground Water and Drinking Water's Technical Support Center 
will coordinate and continually improve the process for (a) 
identifying contaminants for occurrence monitoring, (b) developing 
synergistically with ORD the analytical methods that can be used for 
occurrence monitoring, and (c) implementing an efficient process to 
nationally monitor contaminants of the greatest public health concern. 

GAO Recommendations 3, 4 and 5: 

To take full advantage of the opportunities provided by the testing 
program mandated by the statute and thereby obtain high-quality 
occurrence data on the authorized number of unregulated contaminants, 
we recommend that the EPA Administrator require the Office of Water to 
take the following steps: 
	
3) use its full statutory authority to test for the 30 contaminants 
allowed under each 5-year testing cycle; 
	
4) conduct testing for most or all of the selected contaminants using 
the assessment	monitoring program, rather than the more limited 
screening surveys, to obtain robust occurrence data from which provide 
national estimates with high confidence levels can be derived; and; 

5) select minimum reporting levels for testing selected unregulated 
contaminants that are sufficiently sensitive to reliably (1) detect 
the known likely and occurrence of contaminants in public water 
systems at levels of public health concern and (2) provide useful and 
credible information on the occurrence of the contaminants in public 
drinking water systems. 

EPA Response to Recommendations 3, 4, and 5: 

Response to Recommendation 3: EPA supports a goal of including as many 
priority contaminants as possible in each 5-year testing cycle. As 
acknowledged in the report, EPA has, in fact, proposed 30 contaminants 
for UCMR 3 monitoring. 

Response to Recommendation 4: EPA supports a goal of using Assessment 
Monitoring (versus Screening Survey monitoring or Pre-Screen Testing) 
for as many contaminants as is practical to obtain more robust 
occurrence data and achieve higher confidence in the national 
estimates (edits reflect that "robust" and "high confidence" are not 
absolute, but relative, concepts). As acknowledged in the report, EPA 
has, in fact, proposed that Assessment Monitoring be performed for 28 
chemical contaminants under the UCMR 3 monitoring. Laboratory 
capacity, cost, and other considerations will need to be weighed on an 
ongoing basis as the Agency works toward this goal. 

Response to Recommendation 5: EPA supports a goal of establishing 
minimum reporting levels that are sufficiently sensitive to reliably 
(1) detect the known and likely occurrence of contaminants in public 
water systems at levels of public health concern and (2) provide 
useful and credible information on the occurrence of the contaminants 
in public drinking water systems. Analytical method sensitivity must 
be balanced with other considerations such as accuracy, precision, and 
specificity. The degree to which this goal can be met will also 
continue to be dependent on the availability of health effects 
information at the time that methods are being developed and 
monitoring requirements being established. 

GAO Recommendations 6-14: 

6) To support the development of regulatory determinations that are 
transparent, clear, consistent, and that follow	applicable agency 
policy, we recommend that the EPA Administrator require the Office of 
Water to expeditiously develop and make available to the public, 
policies or guidance that clearly articulate the agency's 
interpretation of the act's broad statutory criteria for making 
regulatory determinations and provides a protocol for making such 
determinations. 

In particular, the guidance should: 

7) specify any thresholds or parameters that the agency requires to be 
met to support a positive finding for each criterion to ensure their 
consistent application; 
	
8) include factors for determining when the occurrence and health 
effects data the agency identifies are adequate to support a 
regulatory determination; 

9) establish a process to ensure that the presentation of health 
effects and occurrence information in determination documents is		
regulatory notices and support comprehensive, consistent, informative, 
and understandable, and that it includes clear explanations of key 
information, such as: 

* whether and how EPA used various data; 

* the relative source contribution method the agency used to calculate 
the health reference level; 

* instances in which the minimum reporting levels for data used in 
assessing contaminants' occurrence in drinking water are above the 
health reference level (e.g., are not sufficiently sensitive to detect 
occurrence at the level of public health concern) and the limitations 
of using such occurrence data to support regulatory determinations; 
and; 

* any exceptions to existing guidance reflected in the agency's 
support for its	regulatory determinations. 

10) establish the approaches, such as methods and analyses as 
appropriate, to evaluate the health effects on sensitive 
subpopulations, including such groups as infants and children, those 
with kidney and liver disease, those with compromised immune systems, 
and the elderly, and to comply with applicable agency policy and 
guidance for assessing children's health risks; 

11) specify that appropriate stakeholders—that is, EPA offices with 
relevant expertise such as the Office of Children's Health Protection 
and regional offices that have known or likely	occurrence of the 
contaminants being evaluated in public water systems within their 
areas of jurisdiction—be encouraged and have the opportunity to 
participate in the regulatory determination workgroups; and; 

12) define the circumstances under which, and the process EPA will 
use, to reconsider whether to regulate a contaminant for which it 
previously issued a determination not to do so and, in the context of 
the recommended guidance, consider whether the agency needs to 
reevaluate any of its past determinations to not regulate. 

13) We further recommend that a draft of the guidance we are 
recommending that EPA develop be reviewed by the Science Advisory 
Board's Drinking Water Committee or the National Drinking Water 
Advisory Committee and that EPA consider the Committee's comments 
before finalizing the guidance. 

14) In addition, we recommend that the EPA Administrator develop and 
implement an internal review mechanism to help ensure that EPA's 
regulatory determinations are consistent with the guidance. 

EPA Response to Recommendations 6-14: 

Response to Recommendations 6-9: EPA agrees with the concept of being 
more transparent, clear, and consistent in support of it regulatory 
determinations process. The regulatory determinations process is a 
flexible process that allows for improvements over time as we strive 
toward our goals. With each iteration of the CCL and regulatory 
determinations, the Agency learns how to improve upon the last cycle. 
As the Agency moves forward with the third CCL Regulatory 
Determinations and in lieu of developing a guidance or protocol, the 
Agency will strive to improve the clarity and transparency of our 
support documents and Federal Register notices so the public better 
understands the information and data being considered, any potential 
limitations or exceptions, how we use this information to make 
decisions and the rationale for our decisions. In regards to defining 
or specifying any thresholds or parameters that must be met to make a 
positive finding, it should be recognized that there is not a "one 
size fits all" model for evaluating contaminants for drinking water 
regulations. In our experience, there are many factors that need to be 
considered in regards to the health and occurrence information.
Ultimately, and after considering the information being presented, it 
is the Administrator's judgment as to whether regulation of a 
contaminant in drinking water presents a meaningful opportunity for 
health risk reduction. 

Response to Recommendation 10: EPA agrees that it is important to 
continue to evaluate health effects on sensitive populations such as 
infants and children, pregnant women, the elderly, and individuals 
with a history of serious illness. EPA considers the susceptibility of 
populations and life stages in health effects documents supporting 
regulatory determination. To the extent that information is available 
in the literature defining the impacts on individuals with special 
susceptibilities such as liver or kidney impairments, the information 
is provided to support decision-making. Immuno-competence is routinely 
considered in decisions concerning the occurrence of pathogenic 
organisms in source water and finished water. EPA agrees that 
consideration of the elderly should be more routinely considered in 
risk assessment processes and will consider how to incorporate them 
into its evaluations. In addition, the Office of Water will continue 
to coordinate with the Office of Children's Health Protection to 
improve the methods it uses to assess health effects for regulatory 
determinations. 

Response to Recommendation 11: EPA does not believe that additional 
guidance is needed as the Office of Water already has guidance (i.e., 
the Action Development Process) intended to allow for all EPA offices 
and regions with an interest in a rule to participate in development 
of and to approve of that rule. EPA supports the goal of encouraging 
internal Agency stakeholders to participate in actions relevant to 
their office or expertise. When an EPA lead office initiates an action 
through the Agency's Action Development Process (an existing internal 
Agency guidance and process), other program and regional offices 
within the Agency have an opportunity to indicate their interest and 
assign a member of their staff to the workgroup. The Office of Water 
welcomes the participation of our internal Agency partners and will 
continue to use the Agency's Action Development Process to alert other 
EPA offices about future regulatory determination efforts. 

Response to Recommendation 12: EPA does not believe that guidance is 
needed as the current Contaminant Candidate List (CCL) process allows 
for reevaluation of contaminants that EPA previously issued 
determinations not to regulate if new health effects or occurrence 
information becomes available. 

Response to Recommendation 13: The Office of Water supports seeking 
input on how to improve the transparency and clarity of its regulatory 
determinations. EPA's Office of Water periodically meets with its 
National Drinking Water Advisory Council to request input and advice 
on our regulatory efforts. EPA will plan to seek input from NDWAC at 
an appropriate stage of the process during the Agency's (next or 
future) regulatory determinations effort. The Agency will also plan to 
request input from the public on whether and how to improve the
transparency and clarity of the regulatory determinations when the 
Agency publishes the preliminary FR notices for its regulatory 
determinations. 

