ELR Citation: ELR 20335
No(s). s. 91-1338, -1343 (D.C. Cir. Dec 6, 1994)

The court holds that the U.S. Environmental Protection Agency (EPA) permissibly set a treatment technique rather than a maximum contaminant level (MCL) for lead in promulgating a national primary drinking water regulation (NPDWR) for the contaminant under §1412 of the Safe Drinking Water Act (SDWA). The court first upholds EPA's interpretation of "feasible," as used in SDWA §1401(1)(C), to allow the Agency to set a treatment technique rather than an MCL for lead. A single national standard for lead is not suitable for every public water system and Congress did not clearly intend to require that EPA set an MCL for a contaminant merely because it can be measured at a reasonable cost. The court next upholds as reasonable EPA's interpretation of §1412(b)(10)'s requirement that NPDWRs "shall take effect 18 months after the date of their promulgation" as restricting the Agency from imposing an NPDWR's requirements on public water systems earlier than 18 months after promulgation. Congress clearly contemplated that the date on which a regulation takes effect would not necessarily be the date on which the regulation would be implemented or enforced. Moreover, Congress did not expect each state to approve within 18 months the various components necessary to design treatment techniques in compliance with the regulations, particularly at the risk of compromising effective treatment for lead. Thus, it is reasonable for EPA to interpret the 18-month provision to further the Act's overall goal of safe drinking water. The court next remands to EPA for a more detailed justification its decision to exclude transient, noncommunity water systems from compliance with the NPDWR for lead. The court holds that although EPA failed to explain adequately its basis for the exclusion, vacatur is not necessary, because the Agency has a long-standing policy of excluding transient systems from NPDWRs for non-acute contaminants and the Agency apparently inadvertently failed to document its decision to treat lead pursuant to this policy. The court next vacates the regulation insofar as it deems privately owned lead service lines to be within the "control" of a public water system for the purpose of subjecting the lines to the lead line replacement regulations. EPA failed to provide adequate public notice in the proposed regulation that it would adopt a novel definition of "control" in the final regulation. Although EPA referred often in the notice of proposed rulemaking to the scope of control exerted by a public water system, it never treated "control" as a term of art or otherwise in need of definition. Thus, it was reasonable for the regulated industry not to doubt that its control over a service line ends at the private-property line.

Counsel for Petitioner
Kenneth A. Rubin
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 467-7000

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

Before GINSBURG and RANDOLPH, Circuit Judges, and SHADUR, Senior District Judge.^*