ELR Citation: ELR 20496
No(s). 92-2520 (4th Cir. Dec 22, 1993)

The court affirms a district court's decisions upholding the U.S. Environmental Protection Agency's (EPA's) approval of state water quality standards for dioxin implemented by Maryland and Virginia. The states adopted a dioxin standard of 1.2 parts per quadrillion (ppq), which is less protective than EPA's standard of 0.0013 ppq, which EPA published in a 1984 dioxin criteria guidance document. The court first holds that the district court did not accord EPA undue deference in reviewing EPA's approval of the standards. Neither EPA nor the district court has a duty under the Federal Water Pollution Control Act (FWPCA) to assert a dominant role in the process of reviewing state water quality standards. EPA has a duty to review the standards and determine whether the states' decision is scientifically defensible and protective of designated uses, but does not have a duty to ensure objectively that the standards meet FWPCA requirements. The court next holds that EPA's review of the states' water quality standards for dioxin was not arbitrary or capricious. EPA's use of a fish consumption factor of 6.5 grams per day of maximum residue fish in evaluating the state standards is scientifically defensible. Likewise, the court finds no compelling evidence that EPA's use of a dioxin bioconcentration factor of 5000 is not supported by sound scientific rationale, even though some evidence suggested that the factor should have been much higher. The court states that this scientific debate should be resolved by those with specialized training in the field. The court also holds that the FWPCA permits states to adopt multiple criteria for the same pollutant for different designated uses. Although the 1.2 ppq standard for protection of human health may be insufficient to protect aquatic life and wildlife, it is not required to protect all stream uses. The court next holds that EPA does not have a mandatory duty to issue new, or revise its 1984 numerical water quality criteria for dioxin even though new scientific evidence suggests that the criteria are outdated. Finally, the court holds that the 1984 guidance document is not final agency action reviewable under the Administrative Procedure Act. The document is not a definitive statement of EPA's position, does not have the status of law, and does not affect plaintiff environmental groups' day-to-day business. Moreover, as EPA is currently in the process of reassessing the criteria, reviewing the document at this time would be premature and would foster unnecessary piecemeal litigation.

[The district courts' opinions are published at 21 ELR 21332 and 23 ELR 20095.]

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

Counsel for Defendants
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Britt, J. (before Hall and Niemeyer, JJ.):