Role of Safe Drinking Water Act in Protecting Health

G THE B IN EN V C R H E

A N 8 D 8 B 18 AR CE www. NYLJ.com SIN Volume 255—NO. 91 Thursday, May 12, 2016 Environmental Law Expert Analysis Role of Safe Drinking Water Act in Protecting Health

he quality of public drink- Compensation, and Liability Act are ing water is threatened by generally designed to protect the many sources, including quality of groundwater supplies that bacteria and pathogens are or could be used as a source from municipal wastewa- of public water.2 However, the fed- By And Tter plants, pesticides and nutrients eral environmental statute designed Michael B. Edward in agricultural run-off, oil and salt Gerrard McTiernan primarily to protect the quality of from storm sewers and chemicals drinking water is the Safe Drinking discharged from industrial process- Water Act (SDWA).3 es. In the past few years, questions Numerous federal and state laws The SDWA establishes a regime about the safety of public drinking can help protect the quality of to control public water supply sys- water have arisen in Parkersburg, W. drinking water. For example, the tems and thereby ensure the quality Va.; Little Hocking, Ohio; and Hoo- Clean Water Act requires permits of drinking water. In addition, the sick Falls, N.Y. Sampling in many for discharges from all discrete SDWA attempts to protect water places indicates that drinking water supplies by managing underground supplied to public schools may The Safe Drinking Water Act injection of hazardous and non-haz- not be acceptable. As illustrated ardous wastes. Like many national establishes a regime to control by recent reports about the crisis environmental statutes, the SDWA in Flint, Mich., even the infrastruc- public water supply systems and envisions “cooperative federalism” ture that conveys drinking water thereby ensure the quality of where the federal government has and efforts to disinfect raw water drinking water. responsibility for setting standards can impair the quality of water that (especially “maximum contaminant comes from the tap. conveyances of water pollution. A levels” (MCLs)) and implementation goal of this permitting program is is carried out by states under a del- to “restore the chemical, physical, egation from the U.S. Environmental Michael B. Gerrard is a professor and direc- tor of the Sabin Center for Climate Change Law and biological integrity” of all sur- Protection Agency (EPA). at Columbia Law School, and senior counsel to face waters, including water that is In an effort to provide some Arnold & Porter. Edward McTiernan is a partner used for drinking.1 Hazardous waste background and context for recent with Arnold & Porter and former general counsel of the New York State Department of Environmental clean-ups pursuant to the Compre- national and local news reports Conservation. hensive Environmental, Response, about drinking water, this article Thursday, May 12, 2016

will review the major provisions of especially in schools. These pro- institutions such as hospitals to sys- the SDWA; discuss EPA’s approach visions have received renewed tems serving seasonal campsites. to setting MCLs; and describe the national attention in the past sev- According to EPA, there are about framework for implementation and eral months. The 1986 amendments 152,713 regulated public water operator responsibility here in New also directed EPA to develop a rule systems in the United States.7 The York State. to ensure that disinfectants (and SDWA’s requirements differ based their potentially carcinogenic by- upon the number of customers Legislative History, Overview products) are maintained at safe served and whether the public The SDWA emerged in 1974 during levels while also ensuring that pub- water system (PWS) is “community” a period of unprecedented congres- lic water supplies are protected (serving the same population year- sional activism on environmental from microorganisms. round) or “non-community” (serv- issues. Although it includes some By 1996 it became apparent that ing only transient or shorter-term unique consumer protection provi- EPA needed relief from some of populations). Requirements can sions, the act follows the familiar the mandates and deadlines in the also vary depending upon whether scheme for environmental protec- 1986 amendments. Accordingly, the source for the PWS is surface tion by mandating that EPA estab- Congress amended the SDWA to water or groundwater. lish national standards. States grant EPA greater discretion about Setting Contaminant Levels are permitted to take the lead on when and how to develop regula- enforcement and have the option of tions. The 1996 amendments also There are two categories of drink- adopting standards that are more increased the administrative penal- ing water standards. National pri- (but not less) stringent than EPA’s ties and provided federal capitaliza- mary drinking water regulations are standards. The operators of public tion grants for state revolving loans enforceable standards designed to and private water systems are then to help operators comply with the ensure the safety of drinking water; required to comply with the state standards.5 national secondary drinking water standards. standards amount to guidelines for Applicability of the SDWA In 1974, Congress expected that contaminants that impact the taste, EPA could quickly adopt a large The SDWA applies to “public water odor or color of drinking water and number of concentration-based systems,” defined as any “system thus have cosmetic (e.g., tooth drinking water standards for spe- for the provision to the public of discoloration) or aesthetic effects. cific contaminants. This proved water for human consumption These MCLs—or, in the alternative, not to be the case, and in 1986 through pipes or other constructed mandatory treatment technolo- SDWA was amended to allow EPA conveyances, if such system has at gies—are among the SDWA’s central to specify treatment techniques in least fifteen service connections or regulatory features. lieu of MCLs.4 Other additions in regularly serves at least twenty-five The SDWA establishes a multi-step 1986 were the requirements to iden- individuals.”6 The SDWA does not process that EPA must follow when tify and provide notice to persons apply to individual wells or systems establishing an MCL. The thresh- potentially affected by lead con- used for agricultural irrigation or old determination is whether the tamination of drinking water, and to other non-residential uses. contaminant may have an adverse phase in the use of lead-free mate- Public water systems range health effect and is expected to rials in plumbing systems provid- from large-scale municipal opera- occur in public water systems with ing water for public consumption, tions to systems serving individual a frequency and at levels that could Thursday, May 12, 2016

