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Natural Resources Defense Council v. EPA

Citation: 17 ELR 21100
No. Nos. 85-1840 et al., 824 F.2d 1211/26 ERC 1305/(D.C. Cir., 07/31/1987)

The court holds that the Environmental Protection Agency's (EPA's) November 1985 rule establishing recommended maximum contaminant levels for eight volatile organic compounds is within its authority under the Safe Drinking Water Act (SDWA). The court first holds that EPA's decision to establish recommended levels of zero for five known or probable carcinogens was reasonable. EPA did not misconceive its obligations under the SDWA by considering itself bound to set zero levels for known or probable carcinogens. EPA made a considered judgment that such contaminants have no safe threshold. The court rules that EPA is not required to make a threshold finding of significant risk before it can regulate a contaminant. Industry petitioners' reliance on the Supreme Court's decision in Industrial Union Department, AFL-CIO v. American Petroleum Institute (the Benzene case), 10 ELR 20489, is misplaced. The statutory language of the Occupational Safety and Health Act interpreted by the Supreme Court in Benzene differs significantly from the SDWA's statutory scheme. Further, Benzene applies only if Congress has not specifically set the agency's regulatory agenda. In this case, the 1986 SDWA amendments specifically direct EPA to regulate the VOCs at issue.

The court next holds that EPA's decision to categorize trichloroethylene (TCE) as a probable carcinogen, resulting in the promulgation of a zero recommended level, was rational. EPA made a reasonable choice to categorize TCE as a probable carcinogen based on a rational evaluation of conflicting scientific studies.

The court holds that EPA's decision to set a recommended level above zero for vinylidene chloride after the agency had determined that it was a possible carcinogen was reasonable. While a threshold requirement that a compound be found to be carcinogenic by a preponderance of the evidence before EPA will set a zero recommended level would probably be an abuse of EPA's discretion under the SDWA, there is no indication that EPA has adopted such a policy. Further, EPA had adequate support for its conclusion that evidence of vinylidene chloride's carcinogenicity was sparse and equivocal. EPA's decision not to set a zero recommended level based on this conclusion also did not violate the SDWA, which grants EPA discretion to determine whether there is sufficient evidence to justify establishing a recommended level. EPA's decision to decline to establish a recommended level based on vinylidene chloride's carcinogenicity but to take account of this risk in setting a recommended level based on the compound's other toxic effects was not arbitrary and capricious. The SDWA authorizes EPA to consider risks other than those that prompted its preliminary decision to regulate the compound when it establishes the recommended level. EPA did not depart from a prior policy in setting a nonzero recommended level for vinylidene chloride, since it never had a prior policy under which it would have set a zero level.

A concurring judge would not have considered whether the SDWA requires a threshold finding of significant risk under Benzene in view of the clear mandate in the 1986 SDWA amendments.

Counsel for Petitioners
Neil J. King
Wilmer, Cutler & Pickering
2445 M St. NW, Washington DC 20037-1420
(202) 663-6000

Counsel for Respondent
John A. Amodeo
Office of General Counsel
United States Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Before: MIKVA, STARR and WILLIAMS, Circuit Judges.