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Portland, City of v. EPA

ELR Citation: 37 ELR 20274
Nos. No. 06-1068, (D.C. Cir., 11/06/2007)

The D.C. Circuit denied petitioner cities' challenge of the U.S. Environmental Protection Agency's (EPA) Safe Drinking Water Act (SDWA) rule regulating microbial contaminants in drinking water and requiring subject cities to take several steps to eliminate the parasite cryptosporidium from their drinking water. Cost-benefit analyses are allowed under the SDWA; however, the statute requires EPA to select the most stringent feasible treatment technique for cryptosporidium regardless of the outcome of that analysis. Additionally, EPA's rule is not arbitrary and capricious because, contrary to cities' claims, EPA did consider certain comments and data even though EPA had no obligation to respond to the comments given that they were incapable of affecting the final rule. The cities' claims that EPA failed to use the best available science and issued a final rule unsupported by the record are without merit. The claim that EPA improperly chose to use treatment techniques in lieu of the maximum contaminant level is waived because it was not raised during the rulemaking process.