City of Portland, Oregon v. E.P.A.
| Decision Date | 06 November 2007 |
| Docket Number | No. 06-1068.,06-1068. |
| Citation | 507 F.3d 706 |
| Parties | CITY OF PORTLAND, OREGON, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. City of New York, New York, Intervenor for Petitioner. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Caroline H. Wehling, Assistant General Counsel.
Susan E. Amron, Assistant Corporation Counsel, was on the brief for intervenor City of New York in support of petitioner. Christopher G. King, Counsel, entered an appearance.
Diane Curran was on the brief for amici curiae Oregon Wild, et al. in support of petitioner.
Timothy Donaldson and Charles B. Roe, Jr. were on the brief for amicus curiae City of Walla Walla, Washington.
Before: GINSBURG, Chief Judge, and SENTELLE and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
In this case Portland and New York City challenge an Environmental Protection Agency rule regulating microbial contaminants in drinking water. The rule requires the two cities to take several steps to eliminate the parasite Cryptosporidium from their drinking water. The cities challenge the rule on many grounds, arguing that EPA improperly conducted a required cost-benefit analysis, provided inadequate notice and opportunity for public comment, ignored significant comments on the draft rule, failed to use the best available science, and issued a final rule unsupported by the record. Because we find the cities' arguments either meritless, irrelevant, or both, we deny the petition for review.
Cryptosporidium is a parasite found in human and animal feces. When ingested, it can cause cryptosporidiosis, which generally leads to mild flu-like symptoms, but can be deadly in children, the elderly, and those with weak immune systems (e.g., AIDS patients). From 1984 to 2000, the United States experienced ten reported cryptosporidiosis outbreaks linked to drinking water. By far the most serious outbreak occurred in Milwaukee, Wisconsin, in 1993, killing more than fifty people and sickening hundreds of thousands of others. See National Primary Drinking Water Regulations: Long Term 2 Enhanced Surface Water Treatment Rule; Final Rule, 71 Fed.Reg. 654, 659-61 (Jan. 5, 2006) ().
Most cities try to protect against Cryptosporidium by running their "source water"—the river or lake from which they draw water—through high-tech filters. New York and Portland, however, are two of the rare large cities that do not filter their water before it reaches consumers. Instead, the two cities seek to protect public health by carefully controlling the sources from which their water originates. In particular, they have taken steps to ensure that their watersheds are entirely off-limits to human activity and domestic animals. Thus, wild animals represent the only likely cause of Cryptosporidium in their source waters.
Portland and New York are also unusual in that they use uncovered reservoirs, rather than covered reservoirs, to store their "finished water"—water that goes directly to consumers without further treatment. The cities say they have gone to great lengths to protect their reservoirs from sources of Cryptosporidium. Though located in urban areas, the reservoirs were carefully constructed to prevent runoff from draining into them, fences and security exclude people and animals from them, and overhead wires (in New York but not Portland) discourage flocks of birds from landing on them. According to EPA, however, Cryptosporidium can still enter these reservoirs via bird droppings, small animals able to penetrate the fences, and intentional human contamination.
The Safe Drinking Water Act (SDWA), 42 U.S.C. §§ 300f to 300j-26, requires EPA to protect the public from Cryptosporidium and other drinking water contaminants. Because the SDWA was the basis for the rule challenged in this case, we describe the Act's basic provisions before turning to the details of the rule at issue here.
The SDWA regulates public water systems by limiting the allowable level of contaminants in such systems. It requires EPA to set a "maximum contaminant level goal" (MCLG) for each identified contaminant at a level at which no known adverse health consequences will occur. Id. § 300g-1(b)(4)(A). It then requires EPA to set a "maximum contaminant level" (MCL) for each contaminant as close to the MCLG as is feasible. Id. § 300g-1(b)(4)(B). Under the statute, "feasible" means "feasible with the use of the best technology, treatment techniques and other means which the Administrator finds . . . are available (taking cost into consideration)." Id. § 300g-1(b)(4)(D). If EPA determines that ascertaining the level of a contaminant will be either economically or technologically infeasible—for example, because no adequate testing procedure exists—the Agency can require a certain "treatment technique" instead of an MCL. Id. § 300g-1(b)(7)(A). Treatment techniques must "prevent known or anticipated adverse effects on the health of persons to the extent feasible." Id.
Based on these requirements, EPA convened a large group of stakeholders in 1992 to develop rules to combat microbial contamination in drinking water, including Cryptosporidium. The group issued its recommendations in two stages. Acting on the first set of recommendations, EPA issued a 1998 rule that did four things relevant to the issue we face here: (1) it established an MCLG of zero for Cryptosporidium, meaning there is no safe level of Cryptosporidium in drinking water; (2) it imposed treatment techniques, rather than an MCL, to control Cryptosporidium, because EPA had earlier concluded that it would be infeasible to measure Cryptosporidium at the low levels at which the parasite can threaten human health; (3) it required that all finished water reservoirs built after the rule's issuance have covers; and (4) it required systems that filter their water to treat it for Cryptosporidium. See National Primary Drinking Water Regulations: Interim Enhanced Surface Water Treatment, 63 Fed.Reg. 69,478, 69,483-84 (Dec. 16, 1998) (codified at 40 C.F.R. pts. 9, 141, 142). The rule also warned that EPA was considering requiring that all existing finished water reservoirs be covered, but explained that the Agency needed more time to analyze the issue. Id. at 69,494.
