Senators Support Lawsuit Over Arsenic Rule

Several senators joined a Natural Resources Defense Council lawsuit filed\r\nyesterday challenging the Bush administration's suspension of the new\r\narsenic-in-tap-water standard.

The Natural Resources Defense Council (NRDC) filed a lawsuit yesterday challenging the Bush administration''s suspension of the new arsenic-in-tap-water standard.

Several senators joined NRDC''s suit as amici curae, or "friends of the court," opposing the rule''s suspension.

NRDC and the legislators held a press conference on Capitol Hill yesterday to denounce the Bush administration''s violation of the Congressional deadline for a final arsenic rule.

"The Bush EPA''s suspension of the arsenic is a distressing, unscientific and illegal threat to the health of millions of Americans," said Erik D. Olson, an NRDC senior attorney. "There is no excuse for delaying or weakening the standard just finalized in January of this year."

Sens. Barbara Boxer, D-Calif., Harry Reid, D-Nev., and other legislators announced their support of NRDC''s suit.

Olson said they indicated that they will file an amicus curae brief in support of NRDC''s effort to overturn the arsenic rule''s suspension.

NRDC''s lawsuit, filed in the U.S. Court of Appeals for the D.C. Circuit, dismissed EPA Administrator Whitman''s flawed argument that although the agency has suspended the rule, it has not violated the law''s requirement that the updated standard must be in place by June 22, 2001.

Other key claims in the litigation include:

  • EPA unlawfully reversed its position on the arsenic rule without scientific or legal justification.
  • EPA violated procedural and substantive requirements of the Safe Drinking Water Act and Administrative Procedure Act in suspending the arsenic rule.

Although the Bush administration says it will issue the new standard next year and ensure it is enforced in 2006, Olson said, EPA has failed to respond to arguments from water utilities and states that they will be unable to implement the suspended rule in this compressed time frame.

In addition, EPA''s suspension of the "right to know" provisions of the arsenic rule, which require water utilities to notify the public between no later than July 2002 of the level of arsenic in their water and the health implications of drinking arsenic in their tap water, also will delay and undermine public health protection, according to NRDC.

The group believes tortured history of arsenic regulation makes it clear that this is extremely unlikely.

"After 25 years of delays, at least three missed statutory deadlines, and broken promises to update an outdated standard, the government is unlikely to honor its promises of expeditious action," said NRDC. "Moreover, EPA made a legal finding in its January 2001 rule that it would take water systems five years to comply with a new arsenic standard. The agency likely will face stiff legal challenges from industry if it tries to cut this five-year compliance period when -- and if -- it issues a new arsenic standard in 2002 and seeks to require compliance within four years."

The arsenic standard EPA issued in January would have lowered the maximum

allowable level of arsenic in tap water from the current standard of 50 parts per billion, which was established in 1942, to 10 parts per billion.

NRDC and other public health advocates believe that EPA should have lowered the standard for arsenic in drinking water to 3 parts per billion.

The agency proposed a 5 parts per billion standard in June 2000, but increased it to 10 parts per billion last January in response to industry pressure.

Olson noted that EPA took more than two decades to develop this rule, and Congress has repeatedly ordered EPA to update the standard over the last 25 years.

In 1996, Congress ordered EPA action on arsenic for the third time, making January 2001 the deadline for a new standard. An appropriations rider in the fall of 2000 extended the deadline to June 22, 2001.

In February 2000, NRDC issued a report documenting widespread exposure to arsenic in tap water across the nation.

The U.S. Geological Survey subsequently published a study reaching a similar conclusion, with a national map showing arsenic occurrence in ground water.

EPA finally proposed the new standard in June 2000 because NRDC sued, Olson said.

"Unfortunately, President Bush apparently won''t listen to reason or scientific evidence," he added, "so NRDC is left with no choice but to sue."

by Virginia Sutcliffe

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