cause adverse effects, and if so, After EPA promulgates an MCL, water system or could potentially whether regulation would, in EPA’s selection of a treatment option is serve as a supply for a public water judgment, meaningfully reduce the left to the public water system. How- system.13 health risk. ever, EPA is required to provide a EPA has adopted regulations Following Congress’ instruction list of treatment technologies that establishing a nationwide Under- to address the “worst first,” EPA it finds to be effective in meeting ground Injection Control (UIC) has issued regulations setting stan- the MCL. In certain instances, EPA program governing the construc- dards for over 90 contaminants. can specify treatment technologies tion, operation, permitting and These include MCLs for radionu- rather than adopt a concentration- final closure of injection wells.14 clides, organic and inorganic com- based MCL. For example, EPA has These requirements are designed pounds and microorganisms, as elected to establish mandatory well as mandatory treatment tech- treatment technologies for disinfec- The SDWA applies to “public niques for lead and copper.8 The tion to treat microorganisms and to SDWA also requires EPA to maintain address excess turbidity. water systems,” defined as any a sort of early warning system on a “system for the provision to the Protection of Groundwater five-year cycle. Under this system, public of water for human con- as the number of MCLs grows, EPA Widespread use of deep wells to sumption through pipes or other must replenish the list of emerg- dispose of waste began in the 1930s. constructed conveyances, if such ing contaminants under evaluation Initially, underground injection was by identifying up to 30 unregulated used to dispose of brine that was system has at least fifteen service contaminants to be monitored by brought to the surface during oil connections or regularly serves at most public water systems. EPA has production. By the 1950s, chemical least twenty-five individuals.” published three such lists of emerg- companies began injecting industri- ing but unregulated contaminants al wastes into deep wells. EPA esti- to be adopted and implemented by and reportedly plans to publish its mates that approximately 700,000 states. EPA has delegated complete next list in late 2016.9 wells are used for waste disposal.12 or nearly complete authority to reg- Once EPA decides to regulate Because groundwater is the primary ulate UIC to 33 states. EPA shares a contaminant, it must set a non- source of raw water used by most responsibility in seven states and enforceable maximum contaminant public water systems, the SDWA implements the UIC program in the goal “at the level at which no known established a program for regulating remaining states and the District or anticipated adverse effects on waste disposal using underground of Columbia. the health of persons occur and injection. For these purposes, Consumer Information which allows an adequate margin underground source of drinking of safety.”10 EPA must also set an water is defined as an aquifer— The SDWA’s consumer protec- enforceable MCL, and in doing so which is “a geological ‘formation,’ tion provisions include notifica- it must also take into account the group of formations, or part of a tion requirements that apply to “feasibility” of achieving the goal. formation that is capable of yielding EPA, states and PWS operators. The MCL may be less stringent than a significant amount of water to a For example, any PWS operator the goal based upon the efficacy well or spring”—or a portion of an that becomes aware of a viola- and costs of the available treatment aquifer that is currently used as a tion of an MCL with the potential technologies.11 drinking water source for a public to cause serious health effects Thursday, May 12, 2016

