EPA Agrees to Promulgate Perchlorate Regs by 2019

US EPA recently agreed in federal court to engage in a rulemaking process over the next three-plus years which would culminate in the promulgation of final perchlorate regulations by December 19, 2019. Perchlorate remains the only unregulated contaminant for which EPA has made a final determination to regulate since the Safe Drinking Water Act (SDWA) was amended in 1996. Perchlorate is a highly soluble chemical in water and can move quickly from soil contamination into groundwater. It has been used by the US Department of Defense as an oxidizer in munitions and missiles since the 1940s, and 90 percent of its manufacturing is for the defense and aerospace industries. In a February 2011 declaration, EPA determined that it should regulate perchlorate in drinking water — giving itself 24 months from that date to propose regulations and another 18 months thereafter to finalize them under the SDWA. However, due in part to the Scientific Advisory Board’s rejection of the model EPA submitted for perchlorate regulation, these self-imposed deadlines were missed. As a result of the delay, the Natural Resources Defense Council (NRDC) filed a complaint in the US District Court for the Southern District of New York against EPA in February 2016 to enforce the deadline for proposed perchlorate regulations for public comment. 

In the NRDC case, the Agency acknowledged that it failed its legal obligations to propose and promulgate a maximum contaminant level (MCL) and maximum contaminant level goal (MCLG) as a national primary drinking water standard for perchlorate ... Under the proposed agreement, EPA will: complete an “external peer review process” by October 18, 2017; propose limits by October 31, 2018; and finalize a rule by December 19, 2019. Given the amount of delay that has already occurred in promulgating federal regulations, it is somewhat surprising that NRDC accepted the length of the proposed schedule ... It is noteworthy that, in likely response to national attention paid to the Flint Michigan crisis, two US House of Representatives resolutions (H.R. 6116 and H.R. 6140 ) were introduced on September 22, 2016 that, if passed, would require the EPA Administrator to publish an MCLG and promulgate a national primary drinking water regulation for perchlorate no later than 12 months following the law’s date of enactment. This proposed legislation amending the federal SDWA has the potential to expedite the rulemaking process outlined in the settlement agreement reached between EPA and NRDC.
Jonathan S. King
National Law Review
December 26, 2016