Environmental Defense Fund Attacks the Environmental Protection Agency's Failure to Set Limits on Organics in Drinking Water

[6 ELR 10006]

Draining the industrial heartland of America, Ol' Man River carries a massive load of industrial and municipal wastes to the sea. New Orleans draws its drinking water from the Mississippi, and so its residents have for decades complained of the city's off-color, off-taste water. For decades, scientists have documented unusually high gastro-intestinal and urinary tract cancer rates in New Orleans.¹ More than ten years ago, medical scientists began to document an association between environmental contaminants and cancer.² In November 1974, the Environmental Defense Fund (EDF) demonstrated a statistically significant correlation between the organic chemicals in New Orleans water and its residents' abnormally high cancer rates. The same month, the Environmental Protection Agency (EPA) reported identifying 66 trace organics in New Orleans water. In December, Congress reacted by passing the Safe Drinking Water Act, which required the EPA Administrator to establish primary drinking water regulations which would set limits on all "contaminants which may adversely affect the public health,"³ and called on the states to enforce the new standards.

In March 1975, EPA issued proposed interim⁴ primary drinking water regulations which included limitations on organic chemicals as a group. In December, however, when it issued its final interim standards,⁵ the standard limiting organics was deleted. In its place, EPA issued new regulations, effective immediately, for special monitoring of these substances in 100 representative water supplies.

Regulations Challenged by EDF

EDF promptly petitioned⁶ the D.C. Circuit to review this failure to regulate organics, as well as other asserted deficiencies in the interim EPA regulations.

To justify its deletion of standards for organics, the EPA asserts in the explanatory materials accompanying the regulations that it currently lacks adequate data on their distribution and health effects to support regulation. Such information will, it says, be gathered as quickly as possible through its new special monitoring program. In addition, it notes that many comments on the proposed standard took issue with the testing method intended to be used for organics, known as CCE.

EDF, on the other hand, argues that the Safe Drinking Water Act requires EPA to move immediately to regulate carcinogens like trace organics. Thus, EDF maintains, EPA is required to impose strict limits on organics even before full information is available concerning their distribution and health effects.

The statutory scheme actually calls for a two-stage standard-setting process, with a systematic information review in between. The first set of regulations which EPA is required to promulgate — those currently underattack by EDF — are called "interim primary drinking water regulations."⁷ Later, in 1977, following a systematic review of data on contaminants and report to Congress by the National Science Foundation, EPA must issue expanded "revised primary drinking water regulations."⁸ The real disagreement is over whether EPA must regulate organics as a group in its interim regulations, which will become effective in mid-1977, or whether it may wait until the revised regulations, which will not go into effect until around the end of 1978.

In the absence of legislation like the Safe Drinking Water Act, there is little doubt that EPA's position would prevail before the court of appeals. The agency has in the past had little success with its attempts to regulate substances on the basis of risks of future harm.⁹ For example, when EPA imposed limits on tetraethyl lead in gasoline, based on the risk of future cumulative health effects of airborne lead from auto exhaust in urban areas, the D.C. Circuit threw them out for lack of evidence of present harm.¹⁰ Likewise, in the Reserve Mining case,¹¹ the Eighth Circuit refused to endorse [6 ELR 10007] an immediate ban on the dumping of asbestos-bearing mining wastes into Lake Superior; EPA and other plaintiffs had, it held, established no more than "some health risk" from the tailings, and this was not enough to support immediate regulatory intervention.

Drinking Water Act Reaches Latent Risks

These cases should not, however, control the outcome under the Safe Drinking Water Act. In this legislation, Congress has gone further than ever before to provide an explicit legislative framework for government regulation of latent risks, that is, for legal intervention before full knowledge of harmful effects and causal relations is available. This prophylactic or preventive philosophy is embodied in §§ 1401 and 1412 of the Act. The former defines "primary drinking water regulation" as a "regulation which … specifies contaminants which, in the judgment of the Administrator, may have any adverse effect on the health of persons…."¹²

Significantly, this definition applies to both interim and revised regulations, a point stressed by House Report¹³ on H.R. 13002, the bill which became the Safe Drinking Water Act. In addition to meeting this requirement, EPA's interim "primary drinking water regulations" must, under § 1412,¹⁴

protect health to the extent feasible, using technology, treatment techniques, and other means, which the Administrator determines are generally available (taking costs into consideration) on the date of enactment of this title.

Both provisions do, of course, appear to give the Administrator some leeway. But the House Report is quite explicit concerning the preventive thrust of the Act, and is, in addition, specific concerning regulation of organic chemicals. It leaves little room for doubt that Congress intended EPA to include these in the interim standards.

