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Utilities Want to Use EPA Chemicals Law to Protect Drinking Water

Aug. 10, 2020, 10:01 AM

A pair of water associations are teaming up to urge the EPA to use all its regulatory tools to safeguard drinking water as it decides whether to allow new chemicals into U.S. commerce.

The Association of State Drinking Water Administrators (ASDWA), which represents state, tribal, and territorial water agency officials, recently joined the Association of Metropolitan Water Agencies, which represents publicly owned metropolitan drinking water suppliers, to routinely flag their concerns about new chemicals to the Environmental Protection Agency.

The entry of public water officials into debates on the EPA’s decisions about new chemicals—ones that have never been made in or imported into the U.S.—is spurred by the growing recognition of the Toxic Substances Control Act’s (TSCA) potential to affect public health, the environment, numerous industries, and the economy. States are also wrestling with emerging contaminants like 1,4-dioxane and per- and polyfluoroalkyl substances (PFAS), which get into drinking water sources.

The two water groups have met with the EPA’s chemicals office, which has responded to some of their requests to make it easier to find some of the agency’s environmental and other analyses, said Wendi Wilkes, ASDWA’s regulatory and legislative affairs manager. The EPA uses such analyses to decide whether a new chemical can be made or imported, and if, for example, its releases to water should be restricted or banned.

“We’re mostly trying to start a conversation,” said Stephanie Hayes Schlea, director of regulatory and scientific affairs for metropolitan water group known as AMWA.

The groups’ goal is to protect source water, senior staff from both associations said in a recent joint interview. Keeping problematic new chemicals out of water would help avoid higher water bills for ratepayers, caused when water companies have to upgrade technologies to remove new kinds of pollutants, Schlea said.

Perspectives from groups like AMWA and ASDWA are a valuable part of the agency’s efforts to improve its new chemicals program, EPA spokeswoman Molly Block said.

EPA Must Respond

The utilities’ efforts to sway the EPA are unusual, said Thomas C. Berger, a partner specializing in chemicals regulation at Keller and Heckman LLP.

Historically, only chemical industry groups or specific manufacturers would object or recommend changes to a new chemical regulation, known as a significant new use rule or SNUR, he said.

“Whether any particular comment will result in EPA publishing a final SNUR that differs from the proposal is largely a matter of speculation,” Berger said by email.

The EPA is required to address comments, he said. So the utilities’ effort could affect how the agency regulates new chemicals, leaving manufacturers to decide how much time and money they want to spend developing such chemicals, Berger said.

Multiple Concerns, No Changes

AMWA has submitted at least a dozen new chemical regulation comments to the EPA since August 2018. ASDWA in June began commenting on the agency’s proposed rules.

Both groups say their focus on new chemicals stems from three factors: the 2016 TSCA amendments, which flag sources of drinking water as important; 1,4-dioxane, which states such as New York have begun to regulate; and PFAS, a huge group of chemicals dubbed “forever chemicals” for their environmental persistence.

States are regulating PFAS because some of these chemicals increasingly are detected in sources of drinking water, are expensive to remove from drinking water, don’t break down in the environment, and can be toxic.

To see the latest updates on state-level PFAS regulations and legislation, check out Bloomberg Law’s PFAS State Activity Tracker here.

In deciding whether to comment, water utilities look at whether a proposed rule allows a new chemical to enter surface water, whether the chemical could easily migrate into groundwater, and whether it would be difficult to remove from water, Schlea said.

The groups then flag these general concerns in comments, such as one the AMWA filed in July on proposed rules for four chemicals, and a similar one the state administrators also filed in July regarding rules for five chemicals. The EPA bundles new chemical rules together, so a single regulatory notice may propose rules for more than 100 new chemicals.

The agency hasn’t taken specific actions to respond to or revise its proposed rules in response to the groups’ comments, said Block, the agency spokeswoman. Controls the agency already made to protect drinking water addressed their concerns, she said.

Instructional Webinars

Meanwhile, the state drinking water group is hosting a webinar series that offers an overview of TSCA, describes its link to the Safe Drinking Water Act, and explains how both laws can affect drinking water and environmental health.

The series lets state drinking water programs, water utilities, and other stakeholders know about opportunities to comment on EPA policies and rules, Wilkes said.

The plan is to keep working with the EPA to urge it to take a more “holistic” approach, and use all available authorities to protect source water, officials from both groups said.

Growing Awareness

The utilities’ efforts are part of a broader trend in which new businesses are recognizing the chemicals law can affect them, said Richard E. Engler, director of chemistry at the law firm Bergeson and Campbell PC.

“More and more people are realizing that they are TSCA stakeholders, and they need to be aware and engaged with the law on both existing and new chemicals,” said Engler, whose firm advises the TSCA New Chemicals Coalition, a group of chemical manufacturers that share experiences or concerns about the agency’s new chemicals program.

But voicing general concerns may not achieve specific goals, said Engler, who worked in the agency’s chemicals office for 17 years before joining Bergeson and Campbell.

The EPA already looks at a substance’s potential to expose people or aquatic life using very conservative, or protective, assumptions as it reviews a company’s request to make a new chemical, he said. For example, the agency often assumes wastewater treatment wouldn’t remove any amount of a chemical, he said.

If there’s too great a possibility that the new chemical might harm people or the environment, “then EPA imposes restrictions to protect against this risk,” EPA’s Block said by email, adding that the agency can also ask for more information.

Comments that are specific to the new chemical the EPA is examining and that identify errors, missing information, or other problems in that a specific case are most likely to elicit changes in its the proposed rule, Engler said.

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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