Environmental Defense Fund, Inc. v. Costle, 75-2224
| Citation | 188 U.S.App.D.C. 95,578 F.2d 337 |
| Decision Date | 10 February 1978 |
| Docket Number | No. 75-2224,75-2224 |
| Parties | , 188 U.S.App.D.C. 95, 8 Envtl. L. Rep. 20,200 ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. Douglas M. COSTLE, Administrator, Environmental Protection Agency, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Petition for Review of an Order of the Environmental Protection agency.
Erica L. Dolgin, Atty., Department of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen. and Thomas A. Larsen, Atty., Environmental Protection Agency, Washington, D. C., were on the brief for respondent. Edmund B. Clark, Atty., Department of Justice, Washington, D. C., also entered an appearance for respondent.
Stewart H. Freeman and Gregory T. Taylor, Asst. Attys. Gen., State of Michigan, Lansing, Mich., filed a brief on behalf of Environmental Protection and Natural Resources Division of Michigan, et al. as amicus curiae urging affirmance.
John S. McCreery, Washington, D. C., filed a brief on behalf of the Illinois Environmental Protection Agency as amicus curiae urging affirmance.
Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.
This case calls on us to consider the duties of the Environmental Protection Agency (EPA) under the Safe Drinking Water Act 1 passed on December 18, 1974.
In this statute, Congress responded to accumulating evidence that our drinking water contains unsafe levels of a large variety of contaminants. The Act requires the Environmental Protection Agency to promulgate regulations restricting the concentration of such substances in drinking water.
The present action is brought by the Environmental Defense Fund (EDF), a non-profit organization concerned with environmental issues. EDF challenges the adequacy of interim regulations promulgated under the Act, urging that they fail to restrict levels of certain substances that may be harmful, and fail to require adequate monitoring of other substances.
The EPA responds by stressing the poverty of clearcut information concerning the harmfulness of the substances in question, and the lack of a satisfactory method for determining their levels in drinking water. These considerations, argues the Agency, make it unfeasible to formulate more extensive regulations at the present time. The Agency's position is reinforced by the fact that the challenged regulations are interim; the statutory scheme provides for the development of more definitive regulations at a later time.
The dispute poses for this court the difficult task of determining whether the agency has exceeded the bounds of its permissible discretion, in an area characterized by scientific and technological uncertainty. Where administrative judgment plays a key role, as is unquestionably the case here, this court must proceed with particular caution, avoiding all temptation to direct the agency in a choice between rational alternatives. At the same time, we must be cognizant of our duty to scrutinize with care the actions under challenge, to determine whether a rational basis for them may be discerned. Our responsibility is particularly weighty where, as here, serious issues of public health are involved on a potentially vast scale.
The Safe Drinking Water Act provides that the Administrator of the Environmental Protection Agency shall promulgate national drinking water standards in three phases. The first phase leads to the promulgation of "interim primary drinking water regulations" (interim regulations). These regulations set maximum contaminant levels (MCL) for substances that the Administrator finds may have an adverse effect on health, or, where that is not feasible, specify treatment techniques to reduce the level of the contaminant. 2 They are intended to "protect health to the extent feasible, using technology, treatment techniques, and other means, which the Administrator determines are generally available (taking costs into consideration) on the date of enactment of this title." 3 Proposed interim primary drinking water regulations were to be published within 90 days after the passage of the Act. Final interim regulations were to be promulgated 180 days after passage of the Act. 4 The interim regulations were to take effect eighteen months after the date of their promulgation. 5
The second phase results in the promulgation of "revised national primary drinking water regulations" (revised regulations). These regulations also set MCL's or specify treatment techniques. 6 They must be formulated to reduce contaminant levels as nearly as is feasible to levels at which no adverse effects on health occur. Feasibility is to be determined with reference to the best technology generally available, taking cost into consideration.
To lay the groundwork for phase two, the Act directs the Administrator to enter into an appropriate arrangement with the National Academy of Sciences or another independent scientific organization to conduct a study to determine the existence of drinking water contaminants that may pose a health problem and, where possible, to establish safe maximum contaminant levels for these substances. A report of the results of this study is to be made to Congress within two years after passage of the Act and a summary of the report is to be published in the Federal Register. Within 90 days after publication of the report, the Administrator is required to formulate proposed revised national primary drinking water regulations, based on the findings contained in the report. Within 180 days after the date of the proposed revised regulations, the Administrator must promulgate revised regulations. These regulations are to take effect 18 months after promulgation.
The third and final phase of regulation generates "national secondary drinking water regulations" (secondary regulations). The Administrator is required to publish proposed "national secondary drinking water regulations" within 270 days after the date of the Act's passage. Within 90 days after publication of such proposed regulations, he must promulgate secondary regulations. The Act does not specify when these regulations are to take effect.
Regulations promulgated in all three phases may be amended. 7
Pursuant to statute, on March 14, 1975, the Administrator published proposed interim regulations for public comment. In the course of the proceedings, EDF challenged the adequacy of the proposed regulations. Subsequently, on December 10, 1975, the Administrator promulgated the interim regulations. In this appeal, EDF challenges four specific aspects of these regulations: 1) the failure to fully control organic contaminants in drinking water; 2) the adequacy of the MCL for fluoride; 3) the failure to regulate sodium and sulfates; 4) the adequacy of the monitoring required for cadmium and lead. It will be helpful to detail the nature of the dispute on each point.
The interim regulations provide MCL's for only six organic contaminants 8 out of the large number of such substances known to be present in drinking water. They do not specify treatment techniques for reducing organics. EDF argues that the legislative intent was that comprehensive regulation of organics should commence with the interim regulations. It points to accumulating evidence not only of the presence of large numbers of organic substances in drinking water, but of correlations between such contaminants and human health consequences, including cancer. It urges the need to set a limit on total organic content of drinking water, by adoption of some chemical measure which would serve as a surrogate for total organic content.
The EPA responds that the interim regulations were meant to be less comprehensive than the revised regulations and, more specifically, that Congress did not anticipate a comprehensive regulation of organics under the interim regulations. The EPA further stresses that the effects of long-term ingestion of organic contaminants in drinking water are not yet clear, making it difficult to set MCL's for these substances. In addition, argues the EPA, information on the efficacy and expense of available treatment techniques is incomplete. Thus, its decision to limit regulation of organics to six substances is presented as a legitimate exercise of agency discretion.
The MCL for fluoride specified by the interim regulations is based on the principle that drinking water may usefully contain sufficient fluoride to provide optimal protection against dental caries, but that the amount by which such levels are exceeded should be limited, so as to avoid undue side-effects primarily mottling of the teeth (fluorosis), a condition with only esthetic significance. The MCL established by the Administrator permits fluoride levels up to two times the optimal protective level. EDF argues that the permitted level is too high: the severity of fluorosis is proportional to fluoride concentrations; thus, permitting levels to greatly exceed the optimal therapeutic level violates the duty of the Administrator to formulate interim regulations that will protect health "to the extent feasible."
In response, the EPA cites authority to the effect that the levels in question do not pose a health hazard. 9 The EPA views the matter as essentially one of line-drawing, in which it properly exercised reasonable discretion.
Neither of these substances is controlled under the interim regulations. 10 The EDF argues that the health effects of these substances are well established 11 and that regulation was mandated by the Act.
The EPA believes that the setting of MCL's for these substances would have been inappropriate, since individual response to their presence in drinking water...
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