City of Waukesha v. E.P.A.
| Decision Date | 25 February 2003 |
| Docket Number | No. 01-1028.,No. 01-1033.,No. 01-1037.,No. 01-1034.,01-1028.,01-1033.,01-1034.,01-1037. |
| Citation | 320 F.3d 228 |
| Parties | CITY OF WAUKESHA, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. Village of Sussex Water Commission, et al., Intervenors. Radiation, Science & Health, Inc., Petitioner, v. Environmental Protection Agency, Respondent. Nuclear Energy Institute, Inc., Petitioner, v. Environmental Protection Agency, Respondent. National Mining Association, Petitioner, v. Environmental Protection Agency, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John C. Martin, Michael B. Wigmore, Curt R. Meitz, and David C. Lashway argued the cause for the petitioners. John N. Hanson, Brian L. Doster, Justin A. Savage, Jean V. MacHarg, Susan M. Mathiascheck, Donald P. Gallo, H. Stanley Riffle, Phillip J. Eckert, Paul F. Reilly, John S. Noble, Richard M. Glidden, Anthony J. Thompson, Robert W. Bishop, James B. Harvey, Suzanne K. Schalig, William Von Arx, and Dennis M. Duffy were on brief.
Daniel M. Flores and Christopher Peak, Attorneys, United States Department of Justice, argued the cause for the respondent. Karen Clark, Attorney, United States Environmental Protection Agency, was on brief.
Before: HENDERSON, ROGERS, and GARLAND, Circuit Judges.
Opinion for the court filed PER CURIAM.
The petitioners — the City of Waukesha and its water utility customer Bruce Zivney, trade associations Nuclear Energy Institute ("NEI") and National Mining Association ("NMA"), and advocacy group Radiation, Science & Health ("RSH") — seek review of regulations promulgated by the Environmental Protection Agency ("EPA") pursuant to the Safe Drinking Water Act of 1970 ("SDWA" or "Act"), 42 U.S.C. §§ 300f et seq. The challenged regulations establish standards governing radionuclide levels in public water systems. Specifically, they set the maximum contaminant level goal ("MCLG") and the maximum contaminant level ("MCL") for radium-226 and radium-228, naturally occurring uranium, and various beta/photon emitters. Petitioners contend the regulations violate the SDWA and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., ("APA") because in setting the radionuclides standards EPA did not (1) properly conduct required cost-benefit analyses; (2) use the "best available science" to determine the appropriate MCLGs and MCLs; or (3) adequately respond to comments submitted during the rulemaking. For its part, EPA contests petitioners' standing to challenge the regulations and defends the standards on the merits. We conclude that all petitioners except RSH have standing and that EPA complied with the requirements of the SDWA and the APA.
The SDWA generally applies to "each public water system in each State," 42 U.S.C. § 300g, and authorizes EPA to set standards for drinking water contaminants therein, 42 U.S.C. § 300g-1(b). For a given contaminant the Act directs that EPA first establish an MCLG which is "the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety." Id. § 300g-1(b)(4)(A). EPA is then to set an M.C.L. "as close to the [MCLG] as is feasible." Id. § 300g-1(b)(4)(B).
In 1976 EPA promulgated interim regulations that established MCLGs and MCLs for radionuclides, which are materials that emit radiation as they decay from one elemental form to another. The regulations established an M.C.L. of 5 picocuries/Liter (pCi/L)1 for the isotopes radium-226 and radium-228; a combined M.C.L. of 4 millirems (mrem)2 for all beta/photon emitters; and no M.C.L. for naturally-occurring uranium. See National Interim Primary Drinking Water Regulations, 41 Fed.Reg. 28,402, 28,404 (July 9, 1976).
In 1991 EPA proposed new MCLs for the radionuclides: 20 pCi/L for radium-226 and -228; 4 mrem effective dose equivalent ("ede") for the beta/photon emitters;3 and 20 micrograms per liter (µg/L) or 30 pCi/L for naturally occurring uranium. See National Primary Drinking Water Regulations; Radionuclides, Notice of Proposed Rulemaking, 56 Fed.Reg. 33,050, 33,051 (July 18, 1991).
In 1996 the Congress amended the SDWA to, inter alia, add an "anti-backsliding" provision requiring that any water regulation revision "maintain, or provide for greater, protection of the health of persons," 42 U.S.C. § 300g-1(b)(9), and to require the agency to consider the relative costs and benefits in setting each MCL, id. § 300g-1(b)(3)(C), (4)(C).
