(C) Minnesota Reformer
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Minnesota Department of Health isn’t properly enforcing drinking water law, and kids will suffer [1]
['More From Author', 'March', 'Jean Wagenius']
Date: 2023-03-02
The Minnesota Department of Health recently began a formal rulemaking process to establish safe drinking water standards for 17 contaminants and update 19 other existing standards. These standards are called health risk limits, or HRLs. When the process is complete, Minnesota law says that these rules “shall have the force and effect of law.”
That sounds good to those worried about drinking water contamination and especially its impact on infants and children. But the Statement of Need and Reasonableness, or SONAR — which is used by MDH to justify the new rules — tells a different and very troubling story.
There are two major flaws in MDH’s plan. First, MDH is not updating their out-of-date nitrate HRL standard, so too many Minnesotans will continue to drink unsafe water. Second, MDH has announced in advance that it has no intention of enforcing its rules.
Nitrogen/Nitrate Pollution
MDH must update the nitrate HRL standard. In large areas of Minnesota, groundwater used for drinking water is susceptible to pollution. Agriculture’s overuse of nitrogen in these areas is a major contaminant. The Environmental Working Group reports that many private wells have unsafe levels of nitrogen under today’s outdated HRL standard.
Minnesota statutes establish the criteria MDH must follow to develop safe drinking water standards. Health standards “must… include a reasonable margin of safety to adequately protect the health of infants, children and adults….”
The existing outdated nitrate HRL doesn’t do that. It is based on a 1962 federal standard. MDH acknowledges that this old federal standard is based on “outdated methods.” (See p. 80 of the SONAR report.)
If MDH were to develop a new HRL for nitrate, it would be based on human health alone. It would use new updated water intake rates that protect infants and children who drink more water per body weight than adults. (See p. 12 of the SONAR report.)
And, it would use current health science. In this case, current health science supports a more protective nitrate standard. It is 2023. We should be long past using adult-based standards that fail to protect more vulnerable infants and children. Minnesota law requires it.
A significant number of private wells and public water system wells are contaminated with nitrogen. Private well owners need current and transparent information so they know if their well water should not be used for drinking, and public well operators need to know if they must upgrade their treatment systems.
Choosing not to enforce laws
The rulemaking process establishes rules that “shall have the force and effect of law.”
Yet, in the SONAR, MDH repeatedly says it won’t enforce the new HRLs, and that state agencies and others can just use the HRLs as voluntary guidance. “MDH is not proposing enforceable standards but adopting further guidance for risk managers and our partners to use in their evaluation and mitigation work.”
MDH adds: “HRL values are but one of several sets of criteria that state groundwater, drinking water, and environmental protection programs may use to evaluate water contamination.” (Emphasis added.)
In effect, MDH used the Health Standards Law to justify the need for a rulemaking, but by refusing to enforce the rules, MDH makes that law meaningless. While that may be welcome news for polluters, the result is that the law no longer protects the health of infants, children and adults.
MDH justifies its choice to not enforce HRLs by claiming that it isn’t required to because statutes don’t tell it how HRLs should be used. “Because the HRL rules must establish limits for contaminants, rather than specify how to apply the health-protective numbers, MDH does not apply or enforce them.”
That evasion of responsibility ignores the statute setting out the responsibilities of the commissioner of health. Minnesota Statute 144.05 says the commissioner “shall be responsible for the development and maintenance of an organized system of programs and services for protecting, maintaining, and improving the health of the citizens. This authority shall include…(3) establish and enforce health standards for the protection and the promotion of the public’s health….” (Emphasis added.)
The commissioner of health is required to enforce standards; the manner of enforcement is left up to the commissioner.
Public policy makers, including Gov. Tim Walz, say they want to give all children the opportunity to reach their potential. Good for them. But, since we don’t know how much unsafe drinking water robs children of their potential, the right course of action is to make sure that every child has safe drinking water.
MDH’s culture of avoiding its responsibility to protect drinking water is in dire need of change. This challenge of reform starts with the new MDH commissioner, but doesn’t end there. Other state agencies have been complicit in letting groundwater/drinking water degrade. Walz must tell his state agencies — and Minnesotans — that safe drinking water is a must for all today’s children. They cannot wait.
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[1] Url:
https://minnesotareformer.com/2023/03/02/minnesota-department-of-health-isnt-properly-enforcing-drinking-water-law-and-kids-will-suffer/
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