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Lack of Perchlorate Standard Paves Way for Superfund Slowdown

June 25, 2020, 3:38 PM

The EPA’s decision not to regulate perchlorate in drinking water will slow Superfund cleanups, especially in the majority of states that lack their own restrictions on the chemical, environmental attorneys said.

The Environmental Protection Agency last week announced that it wouldn’t set an enforceable limit for perchlorate, a chemical commonly used in rocket fuel.

Since entities involved in Superfund cleanups often lean on federal drinking water limits to decide how much of a chemical to remove, a lack of federal authority on perchlorate could slow that decision-making process, said Michael Blumenthal, of counsel at McGlinchey Stafford PLLC in Cleveland.

“It’s going to have a profound impact on Superfund sites that are just in the beginning process of determining what’s driving the cleanup,” he said.

California and Massachusetts regulate the amount of perchlorate in their drinking water. But in other states, “there will be no overarching federal standard that state regulators will have to bear in mind at sites with perchlorate contamination,” said Reza Zarghamee, special counsel at Pillsbury Winthrop Shaw Pittman LLP in Washington.

On the other hand, the lack of a federal standard could provide more flexibility in individual Superfund cleanups, said Louise Nelson Dyble, an associate at Troutman Sanders LLP in San Francisco.

There are about 60 Superfund sites where perchlorate is being remediated. Those sites are in Alabama, Arizona, California, Massachusetts, Maryland, North Carolina, Oregon, Texas, and West Virginia, according to the EPA.

Launch Liabilities

A federal standard would have prompted other agencies, such as the National Aeronautics and Space Administration, to test for perchlorate at their properties, attorneys said.

The EPA asked NASA to test for perchlorate at Cape Canaveral Air Force Station in Florida, according to a 2005 Government Accountability Office report. But the Air Force said it wouldn’t go beyond its limited sampling until there was a federal standard for the chemical.

Perchlorate can be found in fireworks and fertilizers as well as in rocket fuel, and can cause developmental impairment in fetuses, according to the GAO. 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.

“One could imagine that responsible parties would be hesitant to incur significant expenses to address this contaminant without knowing the ‘target’ they would have to attain,” Zarghamee said.

More Flexibility for Sites?

But Dyble, from Troutman Sanders, said a site-specific approach could also provide a wider range of cleanup options that might better suit a community’s unique needs.

“The development of a remediation plan is a collaborative process that brings in all types of stakeholders,” she said. “To be successful, to be effective, and to protect the public interest, there needs to be some flexibility built into that process.”

The EPA is 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. The agency asked the court last week to terminate the consent decree.

The Natural Resources Defense Council, which brought the initial complaint against the agency in 2016, has until July 9 to explain to the court why the EPA should still be required to regulate perchlorate.

The agency’s decision (RIN:2040-AF28) not to regulate the chemical under the Safe Drinking Water Act will become final once it is published in the Federal Register.

To contact the reporter on this story: Sylvia Carignan in Washington at scarignan@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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