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Chlorine Chemistry Council v. EPA

ELR Citation: 30 ELR 20473
Nos. No. 98-1627, 206 F.3d 1286/(D.C. Cir., 03/31/2000)

The court holds that the U.S. Environmental Protection Agency (EPA) violated Safe Drinking Water Act §1412(b)(3)(A)'s statutory mandate to use the best available evidence when it implemented the chloroform maximum contaminant level goal (MCLG). During rulemaking for the chloroform MCLG, EPA ostensibly agreed to a 300 parts per billion (ppb) chloroform MCLG after an EPA-convened scientific review panel concluded that chloroform would not cause cancer below a certain threshold. Nevertheless, when EPA promulgated the final rule in 1998, it set the MCLG at zero ppb because it supposedly needed to deliberate with the EPA Scientific Advisory Board (SAB) regarding departure from a zero ppb MCLG. However, on the day of oral argument, EPA issued a draft SAB report stating that it was scientifically reasonable to set a low-dosage MCLG for chloroform. EPA, consequently, moved to vacate the zero ppb.

The court first holds that the industry council challenging the zero ppb MCLG has demonstrated injury-in-fact sufficient for Article III standing. The council contends that it will face Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability for the cleanup of chloroform at Superfund sites, and it is substantially probable that a zero ppb MCLG, as compared with a non-zero one, will expose them to higher cleanup costs. The court then holds that EPA's motion to vacate the zero ppb MCLG does not obviate the need for the court to address the council's claims. Mere vacatur would not provide an adequate remedy because EPA had not indicated an intent to set a non-zero ppb MCLG and vacatur of the 1998 MCLG could automatically revive the 1994 zero ppb chloroform MCLG. Thus, the merits must be reviewed. Subsequently, the court holds that EPA unlawfully set the zero ppb MCLG by openly overriding the best available scientific evidence, which suggested that chloroform is a threshold carcinogen that did not require a zero ppb MCLG. The precedent-setting significance of the zero ppb MCLG did not impact EPA's statutory duty to use the best available evidence. Moreover, although EPA could not complete deliberations with the SAB before the 1998 deadline for the MCLG, it could not reject the best available evidence simply because of the possibility of contradiction in the future by unavailable evidence. Similarly, the possibility that a science-based non-zero ppb MCLG would fall in a certain range would justify choosing the lowest non-zero ppb MCLG, but it did not justify the zero ppb MCLG. Further, whether EPA considered the 1998 MCLG final is irrelevant to whether it represented the best available evidence. The court next holds that the council misstated their original request for relief and, consequently, the proper remedy is uncertain. Therefore, the court schedules briefing on a proper remedy.

Counsel for Petitioners
Thomas Richichi
Beveridge & Diamond
1350 I St. NW, Ste. 700, Washington DC 20005
(202) 789-6000

Counsel for Respondent
Karen L. Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Silberman and Ginsburg, JJ.