824 F.2d 1211 (D.C. Cir. 1987), 85-1840, Natural Resources Defense Council, Inc. v. E.P.A.

Docket Nº:85-1840, 85-1850, 85-1853 and 86-1160.
Citation:824 F.2d 1211
Party Name:17 Envtl. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator, Respondents. CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner, v. Lee M. THOMAS, as Administrator of the United States Environmental Protection Agency, Respondent. AMERICAN PETROLEUM INSTITUTE, Petitioner, v. ENVIRONMENT
Case Date:July 31, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1211

824 F.2d 1211 (D.C. Cir. 1987)

17 Envtl.

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas,

Administrator, Respondents.

CHEMICAL MANUFACTURERS ASSOCIATION, Petitioner,

v.

Lee M. THOMAS, as Administrator of the United States

Environmental Protection Agency, Respondent.

AMERICAN PETROLEUM INSTITUTE, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

HALOGENATED SOLVENTS INDUSTRY ALLIANCE, et al., Petitioners,

v.

Lee M. THOMAS, as Administrator of the Environmental

Protection Agency, Respondent,

Natural Resources Defense Council, Inc., Intervenor.

Nos. 85-1840, 85-1850, 85-1853 and 86-1160.

United States Court of Appeals, District of Columbia Circuit

July 31, 1987

Argued Feb. 27, 1987.

Page 1212

Petitions for Review of Orders of the Environmental Protection agency.

Neil J. King, with whom David F. Zoll, Arthur F. Sampson III, G. William Frick, Catherine M. Eshelman, John T. Whatley and Arnold Block, Washington, D.C., were on the brief, for American Petroleum Institute and Chemical Mfrs. Ass'n, petitioners in Nos. 85-1850 and 85-1853. Stark Ritchie,

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Washington, D.C., also entered an appearance for petitioners.

Donald L. Morgan, with whom Katherine L. Rhyne, Washington, D.C., was on the brief, for Halogenated Solvents Industry Alliance, et al., petitioners in No. 86-1160. John M. Bredehoft, Washington, D.C., also entered an appearance for petitioners.

Richard L. Revesz, with whom Jacqueline M. Warren, New York City, was on the brief, for Natural Resources Defense Council, petitioner in No. 85-1840 and intervenor in No. 86-1160. Jane L. Bloom and Sarah Chasis, New York City, also entered an appearance for petitioner/intervenor.

John A. Amodeo, Atty. Dept. of Justice, with whom Francis S. Blake, General Counsel and Kenneth F. Gray, Atty., E.P.A., Washington, D.C., were on the brief, for respondents.

Before MIKVA, STARR and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Concurring statement filed by Circuit Judge WILLIAMS.

MIKVA, Circuit Judge:

Three sets of petitioners seek review of a final rule of the Environmental Protection Agency (EPA or the agency) that promulgated recommended maximum contaminant levels (recommended levels) for eight volatile organic compounds (VOCs). The rule established recommended levels of zero for five VOCs that the EPA found to be known or probable carcinogens, a recommended level above zero for one compound the agency found to be a possible carcinogen, and recommended levels above zero for two compounds the agency determined to be non-carcinogens. Several petitioners challenge the EPA's general determination to set recommended levels for known or probable carcinogens at zero. In addition, two industrial petitioners challenge the inclusion of a particular VOC in the category of known or probable carcinogens, while petitioner Natural Resources Defense Council (NRDC) contests EPA's decision to set a recommended level above zero for the compound determined to be a possible carcinogen. Finding the agency's determinations to be well within the bounds of its authority under the Safe Drinking Water Act, 42 U.S.C. Secs. 300f-300j-9 (1982) (the Drinking Water Act), we affirm the rule in all respects and deny the petitions for review.

I. BACKGROUND

The Drinking Water Act provides the statutory framework for the rule under review. Congress amended the Act in June 1986, after the agency action under review, see Safe Drinking Water Act Amendments of 1986, Pub.L. No. 99-339, 100 Stat. 642 (1986), but, with one exception which we detail below, the amendments do not bear on this case, and we refer in this opinion to the provisions in the pre-1986 version of the Act on which the agency relied. The most important of these provisions for current concerns is section 300g-1. That section requires the Administrator of the EPA to regulate the level of contaminants in drinking water using a three-step process. The first step is the immediate promulgation of "interim primary drinking water regulations." See 42 U.S.C. Sec. 300g-1(a)(1). In the second step, which is our focus here, the Administrator must establish recommended levels for certain contaminants. To be precise, the Administrator is required to promulgate rules establishing recommended levels "for each contaminant, which in his judgment based on the report [of an independent scientific organization], may have any adverse effect on the health of persons." Id. Sec. 300g-1(b)(1)(B). If the Administrator determines that a recommended level is necessary for a particular contaminant, "such recommended maximum contaminant level shall be set at a level at which, in the Administrator's judgment based on such report, no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety." Id. The recommended levels thus promulgated are non-enforceable health goals. They serve, however, as the benchmark for the third step of the regulatory process--the promulgation

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of maximum contaminant levels (MCLs), which are federally enforceable standards. See NRDC v. EPA, 812 F.2d 721, 723 (D.C.Cir.1987). Under the Drinking Water Act, a MCL must be set "as close to the [recommended level] as is feasible." 42 U.S.C. Sec. 300g-1(b)(3). Thus, whereas recommended levels are aspirational levels set without regard to practical impediments, MCLs are set at the lowest level feasible, taking into account considerations of cost and available technology and treatment techniques.

EPA began the process that culminated in the rule under review in March of 1982, when the agency published an advance notice of proposed rulemaking for regulation of certain VOCs that had been detected in drinking water. In the notice, the agency requested comment on whether to set recommended levels for carcinogenic VOCs at zero or at "some finite relative risk level." See 47 Fed.Reg. 9356 (March 4, 1982). In June of 1984, the agency issued a proposed rulemaking, in which it announced a plan to regulate nine of the VOCs listed in the advance notice. The agency proposed recommended levels above zero for the noncarcinogenic VOCs, on the theory that an organism can tolerate and detoxify a certain threshold level...

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