Shifting Regulatory Landscape for Water Contamination
Today’s water suppliers encounter many different challenges in their efforts to provide clean, safe, affordable water to their ratepayers. One of the most common concerns water systems have is keeping up with a rapidly changing regulatory environment. With many states as well as the EPA working to establish water quality standards for emerging contaminants, it can be difficult for water utility managers and municipal leaders to keep up. Below, we answer some common questions that water system decision-makers may have about regulatory updates.
When was the Safe Drinking Water Act passed?
In 1974, it was determined that drinking water contaminants should be regulated at the federal level to ensure water safety across the country. The Safe Drinking Water Act (SDWA) was passed, authorizing the EPA to set national standards for both naturally occurring and human-made contaminants in public drinking water and its sources. Safe Drinking Water Act regulations include health-based maximum contaminant levels (MCLs) as well as water treatment requirements for removing or inactivating contaminants. In addition to enforceable regulations, the EPA can also issue health advisories that inform water systems and the public of contaminant levels that can result in negative health effects.
As new emerging contaminants are discovered and testing and treatment technologies advance, the SDWA allows for updates to protect drinking water quality. Amendments made in 1996 require the EPA to issue a list of no more than 30 unregulated contaminants to be monitored by water systems every five years. To fulfill this requirement, the Unregulated Contaminant Monitoring Rule (UCMR) program was established to gather data from U.S. water systems to inform future regulatory actions and protect public health.
How are new EPA drinking water standards created?
Drinking water standards are created through a detailed process, with each step conducted systematically by the EPA. Most steps are subject to public review and comment. There are far more substances and potential contaminants than could ever be realistically regulated. The Toxic Substances Control Act (TSCA) Chemical Substances Control Inventory, a list of all existing chemical substances in U.S. commerce, currently lists more than 86,000 chemicals. Additionally, the Chemical Abstracts Service lists over 182 million unique substances.
With such a staggering quantity of substances to consider, the EPA begins with a more limited list of chemicals that are known to be toxic to humans and that have the potential to contaminate drinking water. Every 5 years, the EPA narrows the potential contaminants down to 100 to be included on the Candidate Contaminant List (CCL). From the CCL, the EPA then selects 30 to be monitored under the UCMR. After results are collected from UCMR testing, regulatory determinations are made. Sometimes, as with 1,2,3 trichloropropane (TCP) and 1,4-dioxane, the EPA decides to postpone the determination in case more information may influence the decision. Finally, if regulation is deemed necessary, it is developed based on the data gathered through testing.
Existing federal MCLs are reviewed by the EPA every 6 years to determine if any changes should be made. One example of a standard that was changed through the review process is the Total Coliform Rule.
Previous UCMR programs required all public water systems serving over 10,000 people to participate in water sampling and analysis for the designated contaminants. UCMR5 expands upon this requirement, extending monitoring requirements to 800 randomly selected water systems serving fewer than 3,300 people as well as most systems serving between 3,300 and 10,000.
Why do regulations change over time?
Scientific advancements since the Safe Drinking Water Act was first created in the 1970s have resulted in great improvements in water suppliers’ ability to test and treat water for contaminants. Regulations drafted in the 1990s and 2000s often couldn’t have maximum levels in the parts per trillion because of testing limitations at the time. Now, there is discussion of getting down to the parts per quadrillion. Water providers can expect that, as new technologies become available within the water industry, regulations will continue to evolve to improve public health.
Which water contaminants may be next for regulation?
Perchlorate is another contaminant that may be regulated soon. In May 2023, a federal appeals court ruled that the EPA must regulate perchlorate in drinking water. The EPA had determined in 2011 that perchlorate should be regulated based on data linking it to brain damage in infants, but later attempted to reverse the decision in 2020. The court ruled that the EPA had no authority to withdraw from its previous determination. Based on these recent events, we anticipate that perchlorate regulations will be implemented in the near future.
1,4-dioxane has also been the subject of recent speculation regarding upcoming regulations. Recently, mounting concerns about the potential carcinogen have brought the contaminant into the spotlight, suggesting that it may soon be subject to water quality standards like those proposed for PFAS. On July 7th, 2023, the EPA announced a new draft assessment on 1,4-dioxane. The chemical, a former solvent stabilizer that is currently used as a solvent and is also found in some cleaning products, shampoos, and soaps, was previously acknowledged by the EPA to present dangers to workers exposed to it. With the new updates, the EPA broadens its scope to include air and water exposures to the general population.
The EPA has said that the unreasonable risk determination for 1,4-dioxane will be released for public comment in the summer of 2023. In light of these developments, it can be expected that 1,4-dioxane could be among the next water contaminants to be federally regulated under the Safe Drinking Water Act.
Is cost recovery through the legal process an option for the treatment of unregulated contaminants?
Cases can be filed against the manufacturers responsible for pollution even if EPA guidelines or state standards for that contaminant have yet to be finalized. For example, SL Environmental Law Group has achieved positive outcomes for clients in several cases with varying degrees of regulation for the contaminants involved.
In the early 2000s, the State of New Hampshire hired SL Environmental Law Group (then known as Sher Leff) to lead the litigation against oil companies for contaminating groundwater with methyl tertiary butyl ether (MTBE). There is no EPA MCL for MTBE in drinking water, and although New Hampshire had implemented a state-level MCL of 13 ppb by that time, some of the affected wells had concentrations below that level. Despite this, SL worked with the New Hampshire Office of the Attorney General to file a case against more than 20 major oil and chemical companies that had supplied the State with gasoline containing MTBE, including ExxonMobil and Citgo. The companies fought back in a long legal battle, but the jury eventually agreed that MTBE contamination had harmed communities in the state, even at levels below the established state MCL. In 2013, the verdict was handed down in favor of the State of New Hampshire, with the jury awarding total damages of $816 million.
In another example, Sunny Slope Water Company in Pasadena, CA sought assistance from SL after discovering dangerous levels of TCP contaminants in two of its drinking water wells. The EPA had not yet implemented an MCL for TCP at the time. However, knowing that TCP was a hazardous contaminant that threatened public health, Sunny Slope decided to install a new filtration system and hold polluters accountable for the cost. SL pushed forward with Sunny Slope’s lawsuit against Dow Chemical and Shell Oil, accusing the companies of knowingly polluting groundwater by manufacturing and selling pesticides contaminated with TCP. The EPA eventually set an MCL for TCP in 2018, years after the lawsuit had been filed. In 2021, Sunny Slope reached a settlement with the companies, allowing the water company to fully recover the treatment costs.
Water systems are able to pursue cost recovery from manufacturers for both regulated and unregulated contaminants. The only difference in the legal process is what evidence the plaintiffs need to present to show harm to the water system. If state or federal regulations state that a chemical at a certain concentration presents a danger to the public and needs to be treated, that determination is usually sufficient evidence of harm to the water system. If there is no decision from a regulator, then a plaintiff needs to bring in a toxicologist and other experts to confirm that the levels of the chemical in the drinking water are unsafe for consumers and that therefore the system needs to implement treatment.
Ultimately, having regulations in place for a particular contaminant can make legal proceedings more straightforward, but it is not a requirement and can be addressed by attorneys experienced in water contamination litigation.
How can water utilities stay up to date with current regulations?
If you have questions about how your water system can keep up in a challenging and constantly evolving regulatory environment, you are not alone. It can be helpful to work with a law firm with experience in water contamination litigation. To learn more about the impact current and upcoming regulations may have on your water system, schedule a free consultation with the SL team.