The Report's general discussion of latent risk regulation, which follows a summary of evidence of widespread and serious deficiencies in water treatment facilities throughout the nation, and an analysis of possible reasons for the current situation, concludes:

The lack of comprehensive cost, health effects, technological assessment, and monitoring data cannot justify and further delay in Congressional and administrative action. While it would be desirable to have complete health effects research, effective treatment technology, and accurate, inexpensive monitoring systems in operation prior to commencing a system or regulation, this is simply not possible. It is the Committee's intent that EPA … begin now to maximize protection of the public health insofar as possible and to continue and expand these efforts as new more accurate data, technology, and monitoring equipment become available.¹⁵

Then, in discussing § 1401, the House Report explicitly sets forth the Committee's expectation concerning regulation of organics:

[T]he Committee anticipates that the Administrator will establish primary drinking water regulations for some groups of contaminants, such as organics and asbestos. The establishment of such group-wide regulations should help to assure that the public health will be protected from currently undiscovered unidentified or underresearched subgroups or specific contaminants within the group.¹⁶

The quoted language does not specifically mention that the Committee was referring to interim regulations. EPA appears to seize on this omission to argue that Congress intended that "organic chemicals would be dealt with primarily in the revised … regulations."

EPA's interpretation is, however, contrary to the overall organization and thrust of the discussion from which the above-quoted passage is excerpted. Immediately following the quoted paragraph, the Committee turns to discuss the NAS study, then to an explicit discussion of the revised regulations which, it contemplates, will include both limits on organics as a group, and on various "subgroups, such as haloethers, polycyclic aromatic hydrocarbons, and nitrosamines."¹⁸ In this context, it seems clear that the prior discussion referred, by contrast, to the more limited contents of the interim regulations.

Additional support for the EDF view — that Congress intended the interim primary drinking water regulations to set maximum contaminant levels for organics — is found in the House Committee Report's analysis of § 1412. Here the Committee expresses its opinion that EPA will base the interim regulations on its 1973 review and proposed updating of the 1962 Public Health Service drinking water standards.¹⁹ Significantly, this report stressed the need to develop controls for organics due to their prevalence and carcinogenic nature.²⁰

EPA Has Solid Data Base

Nor is EPA's data base as limited as it claims. In addition to the 1973 report, and the November 1974 study mentioned at the outset, EPA has already gathered a substantial amount of additional data on the prevalence of organics, some of which are known carcinogens. In April 1975, it released results of a National Reconnaissance Survey in which it sampled and analyzed the drinking water of 80 representative United States cities. All sampled waters contained carcinogenic chloroform, and over 95 percent contained two other halogenated compounds chemically similar to known carcinogens. A follow-up study of 10 of the 80 cities detected a broad spectrum of organics in every case. EPA underscores what it calls the unreliability of this data, noting that the National Reconnaissance Survey took only one sample in each city.²¹ Nonetheless, the data are internally consistent and strongly reinforcing, for the same compounds were found in roughly the same concentrations in similarly situated cities. In light of this body of data, the EPA Administrator's conclusion that organics are [6 ELR 10008] not a contaminant which "may adversely affect the public health" seems arbitrary and capricious.

Nor can the Administrator reasonably claim that regulation of organics would not be "feasible," as required under § 1412. EDF points out that the cost of effective screening of organics from raw water supplies is quite low and uses available techniques. Citing a preliminary draft of the EPA Administrator's 1975 Annual Report to Congress,²² EDF notes that EPA has obtained excellent results in testing systems which use granular activated charcoal to screen organics out of water. This procedure, moreover, can be implemented in a city the size of New Orleans for about 15 to 20 cents per person per month.

In light of the above arguments, and of the evidence it already has accumulated, EPA will be hard pressed to defend its omission of organics from the interim regulations. Even Train v. NRDC,²³ where the Supreme Court showed great deference to the agency's interpretation of its legal mandates — there the Clean Air Act — probably will not support the agency's interpretation of the Safe Drinking Water Act and its legislative history. The crucial House Report, the most important item of legislative history, simply is not sufficiently ambiguous to make the EPA reading of it reasonable. Nor is the Act itself as complex and ambiguous in structure and phrasing as the Clean Air Act.

Flawed Enforcement Scheme?

Indeed, the substantiality of EPA's current data base respecting organics prompts speculation that the agency's real reason for omitting organics lies elsewhere. Recent comments of Victor Kimm, Acting Assistant EPA Administrator for Water and Hazardous Materials, suggest that the agency's motivation is its fear of being unable to convince the nation's 240,000 water systems to accept the standards voluntarily if they are too stringent. On December 3, 1975, Mr. Kimm discussed the interim regulations with a group of public interest representatives in Washington. In his introductory comments he stressed the enormous number of water systems in the United States, local and state governments' lack of enthusiasm for federal regulations, their enforcement responsibilities under the Act, and EPA's consequent need to tailor the drinking water standards to the water system's needs.