Response to Recommendation 14: EPA's Action Development Process is an 
established internal process utilizing workgroups to aid in planning, 
evaluating, and developing regulatory efforts. EPA will continue to 
use this process and our Agency workgroup to ensure that regulatory 
determinations are clear, transparent and as consistent as possible. 

GAO Recommendations 15-16: 

15) In light of EPA's decisions to issue health advisories in 
conjunction with determinations to not regulate certain contaminants 
that have been detected in some	water systems at levels public	of
public health concern, we recommend that the EPA Administrator (1) 
determine whether the Office of Water's use of health advisories 
provides sufficient information on these unregulated to	timely	
effective by localities, contaminants support and actions states,	
public water systems, and the public to ensure the safety of public 
drinking water and; 

16) (2) if not, direct the Office of Water to develop a plan to more 
effectively communicate such information to these entities. 

EPA Response to Recommendations 15-16: 

Response to Recommendations 15 and 16: EPA believes that communication 
of information regarding unregulated contaminants for which a 
determination not to regulate has been made is an important step in 
permitting states, localities, public water systems, and the public to 
make informed decisions about contaminants found in water supplies. 
The Health Advisory is intended to provide information needed to 
establish whether concentrations of contaminants may present a health 
risk. The Health Advisory is also intended to provide information 
about treatment for removal of the contaminant, and about sources of 
the contaminant. 

EPA agrees that it would be helpful to understand the extent to which 
the Health Advisories are found to be useful to stakeholders. EPA will 
inquire of stakeholders how they use the documents and what portions 
they find useful. Based upon the input received, EPA will determine 
whether and how the Health Advisory format and content should be 
revised. 

GAO Recommendation 17: 
	
17) To improve transparency and help EPA ensure that it maintains the 
fairness and openness of its operations and thus strengthens public 
confidence in its decisions, we recommend that the EPA	Administrator 
require the Office of Water to include in the public record 
communications with OMB and other federal agencies during the 
development of the regulatory determination as well as concerning 
associated notices and scientific analyses. 

EPA Response to Recommendations 17: 

Response to Recommendations 17: Under Executive Order 12866, all 
Executive Branch agencies must submit those matters determined by the 
agency or the Office of Management and Budget (OMB) to be "significant 
regulatory actions" to OMB for review and clearance prior to their 
promulgation. Executive Order 12866 provides only that the Agency 
identify for the public the substantive changes that occurred during 
the OMB review and those changes made at the suggestion or 
recommendation of OMB, It does not require that every communication 
with OMB or other federal agencies be included. Nor is there any other 
legal requirement to do so. Unless otherwise required by law, EPA does 
not believe that including these deliberative documents in the docket 
is a good policy because these pre-decisional documents may be 
confusing to the public, undermine the ultimate policy choice, and 
inhibit internal and/or intraagency deliberations. 

[End of section] 

Appendix XI: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

David C. Trimble, (202) 512-3841 or trimbled@gao.gov: 

Staff Acknowledgments: 

In addition to the contact named above, Christine Fishkin, Assistant 
Director; Jamie Meuwissen; Ryan Gottschall; Elizabeth Beardsley; Mark 
Braza; Nancy Crothers; Richard Johnson; John B. Stephenson; and Kiki 
Theodoropoulos made key contributions to this report. Also 
contributing to this report were Usman Ahmad, Archie Cowan, Michael 
Derr, Justin Fisher, Laura Gatz, Gary Guggolz, Ioan Ifrim, Michael 
Kniss, Carol Kolarik, Summer Lingard, Perry Lusk, Robert S. Wilson, 
and Eugene Wisnoski. 

[End of section] 

Footnotes: 

[1] Pub. L. No. 93-523 (1974), codified as amended at 42 U.S.C. §§ 
300f-300j-26 (2010). 

[2] See, for example, Oversight of Recent EPA Decisions Hearing Before 
the Senate Committee on Environment and Public Works, 110th Cong. 
(Feb. 6, 2007) (statement of Sen. Barbara Boxer); Endocrine Disrupting 
Chemicals in Drinking Water: Risks to Human Health and the Environment 
Hearing Before the House Committee on Energy and Commerce, Energy and 
Environment Subcommittee, 111th Cong. (Feb. 25, 2010) (statement of 
Rep. Edward Markey); Oversight Hearing on Public Health and Drinking 
Water Issues Hearing Before the Senate Committee on Environment and 
Public Works, 112th Cong. (Feb. 2, 2011) (statements of Sen. Barbara 
Boxer, Sen. Benjamin Cardin, and Sen. Frank Lautenberg). 

[3] Under the Safe Drinking Water Act, a drinking water contaminant is 
defined as any physical, chemical, biological, or radiological 
substance or matter in water. 

[4] Hypothyroidism is a condition in which the body lacks sufficient 
thyroid hormone. 

[5] GAO, Perchlorate: Occurrence Is Widespread but at Varying Levels; 
Federal Agencies Have Taken Some Actions to Respond to and Lessen 
Releases, [hyperlink, http://www.gao.gov/products/GAO-10-769] 
(Washington, D.C.: Aug. 12, 2010). 

[6] Unless otherwise stated, in this report we refer to the Safe 
Drinking Water Act as amended. 

[7] In this report, we refer to Federal Register notices regarding 
EPA's regulatory determinations (notices) and EPA's regulatory 
determination support documents individually and collectively, as 
appropriate. When referring to these documents collectively, we use 
the term "regulatory determination documents." 

[8] The public drinking water systems regulated by EPA and delegated 
states and tribes provide drinking water to 90 percent of U.S. 
residents. These public drinking water systems, which may be publicly 
or privately owned, serve at least 25 people or 15 service connections 
for at least 60 days per year. Private, individual household wells are 
not regulated by EPA. States can seek lead enforcement responsibility 
(called primacy) for public water systems if they adopt drinking water 
regulations that are no less stringent than the national primary 
drinking water regulations and meet other statutory and regulatory 
requirements. 

[9] Under the statute, the first regulatory determination cycle was to 
have been completed--including notice and public comment--by August 
2001; the second by August 2006; and the third by August 2011-- 
requiring determinations on at least 15 contaminants. EPA did not meet 
the time frames in the statute but has made determinations on 21 
contaminants as of February 2011. 

[10] Since the 1996 amendments, EPA has finalized national primary 
drinking water regulations that it had previously proposed; the 
regulations address several previously unregulated contaminants. 

[11] The planned regulation of a group of carcinogenic VOCs includes 
contaminants that are not regulated as well as contaminants that are 
regulated individually, such as benzene, TCE, PCE, and vinyl chloride. 
EPA stated it was moving toward establishing a drinking water standard 
to address a group of up to 16 toxic chemicals but has not provided 
details on how the planned regulation of a group of both regulated and 
currently unregulated contaminants would be handled. The EPA 
Administrator stated, for example, that the agency would be "working 
towards developing an update to the Safe Drinking Water Act 
[regulations]" to address this planned action. 

[12] EPA could also make a regulatory determination for a contaminant 
not on the contaminant candidate list but has not done so. 

[13] Under the statute, the candidate list was to be published in 1998 
and every 5 years thereafter--therefore, in 2003 and 2008. EPA did not 
meet the time frame for publishing the second and third candidate 
lists. 

[14] As discussed earlier, EPA reversed its 2008 preliminary 
determination to not regulate perchlorate in February 2011. The 
determination was made as an out-of-cycle action. 

[15] Executive Order 12866 directs agencies, among other things, to 
"identify for the public, in a complete, clear, and simple manner, the 
substantive changes between the drafts submitted to [OMB] for review 
and the action subsequently announced," "identify for the public those 
changes in the regulatory action that were made at the suggestion or 
recommendation of [OMB]," and make available to the public the draft 
action as sent to OMB for review. 

[16] EPA, "Drinking Water: Regulatory Determinations Regarding 
Contaminants on the Second Drinking Water Contaminant Candidate List-- 
Preliminary Determinations," Federal Register (Washington, D.C.: May 
1, 2007). 

[17] Under its unregulated contaminants testing program, during each 
testing cycle, EPA has generally required public water systems serving 
more than 10,000 people, and a representative sample of those serving 
10,000 or fewer people, to test for the presence of selected 
contaminants either two or four times during a consecutive 12-month 
period; testing frequency depends on whether the public water systems 
are served by ground or surface water. Under the statute, EPA was to 
promulgate the first list for testing up to 30 specified unregulated 
contaminants in 1999 and every 5 years thereafter. EPA published the 
first rule in 1999 but did not meet the time frame for the second 
rule, which was published in 2007. EPA proposed the third rule for the 
testing program in March 2011 and plans to issue a final rule in 2012. 