based upon short-term exposure Conservation Law, DEC is authorized ••••••••••••••••••••••••••••• must notify customers within 24 to develop long-term strategies hours. In addition, operators of to maintain and where necessary 1. 33 U.S.C. §1251(a). 2. For example, CERCLA §118 requires that community public water systems restore groundwater quality. This EPA “shall give a high priority to facilities must provide annual “consumer issue has been especially impor- where the release of hazardous substances confidence reports.” tant on Long Island, where the sand or pollutants or contaminants has resulted in the closing of drinking water wells or has States, in turn, must submit annual aquifer is the sole source of drink- contaminated a principal drinking water reports to EPA describing MCL vio- ing water. Notably, in an effort to supply.” 42 U.S.C. §9618. lations. Finally, EPA must provide reserve drinking water for future 3. 42 U.S.C. §§300f–300j-26. 4. 42 U.S.C. §300g-1(b)(7)(A). annual public reports on national generations, Environmental Conser- 5. See generally 42 U.S.C. §300j-12. drinking water quality trends and vation Law §15-1528 establishes a 6. 42 U.S.C. §300f(4)(A). maintain a toll-free customer hot- moratorium on the use of water from 7. EPA, Fiscal 2011 Drinking Water and line to explain the content of con- the deepest underground formations Ground Water Statistics, EPA 816-R-003 (March 2013). sumer confidence reports.15 All of on Long Island. 8. EPA has concluded that, in most instanc- these efforts are designed to ensure Conclusion es, lead contamination is due to corrosion of that the public has ready access to the plumbing materials used in service connections owned by individual PWS custom- information about drinking water In 1974, the SDWA established ers and has adopted a mandatory treatment quality. a framework for the federal gov- technique rather than an MCL. The basic ernment to work with states to treatment technique for lead requires that SDWA in New York the PWS control the corrosivity. The regula- require that public water supplies tion also requires that the PWS must take ad- Pursuant to Public Health Law are disinfected to address water- ditional corrective action if water at the tap §201(1)(l), the New York State borne diseases and are monitored exceeds the lead action level of 15 parts per billion. 40 C.F.R. part 141, subpart I. Department of Health (DOH) has and treated for safety. This frame- 9. EPA’s most recent list of contaminant primary authority over public water work includes a system to establish candidates was published on Oct. 9, 2009, at supplies. DOH has promulgated national health-based criteria and 74 Fed. Reg. 51,850. 10. 42 U.S.C. §300g-1(b)(4)(A). regulations designed to implement requires testing to continuously 11. 42 U.S.C. §300g-1(b)(4)(D) and (7)(A). 16 the SDWA’s requirements. EPA del- identify and address emerging 12. EPA, UIC Inventory by State—2013, egated most authority to enforce the threats. https://www.epa.gov/sites/production/files/2015-10/documents/ SDWA to DOH in September 1997. As The SDWA also ushered in a pro- uicinventorybystate2013_508c_0.pdf. a result, DOH develops and enforces gram to protect underground sources 13. See 40 C.F.R. §144.3. drinking water regulations in New of drinking water from underground 14. 40 C.F.R. part 144. York, although EPA continues to pro- waste disposal through deep wells. 15. 42 U.S.C. §300g-3(c). vide oversight and retains enforce- Despite public concerns about the 16. See Public Water Supply Supervision Program, 10 N.Y.C.R.R. §§5.1 et seq. ment authority. quality of drinking water, recent well- Protection of groundwater qual- publicized incidents and declining ity in New York is largely left to investment in infrastructure, the the Department of Environmental SDWA framework has proven to be Conservation (DEC), which imple- remarkably durable and in New York ments New York’s limited UIC per- it remains the primary program for Reprinted with permission from the May 12, 2016 edition of the NEW YORK mit program. In addition, under Sec- ensuring the safety and quality of LAW JOURNAL © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 tion 15-3109 of the Environmental public drinking water. or [email protected]. # 070-05-16-18