Jordan Kari is regulatory and government affairs coordinator for the Water Quality Association. Kari can be reached at [email protected].
Serving as the guiding principles across various industries and sectors, regulations aim to keep individuals, the public and the environment safe. Sometimes, regulatory red tape creates unnecessary obstacles for the private sector in an effort to comply with inherently complex and confusing regulations. Ultimately, over-regulation can be detrimental, hindering innovation and having a direct impact on a business’ ability to utilize its time and resources effectively1. So, at what point do unnecessary and inefficient regulations and a top-down governance approach become obsolete?
A brief overview of current federal programs and regulations will shed light on possible avenues to implement the Agile Governance Framework² to support regulatory compliance. Industry-led governance can be utilized effectively in a number of sectors, including the water treatment industry. By aligning industry standards with regulations as outlined under the Federal Insecticide Fungicide and Rodenticide Act (FIFRA), the U.S. EPA may be able to utilize this form of public-private governance to remove unnecessary requirements for water filtration systems.
Federal Insecticide, Fungicide & Rodenticide Act
Under the charge of the EPA Office of Pesticide, FIFRA regulates antimicrobial pesticides and pesticidal devices. This policy includes products intended to disinfect, sanitize, reduce or mitigate the growth of microbiological organisms as well as products that protect against contamination or deterioration caused by bacteria, viruses, fungi, protozoa, algae or slime. Therefore, products and technologies intended to support microbiological mitigation used in drinking water systems, industrial processes, water systems and other aquatic areas are regulated under FIFRA.
There are two major categories specified within the regulations: Pesticides and Pesticidal Devices. As outlined in the Intent Test, it is crucial to understand the central focus of FIFRA’s definition of a Pesticide or Device is largely dependent on the product’s intended purpose and capabilities. Many water filtration systems fall under the device category, as these systems rely on mechanical removal and make claims to remediate or repel bacteria, cysts, and/or viruses. Thus, subjecting water filtration systems to a variety of labeling, testing, registration and other regulatory compliance measures. This regulation has a cascading impact on the manufacturers of these products. Specific labeling, packaging and other clerical and administrative requirements are time-consuming. And the lack of guidance by EPA creates confusion leading to penalties in compliance and ultimately becomes costly.
There are several industry standards associated with remediation claims that could trigger FIFRA, such as NSF/ANSI 53 for cyst reduction using filtration and NSF/ANSI 55 for UV systems, among others. As many of these systems certify such claims to industry standards via Certifying Bodies (CBs) accredited through the American National Standards Institute (ANSI) National Accreditation Board (ANAB), one can argue that certified water filtration products may already be going through a more robust process to ensure the performance and safety of these systems.
Read about FIFRA on the WQA Website.
Third-Party Compliance in Federal Agencies
The notion of using third-party certification to verify compliance with federal regulations has been used by a variety of different agencies and industries. There are currently eight federal regulatory third-party programs in force. Spanning from the Food and Drug Administration (FDA), Consumer Product Safety Commission (CPSC), Federal Communication Commission (FCC), Occupational Safety & Health Administration (OSHA), Agricultural Market Service (USDA AMS), to the Department of Energy (DOE) and EPA, these agencies utilize third-party programs to support and verify regulatory compliance3.
The EPA’s Energy Star and WaterSense programs have been able to effectively rely on third-party groups to test and verify energy efficiency and water conservation ratings, respectively.
Although these initiatives are slightly outside the scope of the water treatment and conditioning industry, the agency has made recent developments in applying the same concept of aligning industry standards with regulations. For example, WaterSense and EPA have recently published a notice of intent (NOI) for Point-of-Use (POU) Reverse Osmosis (RO) systems.
To achieve 40% water efficiency criteria, the agency is investigating the feasibility of achieving such criteria, the trade-offs, and the industry perspective on the topic. Despite this endeavor’s early stages, this would not be the first EPA rule that would potentially mandate standards that usually are voluntary.
EPA “Lead-Free” Rule
The EPA Lead-Free Rule is a prime example of how a federal agency can align industry standards with regulations. The final rule codifies changes to the Reduction of Lead in Drinking Water Act of 2011 (RLDWA) and the Community Fire Safety Act of 2013 (CFSA) with the goal of protecting public health from the risks associated with lead exposure.
The rule requires that a manufacturer — introducing a new product into the marketplace — to comply with weighted average lead content requirements. However, certification by an ANSI-accredited certification body would not be required until September 1, 2023. Certification standards are being recognized by the EPA to ensure compliance with the final ruling: NSF/ANSI Standard 372 and NSF/ANSI/CAN Standard 61.
Alternative Pathway to Compliance
Using the aforementioned models as well as the Agile Governance Framework, fostering responsible industry-led governance is a viable and proven method of addressing regulatory compliance.2,3 Through third-party groups and CBs like WQA, NSF International, and IAPMO, the ability to test, verify and certify the performance of water filtration devices uniquely positions these entities to support compliance for FIFRA. Allowing CBs to provide certification for pesticidal devices could also shift some of the regulatory costs for the private sector and EPA.3 Furthermore, the diversity of industry-led governance mechanisms would still permit conventional compliance measures for FIFRA.2
Through the evolution of the water treatment industry, recognized accreditation and certification bodies may be a possible avenue for mitigating the regulatory burden associated with compliance. As CBs alike WQA, NSF International, IAPMO and others have a more robust testing and certification process and are closer to the intricacies and complexity of industry standards, and have a vested interest, an opportunity arises to support the EPA in protecting the public health and environment.
Resources:
- Laffer, William. “How Regulation Is Destroying American Jobs.” The Heritage Foundation, 1993, https://www.heritage.org/government-regulation/report/how-regulation-destroying-american-jobs.
- “Agile Regulation for the Fourth Industrial Revolution: A Toolkit for Regulators.” World Economic Forum, 2020, https://www.weforum.org/pages/agile-regulation-for-the-fourth-industrial-revolution-a-toolkit-for-regulators
- McAllister, Lesley K. “Agency Use of Third-Party Programs to Assess Regulatory Compliance.” Agency Use of Third-Party Programs to Assess Regulatory Compliance | Administrative Conference of the United States, University of San Diego School of Law, 2012, https://www.acus.gov/recommendation/agency-use-third-party-programs-assess-regulatory-compliance.
