NRDC Sues to Protect Kids from Perchlorate in Tap Water

The toxic chemical is a component of rocket fuel, munitions, and fireworks—and has already been found in drinking water in 26 states.

Today we sued the U.S. Environmental Protection Agency (EPA), challenging the agency’s recent decision to reverse itself and refuse to set a standard for the toxic chemical perchlorate in drinking water. The lawsuit, filed in the U.S. Court of Appeals for the D.C. Circuit in Washington, seeks to overturn the Trump EPA’s decision (published on July 21, 2020) to allow unlimited amounts of toxic perchlorate in our tap water. EPA administrator Andrew Wheeler reached this decision even though his agency admits that toxic perchlorate is found in millions of Americans’ tap water and that this hazardous chemical can harm the developing brains of children, especially fetuses and infants.

As I discussed at greater length in an earlier blog, perchlorate is a component of rocket fuel, munitions, and fireworks. Contamination often occurs as a result of pollution from Department of Defense (DOD) or DOD contractor facilities. The toxic chemical has been found in the drinking water of at least 26 states and in as many as 16 million peoples’ drinking water systems. When EPA delayed setting a standard, states like California and Massachusetts went ahead and set their own standards. Because of this widespread contamination and scientific studies indicating that perchlorate can interfere with the thyroid gland and harm development of the brain in children, EPA found in February 2011 that a standard is needed for perchlorate in drinking water. It was this determination that EPA reversed in July 2020.

Because of the unlawful delay, NRDC sued EPA in the Southern District of New York federal court to force the agency to comply with the Safe Drinking Water Act and set a perchlorate standard. A court-approved consent decree resolving that case required EPA to set a standard for perchlorate in drinking water by June 2020 (after a few extensions). NRDC also filed a motion in that court recently, seeking an order requiring EPA to move forward with establishing a drinking water standard for perchlorate, as explicitly required by paragraph 5 of that consent decree.

EPA’s justification for reversing its finding is that it re-evaluated the data and found that its earlier findings that low levels of perchlorate are dangerous were too protective. The agency had originally established a “reference dose” (or supposedly safe level) in 2002 that would translate into a safety level of about 1 part per billion (ppb) in tap water. Later, after the Department of Defense and White House intervened and pressed for a review by the National Academy of Sciences (a review that we have noted was tainted by heavy DOD and industry influence), EPA set a new health advisory for perchlorate of 15 ppb in 2008.

In its latest review, the Trump EPA found that 56 ppb would be an acceptable exposure limit. EPA said that even at the lowest level it would consider acceptable, 18 ppb, there are not enough people exposed at that level to warrant regulating perchlorate. What EPA fails to grapple with is that there is substantial evidence that levels far below 18 ppb are dangerous to fetuses and infants. That led Massachusetts to set a standard of 2 ppb and California to set a standard of 6 ppb (and California health officials have recently reduced their health goal for perchlorate to 1 ppb and are considering lowering their enforceable standard). As my previous blog details, EPA’s earlier monitoring data found that about 16 million Americans receive water from systems that exceeded 4 ppb; we don’t know how many million more people’s water exceeds 1 ppb, the level EPA originally suggested (and now California has found) is the highest level expected to be without health risks. EPA now asserts that since Massachusetts and California have taken regulatory action, the number of people exposed has probably come down. But the agency didn’t consider that perchlorate contamination was likely spreading from many dump sites across the country while it dawdled, or that millions of people across the country are still receiving water far in excess of a perchlorate level that experts, state officials, and the American Academy of Pediatrics expect to be safe.

The time has come for EPA to return to its original mission of protecting human health and the environment. The agency should establish an enforceable drinking water standard for perchlorate that protects vulnerable people, especially our children. Since the current EPA management will not do so voluntarily, we are seeking relief from the courts to force the agency to comply with the law and to follow the scientific evidence.