American Water Works Association v. Environmental Protection Agency

No. 80-1048 (D.C. Cir. May 2, 1985)

The court holds that the Environmental Protection Agency's (EPA's) monitoring program for total trihalomethanes (TTHMs) meets the Safe Drinking Water Act's mandate to protect the public health. EPA requires only quarterly monitoring, and determines compliance with the maximum contaminant level (MCL) using a running annual average of the quarterly samples. This program admittedly allows peak concentrations of TTHMs to exceed the MCL. However, EPA has determined that TTHMs present risks from long-term exposure only. This, coupled with the high variability of TTHM concentrations, renders EPA's decision, that its program protects the public health, reasonable.

Counsel for Petitioner
Fred E. Schlegel, George W. Pendygraft
Baker & Daniels
810 Fletcher Trust Bldg., Indianapolis IN 46204
(317) 636-4535

Counsel for Petitioner-Intervenor
Marian K. Agnew
1740 Dumbarton St., McLean VA 22101
(703) 241-0993

Counsel for Respondent (EPA)
Lawrence R. Liebesman
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 23986, Washington DC 20026-3986
(202) 633-2281

Kenneth Gray
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7706

Before Bork and Friedman,^* JJ.

[15 ELR 20441]

Wald, J.:

Memorandum

All parties in this case settled except pro se intervenor Marian K. Agnew. Agnew challenges the adequacy of the monitoring program for total trihalomethanes ("TTHMs") established by the Environmental Protection Agency ("EPA") in its final rule regulating the control of TTHMs in drinking water. See National Interim Primary Drinking Water Regulations; Control of Trihalomethanes in Drinking Water, 44 Fed. Reg. 68,624 (1979). Specifically Agnew contends that the monitoring program is not in accordance with the Safe Drinking Water Act's mandate to protect public health, 42 U.S.C. § 300g-1, because it only requires analyses be performed at quarterly intervals which is too infrequent given the frequent variation of TTHM concentrations; and because it provides that compliance with the .10 maximum contaminant level ("MCL") set by EPA for TTHMs shall be determined on the basis of a running annual average of quarterly samples. Agnew argues that the monitoring program'saveraging method masks the public's exposure to peak levels of TTHMs: whereas the annual average TTHM level may be below the MCL, a particular quarterly average or sample level within a quarterly average may be substantially above the MCL.

In Environmental Defense Fund, Inc. v. Costle, 578 F.2d 337 [8 ELR 20200] (D.C. Cir. 1978), this court addressed a similar challenge to the adequacy of a monitoring program for lead and cadmium in drinking water. EDF argued that more frequent sampling should be required and that the sampling locations and the number of samples to be taken should be specified. In upholding the EPA's monitoring program the court stated:

An agency has discretion in selecting the techniques appropriate for grappling with a problem and carrying out its functions. We cannot at this point say that EPA's approach to the formulation of monitoring regulations is without a rational basis. As data accumulate on local variations in lead and cadmium levels, the agency will be in a position to formulate a more refined approach to monitoring — either by amending the interim regulations or by designing the revised and secondary regulations to reflect such local conditions. Should the agency fail to do so, we will have another case before us.

Id. at 350 (footnotes omitted). In the present case, we find that EPA met the requirements set out in EDF v. Costle: EPA tailored the TTHM monitoring program to detect local variations in TTHM levels to the extent feasible based on the information available concerning such variations.

Noting that TTHM concentrations may vary widely on a day-to-day [15 ELR 20442] basis at various points in a system and that the intent of monitoring is to provide a "reasonable representation of the normal concentrations of TTHMs," EPA concluded that "it would be unreasonable at this time to demand the kind of pinpoint control that would be necessary to maintain TTHM levels below a particular figure at all times and at all locations in a distribution." 44 Fed. Reg. 68,631. Thus with respect to the frequency of sampling, EPA found that quarterly samples were "the minimum acceptable frequency in those places where the water has a potential for seasonal variability in TTHM levels." Id. EPA further specified that a minimum of four samples is required for each treatment plant used by the system. No less than 25% of the samples must be collected at locations within the distribution system reflecting maximum residence time of the water (i.e., where TTHM concentrations are likely to be the highest). Id.

Agnew argues that this monitoring scheme is inadequate because it cannot assure detection of violations before they cause a health risk. Agnew, however, cites no evidence that peak exposures are singularly harmful. EPA concluded that the monitoring program will assure detection of unsafe levels prior to the time a violation will cause a health risk. This conclusion is based on EPA's finding that TTHMs do not present acute or short-term risks but rather chronic or lifetime risks resulting from long-term exposure. We find that the EPA made a reasonable plicy decision based on the evidence currently available regarding the risks posed by exposure to TTHMs. Cf. EDF v. Costle, 578 F.2d at 349 (frequency of monitoring acceptable because harmful effects of lead and cadmium in drinkingwater generally result from chronic exposure). Thus, given the degree of variability in TTHM levels and the long-term nature of the risks of exposure, we find no error in EPA's determination that some variations are tolerable and that the calculation of a running annual average based on quarterly samples is an appropriate method of assuring compliance with the MCL.

In sum, this court finds that EPA properly considered the evidence in the record together with comments putting forth the arguments advanced by Agnew and reasonably concluded that the TTHM monitoring program met the requirements of assuring public safety within the limits of feasibility. We further note that, as in EDF v. Costle, these are interim regulations which are subject to continuing evaluation and revision. The interim regulations may be amended or necessary modifications may be incorporated when the revised and secondary regulations are promulgated. See EDF v. Costle, 578 F.2d at 340, 350. Finally, noting that TTHM concentrations are dependent on highly site-specific factors, EPA has strongly urged states to review local systems to assure the monitoring program is adequate for particular local systems.Cf. EDF v. Costle, 578 F.2d at 349-50.

Judgment

This case was heard on a petition to review a final rule issued by the Environmental Protection Agency. The issues were briefed and argued. After according full consideration to the issues presented, we find they occasion no need for a published opinion. See Local Rule 13(c). On consideration thereof, it is

ORDERED and ADJUDGED, by this Court, that the petition for review is hereby denied for the reasons set forth in the attached Memorandum. It is

FURTHER ORDERED, by this Court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See Local Rule 14, as amended on November 30, 1981 and June 15, 1982.This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

* Of the United States Court of Appeals for the Federal Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a).