Acting on the basis of the stakeholders' second set of recommendations, EPA issued a 2003 proposed rule that did three things: (1) it required all water systems to monitor their source water for Cryptosporidium; (2) it required systems that do not filter their water, such as New York and Portland, to treat their source water for Cryptosporidium; and (3) it imposed new requirements on existing uncovered reservoirs, giving cities with such reservoirs three options: covering their reservoirs, treating the water in them for viruses (but not Cryptosporidium), or implementing a state-approved risk mitigation plan. See National Primary Drinking Water Regulations: Long Term 2 Enhanced Surface Water Treatment Rule; Proposed Rule, 68 Fed.Reg. 47,640, 47,644-45 (proposed Aug. 11, 2003) (to be codified at 40 C.F.R. pts. 141, 142). Unlike most cities, Portland and New York were affected by all three aspects of this rule because they had uncovered reservoirs and provided unfiltered water.
The final rule, which EPA issued in 2006, was identical to the proposed rule except for two key differences. First, the final rule eliminated the risk mitigation option, forcing cities with uncovered reservoirs to cover them or treat the water in them. Second, rather than requiring treatment of finished water only for viruses, the final rule required treatment for Cryptosporidium as well. 71 Fed.Reg. at 657. Thus, under the final rule, New York and Portland have two choices: they may either treat their source water for Cryptosporidium and cover their reservoirs, or they may leave the reservoirs uncovered and treat the water for Cryptosporidium as it leaves the reservoirs. The basic idea is that at some point the two cities must treat their water for Cryptosporidium and, following treatment, protect it from potential sources of Cryptosporidium.
After EPA issued its final rule, Portland filed a petition for review pursuant to 42 U.S.C. § 300j-7(a), which gives this court jurisdiction over challenges to final EPA rules promulgated under the SDWA. We granted New York's motion to intervene. The cities challenge two of the final rule's requirements: that they either cover their reservoirs or treat the water leaving them for Cryptosporidium (the "cover or treat" requirement), and that they treat their source water for Cryptosporidium (the "source water treatment" requirement). The cities allege that EPA improperly conducted a cost-benefit analysis required by the SDWA, provided insufficient opportunity for notice and comment, and failed to use the best available science. They also argue that the rule is arbitrary and capricious because EPA failed to respond adequately to significant public comments and because the rule lacks support in the record and relies on a mistaken estimate of Cryptosporidium's infectivity (the amount of Cryptosporidium necessary to infect a person).
Before considering these arguments, we observe that amicus Walla Walla raises an entirely different issue, arguing that EPA improperly chose to use treatment techniques, rather than an MCL, to regulate Cryptosporidium. Because neither Walla Walla nor any other party raised this argument before the Agency during the rulemaking process, however, it is waived, and we will not consider it. See, e.g., Military Toxics Project v. EPA, 146...
To continue reading
Request your trial
-
Ohio Vally Envtl. Coal., Inc. v. Fola Coal Co.
...water quality standards language was a "logical outgrowth" of the earlier draft(s) of the consolidation rules. See City of Portland v. EPA, 507 F.3d 706, 715 (D.C. Cir. 2007) ("'[A]n agency may issue rules that do not exactly coincide with the proposed rule so long as the final rule is the ......
-
Air Transp. Ass'n Of America Inc. v. Nat'l Mediation Bd., Civil Action No. 10-0804(PLF).
...Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); see also City of Portland v. EPA, 507 F.3d 706, 713 (D.C.Cir.2007). As explained in more detail below, one of the plaintiffs' principal arguments calls into question the Board's interpre......
-
Invenergy Renewables LLC v. United States
...relevant to the agency's decision and which, if adopted, would require a change in an agency's proposed rule.’ " City of Portland v. E.P.A. 507 F.3d 706, 715 (D.C. Cir. 2007) (quoting Home Box Office, Inc. v. F.C.C., 567 F.2d 9, 35 n.58 (1977) ). Plaintiffs identify two problems with the Se......
-
Brennan v. Dickson
...Rule itself, or both. The agency had no obligation to respond to comments "incapable of affecting the final rule." City of Portland v. EPA , 507 F.3d 706, 715 (D.C. Cir. 2007). And the FAA responded to Brennan's Fourth Amendment concerns. See 86 Fed. Reg. at 4435-36.As for the FAA's treatme......
-
Rules for patents.
...or material to the inquiry." Id. [section] 825f(b). (202.) See 5 U.S.C. [section] 553(c). (203.) See, e.g., City of Portland v. EPA, 507 F.3d 706, 713 (D.C. Cir. 2007) ("The requirement that agency action not be arbitrary or capricious includes a requirement that the agency ... respond to '......