American Water Works Ass'n v. Environmental Protection Agency

Majority - Ginsburg, Circuit Judge

1. No, the Safe Drinking Water Act does not require the EPA to set an MCL for lead at the tap, as the EPA's interpretation of 'feasible' to allow a treatment technique in lieu of an MCL is reasonable. The court found that the term 'feasible' in the SDWA is ambiguous, as its ordinary meaning ('physically capable of being done at reasonable cost') could lead to absurd results, such as requiring aggressive corrosion control that might reduce lead but increase other contaminants, contrary to the Act's overall purpose of promoting safe drinking water. An MCL at the tap would effectively hold public water systems responsible for privately owned plumbing beyond their control. Therefore, the EPA's interpretation—that 'feasible' means 'capable of being accomplished in a manner consistent with the Act' to achieve optimal overall water quality through treatment techniques—is a reasonable interpretation to which the court must defer under Chevron U.S.A., Inc. v. Natural Resources Defense Council. 2. No, the compliance schedule promulgated by the EPA is not contrary to the statutory injunction that NPDWRs 'shall take effect 18 months after the date of their promulgation,' because 'take effect' is ambiguous and the EPA's interpretation is reasonable. The court determined that the phrase 'shall take effect' is ambiguous, capable of meaning either 'take legal effect' or 'produce results,' and its meaning depends on statutory context. NPDWRs define standards, but the Act assigns primary responsibility for implementation and enforcement to the states, a complex process involving approving treatment plans, promulgating enforcement regulations, and granting variances. Attempting to compress these site-specific activities into 18 months could compromise effective lead treatment. Given the Act's overall goal of safe drinking water, the EPA's interpretation—that the 18-month provision prevents agency requirements from taking effect earlier than 18 months, rather than mandating full implementation—is reasonable. 3. Yes, the EPA's explanation for its decision not to regulate transient noncommunity water systems is inadequate, and the matter is remanded for a more detailed justification, although the exemption itself is not vacated. The EPA conceded that it failed to adequately explain its basis for excluding transient noncommunity systems from the final rule, despite having a long-standing policy of excluding such systems from NPDWRs for non-acute contaminants (lead being considered a chronic exposure risk). The court found the error to be technical and believed the agency could likely justify its decision. Therefore, to avoid unnecessary disruption to the exempted industries, the court remanded the matter to the EPA for a more detailed justification rather than vacating the exemption itself, citing Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n. 4. No, the EPA failed to provide adequate notice that it would adopt a broad definition of 'control' over lead service lines, and thus that part of the rule is vacated. Under the Administrative Procedure Act, an agency must provide sufficient notice for proposed rules to allow interested parties to comment meaningfully, and the final rule must be a 'logical outgrowth' of the proposed rule. The court found that the final rule's broad definition of 'control' (including authority to set standards or repair, even without ownership) was not a logical outgrowth of the proposed rule. The proposed rule discussed 'ownership and/or control' and limitations where ownership ends, giving no affirmative indication that 'control' would be defined to extend beyond typical ownership or direct authority. Consequently, interested parties could not reasonably have anticipated this novel definition, and the EPA failed to provide adequate notice. This portion of the rule is vacated.