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Unfiltered Water Systems Challenge EPA Proposed Rule

The EPA's new proposed rule on drinking water, the Long Term To Enhance Surface Water Treatment Rule (LT2ESWTR), has recently completed its comment period with strong challenges from the Unfiltered Systems Working Group, New York City (NYC), and a consortium consisting of the American Water Works Association, Association of Metropolitan Water Agencies, the National Association of Water Companies, and the National League of Cities.

The challenges are of interest to Portlanders because this proposed rule underlies much of the city's stated justification for its controversial decisions to bury the Mt. Tabor and Washington Park reservoirs, as well as to construct a $200 million membrane filtration plant at Powell Butte.

Each of these agencies maintains that EPA vastly overstates the risk of contracting cryptosporidiosis in systems with unfiltered water, and underestimates the cost of compliance. With regard to the risk of disease, the Unfiltered Systems Working Group notes that EPA's conclusions are based on estimates which are contradicted by actual data. For instance, if EPA estimates were applied to the NYC and Metro Boston's population of about 10 million, the proposed Rule would avert 145,000 to 455,000 cases of cryptosporidiosis per year. However , the actual number of cases reported in these two areas served by these two systems, both of which have active surveillance systems, have combined averages of only about 150 cases per year, none of which are directly attributable to the treated municipal drinking water. EPA estimates suggest that the number of deaths averted in the NYC and Metro Boston area would be 23-75 cases per year. Yet, over the last 6 years, there has been only 1 death attributed to crypto in NYC, and 0 deaths in Metro Boston. Again, this single death was not directly attributable to the treated municipal drinking water in NYC.

The NYC comment also criticizes EPA for basing its rule on estimates of disease rates rather than looking at actual published research. A national effort mandated by Congress and led by the Center for Disease Control and EPA to estimate the amount, if any, of disease caused by water across the country, is years overdue. Several university-based studies have found negligible crypto disease rates among HIV patients. NYC further states: "It is also interesting to note that efforts to study cryptosporidiosis have been limited by the fact that it is too difficult to find people with the illness to conduct the needed studies." NYC concludes that the public health benefit from complying with the proposed rule is vastly overestimated, and at the same time the costs are vastly underestimated.

The Unfiltered Working Group states its concern regarding the cost/benefit inaccuracies as follows, "this may cause harm to the regulated community". The group further notes that "an overestimate of risk reduces the consumer's confidence in public water supply and may be misused by less scrupulous interest groups" (page 8 Unfiltered Systems Working Group Comments on LT2SWTR).

These agencies also criticize the EPA for requiring higher levels of treatment for pristine unfiltered waters than it does for systems that have polluted source water. The group also criticizes EPA for discouraging, rather than encouraging, watershed protection as a water quality management strategy.

Where is Portland's Voice?

Portland ratepayers might be interested to note that although Portland is a member of the Unfiltered Systems Working Group, its signature is NOT on the group challenge to the EPA. Rosemary Minard, of the Portland Water Bureau, was the EPA representative to the Federal Advisory Committee during their meeting period from March 1999 - September 2000. The Unfiltered Systems Working Group document is signed by the water systems of Massachusetts (Metro Boston), New York City, San Francisco, Seattle and Tacoma, but not Portland.

Is the EPA proposed rule on unfiltered water systems likely to survive legal challenge?

Finally, the Court of the Appeals for the First Circuit, in United States v. Massachusetts Water Resources Authority, 256 F.3d 36 (1st Cir. 2001), considered whether a local municipality's (Boston) could refuse to construct an EPA-ordered filtration plant in favor of constructing more cost-effective alternative. In finding for Boston, the Court stated the municipality was entitled "to pursue its alternative approach to the extent that it could satisfy the Rule's avoidance criteria and ultimately provide a safer water supply." In light of this decision, it is likely that a challenge to proposed EPA rule on unfiltered water systems could withstand legal challenge.