ELR Citation: ELR 20095
No(s). 3:91CV00058 (E.D. Va. Sep 30, 1992)

The court dismisses challenges by environmental groups to the U.S. Environmental Protection Agency's (EPA's) approval under §303 of the Federal Water Pollution Control Act (FWPCA) of the ambient water quality standards for dioxin set by the states of Maryland and Virginia. 2,3,7,8-tetrachlorodibenzo-p-dioxin (dioxin) is known or suspected to cause a variety of human health problems, including cancer, reproductive toxicity, and liver damage. The court holds that EPA had a full record before it when it approved the standards, and both Maryland and Virginia's dioxin standards passed scientifically defensible criteria. The court's function is to afford EPA great deference in this complex, highly technical, administrative proceeding. The court holds that EPA thoroughly considered all relevant factors and offered a rational basis for each of its decisions on the record. EPA had ample scientific evidence to accept the Food and Drug Administration's (FDA's) estimation of cancer potency, which was lower than EPA's estimates. EPA has studied the potency presumptions reached by all four agencies dealing with dioxin, has acknowledged that no consensus exists in the scientific community as to a proper potency factor, and EPA's standards far exceed safety standards set by European countries and Canada. Further, like potency factors, bioconcentration factors (BCF) are subject to constant debate and study, and it is indisputable that a range of BCF levels are scientifically defensible and reasonable. The court concludes that nothing in the record demonstrates that EPA arbitrarily and capriciously approved a BCF level of 5000. Next, the court holds that EPA relied on scientifically defensible means to reach reasoned judgments regarding fish consumption levels. No evidence exists that the level of 6.5 grams per day, which is premised on the subset of fish containing the maximum residues of dioxin permissible under state law, is unreasonable. The court holds that EPA's decision to drop the risk level to 1 in 10,000 from the recommended 1 in 100,000 is entitled to deference. EPA's chosen risk level is acceptable to state and federal risk managers and is among the strictest in the world. The court finds that EPA made valid assumptions concerning the noncancer effects on humans. EPA chose the harmonic mean flow of concentrated levels of dioxin in the river in lieu of the 7Q10 flow preferred by the environmental groups, because levels of dioxin in ambient water take time to stabilize and short-term increases would have little long-term effect. EPA presented a full record on which it concluded that short-term swings in ambient water concentration are not likely to have a significant effect on dioxin concentration in fish. The level of deference due to EPA's decisionmaking precludes any substitution of the court's judgment. The court also holds that EPA appropriately approved biological monitoring for protection of wildlife and aquatic life, and numeric criteria for human cancer-causing elements. The FWPCA allows narrative criteria for some uses and numeric criteria for others. Finally, the court dismisses the environmental groups' challenge to EPA's failure to issue and revise, based on the latest available scientific data, dioxin standards that reach all identifiable health and environmental effects. Although the claim is not barred by the statute of limitations, the groups must first petition for a revision of the 1984 criteria guidance before they may bring this action in federal court.

[Pleadings in this case are digested at ELR PEND. LIT. 66127 and 66158.]

Counsel for Plaintiff
David Bailey
Environmental Defense Fund
1875 Connecticut Ave. NW, Ste. 1016, Washington DC 20009
(202) 387-3500

Counsel for Defendant
Robert Jaspen, U.S. Attorney
U.S. Attorney's Office
1800 Main St. Ctr., 600 E. Main St., Ste. 1800
Richmond VA 23219
(804) 771-2186