What broke the Safe Drinking Water Act?
There's perchlorate in this reservoir. Here's why Washington isn't doing anything about it.
|May 10, 2017 - Are you aware of the perchlorate contamination in the Arroyo Seco? Well, it is being cleaned up and treated. Nationally, however, this serious contaminant is being ignored. Here is the shameful story.|
It was 1997 when Californians began to worry in earnest about a chemical called perchlorate. For decades, the ingredient in rocket fuel had been seeping from missile factories and testing sites into groundwater across the state and, thanks to a new testing method, it was suddenly clear it had reached hundreds of drinking water wells. Soon, researchers discovered that the toxic chemical had reached Lake Mead, the picturesque reservoir that supplies water to 25 million people in the American Southwest and irrigates the fields that grow the lion’s share of the nation’s winter produce.
Even in trace amounts, perchlorate can be dangerous, especially for pregnant women and young children. The chemical prevents the thyroid from absorbing iodine, which the gland needs to produce hormones that are critical for brain development. Although the military and its contractors dispute the level at which harm occurs, the companies that used the perchlorate settled a cascade of lawsuits with California communities and residents as the extent of contamination came to light, paying tens of millions of dollars toward compensation and cleanup efforts.
In 2006, California decided to limit the level of perchlorate in drinking water to 6 parts per billion, about the concentration you would get by mixing three teaspoons of the chemical into an Olympic-sized swimming pool. In Massachusetts, where a few communities had also discovered perchlorate pollution, the state set an even stricter standard of 2 parts per billion.
But perchlorate hasn’t gone away, and unless you live in California or Massachusetts, you could be drinking it in unhealthy amounts. The Environmental Protection Agency has so far found the chemical in 45 states, tainting water supplies of roughly 16 million Americans. It has been found in the bodies of every single American who has been tested for it. But two decades after the seriousness of the perchlorate problem began to come into focus, the federal government is still just studying the issue, and still years from setting a national standard for drinking water — if it ever sets one at all.
In the meantime, there is no mandate that water utilities outside of California and Massachusetts test for the toxic chemical or let residents know when it’s in their tap water. That means that vulnerable populations would not know to take the few steps they can to reduce exposure, like not preparing infant formula with tap water containing perchlorate. Even people who take precautions like filtering their drinking water or buying bottled water are at risk, since perchlorate and many other chemicals aren’t removed by common household filters. And since bottled water is usually just a version of tap water; unregulated chemicals like perchlorate don’t have to be removed before the water is sold.
Washington was supposed to be the backstop for chemicals like perchlorate. Toxins are supposed to be managed under the Safe Drinking Water Act, the 1974 law that Congress passed after scientists discovered widespread contamination in American tap water. Under the law, the EPA has set national limits for 89 dangerous chemicals, bacteria and viruses. But nearly all of those limits were set between 1986 and 1996, when Congress required the EPA to analyze and regulate chemicals at a steady clip. Water utilities complained they couldn’t keep pace, and in 1996, Congress updated the law to leave it up to the EPA to decide when to set new regulations. It also required a new and extensive review process for any new standards.
In the 20 years since that update went into effect, not a single new contaminant has been regulated under the law. Meanwhile, tens of thousands of new chemicals have come into use, with more than 85,000 now on the market. Advances in technology and science have shown that long-used chemicals can spread more than previously though, and can present dangers at even low levels. But little has been done at the federal level to set safer limits for older chemicals, assess the health impact of new substances making their way into the water supply, or even monitor regularly for potential contaminants in the drinking water that millions of Americans ingest every day.
The story of perchlorate is the story of how political pressure, scientific uncertainty and bureaucratic inertia can feed off one another to bring federal regulation to a halt. The expectation of cheap, clean, plentiful drinking water at every tap has perhaps never been realistic — at least not at the prices customers want to pay. Nevertheless, for decades Americans have taken the safety of tap water for granted. But as the recent lead contamination crisis in Flint, Michigan, showed, the nation’s foundational environmental laws do not guarantee that their water is safe to drink.
ORDINARY CITIZENS MAY assume that the government thoroughly tests chemicals sold in the United States for safety, but the system largely works the other way: Chemicals are assumed safe until proved otherwise. As a result, the onus is generally on the government to prove that a chemical is dangerous before it can be regulated. (By contrast, Europe has taken a precautionary approach to chemicals policy, requiring manufacturers to prove that a new substance is safe before it can come on the market.)
