Bloomberg Law
June 18, 2020, 1:56 PMUpdated: June 18, 2020, 7:10 PM

EPA Decides Not to Regulate Perchlorate in Drinking Water (3)

Sylvia Carignan
Sylvia Carignan
Amena H. Saiyid
Amena H. Saiyid

The EPA won’t set national drinking water standards for perchlorate, a rocket fuel chemical, a decision expected to result in litigation against the agency.

The Environmental Protection Agency acknowledged perchlorate can affect human health by interfering with the thyroid gland, but said the chemical doesn’t appear in enough public water systems, or at high enough levels, to cause concern.

The agency’s decision (RIN:2040-AF28), announced Thursday, will become final once it is published in the Federal Register.

“Our state partners deserve credit for their leadership on protecting public health in their communities, not unnecessary federal intervention.” EPA Administrator Andrew Wheeler said in a news release.

Water utilities generally agree national regulations weren’t necessary. But environmental advocates have raised concerns about the agency’s decision not to regulate a chemical that has known health effects, and the Natural Resources Defense Council said Thursday it plans to bring the issue to court.

Health Risks

The chemical can be found in rocket fuel, fireworks, and fertilizers, and can cause developmental impairments in fetuses, according to the Government Accountability Office.

Long-term exposure to perchlorate can cause thyroid problems. Short-term exposure may cause eye and skin irritation, as well as nausea and vomiting, according to an EPA fact sheet.

Vanderbilt University researchers said in May that perchlorate inhibits the uptake of iodide, an essential component of thyroid hormones, in a more pronounced and fundamental way than commonly considered.

The Perchlorate Information Bureau, an industry interest group whose members include Aerojet Rocketdyne, American Pacific Corp., Lockheed Martin Corp., and Northrop Grumman Corp., agreed with the EPA’s decision.

“Considering that EPA’s own analysis finds that the costs of a nationwide perchlorate drinking water regulation would significantly outweigh the benefits, EPA should focus its limited resources on more immediate and significant public health concerns,” the bureau said in a statement.

Legal Obligations

The EPA was bound by a 2016 consent decree, entered in U.S. District Court in the Southern District of New York, to issue a national drinking water regulation for perchlorate by December 19, 2019.

The agency asked for, and the National Resources Defense Council agreed, to extend the deadline to June 19, 2020. The environmental group said Thursday that it interpreted the agency’s decision as a violation of the consent decree.

“NRDC plans to challenge EPA’s refusal to comply with the consent decree in court,” said Margie Kelly, a spokeswoman for the group.

Sen. Tom Carper (D-Del.), ranking member on the Senate Environment and Public Works Committee, also said the agency’s decision defied the court order.

“EPA has abdicated its responsibility to set federal drinking water standards for a chemical long known to be unsafe, instead leaving it up to states to decide whether or not to protect people from it,” Carper said in a statement.

An EPA spokeswoman said the consent decree no longer applies, and the agency will ask the court to terminate the agreement.

State vs. Federal Authority

The Safe Drinking Water Act was enacted in 1974 with the intention of setting mandates for public water systems where states had failed to take action, said Mike Keegan, an analyst for the National Rural Water Association.

Now, states are outpacing the EPA, and adopting policies they prefer, he said. But the federal agency can still use health advisories, which allows state and local governments to take immediate action on chemicals like perchlorate.

Federal drinking water regulations that come years after state or local action “will surely lead to unnecessary public confusion,” Keegan said.

J. Alan Roberson, executive director of the Association of State Drinking Water Administrators, said it would be a “waste of national resources” if the EPA were to set standards that only affect one to three water utilities, as the agency estimated.

Diane VanDe Hei, chief executive officer of the Association of Metropolitan Water Agencies, said a national standard isn’t necessary.

“Because several states where perchlorate contamination is most prevalent have already addressed the perchlorate contamination or developed their own drinking water standards for the substance, AMWA agrees that a new national standard would appear to offer a minimal opportunity for further health risk reduction at this time,” she said in a statement.

Brent Fewell, founder of Earth & Water Group in Washington, said appropriate action has been taken to regulate perchlorate.

“The states, EPA and utilities have done an exceptional job limiting risk exposure to perchlorate over the past few years thus obviating the need for a national standard,” he said.

California and Massachusetts set enforceable limits for the chemical in drinking water in 2007 and 2006, according to the Water Quality Association, an Illinois-based association of residential, commercial, and industrial water treatment facilities.

“To say that because levels of perchlorate have decreased in two states that have set strict limits for perchlorate (CA and MA, at 6 parts per billion or ppb and 2 ppb respectively), the other 48 states don’t need to be protected, is absurd,” said Erik Olsen, NRDC’s senior strategic director for health.

Withdrawals and Proposals

The EPA had concluded a month ago that perchlorate levels in drinking water were at safe levels after analyzing monitoring data collected since 2011, when under the Obama administration, it determined a nationwide standard was needed for the chemical.

Last year, the agency proposed four options for perchlorate regulation, which included withdrawing its 2011 finding to set national standards.

Other options included its then-preferred approach to set a standard of a maximum allowable limit of 56 micrograms of the chemical in a liter of water.

The EPA said Thursday it was going with its fourth option: to withdraw its 2011 finding that set the stage for setting drinking water limits.

(Adds comment from Perchlorate Information Bureau in ninth and tenth paragraphs.)

To contact the reporters on this story: Sylvia Carignan in Washington at; Amena H. Saiyid in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Chuck McCutcheon at