Appeals Court Panel Rules EPA Must Regulate Perchlorate

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, today unanimously ruled that the U.S. Environmental Protection Agency’s (EPA) decision against regulating the toxic chemical perchlorate in drinking water was illegal.  The following is a reaction by Erik D. Olson, Senior Strategic Director for Health at NRDC (Natural Resources Defense Council):  “The court ruled that EPA must regulate perchlorate-contaminated drinking water because the agency had found that it poses a health risk to millions of Americans.  After more than a decade of delay and litigation, EPA now must issue a drinking water standard for this widespread and dangerous contaminant.   It’s about time." 

 

Judges [David B.] Sentelle and [David S.] Tatel issued a joint opinion striking down EPA’s decision not to regulate; Judge [Florence Y.] Pan issued a separate concurring opinion, rendering a unanimous ruling against the EPA.  Judges Sentelle and Tatel found that EPA lacked the authority to reverse the agency’s previous decision to regulate this toxic rocket fuel component.  Judge Pan agreed that EPA’s action must be struck down, but because EPA was “arbitrary and capricious” [pg. 30] in making its decision, not that the agency lacked the authority to do so.  She found that EPA’s refusal to regulate based on a finding that decreasing the average IQ of vulnerable children was not an adverse effect “did not meet the statutory standard.”  She also noted that EPA decision also “was based on a biased dataset” [pg. 17] on perchlorate occurrence in tap water “that was selectively updated.”         

~ Margie Kelly

   NRDC

   May 9, 2023

40 states manufacture or use perchlorate (EPA)

 

NRDC Argued EPA Failure to Regulate Perchlorate Was Unlawful
In arguments before the U.S. Court of Appeals for the District of Columbia Circuit, today lawyers for NRDC told a three-judge panel that the U.S. Environmental Protection Agency’s decision against regulating the toxic chemical perchlorate in drinking water was illegal.  The following is a reaction by Erik D. Olson, Senior Strategic Director for Health at NRDC:  “Today the court heard why EPA’s refusal to set a drinking water standard for the widespread toxic chemical perchlorate is unlawful and unsupported by science.  Doctors and health experts have long called for EPA to protect the public, especially fetuses, infants, and young children, from this brain-damaging toxic chemical.  We are hopeful that the court will rule that EPA erred and must move ahead with a perchlorate standard.”  

 

Last March, the EPA announced it would not revisit a decision to not regulate perchlorate, a toxic component of rocket fuel associated with brain damage in fetuses and infants, leaving millions of people unknowingly exposed to the chemical through their tap water.  The determination affirmed a Trump EPA decision to not regulate perchlorate in drinking water.  Perchlorate, widely used in rocket fuel and munitions ... is the first unregulated drinking water contaminant for which EPA has proposed a standard in more than 25 years under the provisions of the Safe Drinking Water Act Amendments of 1996.  The Defense Department (DOD) and its contractors are major users of perchlorate and there are innumerable DOD facilities where perchlorate pollution has been found. 

 

DOD has opposed strict controls on perchlorate, in an apparent attempt to minimize its cleanup costs.   Since perchlorate is unregulated, there is no federally required monitoring of tap water or requirement to inform a community of contamination.  In 2011, the EPA formally decided that perchlorate should be regulated because it is toxic and widespread, with the drinking water of as many as 16 million people contaminated by the chemical.  When the Agency failed to develop a standard by the deadline, NRDC sued, and then secured a court-approved consent decree requiring the EPA to issue a drinking water standard for perchlorate by 2019. 
~ Margie Kelly
   NRDC
   January 27, 2023