The federal government has always been the regulatory leader in protecting the public from the impacts of dangerous chemical compounds and hazardous waste that industry produces every day. Your leaders in Congress saw fit in the 1970’s to create strict and comprehensive laws that regulate the byproducts of the chemical industry, where virtually no laws existed in the decades before. The United States quickly established far-reaching laws governing all means of monitoring and addressing environmental impacts caused by dangerous chemical byproducts, through the new Clean Air Act, a Clean Water Act, a Safe Drinking Water Act, and RCRA and CERCLA, or the “Superfund” law, which together established a liability scheme for regulating, from cradle to grave, the handling and disposal of hazardous waste. Congress also established the Environmental Protection Agency (“EPA”) in the federal government, and gave EPA broad authority to implement the wide range of laws that Congress adopted. In the 1990’s, Congress amended the Safe Drinking Water Act to allow EPA to begin to aggressively monitor, analyze, and regulate the effect of newer chemical compounds that industry introduces to the marketplace every day, but which we know little about, until sometimes it’s too late.
In the name of innovating, chemical industry continuously creates chemical compounds that, on their own or in combination, can have adverse human impacts that we sometimes can’t fully assess until after decades of exposure. Congress recognized the need to monitor and avoid the harmful impacts of newer chemical compounds before problems become widespread and unwieldly. Under the law, Congress gave the EPA the power to create lists of unregulated chemicals that present potential health threats, as well as the authority to establish Maximum Contaminant Levels (MCLs) for those chemicals. Industry and government simply don’t have the resources that it would take to eliminate any trace of all potentially harmful substances from the environment, and practically speaking, treating the air and soil and water to remove any trace of a potentially harmful substance might not be necessary, anyway. For the sake of MCLs, Congress gave EPA the ability to measure safer levels of chemical compounds in the environment, so that government and industry can fashion quicker and cost-effective treatment limits.
Newer chemical compounds can be cost-effective and very efficient for their intended use in our daily lives, but their effect on human health can quickly become harmful, even in shorter-term exposures. PFAS and PFOS, for example, are man-made chemicals which have been used in the packaging industry for decades, and are in a variety of other consumer products, but they’re used more recently as a chemical fire retardant. These chemicals have been found to seep through the ground and into the water supply around New Jersey and parts of Pennsylvania. This emergence has dramatically brought the public’s focus on their harmful health effects.
The need to regulate perfluorinated compounds (PFCs), such as PFAS and PFOS, to prevent harm to public health is clear, but the process of regulating them under existing laws – which is frequently effective – isn’t so simple. It can take years for government and industry to establish meaningful and effective regulatory standards. While it might seem that time is always the enemy in the process of establishing treatment limits, where the need for quick action is obvious, it’s just as important to establish rules that are meaningful and not subject to arbitrary change. Government can one day establish an MCL that might seem attractive because it’s so strict, but the cost of implementing treatment processes for strict MCLs could be exorbitant. It’s not just industry that must incur those treatment costs; local governments have their own, publicly-owned water treatment plants that provide safe and clean drinking water to homes and , but taxpayers must incur the burden of dramatic swings in the costs of quickly implementing new treatment processes, and the price of those costs will appear in tax and utility bills in short order. Public attention to the impact of PFCs brings home the complex world that we’re all responsible to manage. As far as we’ve come in a few short decades in establishing safe and reliable sources of drinking water, innovation in manufacturing and industry continues to introduce new substances to the air and water that we don’t fully understand, sometimes for years. And when problems develop, it can seem as though our regulatory system is virtually helpless. But that’s far from the truth, and none of us should back down from advocating for innovative controls, or from seeking redress from industry where the costs of treatment shouldn’t be left to consumers and taxpayers.
The government and regulatory affairs team here at Malamut & Associates, with over 65 years of experience working closely with State, County, regional, and local governments and authorities, on a host of environmental, water supply, and public finance matters, is uniquely positioned to serve government and the private sector on the best response to emerging contaminants in our water supply.