Washington Update Special

U.S. Court of Appeals Announces Major Drinking Water Ruling Against EPA

On March 31, 2000, the United States Court of Appeals for the District of Columbia Circuit announced a major ruling against the United States Environmental Protection Agency (EPA). The court ruled that the EPA violated the Safe Drinking Water Act by failing to use the "best available peer-reviewed science" in establishing the Maximum Contaminant Level Goal (MCLG) for chloroform, a by-product of drinking water disinfection. This decision sets an important precedent for the use of science in future EPA regulations.

"We are extremely pleased that the Court ruled in favor of science over politics," said C.T. "Kip" Howlett, Jr., executive director of the Chlorine Chemistry Division of the American Chemistry Council, the lead organization in the lawsuit filed against the EPA. "This decision demonstrates that science matters."

In December 1998, the EPA set the chloroform MCLG at zero even though EPA scientists had proposed a 300 part-per-billion MCLG in March 1998. In response to this rule, the Chlorine Chemistry Division of the American Chemistry Council, ten community drinking water systems, and other interested parties brought suit against the EPA, charging that the agency ignored the recommendation of EPA scientists and over 30 peer-reviewed studies showing that chloroform is unlikely to cause cancer at low levels in drinking water.

Writing on behalf of the Court, Judge Stephen F. Williams noted, "Finding the Agency's December 1998 rule adopting a zero MCLG for chloroform to be arbitrary and capricious and in excess of statutory authority, we vacate the rule .... In promulgating a zero MCLG for chloroform, EPA openly overrode the 'best available' scientific evidence, which suggested that chloroform is a threshold carcinogen."

The Court continued, "Petitioners, including the Chlorine Chemistry Division of the American Chemistry Council, … argu[ed] that EPA violated its statutory mandate to use the 'best available' evidence when implementing the provisions of the Safe Drinking Water Act. We agree."

This decision sets an important precedent for the use of science in future EPA regulations. It is the first time that the EPA has been ordered by a court to abandon its traditional non-threshold policy for assessing carcinogens. The decision essentially forces the EPA to move away from its long-held policy of establishing zero MCLGs for known or probable carcinogens when faced with persuasive scientific evidence to the contrary. It is expected that the ruling will have a broad application, affecting how the EPA regulates other suspected carcinogens under statutes such as the Clean Water Act and the Clean Air Act when science indicates that there is likely to be a threshold to carcinogenic effects.

Chloroform is a by-product of chlorine disinfection of drinking water containing natural organic matter. Chlorine has been used to disinfect drinking water in the United States for nearly a century, and is widely credited with the eradication of several waterborne diseases such as typhoid and cholera. The court's opinion is available online at: http://pacer.cadc.uscourts.gov/ common/opinions/200003/98-1627a.txt

Elsewhere in Washington...

Regulatory Agencies

• Groundwater Disinfection Rule. In mid-April, the EPA announced a proposed rule that would require additional action to protect the public from disease-causing viruses and bacteria, such as E. coli, in drinking water from groundwater sources. Under this rule, the EPA would require systems that do not disinfect to undergo sanitary surveys and hydrogeologic sensitivity assessments. These requirements are likely to encourage many systems to disinfect their water. In addition, wells determined to be vulnerable would have to monitor frequently for bacteria. Wells needing corrective action would be required to eliminate the source of contamination or install disinfection. The maintenance of a chlorine residual is a primary treatment technique under the proposed rule and the likely treatment of choice, as 98 percent of systems that disinfect in the United States use chlorine.
  
  
• Approximately 157,000 public water systems in the U.S. draw all or part of their drinking water from underground sources. Untreated groundwater has been identified by the Centers for Disease Control and Prevention as the source of about 50 percent of waterborne outbreaks in the U.S. in each decade since 1920. For example, last year an E. coli outbreak from a contaminated well at a fair in New York caused over 1,000 illnesses. Recent studies have also found that a significant portion of wells are contaminated with viruses. The EPA proposal is subject to a 60-day public comment period. This groundwater rule is scheduled to be issued as a final regulation in November 2000. For more information, visit the EPA’s web site at www.epa.gov.
  
  
• Internet Access to Risk Management Plans. The EPA and the U.S. Department of Justice recently proposed that Risk Management Plans (RMPs) filed by facilities using certain flammable and toxic substances would not be posted on the Internet. These plans, which were required to be filed with the EPA by June 1999, detail "worst-case scenarios" that could occur in a community should there be a chemical release at a facility that either manufactures, stores, distributes, handles or uses any of 140 volatile substances. The EPA had originally intended to post the RMPs on the Internet. However, federal officials fear that publishing these data on the Internet would increase the risk of a terrorist strike on a reporting facility or lead to other criminal activity. Under the new proposal, hard copies of all RMPs would be made available in about 50 reading rooms throughout the country. Furthermore, people wishing to view the plans would be required to show identification. The EPA public comment period on this proposal expires on June 8, 2000. The regulation then will be finalized and implemented by August 2000.
  
  
• Disinfection By-product Research – Reproductive and Developmental Effects. At the October 1999 Federal Advisory Committee (FACA) meeting, officials from the Chlorine Chemistry Council’s Research Foundation for Health and Environmental Effects announced that they would be starting a $1.5 million research program to evaluate the reproductive and developmental effects of disinfection by-products in drinking water. These studies on bromodichloromethane and dibromoacetic acid are a direct response to the FACA’s call for low-dose, long-term studies on the reproductive and developmental effects of DBPs. Research has begun and the project is scheduled for completion by August 2001. The studies are being conducted at the Argus Research Laboratories, with oversight provided by unofficial representatives from the National Institute of Environmental Health Sciences, Health Canada, the Chemical Industry Institute of Toxicology and the Natural Resources Defense Council.

Legislation

• In February, the Administration released its Fiscal Year 2001 budget proposal. The EPA budget proposal includes $825 million for capitalization grants for the Drinking Water State Revolving Funds and $800 million for capitalization grants for the Clean Water State Revolving Funds. Within the Department of Agriculture budget proposal, $1.6 billion is included for grants, loans and loan guarantees that will enable rural localities to provide safe drinking water and adequate wastewater treatment facilities to their residents. This figure represents a 24 percent increase over FY 2000 funds. Congress will approve or amend these figures during the FY 2001 appropriations process.
  
  
• Representatives and senators have introduced a number of bills amending the Safe Drinking Water Act for a variety of purposes — ranging from restricting civil actions to clarifying certain regulatory requirements to controlling specific contaminants. Little to no action has occurred on any of these bills since their introduction.

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