[18] The 1996 amendments modified the authority EPA had under the 1986 
amendments to require public water systems to test for unregulated 
contaminants, limiting the number of (1) unregulated contaminants for 
which some systems would be required to test and (2) public water 
systems serving populations of less than 10,000 that EPA could require 
to conduct such testing. (See appendix II for more information on the 
testing programs established by the 1986 and 1996 amendments.) 

[19] The IRIS database contains EPA's scientific position on the 
potential human health effects of more than 540 chemicals. According 
to EPA documents, health risk assessment data that would be deemed 
sufficient to characterize the potential health effects include 
assessments from the IRIS program, the Office of Pesticide Program in 
a Reregistration Eligibility Decision, the National Academies, or 
ATSDR. 

[20] EPA defines a reference dose as an estimate (with uncertainty 
spanning perhaps an order of magnitude) of a daily oral exposure to 
the human population (including sensitive subpopulations) that is 
likely to be without an appreciable risk of deleterious effects during 
a lifetime. It can be derived from a no-observed-adverse-effect level, 
a lowest-observed-adverse-effect level, or a benchmark dose, with 
uncertainty factors generally applied to reflect limitations of the 
data used. 

[21] IRIS information includes the reference dose for noncancer health 
effects resulting from oral exposure, the reference concentration for 
noncancer health effects resulting from inhalation exposure, and the 
cancer assessment for both oral and inhalation exposure. Combined with 
specific situational exposure assessment information, the summary 
health hazard information in IRIS may be used as a source in 
evaluating potential public health risks from chemical substances 
found in the environment. 

[22] For the carcinogens EPA has evaluated for regulatory 
determination, EPA's assessments have assumed that no level of 
exposure is safe, with the health reference level reflecting the 
concentration of the contaminant in drinking water equivalent to a one-
in-a-million increased risk of getting cancer from a lifetime of 
exposure. EPA's cancer risk policy provides guidance on the data 
needed for EPA to assume that there is a threshold below which a 
carcinogenic contaminant does not pose a risk. For health problems 
other than cancer, EPA has generally posited that there is some safe 
level of exposure to a contaminant before adverse health effects occur. 

[23] EPA, Office of Science and Technology and Office of Water, 
Methodology for Deriving Ambient Water Quality Criteria for the 
Protection of Human Health (Washington, D.C.: October 2000). This 
guidance document includes discussions of the two approaches the 
drinking water program has used for estimating the relative source 
contribution and criteria for selecting the appropriate approach. 
While the guidance was developed in the context of Clean Water Act 
water quality criteria, the Office of Water uses it in making its 
drinking water regulatory determinations as well as in establishing 
primary drinking water regulations. 

[24] According to the guidance, adequate data are available data that 
describe central tendencies and high ends for relevant exposure 
sources and pathways. In addition, adequacy depends on whether the 
data are relevant to and representative of the population at risk; 
therefore, data may be adequate for some decisions and inadequate for 
others. 

[25] EPA health advisories for regulated and unregulated contaminants 
are provided in EPA's 2009 Edition of the Drinking Water Standards and 
Health Advisories, EPA 822-R-09-011 (Washington, D.C., October 2009). 

[26] Although EPA announced in its July 2008 Federal Register notice 
that it would issue an updated health advisory for a 10th contaminant 
that the agency decided to not regulate--1,3-dichloropropene--as of 
February 2011, the agency had not issued an updated health advisory 
for this contaminant. 

[27] EPA's Science Advisory Board is a federal advisory committee 
established by Congress in 1978 with a broad mandate to advise the 
agency on technical matters. The Board has established several 
standing committees, including the Drinking Water Committee. 

[28] SAB Advisory on EPA's Draft Third Drinking Water Contaminant 
Candidate List (CCL3), EPA-SAB-09-011 (Washington, D.C., Jan. 29, 
2009). 

[29] National Drinking Water Advisory Council, Report of the National 
Drinking Water Advisory Council Working Group on CCL & Six-Year 
Review, Recommendations on the CCL Regulatory Determination Protocol 
(May 23, 2000). The council approved the report's recommendation that 
EPA use the protocol for making regulatory determinations on June 14, 
2000. 

[30] EPA uses occurrence data to identify human exposure to 
contaminants in drinking water. 

[31] Perchlorate was one of the 40 contaminants that remained 
unaddressed because, as EPA explained, "additional information may be 
needed to more fully characterize perchlorate exposure" to support a 
regulatory determination during this period. In October 2008, EPA 
issued a preliminary determination on perchlorate, and in February 
2011, EPA issued a final regulatory determination. 

[32] The third candidate list includes 104 chemical and 12 microbial 
contaminants. 

[33] EPA made substantial changes in its methodology for developing 
the third candidate list, including implementing a criteria-based 
screening process. The 40 contaminants from the previous candidate 
lists for which the agency had not made regulatory determinations were 
included among the contaminants that were subject to the screening 
process. Using the new screening process to re-evaluate these 
contaminants, EPA selected 18 to carry forward to the third candidate 
list and did not select the other 22. 

[34] EPA had planned to test for RDX in the first testing cycle, but 
the agency did not require testing for this contaminant during the 
first cycle as it awaited refinement of the testing (analytic) method. 
EPA subsequently selected RDX again for testing under the second 
cycle, allocating 2 of the 60 available testing slots for the first 
two testing cycles to RDX. 

[35] GAO, Chemical Assessments: Low Productivity and New Interagency 
Review Process Limit the Usefulness and Credibility of EPA's 
Integrated Risk Information System, [hyperlink, 
http://www.gao.gov/products/GAO-08-440] (Washington, D.C.: Mar. 7, 
2008). 

[36] To make progress on its backlog of 70-plus ongoing assessments, 
the IRIS program identified a subset of assessments for completion, 
taking into account such factors as the assessment stage (with 
priority generally given to assessments in the later stages of 
development) and input from program offices. 

[37] According to OMB documents, EPA is the only federal agency that 
conducts quantitative cancer assessments of chemicals. Moreover, the 
World Health Organization, ATSDR, and the California Environmental 
Protection Agency--entities EPA has cited as potential sources for 
health assessment data for regulatory determinations--do not have 
health assessments on RDX. 

[38] The IRIS program provides an assessment time frame for standard 
assessments--23 months--but not for more complex or controversial 
assessments. Rather, the IRIS program indicates such assessments may 
take longer. 

[39] As of February 2011, EPA had not finalized IRIS assessments for 
the six key contaminants that we reported in 2008 had been in progress 
for a number of years. 

[40] For example, along with contaminants such as perchlorate and 
hexavalent chromium, RDX is on DOD's emerging contaminants program's 
action list. Under this program, a DOD team on "materials of evolving 
regulatory interest" focuses on a number of contaminants to develop 
actions to respond to such potential factors as health impacts, 
cleanup costs, compliance costs, readiness impacts, and facilities' 
life-cycle costs. 

[41] Because terbufos degrades quickly in water, EPA is currently 
testing for its longer-lived degradate, terbufos sulfone. 

[42] Public water systems served by surface water are to test four 
times, and systems served by groundwater are to test two times, during 
a consecutive 12-month period. 

[43] Under the time frames set out in the statute for identification 
of contaminants to be tested, EPA would have issued the list of 
contaminants for the third testing cycle in 2009, and based on past 
time frames between publishing a list and beginning testing, public 
water utilities in the testing program sample would have started to 
test for up to 30 contaminants in January 2011. EPA has recently 
proposed the list and time frames for the third testing cycle (2012 
through 2016), with testing to be conducted from January 2013 through 
December 2015. 

[44] See footnotes 17 and 43. 

[45] According to EPA officials, the agency expects to have complete 
data from the second testing cycle by the fall of 2011. 

[46] EPA, "Drinking Water Contaminant Candidate List 3--Final Notice," 
74 Fed. Reg. 51850 (Washington, D.C., Oct. 8, 2009). 

[47] EPA is authorized to make regulatory determinations for 
contaminants that are not on the candidate list, but has not done so 
to date. For these 9 contaminants, the agency could make 
determinations for any of them either as part of a regulatory 
determination cycle or out of cycle, or could add any of them to the 
next candidate list. 

[48] According to EPA testing program documentation, EPA believes 
assessment monitoring represents "the most effective and accurate 
survey approach," providing "a confidence level of 99 percent with an 
allowable error of plus or minus 1 percent." The documentation notes 
that using an approach with a greater margin of error, and the 
resulting smaller sample size, could cause the occurrence of the many 
contaminants that occur in 1 percent or less of drinking water systems 
on a national basis to be "missed entirely." The documentation further 
notes that even a small percentage of systems with detections can 
affect a significant population. 