Under the Safe Drinking Water Act, the burden of proof is especially high. To issue a regulation, the EPA has to show that there is a “meaningful opportunity for health risk reductions” — a phrase undefined in the law, and which can evoke wildly different interpretations. The 1996 update also added requirements for complex economic analyses to prove that the benefits of a new regulation justify the costs.
It's important to note that American drinking water is still much cleaner than water in many other parts of the world. Cholera, typhoid and parasites, which kill tens of thousands of people around the world every year, have been virtually eliminated from the U.S., thanks to advances in water treatment.
But the contaminants that are left – not to mention the hundreds of new ones emerging each year – offer a different sort of challenge that has effectively stymied regulators. The effects of these substances on health are often indirect, and they can impact different populations in different ways. Compounding the issue is the fact that low doses of certain contaminants can actually be more harmful than larger ones.
“Every person in the U.S. has unregulated contaminants in their drinking water,” said Erik Olson, director of the Natural Resources Defense Council’s health program. “For some of these, we know that millions of people do have them at levels that are a public health concern.”
AP; Getty Images
A 2009 database of state monitoring results compiled by the Environmental Working Group, a nonprofit that focuses on environmental health issues, found more than 300 contaminants in tap water across 45 states, nearly two-thirds of which were unregulated. The group said an update planned for this summer found similar results.
And for virtually every contaminant in question there are powerful forces aligned against regulation. Since drinking water standards often become minimum cleanup standards for Superfund sites, companies and government agencies on the hook for cleanups have a vested interest in trying to stop new regulations. For drinking water managers, new regulations equal hefty new compliance costs — and political headaches, since they have to be paid for with rate hikes, which customers hate. It can cost a small water system a few thousand dollars annually to test for a chemical, only to find out the system doesn’t have it, said Alan Roberson, executive director of the Association of Safe Drinking Water Administrators. The cost of removing contaminants or switching water supplies can easily run into the millions.
Industries want to see clearly settled science about the risks and alternate options before the government issues a new regulation, and that has essentially become the bar under the Safe Drinking Water Act. The problem, public health experts say, is that science by its very nature is never complete. It operates on probabilities, and there is always another study to be done, always another model to be tested.
“EPA, since ’96, has gone into the endless loop of first review, second review, third review, so that people in the drinking water office are really quite busy, but they’re not breaking through this impasse of being able to set new regulations,” said Olga Naidenko, senior science adviser for the Environmental Working Group.
In the past two decades, the agency has listed hundreds of chemicals as priority concerns, a first step under the law, but has made final decisions about whether to issue a regulation on only 24 of them — all but one being decisions not to regulate.
And those chemicals were hardly the most widespread or worrisome ones. An EPA official described these chemicals as “the low-hanging fruit,” where a decision was easy because they are rarely found in water supplies, according to a 2011 report from a government watchdog.
Meanwhile, during the years that the EPA spends studying contaminants to determine whether a regulation should be set, millions of people are continuing to be exposed.
“It takes 10, 15, 20 years to do the epidemiology and basic biology, and people are being hurt — there’s absolutely no doubt about that. We’re producing effects on the population level, effects that aren’t going to go away,” said R. Thomas Zoeller, a biology professor at the University of Massachusetts Amherst.
NOTHING ILLUSTRATES THE uphill battle it takes to set a drinking water regulation more vividly than the 20-year saga over perchlorate — the only new chemical the federal government has even attempted to regulate in the past two decades.
When new testing methods showed the contaminant cropping up in hundreds of wells and water supplies in the mid-1990s, the EPA stepped up its review of the chemical’s risks. The Defense Department and its contractors began pushing back immediately, promoting their own studies suggesting perchlorate wasn’t nearly as dangerous as regulators thought.
The thrust of the fight: What level of perchlorate can be considered safe?
While the basic science of perchlorate’s effect on the body is clear — it inhibits iodine uptake in the thyroid gland — what this actually means for human health is much more complicated. How does the body respond to small levels versus larger amounts of perchlorate? Are some people more susceptible than others to the harms? Is perchlorate the only substance that causes these effects, or are other environmental factors at play, too?
