Natural Resources Defense Council, Inc. v. E.P.A., s. 85-1840
| Decision Date | 31 July 1987 |
| Docket Number | 85-1853 and 86-1160,85-1850,Nos. 85-1840,s. 85-1840 |
| Citation | 824 F.2d 1211 |
| Parties | , 263 U.S.App.D.C. 231, 56 USLW 2147, 17 Envtl. L. Rep. 21,100 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. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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 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.
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.
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 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 of such compounds. For the carcinogenic VOCs, the agency tentatively determined to set the recommended levels at zero, reasoning that any exposure to these compounds would present a risk to human health.
The agency rulemaking here under review followed in November of 1985. The rulemaking assigned recommended levels to eight VOCs according to a three-category scheme. Category I comprised known or probable carcinogens, which the agency concluded should have recommended levels of zero. EPA determined that five of the VOCs properly belonged in this category. One of these five was trichloroethylene, or "TCE." EPA acknowledged that the evidence of TCE's carcinogenicity was more equivocal than was the evidence for the other four VOCs in this category, but the agency nevertheless decided to regulate TCE as a probable carcinogen. The EPA placed one VOC, vinylidene chloride, in Category II--VOCs for which there is some equivocal evidence of carcinogenicity. EPA decided not to treat vinylidene chloride as a carcinogen, and it did not set a recommended level of zero for the compound. Rather, the agency decided to establish a recommended level for vinylidene chloride based on the compound's risk of causing non-cancerous liver and kidney damage. In setting the actual recommended level, however, the agency factored in the equivocal evidence of vinylidene chloride's carcinogenicity. The EPA placed the remaining two VOCs in Category III--contaminants for which there is inadequate or no evidence of carcinogenicity--and assigned recommended levels above zero to these compounds.
These consolidated petitions for review followed. They raise three basic claims. The first is that the agency should not have promulgated recommended levels of zero for all VOCs it considered to be known or probable carcinogens. The second is that the EPA unreasonably characterized TCE as a probable carcinogen. The third claim, brought by NRDC, is that the EPA was required to set a recommended level of zero for vinylidene chloride in light of the agency's finding that the compound is a possible carcinogen. We examine these contentions in turn.
Faced with the unenviable task of challenging the goal of a total absence of known or probable carcinogens in the nation's drinking water, industrial petitioners offer two arguments. The first of these is the contention by petitioners Chemical Manufacturers Association and American Petroleum Institute that the EPA's decision to set recommended levels of zero for the five Category I VOCs was based solely on a misconception that the Drinking Water Act compelled such a result. In support of this claim, petitioners cite language in the order in which the agency refers to a "mandate" from Congress. Petitioners also maintain that the agency placed undue reliance on a passage from the Drinking Water Act's legislative history that states that in cases where there is no safe threshold for a contaminant, the recommended level "should be set at the zero level." See H.R.Rep. No. 1185, 93rd Cong., 2d Sess. 20 (1974) U.S.Code Cong. & Admin.News 1974, pp. 6454, 6473. In petitioners' view, the agency considered itself bound to set a recommended level of zero for all known or probable carcinogens, overlooking the possibility that such contaminants do have a tolerably safe threshold within the meaning of the Drinking Water Act.
The record soundly contradicts petitioners' characterization of the EPA's decisionmaking. The rule under review noted that the agency had requested comments on three distinct options for setting recommended...
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