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Negotiated rulemaking addresses health and cost concerns fairly.

For the Past year, I have been NLC's representative at a negotiated rule-making o n disinfectants/disinfection byproducts in drinking water convened by the U.S. Environmental Protection Agency.

This negotiaton will result in three final federal regulations which will set requirements for all municipal water suppliers both public and private.

Negotiators have now agreed on three regulations:

* Disinfectants/Disinfection By-products (D/DBP);

* Enhanced Surface Water Treatment Rule (ESWTR); and

* Information Collection Rule (ICR).


Disinfectants (principally chlorine, chloramines and chlorine dioxide), are required by federal law, in drinking water to prevent outbreaks of cholera, typhoid fever, etc. It has recently been determined that by-products from disinfection (the combination of disinfectants with naturally occuring organic compounds in source water) are carcinogenic. There is also some evidence (not necessarily conclusive) that disinfection by products may also be contributing factors to some birth defects like spina bifida, for example.

To simply stop disinfecting drinking water is not an option. The health risks from failure to disinfect drinking water can be as high as 120 deaths per 100,000 people. The risk from disinfection by-products, alternatively, are one death per million people (1 x 10-6).

In attempting to comply with provisions of the Safe Drinking Water Act which require the development of maximum contaminant levels (MCLs) for 25 new contaminants every three years, EPA opted to develop MCLs for disinfection by-products (trihalomethanes [THMs] and haloacetic acids [HAAs]).

The law requires EPA to set Maximum Contaminant Level Goals (MCLGs) for contaminants that are carcinogenic at zero. Maximum Contaminant Levels are required by law to be set as close to the MCLG as is technologically feasible. The dilemma facing EPA involved how to avoid the certain health threat from removing disinfectants from drinking water supplies while also protecting water supplies from "contaminants" - which in this case are purposely introduced into public water supplies - that are carcinogenic.

EPA convened the negotiated rulemaking in part because they were unsure how to proceed, in part to assure a "buy-in" from the stakeholders. Part of any final agreement by the participants, is an agreement not to sue the agency.


Participants in the development of this regulation included Don Johnson, formerly with the South Central Connecticut (New Haven) Regional Water Authority, Joe Glicker, with the Portland (Oregon) Bureau of Water and Ed Means, with the Metropolitan Water District of Southern California.

In addition, associations representing private water suppliers (the American Water Works Association [AWWAI]), the environmental community (e.g., Natural Resources Defense Council [NRDC), Environmental Defense Fund [EDF]), state drinking water officials (e.g., Association of State Drinking Water Agencies [ASDWA], National Association of Regulatory and Utility Commissioners [NARUC]), state and local public health officials, and consumer groups. I participated on behalf of NLC and was the only elected official at the table.


The water supply community (the experts on these highly complex and technical issues) believes the final outcome is significantly better than what EPA would have done without a negotiated rule- marking. The final agreement sets standards for THMs and HAAs of 80 and 60 Parts per billion (ppb) respectively (current law standard is 100 ppb).

The agreement includes a commitment to another negotiated rule making in 1998 pending results of the studies and information collection scheduled to occur in the interim. A tentative new standard in the agreement is 40/30 ppb but these numbers are not binding. If no agreement can be reached in 1998, EPA has the option to finalize the lower numbers or to repropose alternatives.

Given the law's requirement that MCL's for carcinogens must be set as close to zero as feasible, had the agency promulgated a standard higher than zero it would have assuredly been challenged and, in all likelihood, overturned by the courts. Signatories to the negotiated rule-making agree not to file negative comments on the issues on which there was consensus or to challenge the rule in court.

Signing the agreement would also preclude NLC from suing on the provisions in the final regulation that "have the same substance and effect" as the recommended rule, but would not preclude any individual member of NLC from freely commenting or filing suit on any or all issues.

Also, signing the agreement would also make it inappropriate for NLC to develop or adopt policy contrary to the provisions in the regulations.

I believe the product of the negotiated rulemaking is an honest and fair attempt to address and balance both the health concerns - given the current state of knowledge - and the cost implications for municipal water suppliers and consumers.

Furthermore, the agreement involves a commitment to develop a more substantial information base and an enhanced research effort to justify further regulatory requirements on disinfectant by-products.

Bob Hirsch is a council-member from Myrtle Beach, S.C. and Chair of NLC's Energy, Environment and Natural Resources Committee.
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Author:Hirsch, Robert J.
Publication:Nation's Cities Weekly
Date:Aug 30, 1993
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