[49] The first cycle testing included approximately 3,800 systems and 
the second cycle about 4,200. Assessment monitoring includes all 
systems serving over 10,000 people and a representative sample of 800 
smaller systems. 

[50] The 29 contaminants tested under the screening survey include 14 
contaminants from the first testing cycle and 15 from the second cycle. 

[51] EPA, "Unregulated Contaminant Monitoring Regulation (UCMR) for 
Public Water Systems Revisions: Proposed Rule," Federal Register (Aug. 
22, 2005). 

[52] As noted earlier, we did not evaluate the testing program. As 
such, we did not examine issues such as the extent to which the tests 
used widely available technologies and national laboratory capacity to 
conduct more sophisticated tests. 

[53] The 28 contaminants with proposed assessment monitoring testing 
are chemicals. For the other 2 contaminants--microbials (biological 
substances), which present different testing challenges than chemicals-
-EPA proposed "pre-screen testing" at 800 targeted, undisinfected 
groundwater wells from systems that serve 1,000 or fewer customers. 

[54] In addition, according to its February 11, 2011, final regulatory 
determination notice for perchlorate, the agency developed a range of 
health reference levels for 14 life stages, some of which are lower 
than the minimum reporting level the testing program used for 
perchlorate. 

[55] Determinations for five of the contaminants with minimum 
reporting levels greater than health reference levels were based on 
state testing data collected under the testing program pursuant to the 
1986 amendments to the Safe Drinking Water Act. 

[56] Three of the contaminants were part of the first testing cycle. 
The fourth--1,3-dichloropropene--was not officially part of the first 
testing cycle, but EPA conducted analyses on samples collected from 
796 of the small drinking water systems that provided samples for 
assessment monitoring in conjunction with the first testing cycle. 

[57] Because the second cycle of testing will support the third cycle 
of regulatory determinations in 2013, it is not known at this time the 
extent to which minimum reporting levels for the contaminants could 
exceed the health reference levels developed as part of the regulatory 
determination process. 

[58] USGS, Quality of Source Water from Public-Supply Wells in the 
United States, 1993-2007 (Reston, Va., May 2010). This report is part 
of the USGS National Water-Quality Assessment (NAWQA) Program, which 
was established in 1991 to develop long-term, nationally consistent 
information on the quality of the nation's streams and groundwater, 
and thereby support scientifically sound decisions for water-quality 
management, regulation, and policy decisions. The objectives of NAWQA 
are to assess the status and trends of national water-quality 
conditions and to understand the factors and processes that govern 
those conditions. 

[59] USGS's health benchmarks are comparable in concept to EPA's 
health reference levels, although USGS does not use its benchmarks for 
regulatory decisions. USGS uses EPA's maximum contaminant levels for 
regulated contaminants and develops health-based screening levels for 
unregulated contaminants using EPA Office of Water methodologies for 
establishing drinking water guidelines. 

[60] In its 2010 report on its national water-quality assessment 
program from 1993 to 2007, USGS reports that its results for three 
contaminants included in EPA's testing program differ, "perhaps 
because the reporting levels in this study were about 170-fold to 670-
fold lower than in the UCMR2 program [cycle 2 of EPA's testing 
program]." 

[61] The Office of Water uses occurrence data from public water 
systems to assess exposure. 

[62] The Superfund program, established under the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980, is to 
protect human health and the environment from the effects of hazardous 
substances. Under this program, EPA has the authority to (1) clean up 
hazardous waste sites and then seek reimbursement from the nonfederal 
parties legally responsible for contaminating them or (2) compel such 
responsible parties to clean up these sites. 

[63] [hyperlink, http://www.gao.gov/products/GAO-08-440]. 

[64] GAO, High-Risk Series: An Update, [hyperlink, 
http://www.gao.gov/products/GAO-09-271] (Washington, D.C.: January 
2009); and High Risk Series: An Update, [hyperlink, 
http://www.gao.gov/products/GAO-11-278] (Washington, D.C.: February 
2011). 

[65] We are currently evaluating this program and EPA's progress in 
completing assessments in a separate review. 

[66] A total of 24 chemical contaminants lacked health effects 
information; in 2008, EPA listed 19 contaminants with health effects 
information gaps and had removed 5 of the contaminants the agency 
originally identified as lacking health effects information in 1998. 
Of the 5 contaminants removed from the list, EPA completed IRIS 
assessments for 2 (boron and perchlorate), used the existing 
assessment for 1,1,2,2-tetrachloroethane that the IRIS program was in 
the process of updating, and used the assessment of the parent 
compound dacthal (DCPA) for the two dacthal (DCPA) degradates. 

[67] In the Federal Register notice announcing its preliminary 
regulatory determinations for cycle 2, EPA reported using IRIS health 
risk assessments, in some cases augmented by subsequent Office of 
Pesticides Program assessments, for the 11 contaminants the agency 
determined had sufficient health risk data. EPA outlined its process 
for evaluating studies published after the assessments used were 
completed and for making needed adjustments on the basis of new data 
and to update the assessments to follow the agency's updated 
guidelines for carcinogen risk assessments. Office of Water officials 
told us that sometimes the office develops it own health assessment or 
uses other available assessments. 

[68] EPA has yet to use an assessment by these entities to support its 
completed regulatory determinations. In its 2009 notice announcing its 
third candidate list, EPA indicated that the agency would need to 
evaluate the existing assessments from these other entities to 
determine whether the data on which they are based meet EPA data 
quality guidelines and are compatible with EPA risk assessment 
policies. 

[69] [hyperlink, http://www.gao.gov/products/GAO-08-440]. 

[70] At the time of this statement, EPA was operating under the 
framework of the 1986 amendments, rather than the 1996 amendments 
which are the focus of this section. 

[71] USGS, Quality of Source Water from Public-Supply Wells in the 
United States, 1993-2007 (Reston, Va., May 2010). 

[72] As noted earlier, USGS's health benchmarks are comparable in 
concept to EPA's health reference levels, although USGS does not use 
its benchmarks for regulatory decisions. 

[73] This specific USGS report was not available at the time EPA made 
regulatory determinations on these contaminants, but most of the 
occurrence data in the report were available to EPA at the time the 
agency was developing regulatory determinations on these contaminants. 

[74] EPA has used these USGS data for other purposes, such as 
evaluating chemicals for inclusion on its candidate lists. 

[75] EPA, Policy on Evaluating Health Risks to Children (Washington, 
D.C.: Oct. 20, 1995). 

[76] EPA, EPA's Action Development Process-Guide to Considering 
Children's Health When Developing EPA Actions: Implementing Executive 
Order 13045 and EPA's Policy on Evaluating Health Risks to Children 
(Washington, D.C.: Oct. 2006). EPA published this guide to consider 
children's health when developing actions, such as policies, 
regulatory actions, or risk assessments. Under this guidance, for 
example, if health risks will be considered to inform a policy or 
decision, the children's health policy applies and EPA should develop 
a separate assessment of risks to infants and children, evaluate 
health risks of infants and children in risk characterizations, or 
state clearly why this was not done. Office of Water officials told us 
that they did not use this guidance in the 2008 regulatory 
determinations because the office developed the framework for the 
analyses that supported the 2008 regulatory determinations in 2003. 

[77] EPA, Child-Specific Exposure Factors Handbook, EPA/600/R-06/096F 
(Washington, D.C.: Sept. 2008); A Framework for Assessing Health Risks 
of Environmental Exposures to Children, EPA/600/R-05/093F (Washington, 
D.C.: Sept. 2006); and Guidance on Selecting Age Groups for Monitoring 
and Assessing Childhood Exposures to Environmental Contaminants, EPA/ 
630/P-03/003F (Washington, D.C.: Nov. 2005). 

[78] EPA/630/P-03/003F. 

[79] EPA has identified 10 life stages for children from birth up to 
21 years of age. 

[80] According to EPA's guidance documents on assessing childhood 
exposures to environmental contaminants, EPA historically used a 
standard approach assuming a lifetime of constant exposure for an 
adult (EPA/630/P-03/003F). 

[81] The council approach outlined geographic distribution using the 
USGS codes for the nation's 21 water-resources regions and the more 
than 200 water-resources subregions. The approach defined national 
occurrence as detections in more than 4 of the 21 USGS water-resources 
regions, and regional occurrence as detection in 2 or more of the 
subregions but fewer than 4 of the regions. 

[82] Another state has found high levels of these contaminants near 
military facilities; in this case, the state has regulated these 
contaminants. 

[83] According to EPA's June 2008 regulatory support document for the 
second cycle of regulatory determinations, the concentration of 2,4- 
dinitrotoluene detected through EPA's unregulated contaminants testing 
program was 333 micrograms per liter--more than 6,000 times the health 
reference level. 