Based on Mr. Kimm's pessimistic view of the likelihood of successful federal-state cooperation on clean drinking water, it seems reasonable to conclude that the new EPA interim primary drinking water regulations are an example of the agency's new regulatory philosophy of making regulations more palatable to "regulatees."²⁴ Such an approach has obvious legal limits, as the EDF's lawsuit demonstrates; legislative mandates cannot simply be ignored in order to diminish opposition from those who are the targets of regulation. Nor can public health and environmental quality be maintained under such circumstances.

In fairness to EPA, it is necessary to add that the President and Congress may have been indulging in wishful thinking when they assumed that federal-state cooperation would prove easily workable in the area of safe drinking water. At the very least, a credible carrot or stick seems to be required. Either EPA must be given the resources to contemplate a realistic takeover of regulatory responsibility, or the states must be given sufficient funds to induce necessary changes.²⁵ Absent support of this kind, EPA cannot be expected to engage in rational regulation of environmental hazards, whether in drinking water, in air emissions, or in water effluents. And the problem is worst when the object of regulation is a latent risk, like organics under the Safe Drinking Water Act. Since there is little or no evidence of present harm, no constituency exists to press for regulation, while well-entrenched interests may easily be found to oppose it.

1. Harris & Brecher, Is the Water Safe to Drink? Part I: The Problem, Consumer Reports, June 1974.

2. The general public is gradually learning what scientists have known for some time: perhaps 90 percent of human cancers, diseases which strike one out of every four Americans, are caused by substances in the environment. See, e.g., Cairns, The Cancer Problem, Scientific American, Nov. 1975, p. 64. Among the most potent and ubiquitous environmental carcinogens are synthetic organic chemicals (organics), the legacy of modern industrial, commercial and municipal pollution. Trace amounts of these widely contaminate both water and air, and they are not removed by traditional water treatment techniques.

3. Safe Drinking Water Act, § 1401(1)(B), 42 U.S.C. § 300f(1)(B), ELR 41131. This act actually constitutes Title XIV of the Public Health Service Act; accordingly section numbers all begin with "14__."

4. 40 Fed. Reg. 11991 (Mar. 14, 1975). See also Comment, Environmental Protection Agency — Recent Developments, 5 ELR 10074 (May 1975).

5. Title 40 C.F.R. part 141, 40 Fed. Reg. 59566 (Dec. 24, 1975). The regulations were actually promulgated more than a week earlier, on December 12, 1975.

6. EDF v. Train, No. 75-2224 (D.C. Cir., filed Dec. 17, 1975). At press time no formal papers had been filed, so EDF's arguments are gleaned from its Dec. 17, 1975 press conference and press release announcing the suit, and from formal comments which it had filed on the proposed regulations in April-May 1975.

7. Section 1412(a), 42 U.S.C. § 300g-1(a), ELR 41131.

8. Section 1412(b), 42 U.S.C. § 300g-1(b), ELR 41131.

9. See, e.g., Schulz, Synthetics, Latent Risks and Governmental Response: The Case of Fluorocarbons and Stratospheric Ozone, 5 ELR 50109, 50111-14 (Aug. 1975).

10. Ethyl Corp. v. EPA, 5 ELR 20096 (D.C. Cir. 1975), opinion withdrawn, case set for rehearing en banc, 5 ELR 20450 (D.C. Cir. May 17, 1975).

11. Reserve Mining Co. v. EPA, 5 ELR 20596 (8th Cir. Mar. 14 & Apr. 18, 1975).

12. 42 U.S.C. § 300f(1), ELR 41131 (emphasis supplied). "Contaminant" is defined as "any physical, chemical, biological or radiological substance or matter in water." Section 1401(6), 42 U.S.C. § 300f(6), ELR 41131.

13. Safe Drinking Water Act, H.R. Rep. No. 93-1185, 93d Cong. 2d Sess. 10 (1974) (hereinafter House Report).

14. 42 U.S.C. § 300g-1, ELR 44131.

15. House Report at 8.

16. House Report at 10.

18. House Report at 11.

19. EPA Advisory Committee on the Revision and Application of the Drinking Water Standards (Sept. 20, 1973)

20. EDF, Comments on the EPA's Proposed Interim Primary Drinking Water Regulations 23 (1975).

21. EDF press conference materials.

22. Id. An EPA spokesman told ELR that the final report is not expected until mid-January.

23. 421 U.S. 60, 5 ELR 20264 (1975).

24. See New York Times, Sept. 28, 1975, p. 1.

25. The Safe Drinking Water Act does authorize grants to states, §§ 1442-44, 42 U.S.C. §§ 300j-1 through 300j-3, ELR 41137-38, but the modest sums authorized and appropriated have not as yet yielded an incentive sufficient to induce action.