On February 2, 2011, EPA announced at a Senate hearing that it will develop a regulation to establish a national drinking water standard for perchlorate. This decision reverses a position taken by the agency under the Bush administration. Perchlorate is both naturally occurring as well man-made, used in such products as rocket fuel and explosives. It is believed that perchlorate may affect the thyroid's ability to produce hormones for developing fetuses and infants. EPA also said it will develop a regulation to establish a drinking water standard for up to 16 toxic chemicals called volatile organic compounds (VOCs) such as industrial solvents, which are believed may cause cancer. (See:water.epa.gov/contaminants/unregulated/perchlorate.cfm)
At the same hearing, the American Water Works Association (AWWA) presented testimony questioning the wisdom of EPA's decision to regulate perchlorate. According to one AWWA witness, "EPA's decision to move forward on perchlorate regulation is perplexing....Water providers share the Agency's interest in protecting public health through the provision of safe water. However, the weight of scientific evidence suggests national regulation of perchlorate in drinking water does not accomplish this goal." Another witness stated "We should allow the best available science, not the political process, to be the ultimate driver in regulatory decisions." AWWA also pointed out that the Food and Drug Administration and EPA's inspector general previously had concluded that a national standard for perchlorate would not provide a meaningful opportunity to reduce risk, and AWWA'a own assessment was consistent with these conclusions. (See:awwa.org/files/GovtPublicAffairs/GADocuments/AWWAtestimonyEPWFeb2011.pdf)
This interplay between a federal regulatory agency and a major regulated trade group, before a Congressional committee hearing, suggests some observations:
1. EPA's decision may have been a preemptory move to avoid Congress dictating a political mandate as to a specific drinking water standard for perchlorate and VOCs. As such, the decision is understandable, but at the same time, it also becomes a political decision itself.
2. This interplay illustrates EPA's broad regulatory reach, which affects public water supplies of every size. As such, this reach could be viewed as well beyond the original intent of the commerce clause of the U.S. Constitution, which was to control trade barriers and tariffs imposed by states against trade from other states.
3. Drinking water regulations should have sound scientific justifications, and not be the result of knee-jerk reactions to media, interest groups and politicians.
4. Every regulation imposes costs upon water utilities for monitoring, testing, reporting and treatment. These costs ultimately are borne by customers. Imposition of new standards should be supported by a sound cost/benefit justification.