[84] According to EPA documents, these contaminants are released into 
the environment primarily from facilities that manufacture and process 
dinitrotouluene. A mixture of dinitrotoluene is used in automobile 
airbags, as an intermediate in the production of urethane foams, and 
for smokeless powders in the munitions industry. 

[85] The regulatory determination support document also states that 
individuals with severely impaired kidney function might also be 
sensitive to boron exposure. 

[86] EPA's boron health advisory provides, for a child weighing 10 
kilograms, a 10-day (acute) health advisory level of 3 milligrams of 
boron per liter of drinking water and a "longer-term" level of 2 
milligrams per liter. The advisory also provides, for an adult, a 
longer-term health advisory of 5 milligrams per liter and a lifetime 
health advisory of 5 milligrams per liter. 

[87] The purpose presented in the health advisories themselves is as 
follows: "Health advisories serve as technical guidance to assist 
federal, state, and local officials responsible for protecting public 
health when emergency spills or contamination situations occur." 

[88] These contaminants are boron; dacthal (DCPA) mono-acid degradate; 
dacthal (DCPA) di-acid degradate; 1,3-dichloropropene; 2,4- 
dinitrotoluene; 2,6-dinitrotoluene; 1,1,2,2-tetrachloroethane; 
manganese; sodium; and sulfate. EPA also issued a health advisory in 
conjunction with its preliminary determination on perchlorate. 

[89] For example, in May 2008, the President of the Association of 
State Drinking Water Administrators told a congressional committee 
that "most states do not have the resources or expertise to 
independently develop drinking water regulations and therefore look to 
EPA to conduct the necessary research and collect the data and 
information needed to make regulatory decisions." 

[90] As discussed earlier, in some cases the data represented 
detections in excess of minimum reporting levels. 

[91] The Emergency Planning and Community Right-to-Know Act of 1986 
requires EPA and states to collect data annually on releases and 
transfers of certain toxic chemicals from industrial facilities and 
make the data available to the public in the Toxics Release Inventory. 

[92] These contaminants are aldrin; boron; dieldrin; DDE; 2,4- 
dinitrotoluene; 2,6-dinitrotoluene; hexachlorobutadiene; manganese; 
naphthalene; sodium; and sulfate. 

[93] The five states, listed in order of the size of populations 
served by public water systems with manganese levels in excess of the 
health reference level, are Alabama (2.4 percent); Oregon (3.2 
percent); New Jersey (9.1 percent); Illinois (14.7 percent); and 
California (27.2 percent). 

[94] In six of the nine cases, EPA had no testing data that would 
identify exposure at the health reference level, and in three cases, 
EPA had only limited data on exposure at the health reference level. 

[95] The contaminants are aldrin, dieldrin, hexachlorobutadiene, and 
sulfate. 

[96] Dieldrin was banned by EPA in 1974 for most uses, except for the 
control of termites, and banned for all uses in 1987 because of 
concerns about environmental damage, harm to human health, and its 
ability to persist in the environment for decades. 

[97] According to USGS, because water samples were collected prior to 
any treatment or blending that potentially could alter contaminant 
concentrations, the sampled groundwater represents the quality of the 
source water and not necessarily the quality of finished water 
ingested by the people served by these public wells. Water utilities, 
however, are not required to treat water for unregulated contaminants. 

[98] The contaminants are DDE; 1,3-dichloropropene; 2,4- 
dinitrotoluene; 2,6-dinitrotoluene; and 1,1,2,2-tetrachloroethane. In 
the cases of 1,1,2,2-tetrachloroethane and some of the data for 1,3- 
dichloropropene, some minimum reporting levels exceeded health 
reference levels. For these data sources, EPA evaluated occurrence at 
the health reference level, but stated that because some reporting 
limits exceeded the thresholds of interest, the occurrence analyses 
may result in an underestimate of systems affected. 

[99] In addition, in 2003, EPA made a regulatory determination on 
hexachlorobutadiene while a new risk assessment was underway. This 
IRIS assessment is still at the initial stage (draft development). 

[100] The National Academies consists of four private, nonprofit 
organizations that advise the federal government on scientific and 
technical matters: the National Academy of Sciences, National Academy 
of Engineering, Institute of Medicine, and National Research Council. 

[101] National Academies, Health Implications of Perchlorate Ingestion 
(Washington, D.C., 2005). 

[102] EPA uses its Action Development Process--an agency 
administrative process for developing rules, policy statements, risk 
assessments, guidance documents, models that may be used in future 
rulemakings, statutorily mandated reports to Congress, and strategies 
related to regulations--to govern the agency's development and review 
of regulatory determinations. Regulatory determinations are not rules; 
however, if a positive determination is made to regulate a 
contaminant, a rulemaking would follow. 

[103] For the 2003 regulatory determination process, the participating 
intra-agency offices were the Office of Prevention, Pesticides, and 
Toxic Substances; the Office of Research and Development; the Office 
of General Counsel; the Office of Policy, Economics, and Innovation; 
and Regions 1, 3, 5, 8, and 9. For the 2008 regulatory determination 
process, in addition to these offices, the Office of Enforcement and 
Compliance Assistance also participated, and regional office 
participation included Regions 1, 2, 6, and 8. 

[104] Regulatory determination options for each contaminant presented 
to senior management could include to regulate, not to regulate, or 
not to regulate but to issue a health advisory. 

[105] While consensus is not required, officials said that the work 
groups try to obtain consensus on the selected option among senior 
management officials. Officials could not recall a work group that did 
not achieve consensus. 

[106] The draft final determinations underwent the same concurrence 
and OMB review as the preliminary determinations before being 
finalized and published in the Federal Register. 

[107] According to Office of Water officials, this group was primarily 
composed of the EPA Deputy Administrator and the Assistant 
Administrators for the Office of Water; Office of Research and 
Development; Office of Solid Waste and Environmental Remediation; 
Office of Policy, Economics, and Innovation; and Office of General 
Counsel. Select program office staff were involved in some non- 
decision-making activities of the group. 

[108] The Perchlorate Interagency Working Group includes officials 
from OMB and the Office of Science and Technology Policy, both part of 
the Executive Office of the President; DOD; NASA; the Department of 
Energy; the Department of Health and Human Services' Food and Drug 
Administration and ATSDR; the Department of Agriculture; and the 
Department of the Interior. 

[109] The Council on Environmental Quality, which is part of the 
Executive Office of the President, coordinates federal environmental 
efforts in the development of environmental policies and initiatives. 

[110] This working group stemmed from interagency work groups that 
were established as early as 1998. 

[111] We recently reported that EPA has not fully used the Office of 
Children's Health Protection and other child-focused resources. GAO, 
Environmental Health: High-level Strategy and Leadership Needed to 
Continue Progress toward Protecting Children from Environmental 
Threats, [hyperlink, http://www.gao.gov/products/GAO-10-205] 
(Washington, D.C.: Jan. 28, 2010). 

[112] According to officials from the Office of Children's Health 
Protection, their office was excluded from the small group of high- 
level officials and from providing input into the perchlorate 
preliminary determination because it had not been part of the original 
work group for the second cycle of regulatory determinations. Office 
of Children's Health Protection officials said they were involved only 
informally and intermittently in the regulatory determination work 
groups largely as a result of its staff and resource limitations. 

[113] EPA established the Office of Children's Health Protection to 
implement Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks (signed in 1997) directing 
all federal agencies to assess health and safety risks to children, 
coordinate research priorities on children's health, and ensure that 
their standards take into account special risks to children. 

[114] See 42 U.S.C. § 300g-1(b)(1)(C) (requiring consideration of such 
factors, among others, in selecting unregulated contaminants for 
consideration); § 300g-1(b)(3)(C)(i)(V) (requiring EPA to publish an 
analysis of such effects when proposing a national primary drinking 
water regulation). 

[115] According to an EPA official, the agreement was documented in an 
unattributed two-page white paper and faxed to EPA from the Council on 
Environmental Quality in early August 2008; EPA made some editorial 
changes to the document but did not alter the substance of the 
agreement. 

[116] This drinking water equivalent level was calculated using EPA's 
default assumptions for adult weight--70 kilograms (154 pounds) and 
daily drinking water intake--2 liters (60 fluid ounces). 

[117] EPA noted in the Federal Register notice that the final health 
reference level in the final regulatory determination for perchlorate 
would serve as the basis for the agency's health advisory for 
perchlorate and that thereafter it might be appropriate to use the 
health advisory value as a "to be considered" value in developing 
potential cleanup levels for perchlorate pursuant to Superfund. A 
federal drinking water standard for perchlorate could also serve as a 
possible basis for environmental cleanup goals, potentially affecting 
some federal agencies' as well as perchlorate manufacturers' cleanup 
requirements at Superfund and other contaminated sites. 

