Environmental Defense Fund, Inc. v. Douglas M. Costle, Administrator, Environmental Protection Agency

578 F.2d 337, 188 U.S. App. D.C. 95, 8 Envtl. L. Rep. (Envtl. Law Inst.) 20200, 11 ERC (BNA) 1209, 1978 U.S. App. LEXIS 12682, 11 ERC 1209
CourtCourt of Appeals for the D.C. Circuit
DecidedFebruary 10, 1978
Docket75-2224
StatusPublished
Cited by26 cases

This text of 578 F.2d 337 (Environmental Defense Fund, Inc. v. Douglas M. Costle, Administrator, Environmental Protection Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Environmental Defense Fund, Inc. v. Douglas M. Costle, Administrator, Environmental Protection Agency, 578 F.2d 337, 188 U.S. App. D.C. 95, 8 Envtl. L. Rep. (Envtl. Law Inst.) 20200, 11 ERC (BNA) 1209, 1978 U.S. App. LEXIS 12682, 11 ERC 1209 (D.C. Cir. 1978).

Opinions

LEVENTHAL, Circuit Judge:

This ease calls on us to consider the duties of the Environmental Protection Agency (EPA) under the Safe Drinking Water Act1 passed on December 18, 1974.

I. INTRODUCTION

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 nonprofit 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.

II. THE STATUTORY SCHEME

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 Admin[340]*340istrator 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. Pinal 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

III. CHALLENGES TO THE INTERIM REGULATIONS

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.

A. Regulation of Organics

The interim regulations provide MCL’s for only six organic contaminants8 out of the large number of such substances known to be present in drinking water. They do [341]*341not 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Board of Trustees v. Houndstooth Mafia Enterprises LLC
163 F. Supp. 3d 1150 (N.D. Alabama, 2016)
In Re Polar Bear Endangered Species Act Listing
794 F. Supp. 2d 65 (District of Columbia, 2011)
American Wildlands v. Kempthorne
530 F.3d 991 (D.C. Circuit, 2008)
National Mining Ass'n v. Chao
160 F. Supp. 2d 47 (District of Columbia, 2001)
Alliance for Bio-Integrity v. Shalala
116 F. Supp. 2d 166 (District of Columbia, 2000)
Hüls America, Inc. v. Browner
889 F. Supp. 1 (District of Columbia, 1995)
In Re Surface Mining Regulation Litigation
456 F. Supp. 1301 (District of Columbia, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
578 F.2d 337, 188 U.S. App. D.C. 95, 8 Envtl. L. Rep. (Envtl. Law Inst.) 20200, 11 ERC (BNA) 1209, 1978 U.S. App. LEXIS 12682, 11 ERC 1209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/environmental-defense-fund-inc-v-douglas-m-costle-administrator-cadc-1978.