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Newly Adopted Standard for Arsenic Challenged as Not Protective Enough
The Natural Resources Defense Council sued the Environmental Protection Agency in federal court Dec. 14 saying the agency's arsenic standard of 10 parts per billion is not protective enough of public health (Natural Resources Defense Council v. Whitman, D.C. Cir., No. 01-1515, 12/14/01).
"When EPA finally decided to go with the 10 parts per billion standard, it didn't take into account the new National Academy of Sciences study that revealed arsenic in drinking water to be more dangerous than previously thought," said NRDC spokesman Elliot Negin.
EPA Administrator Christine Todd Whitman announced the decision to keep the 10 ppb standard, proposed during the final days of the Clinton administration, in an Oct. 31 letter to House and Senate lawmakers responsible for appropriating the agency's budget. She said the "best available science" backs a standard of 10 ppb.However, NRDC and some Democratic lawmakers have argued that updated findings from the National Academy of Sciences create the need for a standard of 5 ppb or 3 ppb (211 DEN A-3, 11/2/01). The panel concluded that men and women who consume water containing arsenic have an increased risk of developing bladder or lung cancer over their lifetime.
At 3 ppb, the increased risk is one excess cancer beyond what would be expected in a population of 1,000 people. At 5 ppb, the panel estimated an increased lung or bladder cancer risk of about 1.5 in 1,000. At 10 ppb, the risk was estimated to be greater than three in 1,000; and at 20 ppb, it was determined to be about seven additional cases per 1,000.
The Clinton administration proposed an arsenic standard of 5 ppb in June 2000 but later promulgated a final standard of 10 ppb on Jan. 22, 2001 (Fed. Reg. 6976). However, the Bush administration suspended the Clinton rule, and Whitman ordered reviews of the health, costs, and benefits factors associated with a new standard (99 DEN A-1, 05/22/01).
Although there was some dissent among environment groups and lawmakers, Whitman's announcement of a 10 ppb standard was well received by the majority of Democrats and Republicans on Capitol Hill, ending months of contentious public debate on the issue.
Industry Lawsuits Not Resolved.
NRDC's Negin expressed concern about the fate of a number of lawsuits filed in March 2001 by industry and utility groups that believe a 10 ppb standard is too stringent.
Suits filed by the National Mining Association, the American Wood Preservers Institute, the Western Coalition of Arid States, and other groups were consolidated under a single case ( American Wood Preservers Institute v. EPA, D.C. Cir., No. 01-1097, 3/1/01).
The parties agreed to a temporary suspension of the suit until March 22, 2002, by which time the Bush administration was to have promulgated a new standard. Although Whitman announced a 10 ppb standard Oct. 31, EPA has until Feb. 22, 2002, to officially publish the standard in the Federal Register .
The National Mining Association and American Wood Preservers Institute offered no comment on the prospect of settlement talks. But Melvin Pine, of the AWPI, told BNA that the litigation involves more than "just numbers involving the final standard."
Pine said industry groups are concerned that the risk assessment models used by EPA to develop a 10 ppb standard will become standard procedure in developing other rules. For one, EPA used a linear approach to measure arsenic exposure.
The methods assumes that any dose of arsenic, however small, may cause cancer. Although some scientists use a non-linear approach, EPA recommends a linear approach because scientists remain uncertain about the "mode of action" of arsenic, a known carcinogen.
Once established, Pine said such risk assessments will have "secondary uses" that could be applied to other EPA projects, such as the cleanup of mining and superfund sites.
By Mike Ferullo
Public interest group moves to intervene in lawsuit over arsenic standard
Washington, D.C., January 14, 2002 -- The Competitive Enterprise Institute filed a motion to intervene in a lawsuit brought against the Environmental Protection Agency by the Natural Resources Defense Council.
The NRDC is trying to force the EPA to lower the federal standard for arsenic in drinking water even further, a move CEI believes would do more harm than good, especially in rural communities.Late last year, the Bush Administration decided to adopt the Clinton-era standard, which changed the amount of arsenic allowed in drinking water from 50 parts per billion (ppb) to 10 ppb. The NRDC's lawsuit calls for a 3 ppb standard.
"The NRDC's demand is absolutely absurd," says Angela Logomasini, CEI's director of risk and environmental policy. "The science has failed to find any adverse impacts of arsenic in U.S. drinking water at the 50 parts per billion level, a standard that has been in place more than 50 years. Poor Americans will already suffer under the new standard of 10 ppb and some will likely disconnect to avoid the costly regulations, leaving the public to access water from substandard sources."
CEI's motion is being filed on behalf of small water suppliers in Desert Sands, New Mexico; Oberlin, Kansas; Lusby, Maryland; and Camano Island, Washington. "These water utilities operate within their own communities and do not cross state lines. As a series of recent Supreme Court decisions make clear, Congress cannot regulate such local activities under the Constitution. That is the issue we intend to raise in this case," said Sam Kazman, CEI's general counsel.
The motion to intervene has been filed in the U.S. Court of Appeals for the D.C. Circuit. The text of the motion is available at http://www.cei.org/gencon/023,02285.cfm.
Both Kazman and Logomasini said they feel their challenge can succeed.
CEI is a non-profit, non-partisan public policy group dedicated to the principles of free enterprise and limited government. For more information about CEI, visit our website at www.cei.org.
Logomasini said the arsenic issue is "the tip of the iceberg" for matters that the federal government should perhaps not be regulating. She said she is also looking into matters like regulations regarding arsenic found in wooden playground gymnasium sets, and also the regulation of radon, to see if CEI might be involved in legal challenges.
- R.J. DeLuke, Managing Editor
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