[118] National Academies, Health Implications of Perchlorate Ingestion 
(Washington, D.C., 2005). 

[119] The National Academies' recommended reference dose for 
perchlorate was 0.7 micrograms per kilogram of body weight per day. 

[120] Under the typical process, at that time, the IRIS program would 
circulate an IRIS Toxicological Review support document in addition to 
the IRIS Summary among the consensus reviewers, generally allowing 45 
days for the review. The program manager noted in the request for the 
perchlorate IRIS assessment consensus review, however, that EPA would 
not develop and post an IRIS Toxicological Review support document as 
part of the IRIS assessment. 

[121] The IRIS program officials could not provide copies of the 
consensus review memorandums. However, we were able to obtain comments 
from 5 of the 18 individual consensus reviewers. 

[122] The final IRIS assessment for perchlorate was posted on the Web 
site 11 days after the IRIS program requested the consensus reviews. 

[123] M. A. Greer et al., "Health Effects Assessment for Environmental 
Perchlorate Contamination: The Dose Response for Inhibition of 
Thyroidal Radioiodine Uptake in Humans," Environmental Health 
Perspectives, vol. 110, no. 9 (2002). The published article notes that 
the study was supported by a National Institutes of Health grant and 
the Perchlorate Study Group--whose members included such perchlorate 
manufacturers and users as Aerojet, American Pacific Corporation, Kerr-
McGee Chemical, and Lockheed Martin. 

[124] Uncertainty factors, also called variability factors, are 
default factors used in deriving a reference dose from experimental 
data. The factors are intended to account for such things as variation 
in susceptibility among the members of the human population, 
extrapolating from data obtained in a study with less-than-lifetime 
exposure, and uncertainty associated with extrapolation when the 
database is incomplete. 

[125] In calculating the reference dose, the National Academies 
applied the uncertainty factor to the no-observed-effect level 
reported for the group of seven healthy, nonpregnant adult subjects in 
the study that received the lowest dose of perchlorate--the level 
selected by the National Academies as the point of departure for 
determining the reference dose. The no-observed-effect level 
represents an exposure level at which there is no statistically or 
biologically significant difference in the frequency or severity of 
any effect between the exposed population and its appropriate control. 

[126] G. Ginsberg and D. Rice, "The NAS Perchlorate Review: Questions 
Remain about the Perchlorate RfD," Environmental Health Perspectives, 
vol. 113, no. 9 (2005). 

[127] Perchlorate is actively transported into breast milk, where 
relatively high levels have been reported in the United States and 
Chile. The public health officials noted that there has been a lack of 
useful studies examining lactation as a route of exposure, resulting 
in a critical data gap that has added uncertainty to perchlorate risk 
assessment. Since the National Academies study, however, new studies 
have provided information on perchlorate in breast milk that could 
help reduce this uncertainty, several of which EPA references in its 
August 2009 perchlorate supplemental request for comments. 74 Fed. 
Reg. 41883 (Aug. 19, 2009). 

[128] The public health officials cited a 1998 study in rats that 
suggests greater perchlorate toxicity to the thyroid from 90-day 
exposure than from 14-day exposure. 

[129] The variables are (1) the uncertainty factors; (2) the dose used 
as the starting point, or point of departure, for the health-risk 
computation (i.e. whether to use the no-observed-effect level; the 
lowest-observed-adverse-effect level; or the benchmark dose level); 
and (3) the relative source contribution. EPA defended its decision 
not to use any additional uncertainty factors, stating that it was 
relying on the findings of the National Academies' study. 

[130] California's and Massachusetts's limits are set in state 
drinking water regulations; New Jersey's limit was a proposed drinking 
water standard that lapsed in March 2010 when the state's newly 
appointed Commissioner of the Department of Environmental Protection 
decided to delay adopting a standard until EPA made its regulatory 
determination. 

[131] The 2005 National Academies report on perchlorate contained 
varying characterizations of sensitive subpopulations, sometimes 
referring to pregnant women and their fetuses alone as the most 
sensitive subpopulation and other times including infants in this 
designation. In addition, the National Academies identified developing 
children as a sensitive population and people with compromised thyroid 
function and people who are iodide-deficient as potentially sensitive 
populations. 

[132] In fact, the Office of Water had developed a draft perchlorate 
section to include in the second cycle regulatory determination 
preliminary notice indicating regulation of perchlorate in drinking 
water was warranted. 

[133] Key entities that might be impacted by EPA regulation of 
perchlorate include perchlorate manufacturers, public drinking water 
systems, companies and federal agencies that use perchlorate, and 
others that could be responsible for clean up of perchlorate 
contamination. 

[134] While the Superfund program does not establish cleanup 
standards, it requires, among other things, that long-term cleanups 
meet applicable requirements based on standards for contaminants set 
under state or federal laws or regulations and in consideration of 
other guidance. A federal drinking water standard for perchlorate 
could supply cleanup values at sites where existing or potential 
sources of drinking water are contaminated, unless a more stringent 
state standard applies. See 40 C.F.R. § 300.430(e)(2)(i) (2010). For 
discussion of state standards, see GAO, Perchlorate: Occurrence Is 
Widespread but at Varying Levels; Federal Agencies Have Taken Some 
Actions to Respond to and Lessen Releases, [hyperlink, 
http://www.gao.gov/products/GAO-10-769] (Washington, D.C.: Aug. 12, 
2010). 

[135] Biomonitoring is a method to identify exposure to environmental 
chemicals by measuring chemicals in people's tissue or body fluids 
such as blood and urine. CDC's National Health and Nutrition 
Examination Survey conducts biomonitoring on a nationally 
representative sample of the U.S. population every 2 years, testing 
blood and urine to identify exposure to hundreds of chemicals, 
including perchlorate. 

[136] EPA also considered the Food and Drug Administration's 2006 
Total Diet Study, which reported in 2008 that at least one sample in 
74 percent of the 285 foods tested contained detectable levels of 
perchlorate. The Food and Drug Administration's Total Diet Study is a 
food-monitoring study that the agency has conducted periodically since 
1961. In 2005 and 2006, the Food and Drug Administration tested a set 
of 285 representative foods for perchlorate, among other things, 
making it the most comprehensive information available on the 
occurrence of perchlorate in the diet at that time. The 285 food items 
tested represented the major components of the American diet, such as 
dairy, meat, fruits, and vegetables. Using the analytical results for 
the food samples collected, Food and Drug Administration researchers 
calculated the estimated average daily perchlorate intake from food 
for the total U.S. population and for 14 age and gender subgroups. For 
more information on the Food and Drug Administration's Total Diet 
Study, see [hyperlink, 
http://www.fda.gov/Food/FoodSafety/FoodContaminantsAdulteration/TotalDie
tStudy/default.htm]. 

[137] D. R. Huber et al., "Estimating perchlorate exposure from food 
and tap water based on U.S. biomonitoring and occurrence data," 
Journal of Exposure Science and Environmental Epidemiology (2010). 
Other contributing authors cited in the article include EPA 
contractors with Danya International and The Cadmus Group. 

[138] In addition to the three independent scientists who reviewed the 
analysis prior to EPA's use of the results in its preliminary 
determination for perchlorate, the analysis was reviewed by OMB and 
other members of the Perchlorate Interagency Working Group as well as 
reviewers for the Journal of Exposure Science and Environmental 
Epidemiology. 

[139] CDC's biomonitoring study included data on children 6 years of 
age and older and adults. 

[140] EPA, Office of Science and Technology and Office of Water, 
Methodology for Deriving Ambient Water Quality Criteria for the 
Protection of Human Health (Washington, D.C., October 2000). This 
guidance document includes discussions of the two approaches the 
drinking water program has used for estimating the relative source 
contribution and criteria for selecting the appropriate approach. 
While the guidance was developed in the context of Clean Water Act 
water quality criteria, the Office of Water uses it in making its 
drinking water regulatory determinations. 

[141] These calculations are based on EPA's exposure data at the 90th 
percentile, the exposure level EPA used in calculating the relative 
source contribution for perchlorate in its preliminary regulatory 
determination. Because of the anomalies in the exposure data for 
pregnant women at the 90th percentile that EPA used as the basis for 
its relative source contribution, we cannot calculate what the 
relative source contribution would have been if EPA had chosen to use 
the percentage method in its preliminary regulatory determination. 

[142] Using the exposure analysis data to derive the relative source 
contribution under the subtraction method resulted in a relative 
source contribution of 80 percent. 