Research has shown that the chemical is most harmful for women of childbearing age who are iodine-deficient — about a third of all women. Some argued that problem could be fixed much more easily by prescribing iodine supplements for those at risk, rather than requiring utilities to spend millions of dollars each year to remove perchlorate from the drinking water supply.
Further complicating the picture is the fact that perchlorate isn’t just in water supplies: It’s also in our food. In recent years, it has been added to food packaging as a way of preventing static, after which studies showed that almost 75 percent of all food types were contaminated with the chemical. At the same time, bleach, which is widely used to clean food equipment and to disinfect produce, produces perchlorate when it degrades. Research suggests most people are exposed to more perchlorate through their food supply than through drinking water.
“Even if we were to regulate perchlorate with a standard in drinking water, are we really going to correct the public health issue?” asked Kevin Morley, manager of federal relations at the American Water Works Association. “The question is, are we really allocating limited public resources to the actual public health effect?”
The way the government’s attempts to answer these questions played out show how science and politics can become inextricably intertwined.
The EPA included perchlorate on its first list of priority chemicals in 1998, the initial step in the regulatory process under the updated federal law. But it took years for the agency to collect data about how widespread it was in drinking water supplies across the country. In the meantime, the EPA issued a draft risk assessment in 2002 that proposed 1 part per billion as the “health reference level” — the rule of thumb about a safe upper limit for the contaminant that the agency uses as it decides whether to regulate a chemical.
That risk assessment drew an outcry from federal agencies, including the Defense Department, NASA and the Department of Energy, which would all face massive cleanup requirements if 1 part per billion became the regulatory standard. The controversy that followed “was like nothing I had ever seen or have seen since,” one senior EPA official told investigators from the government’s watchdog office.
The fight over the health reference level was so fierce that the White House took the issue out of the EPA’s hands and instead ordered the National Academies of Sciences to study it. But the approach that panel took was also highly controversial. Several scientists with links to the defense industry won spots on the review panel, and the work was paid for, in large part, by perchlorate manufacturers and users.
EVEN MORE ALARMING to public health advocates was the panel’s scientific study itself. It tested perchlorate on human subjects, tracking the chemical’s effect on 37 healthy, non-pregnant adults over just a two-week period — an approach that raised not just ethical questions, but also concerns that it didn’t actually capture the effects on pregnant women, children and people with certain medical conditions. The result: a recommended safety limit that was 20 times higher than the one EPA had proposed in 2002. The panel defended this dose, saying it represented a level that prevented not just harmful effects, but any effects at all. But EPA staff experts, who were given just one week to review the panel’s study and weigh in with recommendations, raised major concerns that the panel’s recommendation didn’t sufficiently protect infants, children and adults with health problems. They also argued that the study’s short time frame could miss the chemical’s long-term effects on people. But just five weeks after the National Academies recommendation was released, the EPA adopted it as its own.
Meanwhile, the decision about whether perchlorate warranted federal regulation was also taken out of the hands of EPA staff experts by the George W. Bush administration. Instead, of collecting information and recommendations from the agency’s experts across the country, the process was run by a small handful of the agency’s top political officials in close coordination with a working group organized out of the White House that included officials from EPA, the Defense Department, and the White House’s regulatory unit. The government watchdog report and internal documents obtained by the Natural Resources Defense Council under open records laws showed that the group held major sway over the entire process, ultimately brokering an agreement not to regulate the chemical — even before all of the relevant data had been collected. EPA staff experts were then told to come up with a rationale to support that decision, which was issued in 2008.
Environmental groups and California lawmakers were outraged. “This is a widespread contamination problem, and to see the Bush EPA just walk away is shocking," Sen. Barbara Boxer, a California Democrat, said at the time. The following year, when President Barack Obama’s nominee to lead the EPA faced Senate confirmation, Boxer, who chaired the committee of jurisdiction, extracted a promise to review the issue — a move that industry points to in suggesting that everything that came next was equally politically driven.
In 2011, the Obama administration formally reversed the Bush administration’s decision not to regulate the chemical, vowing to propose a standard within two years and finalize it by 2015.
