INTIMIDATION AND THE REGULATORY PROCESS

Regulatory agencies permeate daily living, including the operations of water and wastewater utilities. Administrative agencies not only make rules but they also enforce them. Accordingly, they may exercise both legislative and judicial type functions, although they are neither a legislature nor a court. Moreover, they generally are not bound by precedent or the strict rules of evidence.

In reality, the administrative processes of regulatory agencies can be subjected to, and affected by, pressures outside the scope of any record before them. Consider, for example, the current toxicology review being conducted by U.S. EPA as to whether to establish a drinking water compliance standard for hexavalent chromium (chromium 6).

California, on its own, in July established a "public health goal" for chromium 6. While a "goal" is not yet a compliance standard in California, the action suggests a "tail wagging the dog" attempt which may offer pressure on U.S. EPA. Indeed, it has been reported that one of California's U.S. senators has filed a bill in Congress to force U.S. EPA to set a compliance standard for chromium 6 and will hold hearings on the bill in January.

The California developments apparently have given rise to media pressure as well. Recently, a major newspaper carried an article alleging that testing of Chicago water found levels of chromium 6 substantially higher than the California "health standard" adopted in July. The article acknowledged potential pressure on U.S. EPA from the California action. Of course, California has not yet adopted a compliance standard for chromium 6.

The article also alleged that U.S. EPA has been slow to act because municipal utilities and industrial polluters object to a new standard that could cost them money. In point of fact, several water associations have urged U.S. EPA simply to include in its risk assessment for chromium 6 important current research on health effects of chromium 6, expected to be completed shortly.

In this one example, there appear to be efforts by an activist state, a senator and media to pressure an administrative agency to adopt a compliance regulation. None of these efforts, it would seem, are a matter of the record before the agency.