The 1996 Amendments to the Safe Drinking Water Act (SDWA) set the stage for cost-effective regulations based on the best available science, more clearly than any other environmental regulation. Unlike many other regulations, it includes processes to collect and assess whether there is a meaningful opportunity to protect public health through regulation. Making sound public policy decisions becomes much more challenging when the public health benefits are not clear or the appropriate risk management strategies are uncertain.
In 2015 and 2016 EPA published health advisories for microcystin, cylindrospermopsin, perfluorooctanoic acid (PFOA), and Perfluorooctane Sulfonate (PFOS). Health advisories are not subject to the same requirements as drinking water regulations. The advisories for cyanotoxins were accompanied by recommendations for “do-not-drink” orders, which raised the question of what role drinking water health advisories play under the SDWA. And given potential applications, what standard of care should EPA meet when developing advisories or associated recommendations.
AWWA is calling on the EPA to hold to established principles of good governance in the development of future health advisories:
Actively engage stakeholders as it develops health advisories and accompanying recommendations.
Facilitate effective and consistent state action in response to health advisories.
Evaluate the appropriateness of the current health advisory development process and calculation used to set health advisory levels.
Work with AWWA, states, and other stakeholders to develop an ongoing dialogue around drinking water, contaminants of concern and effective risk communication.
AWWA also prepared a number of resources to help water systems respond to the cyanotoxins and PFAS health advisories.
The Natural Resource Defense Council filed suit in February 2016 (PDF) charging that in not proposing a Maximum Contaminant Level (MCL) for perchlorate the U.S. Environmental Protection Agency (EPA) failed to fulfill its nondiscretionary duties under the Safe Drinking Water Act (SDWA). EPA has been implementing a negotiated settlement that committed the Agency to issue a proposed regulation by October 31, 2018, and a final regulatory decision by December 2019. The court subsequently approved extending the deadline for the propose rule to May 28, 2019, and the final rule to June 19, 2020.
EPA analysis of perchlorate was informed by modeling the potential adverse health impacts of perchlorate. This modeling was prepared based on inputs from EPA’s Science Advisory Board and two peer review panels. Independent analysis by AWWA raised concerns with the efficacy of the modeling approach and assumptions applied by EPA. EPA signed the proposed rule for perchlorate on May 23, 2019, which proposed setting a Maximum Contaminant Level Goal (MCLG)of 56 ug/L. In its request for comments, EPA also sought input on three alternatives: (i) an MCL and MCLG at 18 ug/L, (ii) an MCL and MCLG at 90 ug/L, or (iii) whether EPA should withdraw the Agency’s February 11, 2011, determination to regulate perchlorate based on new occurrence data.
AWWA shared the following comments based on extensive review and analysis:
AWWA concurs with EPA’s finding that perchlorate does not exist in public water systems with a frequency or at levels of public health concern that present a meaningful opportunity for health risk reduction. The Agency should not use the SDWA as a tool to manage a public health issue dominated by a dietary issue –iodine deficiency.
The Agency should use the current analysis to inform a revision of the interim perchlorate health advisory level and adjust the Office of Land and Emergency Management “Assessment Guidance for Perchlorate” accordingly.
On July 21, 2020 the U.S. Environmental Protection Agency (EPA) published a final action regarding the regulation of perchlorate under the Safe Drinking Water Act (SDWA). EPA determined that perchlorate does not occur “with a frequency and at levels of public health concern” within the meaning of the SDWA. In addition, in the judgment of the EPA administrator, regulation of perchlorate does not present a “meaningful opportunity for health risk reduction for persons served by public water systems.” Accordingly, the EPA is withdrawing its 2011 determination and is making a final determination not to regulate perchlorate, and therefore will not issue a NPDWR for perchlorate at this time.
Each Administration change brings with it a shift in the public policy agenda and priorities. Regulatory reform is a principle on which President Trump campaigned and is now in the process of implementing.
In early 2017 three executive orders set the stage for establishing a regulatory budget. Current estimates for reduced regulatory burden in FY 2018 reach $560 million annually. This reduction has come through a series of actions, a number of which touch on the water sector including repealing and replacing the Clean Water Rule, and effluent guideline for the steam power generators. The current EPA regulatory agenda focuses is limited to four proposed regulatory actions: numeric nutrient criteria for Missouri Lakes, aluminum aquatic life criteria for Oregon, the Lead and Copper Rule, and public notice requirements for combined sewer overflow discharges to the Great Lakes.