But that timeline proved overly ambitious. The scientific process has continued to be a fierce battleground for proponents and opponents of regulation, effectively stalling the regulatory process. Now, more than six years later, the agency is still many steps from finalizing a standard for perchlorate. It currently is working on its second peer review of the modeling technique that the agency intends to use to determine the health risk perchlorate poses, which would then be used to inform a proposed regulation that would need to undergo the agency’s first major attempt at a complex new type of cost-benefit analysis. That proposal would then have to go through a round of public comment before it could be finalized.
The Natural Resources Defense Council filed a lawsuit last year in a bid to speed the process, and the EPA signed a consent decree agreeing to finalize the perchlorate regulation by the end of 2019. But with a new administration now running the process, it’s unclear whether the Obama administration’s decision that it needs to be regulated will hold.
This, critics say, is how industry wins.
“Industry exploits the uncertainties and puts EPA in an endless cycle of analysis,” said Rep. Frank Pallone, the top Democrat on the House Energy and Commerce Committee, which oversees drinking water issues.
Pallone and other Democrats blame the 1996 amendments to the Safe Drinking Water Act, saying they took the EPA’s foot off the gas and posed new hurdles to setting regulations. They have introduced a bill to update the measure by removing some of the procedural requirements and mandating that the agency set standards for 10 new contaminants every three years, along with another measure to significantly increase federal funding to drinking water utilities.
But Republicans who control both houses of Congress have shown little interest in revisiting the law, and have been advancing bills that would create a similarly complex process for all environmental regulations. And while the Trump administration has expressed a desire to pass a major infrastructure package, it has yet to put forth a proposal or describe how significant new investments would be paid for.
The EPA did not make its staff available for an interview for this story. In a written statement an agency spokeswoman emphasized the Trump administration’s commitment to infrastructure improvements, but did not address questions about new regulations.
“Under new leadership, the EPA has made clear it is getting back to its core mission, which includes protecting America’s drinking water,” EPA spokeswoman Liz Bowman said in the statement. The agency’s new administrator, Scott Pruitt, "is committed to helping modernize our country’s outdated water infrastructure in order to ensure we maintain safe drinking water for the more than 300 million people that depend on it daily.”
IN THE MEANTIME, new chemicals have captured the public’s concern.
PFOA and PFOS, compounds linked to cancer and other health problems, were initially found in the water supply of communities near where Teflon and other nonstick substances had been manufactured, like Hoosick Falls, New York. There, property values tanked after dangerous levels of the toxin were found in the water supply, and residents have joined a class-action lawsuit against the current and former owners of the plant the state says is behind the pollution.
But the problem with PFOA and PFOS turned out to be much broader, when it was discovered that the substances were also in the firefighting foam used in exercises at military bases around the country. An Environmental Working Group analysis of EPA data found that 5.2 million Americans’ water is contaminated with unsafe levels of the chemicals.
Last year, after years of promises, the EPA issued a health advisory for the toxic chemicals. But the advisory is meant only as guidance to state and local officials, and is not enforceable. Public health advocates fear that EPA’s work to protect the public from PFOA and PFOS could be headed down the same path as perchlorate.
Like perchlorate, people are exposed to that family of compounds from a number of sources, not just water. They’ve been used in carpets, clothing, food packaging and cookware. And like perchlorate, powerful interests, including the military, could be on the hook for massive cleanups if the federal government institutes mandatory drinking water regulations.
Already, there is talk on Capitol Hill of requiring additional studies of the chemicals, potentially through the annual defense authorization bill. And drinking water utilities are expressing concerns even about the health advisory that has been issued, arguing it is misunderstood by the public and did not get the level of expert input that it should have.
Olson, the health director at the Natural Resources Defense Council, said he’s afraid the forces that want to stop regulation will once again win — through delay, if nothing else.
“They have a ready playbook if they look at what’s happened with perchlorate,” he said.
How much safety does the Safe Drinking Water Act really offer, he asked, if opponents can stave off regulation of something as alarming as jet fuel in drinking water for more than two decades?
Said Olson: "It’s been, like, 20 years of banging my head against the wall."
Annie Snider writes about water policy for POLITICO Pro.
CORRECTION: An earlier version of this story incorrectly stated that the level of perchlorate set by the state of Massachusetts in 2006 was 1 part per billion. The correct level is 2 parts per billion.
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