[143] In this scenario, the calculated relative source contribution 
was 15.2 percent. However, we rounded this number to 20 percent per 
EPA's guidance that generally specifies a 20 percent floor and an 80 
percent ceiling for the relative source contribution. 

[144] EPA, Office of Science and Technology and Office of Water, 
Methodology for Deriving Ambient Water Quality Criteria for the 
Protection of Human Health (Washington, D.C., October 2000). 

[145] According to its December 2010 Exposure and Relative Source 
Contribution Analysis for Fluoride (820-R-10-015), the Office of Water 
is in the process of considering refinements to the 2000 guidance for 
determining the relative source contribution for ambient water and 
drinking water. However, this document states that EPA developed the 
relative source contribution for fluoride using the 2000 guidance 
because those modifications were not available for the fluoride 
exposure assessment. 

[146] PBPK models are complex and involve numerous underlying 
assumptions that are embedded in mathematical representations of the 
processes associated with how a contaminant behaves within, and is 
eliminated from, the body. 

[147] As discussed earlier in the report, the reference dose is an 
estimate of the total daily oral exposure to a contaminant that is not 
likely to cause an "appreciable risk of deleterious effects during a 
lifetime." 

[148] As discussed above, EPA agreed with other federal agencies on 
this conclusion and the rationale to support its regulatory 
determination using a health reference level of 15 parts per billion 
of perchlorate in drinking water, focusing on pregnant women and their 
fetuses as the most sensitive population. 

[149] E. A. Merrill et al., "PBPK Model for Radioactive Iodide and 
Perchlorate Kinetics and Perchlorate-Induced Inhibition of Iodide 
Uptake in Humans," Toxicological Sciences, vol. 83 (2005). 

[150] R. A. Clewell et al., "Perchlorate and radioiodide kinetics 
across life stages in the human; using PBPK models to predict 
dosimetry and thyroid inhibition and sensitive populations based on 
developmental stage," Journal of Toxicology and Environmental Health 
Part A, vol. 70, no. 5 (2007). 

[151] The no-observed-effect level was the starting point (point of 
departure) to which the National Academies applied an uncertainty 
factor of 10 to arrive at its recommended reference dose. 

[152] In its February 2011 final regulatory determination on 
perchlorate, EPA stated that iodide uptake inhibition may not reflect 
the relationship of the precursor event to adverse outcomes in 
newborns and infants, who may not have the iodide stores sufficient to 
offset the effects of reduced iodide uptake. 

[153] EPA, "Inhibition of the Sodium-Iodide Symporter by Perchlorate: 
An Evaluation of Life Stage Sensitivity Using Physiologically-Based 
Pharmacokinetic (PBPK) Modeling," EPA/699/R-08/106A (Washington, D.C., 
May 2009). 

[154] The objectives of this executive order are to enhance planning 
and coordination with respect to both new and existing regulations; to 
reaffirm the primacy of federal agencies in the regulatory decision- 
making process; to restore the integrity and legitimacy of regulatory 
review and oversight; and to make the process more accessible and open 
to the public. 

[155] According to an EPA official, "August framework" refers to the 
agreement that was faxed to EPA from the Council on Environmental 
Quality that included this conclusion as a key component of the 
rationale EPA and other federal agencies agreed to in August 2008. 

[156] Lisa P. Jackson, Administrator, Memorandum "Transparency in 
EPA's Operations," (Apr. 23, 2009). (Committing "to uphold the values 
of transparency and openness in conducting EPA operations" and asking 
employees to help "ensure EPA operates in full compliance with [the] 
principle" of transparency.) 

[157] Executive Order 12866 requires agencies to, among other things, 
"identify for the public, in a complete, clear, and simple manner, the 
substantive changes between the draft submitted to [OMB] for review 
and the action subsequently announced," "identify for the public those 
changes in the regulatory action that were made at the suggestion or 
recommendation of [OMB]," and make available to the public the draft 
action as sent to OMB for review. To the extent EPA's regulatory 
determinations are subject to this executive order, including 
individual agency comments in the public record could be better 
aligned with the executive order's objectives. 

[158] In this report, we refer to Federal Register notices regarding 
EPA's regulatory determinations (notices) and EPA's regulatory 
determination support documents individually and collectively, as 
appropriate. When referring to these documents collectively, we use 
the term "regulatory determination documents." The support documents 
varied under the two regulatory determination cycles, with several 
support documents for each contaminant considered under the first 
cycle and a consolidated support document for each contaminant under 
the second cycle. 

[159] EPA, Technical and Economic Capacity of States and Public Water 
Systems to Implement Drinking Water Regulations: Report to Congress, 
EPA 810/R-93-001 (Washington, D.C., 1993). 

[160] The National Academies consist of four private, nonprofit 
organizations that advise the federal government on scientific and 
technical matters: the National Academy of Sciences, National Academy 
of Engineering, Institute of Medicine, and National Research Council. 

[161] Originally, maximum contaminant level goals were known as 
"recommended maximum contaminant levels." 

[162] In 1914, the Public Health Service--now part of the U.S. 
Department of Health and Human Services--set the first federal 
drinking water standards. These standards addressed only 
bacteriological contaminants capable of causing contagious disease and 
applied only to water systems providing drinking water to interstate 
carriers, such as ships and trains. The Public Health Service revised 
and expanded its standards in 1925, 1946, and 1962. The 1962 
standards--regulating about 30 contaminants including arsenic, lead, 
and turbidity--were the most comprehensive federal drinking water 
standards in existence before the Safe Drinking Water Act of 1974. 

[163] Trihalomethanes, the other contaminant subject to interim 
regulation, was not on the list of 83 because EPA said insufficient 
time had elapsed since its interim regulation was issued to support 
revision. 

[164] EPA 810/R-93-001 

[165] By 1993, the list of 83 had expanded to 85 as a result of the 
splitting of dichlorobenzene and radium into ortho-dichlorobenzene and 
para-dichlorobenzene and radium 226 and radium 228, respectively. In 
addition, EPA had substituted seven of the compounds on the original 
list. 

[166] EPA promulgated national primary drinking water regulations for 
5 radionuclides in 2000 and for arsenic in 2001. EPA considered 
sulfate as part of regulatory determination Cycle 1 and determined not 
to regulate it in 2003. 

[167] In 1992, EPA issued a final regulation for hexachlorobenzene, 
which was not on the statutorily mandated list of contaminants, 
explaining that the contaminant was being regulated "because it has 
been found in drinking water and may cause adverse health effects." 
See 57 Fed. Reg. 31776, 31783 (1992). 

[168] The amendments provided the EPA Administrator with discretion to 
require public water systems to test more frequently. 

[169] EPA can also make a regulatory determination for a contaminant 
that is not on the contaminant candidate list but to date has not done 
so. 

[170] Since the 1996 amendments, EPA has finalized national primary 
drinking water regulations that it had previously proposed; these 
address several previously unregulated contaminants. 

[171] According to EPA's guidance document, the subtraction method can 
only be used when other exposure standards (criteria), such as Clean 
Air Act or Clean Water Act standards, are not relevant. In addition, 
adequate data to characterize the likelihood of exposure to relevant 
sources is required. See EPA, Office of Science Technology and Office 
of Water, Methodology for Deriving Ambient Water Quality Criteria for 
the Protection of Human Health, EPA-822-B-00-004 (Washington, D.C., 
October 2000). 

[172] Manganese ore is smelted to produce an alloy used to improve the 
stiffness, hardness, and strength of steel; a number of manganese 
compounds are used in such products and applications as unleaded 
gasoline, water and wastewater treatment, matches, dry-cell batteries, 
fireworks, fertilizer, fungicides, varnish, and livestock food 
supplements. 

[173] According to EPA, about 30 percent of community water system 
customers are served by groundwater systems. 

[174] EPA stated in its regulatory determination support document 
providing the nationally extrapolated occurrence estimates for 
manganese that these estimates were not presented in the regulatory 
determination notice because national extrapolations for some of the 
contaminants considered for regulation "can be problematic" and that 
the National Inorganic and Radionuclide Survey data for manganese only 
represented groundwater public water systems. Thus, instead of 
reporting the nationally extrapolated occurrence estimates, EPA 
presented in the notice the unweighted sampling data for groundwater 
public water systems, highlighting exposure to 39,000 people. 

[175] In 1993, in discussing strategies the agency might use under the 
1986 statutory framework in determining whether to regulate chemicals, 
EPA stated that if nationally representative data showed stable 
occurrence levels at around 1/10th the maximum contaminant level goal 
with no indication of occurrence at higher levels, regulation may not 
be warranted. EPA, Technical and Economic Capacity of States and 
Public Water Systems to Implement Drinking Water Regulations, Report 
to Congress, EPA 810-R-93-001 (Washington, D.C., 1993). EPA identified 
strategies for a new proposed approach to select contaminants for 
regulation as EPA had nearly completed regulating the contaminants 
mandated under the 1986 amendments and was moving toward regulating 
contaminants selected by EPA. 

