Perchlorate - Regulatory Issues

Regulatory Issues

On February 11, 2011, the U.S. Environmental Protection Agency (EPA) issued a "regulatory determination" that perchlorate meets the Safe Drinking Water Act criteria for regulation as a contaminant. The agency found that perchlorate may have an adverse effect on the health of persons and is known to occur in public water systems with a frequency and at levels that it presents a public health concern. As a result of EPA's regulatory determination, it begins a process to determine what level of contamination is the appropriate level for regulation. The EPA prepared, as part of its regulatory determination, extensive responses to submitted public comments. The "docket ID" for EPA's regulatory action is EPA-HQ-OW-2009-0297 and can be found on regulations.gov.

Prior to issuance of its regulatory determination, EPA issued a recommended Drinking Water Equivalent Level (DWEL) for perchlorate of 24.5 µg/L. In early 2006, EPA issued a “Cleanup Guidance” for this same amount. Both the DWEL and the Cleanup Guidance were based on a thorough review of the existing research by the National Academy of Science (NAS). This followed numerous other studies, including one that suggested human breast milk had an average of 10.5 µg/L of perchlorate. Both the Pentagon and some environmental groups have voiced questions about the NAS report, but no credible science has emerged to challenge the NAS findings. In February 2008, U.S. Food and Drug Administration said that U.S. toddlers on average are being exposed to more than half of the U.S. EPA's safe dose from food alone. In March 2009, a Centers for Disease Control study found 15 brands of infant formula contaminated with perchlorate. Combined with existing perchlorate drinking water contamination, infants could be at risk for exposure to perchlorate above the levels considered safe by E.P.A.

The US Environmental Protection Agency has issued substantial guidance and analysis concerning the impacts of perchlorate on the environment as well as drinking water. California has also issued guidance regarding perchlorate use.

Several states have enacted drinking water standard for perchlorate including Massachusetts in 2006. California's legislature enacted AB 826, the Perchlorate Contamination Prevention Act of 2003, requiring California's Department of Toxic Substance Control (DTSC) to adopt regulations specifying best management practices for perchlorate and perchlorate-containing substances. The Perchlorate Best Management Practices were adopted on December 31, 2005 and became operative on July 1, 2006. California issued drinking water standards in 2007. Several other states, including Arizona, Maryland, Nevada, New Mexico, New York, and Texas have established non-enforceable, advisory levels for perchlorate.

In 2003, a federal district court in California found that the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) applied because perchlorate is ignitable and therefore a “characteristic” hazardous waste. (see Castaic Lake Water Agency v. Whittaker, 272 F. Supp. 2d 1053, 1059-61 (C.D. Cal. 2003)).

One example of perchlorate related problems was found at the Olin Flare Facility, Morgan Hill, California - Perchlorate contamination beneath a former flare manufacturing plant in California was first discovered in 2000, several years after the plant had closed. The plant had used potassium perchlorate as one of the ingredients during its 40 years of operation. By late 2003, the state of California and the Santa Clara Valley Water District had confirmed a groundwater plume currently extending over nine miles through residential and agricultural communities.

The Regional Water Quality Control Board and the Santa Clara Valley Water District have engaged in a major outreach effort that has received extensive press and community response. A well testing program is underway for approximately 1,200 residential, municipal, and agricultural wells in the area. Large ion exchange treatment units are operating in three public water supply systems that include seven municipal wells where perchlorate has been detected. The potentially responsible parties, Olin Corporation and Standard Fuse Incorporated, are supplying bottled water to nearly 800 households with private wells. The Regional Water Quality Control Board is overseeing potentially responsible party (PRP) cleanup efforts.