EPA Faces Another Safe Drinking Water Act Lawsuit

The Waterkeeper Alliance, Waterkeepers Chesapeake, and California Coastkeeper Alliance (the organizations) recently filed a lawsuit against the EPA, claiming that the agency has sorely neglected its duties under the Safe Drinking Water Act. The organizations believe that the EPA has not updated regulations for currently regulated contaminants, been reluctant to regulate new contaminants in public drinking water systems, and missed mandatory deadlines under the Act.

The Safe Drinking Water Act’s primary goal is to ensure the safety of public drinking water, and the Act does so through national primary drinking water regulations. These regulations apply to public water systems, which constitute a water system with at least 15 connections that serves at least 25 individuals water for human consumption. Each regulation establishes a maximum contaminant level (MCL) that is an enforceable legal limit for the contaminant in drinking water supplies. It is the EPA’s duty under the Act to confirm that proper procedures are followed to comply with each MCL and to ensure that the public’s drinking water is safe for public consumption.

One of the basis of the organizations’ case is that the EPA has not updated the MCLs for certain contaminants. For instance, the organizations focus on tetrachloroethylene and trichloroethylene. Tetrachloroethylene is used as dry-cleaning fluid and for degreasing metals, while trichloroethylene is used for degreasing metals as well. Both contaminants can cause liver problems and an increased risk of cancer. In 2010, the EPA determined that these contaminants were candidates for regulatory revision. Fed. Reg. 15499 (Mar. 2010). However, despite this the EPA has yet to declare a revised regulation for these contaminants.

Additionally, the lawsuit asserts claims relating to chromium, including hexavalent chromium, a contaminant made famous by Erin Brokovich. The organizations want the court to order the EPA to revisit the chromium MCL based on a 2010 National Toxicology Program study that “found clear and convincing evidence of carcinogenic activity” and “observed noncancer effects” from chromium. (See, 75 Fed. Reg. at 15530). Even though this study showed extreme adverse effects from chromium ingestion, the EPA continues to defer making a determination on the regulation of chromium, claiming its own health assessment that was initiated in 2007 or 2008 is ongoing. The EPA states on its webpage that there is not a schedule deadline for this assessment, and once it is complete it will evaluate whether a new MCL is needed.

Unregulated Contaminants

Due to an extreme outbreak of cryptosporidium in 1993, the Act was amended by Congress in 1996 to include new mandates for unregulated contaminants. Under these amendments, the EPA is required to publish a list of unregulated contaminants to be monitored by public water systems, publish a list of previously unregulated contaminants that are candidates for regulation, and determine whether at least five unregulated contaminants should be regulated. The EPA is required to repeat each of these actions every five years. In their lawsuit, the organizations allege that the EPA has regularly missed nearly every one these deadlines.

Specifically they are concerned with EPA’s failure to issue regulations for currently unregulated contaminants and publish a Contaminant Candidate Lists (CCL) on a timely basis. CCLs are a list of currently unregulated contaminants that are known or anticipated to occur in PWSs. The organizations claim that the EPA has consistently missed every deadline for publishing each CCL, including not yet publishing the most recent CCL, which was due by February 6, 2018. In their complaint, the organizations specifically state that the “EPA’s pattern of non-compliance with the SDWA demonstrated that the agency lacks effective internal governance to ensure that the mandatory statutory deadlines imposed by this important health and safety legislation are met.” Waterkeeper Alliance Inc. et al. v. U.S. Environmental Protection Agency et al., 1:19-cv-00899 at 23 (S.D.N.Y. 2019).

Since the Flint water crisis, there has been increased scrutiny of the EPA related to the Safe Drinking Water Act. However, it remains to be seen whether this lawsuit will be successful in compelling EPA action.