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Unpublished Paper
Regulating for the Public Health: Perchlorate Regulation Under the Safe Drinking Water Act Exceeds Statutory Authority
ExpressO (2013)
  • Mary Jones, Temple University
Abstract

This paper recommends rethinking the statutory framework of the Safe Drinking Water Act (SDWA) to provide a more robust rubric, to include a scientific and objective focus, for proper regulation. The SDWA is evaluated through the lens of upcoming perchlorate regulation due in February 2013.

The United States Environmental Protection Agency (EPA) regulates acceptable contaminant levels and decontamination processes for all public water systems, pursuant to statutory authority granted by the SDWA. Where the policy at work is admirable, the execution falls short.

Perchlorate occurs naturally, but also as a by-product to rocket fuel, firework, and other explosive constructions. Scientific studies confirm that perchlorate inhibits iodide uptake in the thyroid – related to neurodevelopment in fetuses and infants, and metabolic regulation in adults – but differ on what constitutes safe levels of exposure.

Little scholarship or case law can be found relating to the SDWA and the literature becomes more scant when focused on perchlorate. This paper compiles the case law and scholarship on the topic and addresses two key issues by first analyzing the debatable constitutionality of the SDWA, and second, analyzing the SDWA to determine whether the EPA can regulate perchlorate in compliance with the statute.

Most challenges to the SDWA rest on the assertion that public water systems do not participate in interstate commerce and thus cannot be reached by the Commerce Clause authority of Article I. This argument historically fails in federal courts. Though the constitutionality of the SDWA remains in question, perchlorate regulation is improper because it does not meet the statutory mandates. Instead, such regulation is an example of overregulation and extra-statutory exercises of authority by the EPA in an effort to remain relevant and expand the sphere of potential future regulation.

Keywords
  • perchlorate,
  • Safe Drinking Water Act,
  • regulation,
  • EPA
Publication Date
June 3, 2013
Citation Information
Mary Jones. "Regulating for the Public Health: Perchlorate Regulation Under the Safe Drinking Water Act Exceeds Statutory Authority" ExpressO (2013)
Available at: http://works.bepress.com/mary_jones/1/