[176] The USGS National Water-Quality Assessment program was initiated 
in 1991 as a long-term study of 59 significant watersheds and aquifers 
representing approximately two-thirds of the overall water use in the 
United States in a similar proportion to the population served by 
public water systems. In its regulatory determination documents, EPA 
reported the manganese results for 36 of the 59 watersheds and 
aquifers tested in the 1990s that had undergone USGS quality assurance 
checks. 

[177] USGS detections in source water exceeding the human health 
benchmark indicate levels of the contaminant that are a potential 
human health concern; however, these detections do not necessarily 
indicate a contaminant would be found in finished drinking water at 
that level because of the possibility of blending with other source 
water or treatment prior to consumption. 

[178] The five states, listed in order of the size of populations 
served by public water systems with manganese levels in excess of the 
health reference level, are Alabama, Oregon, New Jersey, Illinois, and 
California. 

[179] Superfund sites on EPA's National Priorities List represent 
those the agency has identified as among the most seriously 
contaminated sites, posing relatively high risks to human health or 
the environment for releases of hazardous substances. ATSDR states 
that although the total number of sites evaluated for manganese is not 
known, the possibility exists that the number of sites at which 
manganese is found may increase in the future as more sites are 
evaluated. ATSDR is the lead agency for conducting health assessments 
for Superfund sites and Resource Conservation and Recovery Act 
facilities. 

[180] Manganese is on DOD's emerging contaminants watch list, along 
with other contaminants including dioxin, lead, cadmium, and cobalt. 

[181] According to the National Academies, the lack of the development 
of the blood-brain barrier in infants and children results in higher 
uptake of manganese by the brain. EPA's IRIS assessment explains that 
when manganese is transported through the blood stream directly to the 
brain, it bypasses the liver and the opportunity for first-pass 
hepatic clearance, increasing manganese toxicity. 

[182] In developing its oral reference dose for manganese, the Office 
of Water used the modifying factor of three that the IRIS assessment 
recommended for assessing exposure from drinking water to address 
these concerns associated with infants as well as to address the 
following risk issues: (1) individuals drinking water on an empty 
stomach, such as early in the morning, absorb more manganese; and (2) 
adverse health effects associated with a lifetime consumption of 
drinking water containing about 2 milligrams of manganese per liter 
were reported in a 1989 study. Use of the modifying factor had the 
effect of changing the reference dose from 0.14 milligrams per 
kilogram per body weight to 0.047 milligrams per kilogram per body 
weight. 

[183] M. T. Brown and B. Foos, "Assessing Children's Exposures and 
Risks to Drinking Water Contaminants: A Manganese Case Study," Human 
and Ecological Risk Assessment: An International Journal, vol. 15, no. 
5 (2009). 

[184] Similarly, ATSDR's toxicological profile on manganese states 
that many reports indicate that oral exposure to manganese, especially 
from contaminated water sources, can produce significant health 
effects that have been most prominently observed in children and are 
similar to those observed from inhalation exposure. (Regarding 
inhalation exposure, ATSDR states that inhaled manganese is often 
transported directly to the brain before it is metabolized by the 
liver and can lead to such adverse neurological effects as mental 
disorders and manganism, whose symptoms include tremors, difficulty 
walking, and facial muscle spasms.) According to ATSDR, while an 
actual threshold at which manganese exposure produces neurological 
effects in humans has not been established, children consuming the 
same concentration of manganese in water as adults are ultimately 
exposed to a higher milligram-per-kilogram body weight ratio of 
manganese because of their lower body weight, higher consumption 
volume, and greater retention of manganese; children are also 
potentially more sensitive to manganese toxicity than adults. ATSDR 
concluded that, collectively, studies suggest that ingestion of water 
or food contaminated with manganese may result in adverse neurological 
effects. 

[185] While the IRIS program initiated an update assessment for 
manganese in 2008, it has been temporarily suspended as the program 
focuses on assessments it has considered to be of high priority. As of 
May 2011, manganese is not reported in IRIS Track as an ongoing 
assessment. 

[186] A 2010 study reported that low-level, chronic exposure to 
manganese from drinking water is associated with significant 
intellectual impairments in children. Its authors support revisiting 
the national and international guidelines for safe manganese in water, 
such as EPA's health advisory of 0.3 milligrams per liter. M. F. 
Bouchard et al., "Intellectual Impairment in School-Age Children 
Exposed to Manganese from Drinking Water," Environmental Health 
Perspectives (2010). 

[187] The Office of Water applied the modifying factor the 1996 IRIS 
assessment recommended for assessing exposure from drinking water. See 
footnote 11. 

[188] EPA has developed health assessment levels specifically for 
children routinely for many years for drinking water health advisories 
and has also, on occasion, developed them in assessing risks to 
children for primary drinking water regulations for other contaminants. 

[189] Phytate, also called phytic acid, is the principal storage form 
of phosphorus in many plants, especially in wheat, rice, rye, barley, 
and beans. Phosphorus in this form is generally not bioavailable to 
humans because humans lack the digestive enzyme, phytase, required to 
separate phosphorus from the phytate molecule. 

[190] National Academies, Spacecraft Water Exposure Guidelines for 
Selected Contaminants (Washington, D.C., 2006). 

[191] In addition to setting health-based primary drinking water 
standards, under the Safe Drinking Water Act, EPA establishes 
secondary drinking water standards to address aesthetic problems, such 
as taste or odor. These standards are non-enforceable guidelines. 

[192] This term refers to aesthetic problems, such as taste, color, or 
odor. 

[193] In its regulatory determination notice and support document, EPA 
stated that the primary adverse effects seen in animals after chronic 
exposure to low doses of boron generally involve the testes and 
developing fetus. EPA also states that reproductive effects in males 
were noted in the chronic and subchronic animal studies discussed in 
the notice. 

[194] As mentioned earlier, EPA data show that about 30 percent of 
public water system customers are served by groundwater systems. 

[195] The American Water Works Research Foundation is now known as the 
Water Research Foundation. 

[196] In this study, the foundation reported that with few exceptions, 
boron levels in untreated surface water represent a reasonable 
estimate of boron levels in treated water provided to customers of 
public water systems. 

[197] ATSDR also stated that although the total number of National 
Priorities List sites evaluated for this substance is not known, the 
possibility exists that the number of sites at which boron is found 
may increase in the future as more sites are evaluated. 

[198] The regulatory determination support document also states that 
individuals with severely impaired kidney function might also be 
sensitive to boron exposure. 

[199] In its boron health advisory, for a child weighing 10 kilograms, 
EPA presented a 10-day (acute) health advisory level of 3 milligrams 
of boron per liter of drinking water; a "longer-term" health advisory 
level for children of 2 milligrams per liter; a "longer-term" health 
advisory level for an adult of 5 milligrams per liter; and a lifetime 
health advisory level for an adult of 5 milligrams per liter. 

[200] The health reference level of 1.4 milligrams EPA developed for 
its regulatory determination is closer to drinking water standards or 
guidelines for boron that, according to EPA's Health Advisory, have 
been set by six states and the World Health Organization and that 
range from 0.6 milligrams to 1 milligram of boron per liter of 
drinking water than to the 5 milligrams per liter EPA developed for 
the related health advisory. 

[201] The study includes only children 6 years of age and older. 

[202] In 2002, Massachusetts's tests for perchlorate were sensitive 
enough to detect concentrations of perchlorate of less than 1 part per 
billion. Tests by the Departments of Defense and Energy have also 
detected concentrations of perchlorate in drinking water and 
groundwater of less than 1 part per billion. 

[203] The CDC biomonitoring data and EPA occurrence data could be 
merged only at the county level because more specific location data, 
such as home addresses--which might have been useful for more 
accurately assigning individuals residing in counties served by 
multiple water systems to the correct group--could not be used because 
of privacy concerns. 

[204] Some study participants may obtain their drinking water from 
private wells. In the exposure analysis, these individuals would be 
linked with the perchlorate test for a public water system in their 
county. 

[205] D. R. Huber et al., "Estimating perchlorate exposure from food 
and tap water based on U.S. biomonitoring and occurrence data," 
Journal of Exposure Science and Environmental Epidemiology (2010). 

[206] D. R. Huber et al., "Estimating perchlorate exposure from food 
and tap water based on U.S. biomonitoring and occurrence data," 
Journal of Exposure Science and Environmental Epidemiology (2010). 

[207] The 72 percent relative source contribution is calculated using 
the adjusted exposure number for pregnant women that was reported in 
the journal article. 

[End of section] 

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