In April 2000 EPA issued a "Notice of Data Availability" ("NODA") proposing that the 1991 radionuclide MCLs be revisited in light of "new information" and the 1996 amendments. National Primary Drinking Water Regulations; Radionuclides, 65 Fed.Reg. 21,576 (Apr. 21, 2000).4 The 2000 NODA proposed maintaining the 1976 MCLs for radium-226 and -228 and for beta/photon emitters and set MCLs for naturally occurring uranium at either 20, 40, or 80 µg/L. EPA further proposed revising the 1976 radium monitoring regimen — which required public water systems to test for radium-228 only if the radium-226 level exceeded 3 pCi/L — to require separate testing for each of the two isotopes. The NODA further set June 20, 2000 as the deadline for submitting comments on the proposed rule and its underlying data and analysis.
In December 2000 EPA issued the final radionuclides rule, National Primary Drinking Water Regulations; Radionuclides, 65 Fed.Reg. 76,708 (Dec. 7, 2000) (Final Rule). As it had proposed, EPA retained the 1976 standards for radium-226 and -228 and for beta/photon emitters and instituted the separate radium isotope monitoring requirement. Id. at 76,710-11. For uranium, however, the final rule set the M.C.L. at 30 µg/L. Id. at 76,710. Petitioners filed timely petitions for review of the final rule.
Petitioners bring several challenges to the 2000 final rule. First, they argue that EPA failed to publish a cost-benefit analysis for the radium and beta/photon MCLs as required by SDWA § 1412(b)(3)(C)(i), and that the agency's cost-benefit analysis of the uranium M.C.L. fell short of the requirements of the SDWA and the APA. We discuss those arguments in Parts III and IV, respectively. Petitioners also attack the radium, uranium, and beta/photon MCLs on their merits, and we consider those challenges in Parts V, VI, and VII, respectively. Finally, petitioners assert that EPA, in violation of the APA, failed adequately to respond to comments in promulgating the 2000 final rule. We discuss that assertion in Part VIII. EPA defends against each of petitioners' arguments on the merits, and in turn, contests petitioners' standing to bring their petitions, an argument to which we now turn.
First, we address the threshold issue of our jurisdiction, specifically, whether petitioners have standing to raise their claims. Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002). In analyzing whether a party has standing, the court must determine whether there is "(1) injury-in-fact, (2) causation, and (3) redressability." Id. In alleging an injury-in-fact, petitioners must show that "EPA's alleged failings have caused a traceable `concrete and particularized' harm ... that is `actual or imminent.'" Id. (quoting Am. Petroleum Inst. v. United States Envtl. Prot. Agency, 216 F.3d 50, 63 (D.C.Cir.2000)). To establish this, petitioners "must demonstrate that there is a `substantial probability' that local conditions will be adversely affected." Id. In addition, in evaluating the standing of an association to sue on behalf of its members, the court must determine that
(1) at least one of [the association's] members would have standing to sue in his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an individual member of the association participate in the lawsuit.
The burden of making these showings rests on the petitioner in an agency review case. Id. at 899. "In such cases ... the petitioner ordinarily will have participated in the proceedings before the agency," and therefore the administrative record will establish the relevant facts for the petitioner to show standing. Id. The petitioner must "either identify in that record evidence sufficient to support its standing to seek review or ... submit additional evidence to the court of appeals," id., although additional evidence is unnecessary if its "standing to seek review of administrative action is self-evident," id. at 899-900. In explaining how petitioners should satisfy that burden, Sierra Club, decided June 18, 2002, announced that "henceforth" petitioners must include in their opening briefs sufficient evidence to demonstrate their standing. Id. at 900. "Absent good cause shown, ... a litigant should not expect the court" to allow petitioners to submit affidavits post-oral argument in order to support their standing arguments. Id. Because the opening briefs in this case were filed before our decision in Sierra Club, and EPA has not objected to the filing of supplemental affidavits, our resolution of the question of standing is based on the submissions in petitioners' opening briefs as well as on the supplemental affidavits submitted, with the permission of the court, after oral argument. See, e.g., United States Telecom Ass'n v. FCC, 295 F.3d 1326, 1330 (D.C.Cir.2002).
The administrative record shows that the City of Waukesha would face substantial costs if it was required to comply with the 1976 radium-226 and -228 regulations. EPA has not disputed that record evidence. This is sufficient for injury-in-fact. Moreover, Waukesha has shown, and EPA does not dispute, that maintenance of the 1976 regulations will cause Waukesha's injury. EPA contends, however, that, to the extent that...
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