American Water Works Ass'n v. E.P.A., Nos. 91-1338

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore GINSBURG and RANDOLPH, Circuit Judges, and SHADUR; GINSBURG
Citation40 F.3d 1266
Decision Date06 December 1994
Docket Number91-1343,Nos. 91-1338
Parties, 309 U.S.App.D.C. 235, 25 Envtl. L. Rep. 20,335 AMERICAN WATER WORKS ASSOCIATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Association of Metropolitan Water Agencies; American Water Works Association; Lead Industries Association, Inc., Intervenors.

Page 1266

40 F.3d 1266
39 ERC 1897, 309 U.S.App.D.C. 235, 25
Envtl. L. Rep. 20,335
AMERICAN WATER WORKS ASSOCIATION, Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent.
NATURAL RESOURCES DEFENSE COUNCIL, Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Association of Metropolitan Water Agencies; American Water
Works Association; Lead Industries Association,
Inc., Intervenors.
Nos. 91-1338, 91-1343.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 16, 1993.
Decided Dec. 6, 1994.

Erik D. Olson argued the cause and filed the briefs, for petitioner Natural Resources Defense Council in 91-1343.

Kenneth A. Rubin argued the cause and filed the briefs, for petitioner American Water Works Ass'n in 91-1338.

Ronald M. Spritzer, Atty., U.S. Dept. of Justice, argued the cause for respondent in 91-1343. With him on the brief was Steven Neugeboren, Atty., U.S. E.P.A.

Steven Neugeboren, Atty., U.S. E.P.A., argued the cause, for respondent in 91-1338. With him on the brief was Ronald M. Spritzer, Atty., U.S. Dept. of Justice, Lois J. Schiffer, Asst. Atty. Gen., U.S. Dept. of Justice, entered an appearance, for respondent in 91-1338.

Hunter L. Prillaman argued the cause, for intervenors American Water Works Ass'n and Ass'n of Metropolitan Water Agencies. With him on the brief were Kenneth A. Rubin, Robert J. Saner, II, and Rebecca Burke.

Jane Luxton argued the cause, for intervenor Lead Industries Ass'n, Inc. On the brief were Edwin H. Seeger and Kurt E. Blase.

Before GINSBURG and RANDOLPH, Circuit Judges, and SHADUR, Senior District Judge. *

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

The American Water Works Association and the Natural Resources Defense Council separately petition for review of the Environmental Protection Agency's final rule under the Safe Drinking Water Act promulgating a national primary drinking water regulation for lead. The NRDC challenges the EPA's decisions (1) establishing a treatment technique instead of a maximum contaminant level (MCL) for lead; (2) setting an extended compliance schedule; and (3) declining to regulate transient noncommunity water systems. The AWWA challenges (4) the EPA's inclusion of water lines owned by others in the definition of distribution facilities under the "control" of a public water system, and thus subject to the lead line replacement regulations. The Association argues that (a) the agency failed to provide notice and an opportunity to comment on its broad definition of control; (b) the definition is impermissibly vague; and (c) the EPA's interpretation unreasonably expands the agency's jurisdiction under the statute.

We grant in part and deny in part the NRDC's petition, as follows: the EPA is not required by the Act to set an MCL for lead at the tap, and the compliance schedule is not contrary to the statute, but the agency's explanation for its decision not to regulate transient noncommunity water systems is inadequate. We grant the AWWA's petition because the EPA failed to provide adequate notice that it might adopt a broad definition of control. Accordingly, we remand this

Page 1269

matter to the EPA for a proper explanation of its noncommunity water systems policy and to provide an opportunity for public comment upon the definition of "control" it purported to adopt as part of the rule under review.

I. BACKGROUND

The Safe Drinking Water Act requires the EPA to promulgate drinking water regulations designed to prevent contamination of public water systems. 42 U.S.C. Sec. 300g-1(b). A national primary drinking water regulation (NPDWR) is one that specifies for a contaminant with an adverse effect upon human health either an MCL or a treatment technique, and establishes the procedures and criteria necessary to ensure a supply of drinking water that complies with that MCL or treatment technique. 42 U.S.C. Sec. 300f(1). An NPDWR is an enforceable standard applicable to all public water systems nationwide. In most of the NPDWRs promulgated to date the EPA has set an MCL for the particular contaminant being regulated. The EPA has the authority, however, to specify a treatment technique in lieu of an MCL if the Administrator finds that it is not "economically or technologically feasible" to determine the level of the particular contaminant in a public water system. 42 U.S.C. Sec. 300f(1)(C)(ii).

