Beveridge & Diamond
 

EPA Petitioned to Set Water Quality Criteria for Endocrine-Disrupting Effects of Certain Pesticides, Pharmaceuticals, and Personal-Care Products

Beveridge & Diamond, P.C., January 13, 2010

On January 11, 2010, the Center for Biological Diversity (“CBD”) petitioned the U.S. Environmental Protection Agency (“EPA”) to establish water quality criteria under Section 304 of the Clean Water Act (“CWA”) for specific substances found in certain pesticides, pharmaceuticals, and personal-care products.  The petition is noteworthy because it alleges that the 56 targeted substances are endocrine-disruptors and requests that EPA establish water quality criteria specifically to address what CBD asserts are scientifically known threats posed by the endocrine-disrupting effects of the targeted substances. 

Under Section 304 of the CWA, EPA has authority to develop and “from time to time thereafter” revise water quality criteria that “accurately reflect the latest scientific knowledge” about the health and environmental effects of regulated pollutants.  33 U.S.C. § 1314(a)(1).  CWA Section 304 also authorizes EPA to develop and revise information on various factors relevant to protecting water quality.  33 U.S.C. § 1314(a)(2).  The CBD petition argues that EPA has a non-discretionary duty to establish updated and new water quality criteria and information for the 56 targeted substances. 

CBD’s petition suggests specific numeric criteria that EPA should adopt for many of the targeted substances.  Water quality criteria established under Section 304 may consist of numeric pollutant concentrations, and the criteria provide guidance for states and tribes to use in adopting water quality standards for specific water bodies.  States and tribes may either adopt EPA’s criteria or establish criteria based on other scientifically-defensible methods. 

To date, EPA has developed water quality criteria under the CWA for approximately 150 pollutants, including seventeen of the substances listed in the CBD petition.  The CBD petition argues, however, that the existing criteria for these seventeen substances are not stringent enough because they do not take into account the latest scientific knowledge available regarding the alleged endocrine-disrupting effects of these specific substances.  The CBD petition argues that EPA must revise the existing criteria because they were not designed to protect against any endocrine-disruptor effects.  The CBD petition also asserts that EPA must establish new water quality criteria for an additional thirty-nine pesticides, pharmaceuticals and personal care product substances, with a focus on any endocrine-disrupting effects. 

Several of the pesticides, pharmaceuticals, and personal care product substances identified in the CBD petition are already being evaluated by EPA under other laws.  Eight of the substances in the petition are included on EPA’s Contaminant Candidate List 3 (“CCL 3”), which is a list of substances under consideration for monitoring and possible regulation under the Safe Drinking Water Act.  There is also overlap between the petition and EPA’s Endocrine Disruptor Screening Program (“EDSP”) under the Federal Food, Drug and Cosmetic Act .  Eleven of the substances in the CBD petition have been identified by EPA as a Tier 1 chemical for screening in the EDSP.  Additionally, as noted above, EPA has already established water quality criteria for seventeen of the substances listed in the CBD petition.

The Center for Biological Diversity’s petition is available at:  http://www.biologicaldiversity.org/campaigns/
pesticides_reduction/endocrine_disruptors/pdfs/EPA_304_
EDC_petition.pdf
.  For more information, please contact Karen Hansen at khansen@bdlaw.com or (202) 789-6056.  This alert was prepared with the assistance of Anne Finken.