It is particularly difficult to determine the level of lead in a public water system. Less than one percent of all public water systems draw source water containing any lead. Notice of Proposed Rulemaking: Drinking Water Regulations; Maximum Contaminant Level Goals and National Primary Drinking Water Regulations for Lead and Copper, 53 Fed.Reg. 31,516, 31,526-27 (1988). Instead, most lead enters a public water system through corrosion of service lines and plumbing materials containing lead, such as brass faucets and lead solder connecting copper pipes, that are privately owned and thus beyond the EPA's regulatory reach under the Act. System-wide measurement is made still more difficult because the degree to which plumbing materials leach lead varies greatly with such factors as the age of the material, the temperature of the water, the presence of other chemicals in the water, and the length of time the water is in contact with the leaded material. Final Rule: Maximum Contaminant Level Goals and National Primary Drinking Water Regulations for Lead and Copper, 56 Fed.Reg. 26,460, 26,463-66, 26,473-76 (1991). Indeed, lead levels in samples drawn consecutively from a single source can vary significantly. Id. at 26,473-76. Measurement difficulties aside, treatment is made problematic because chemicals added to the drinking water supply in order to reduce the corrosion of pipes can increase the levels of other contaminants subject to MCLs. Id. at 26,486-87.

Recognizing the peculiar difficulty of establishing an MCL for lead in public water systems, the EPA proposed regulations that distinguish between control of lead in source water and control of lead due to corrosion. First, the EPA proposed an MCL for lead in source water, to be measured at the point where the water enters the distribution system. Second, the EPA proposed to require a treatment technique--an "optimal corrosion control treatment" supplemented with a program of public education--to be tailored specifically by each public water system in such a way as to minimize lead contamination in drinking water without increasing the level of any other contaminant to the point where it violates the NPDWR for that substance. 53 Fed.Reg. at 31,537-38.

The EPA solicited comments on this two-part monitoring and treatment proposal and on several alternatives that it was not then proposing. One such alternative was to require each public water system to replace the lead service lines it owns or controls that, after treatment to reduce corrosion, still contribute a significant amount of lead to tap water. Id. at 31,546, 31,547-48. Under this approach the EPA would erect a "rebuttable presumption" that the public water system "owns or controls and therefore can replace, the lead components up to the wall of the building served." 53 Fed.Reg. at 31,548.

In the final rule the EPA abandoned its two-part monitoring and treatment proposal in favor of a rule under which all large water systems must institute corrosion control treatment, while smaller systems must do so

Page 1270

only if representative sampling indicates that lead in the water exceeds a designated "action level." 56 Fed.Reg. at 26,550 (to be codified at 40 C.F.R. Sec. 141.81(d) & (e)). The agency also adopted a schedule that allows a public water system five or more years to comply with the regulation, depending upon the number of persons it serves, see id. at 26,480 (codified at 40 C.F.R. Sec. 141.81(a)); see also id. at 26,479-80, 26,494-97. The EPA required larger systems to come into compliance sooner than smaller systems because they are generally more sophisticated technically and have a greater impact upon the purity of drinking water; also the states, which are responsible for implementing the regulation, would benefit from experience gained with larger systems before reviewing treatment plans for smaller systems. The EPA exempted from the rule all transient noncommunity public water systems, such as those in restaurants, gas stations, and motels. 40 C.F.R. Sec. 141.80(a)(1).

Unlike the proposed rule, the final rule requires each public water system to replace each year at least 7% of the lead service lines it controls that when tested exceed a designated action level. 40 C.F.R. Sec. 141.84(b) & (d). A public water system is said to "control" a service line if it has

authority to set standards for construction, repair, or maintenance of the line, authority to replace, repair, or maintain the service line, or ownership of the service line.

40 C.F.R. Sec. 141.84(e). The rule establishes a presumption that the public water system controls every service line up to the wall of the building it serves; the system can rebut the presumption only by demonstrating that its control is limited by state statute, local ordinance, public service contract, or other legal authority. 40 C.F.R. Sec. 141.84(e). A public water system that controls only part of a service line must replace the portion under its control and must offer to replace the remaining portion, although not necessarily at the system's expense. 40 C.F.R. Sec. 141.84(d).

II. ANALYSIS

Together the petitioners raise four challenges to the EPA's final rule, which we review under the familiar framework of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Where the "Congress has directly spoken to the precise question at issue," we must give effect to its "unambiguously expressed" intent; but where the Congress has been silent or its statement is...

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