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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 15, 2003 Decided June 20, 2003
No. 01-1101
STATE OF NEBRASKA, ET AL.,
PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
AMERICAN WOOD PRESERVERS INSTITUTE, ET AL.,
INTERVENORS
On Petition for Review of an Order of the
Environmental Protection Agency
Jon C. Bruning, Attorney General for the State of Nebras-
ka, argued the cause for petitioners. With him on the briefs
were Donald B. Stenberg, Attorney General at the time the
briefs were filed, Jodi M. Fenner, Assistant Attorney Gener-
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
al, Leo P. Dobrovolny, Jr., Sam Kazman, and Ben C. Lieber-
man.
J. Steven Rogers, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was
Caroline H. Wehling, Assistant General Counsel. John C.
Cruden, Assistant Attorney General, entered an appearance.
Erik D. Olson argued the cause for intervenor Natural
Resources Defense Council. With him on the brief was
Aaron Colangelo.
Before: EDWARDS, RANDOLPH, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: The Safe Drinking Water Act
directed EPA to promulgate national primary drinking water
regulations. The regulations established enforceable stan-
dards, called maximum contaminant levels, limiting the
amount of specified contaminants permitted in drinking water
from public water systems.1 42 U.S.C. § 300g–1(b); see
Chlorine Chemistry Council v. EPA, 206 F.3d 1286, 1287
(D.C. Cir. 2000). Amendments to the Act in 1996 required
EPA to promulgate a national primary drinking water regula-
tion for arsenic by January 2001. Safe Drinking Water Act
Amendments of 1996, Pub. L. No. 104–182, § 109(a)(12)(A),
110 Stat. 1613, 1627–28 (1996). EPA duly initiated a rule-
making proceeding and, after receiving comments on a pro-
posed rule, published a final regulation setting the maximum
contaminant level for arsenic at .01 mg/L, effective as of 2006.
National Primary Drinking Water Regulations; Arsenic
and Clarifications to Compliance and New Source Contami-
nants Monitoring, 66 Fed. Reg. 6976, 6981, 6989 (Jan. 22,
2001) (‘‘Arsenic Rule’’); see also Minor Clarification of Na-
tional Primary Drinking Water Regulation for Arsenic, 67
Fed. Reg. 78,203 (Dec. 23, 2002). On March 5, 2001, the
1A public water system is ‘‘a system for the provision to the
public of water for human consumption through pipes or other
constructed conveyances, if such system has at least fifteen service
connections or regularly serves at least twenty-five individuals.’’ 42
U.S.C. § 300f(4)(A).
3
State of Nebraska and the City of Alliance, Nebraska, filed a
petition for review in this court, challenging the Act and the
Arsenic Rule on constitutional and statutory grounds. Other
parties intervened for and against the petitioners’ position.
Petitioners did not present to EPA any of the objections
they now raise in this court. They acknowledge the rule that
‘‘[a]bsent special circumstances, a party must initially present
its comments to the agency during the rulemaking in order
for the court to consider the issue.’’ Tex Tin Corp. v. United
States EPA, 935 F.2d 1321, 1323 (D.C. Cir. 1991). Although
petitioners concede that they have waived some of their
objections, they believe they are entitled to go forward on
their claims that the Arsenic Rule and the Act, to the extent
it regulates noncommunicable water contaminants, exceed the
federal government’s power under the Commerce Clause and
violate the Tenth Amendment. With respect to the claims
regarding the Act, we agree with petitioners that these are
properly before us. Agencies do not ordinarily have jurisdic-
tion to pass on the constitutionality of federal statutes. See
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 214 (1994).
Petitioners would have accomplished nothing if they had
presented these objections to EPA. See Salt Lake Cmty.
Action Program, Inc. v. Shalala, 11 F.3d 1084, 1087 (D.C.
Cir. 1993).
As to petitioners’ constitutional attack on the regulation,
they believe this too would have been futile to raise during
the EPA proceedings. In requiring EPA to promulgate a
national primary drinking water regulation for arsenic, the
1996 amendments state that the regulation ‘‘shall apply to
each public water system in each State.’’ 42 U.S.C. § 300g
(with certain exceptions not relevant here). From this peti-
tioners conclude that EPA could not have tailored the Arsenic
Rule in response to their arguments. See Meredith Corp. v.
FCC, 809 F.2d 863, 872 (D.C. Cir. 1987). We see the matter
differently. The Act did not bar EPA from considering
petitioners’ arguments regarding the regulation and it did not
necessarily preclude EPA from designing a rule in response
to their arguments, gathering evidence to evaluate their
claims, or interpreting the Act in light of their position.
4
Perhaps EPA could have formulated a rule setting a national
standard applicable to all public water systems to the extent
the system shipped or received water across state lines, or a
rule containing an exception for any public water system that
could prove it had no connection to interstate commerce –
rules that might have met petitioners’ objections to the
regulation of entirely intrastate water. Petitioners also be-
lieve that Railroad Yardmasters of America v. Harris, 721
F.2d 1332, 1338–39 (D.C. Cir. 1983), justified their failure to
offer EPA their claims regarding the proposed Arsenic Rule.
Yardmasters decided the merits of a contention, first raised
on appeal, that two vacancies on the three-member National
Mediation Board deprived the Board of any authority to
render a decision. Later decisions have limited the case to
challenges concerning the ‘‘very composition or ‘constitution’
of an agency.’’ Mitchell v. Christopher, 996 F.2d 375, 378–79
(D.C. Cir. 1993). Petitioners’ arguments are not of that sort.
We therefore conclude that petitioners have not preserved
their objections to the Arsenic Rule.
With respect to the constitutionality of the Act, the Com-
merce Clause authorizes Congress to ‘‘regulate Commerce
TTT among the several states.’’ U.S. CONST. art. I, § 8, cl. 3.
The Act exceeds congressional power, petitioners tell us,
because it regulates the intrastate distribution and sale of
drinking water. The challenge is to the Act on its face. To
succeed, petitioners therefore must show that the Act would
be constitutional under ‘‘‘no set of circumstances.’’’ Amfac
Resorts, L.L.C. v. United States Dep’t of Interior, 282 F.3d
818, 826 (D.C. Cir.) (quoting United States v. Salerno, 481
U.S. 739, 745 (1987)), vacated in part on other grounds sub
nom. Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 71
U.S.L.W. 4399 (May 27, 2003); see also Rancho Viejo, LLC v.
Norton, 323 F.3d 1062, 1077–78 (D.C. Cir. 2003). Petitioners
fall well short of satisfying that considerable burden. Con-
gress may regulate, pursuant to its commerce power, ‘‘per-
sons and things in interstate commerce.’’ United States v.
Lopez, 514 U.S. 549, 558 (1995).2 According to data EPA
2 Although the Court in Lopez did not cite the Salerno no-set-of-
circumstances test, it did strike down the Gun–Free School Zones
5
collected, a number of water utilities sell substantial volumes
of drinking water across state lines. See Brief for Respon-
dent at Attachments 1 & 2 (collecting information from
www.epa.gov/safewater/data/getdata.html).3 Each of these
interstate sales presents a set of circumstances under which
the Act is a valid exercise of power under the Commerce
Clause. We therefore reject petitioners’ facial attack on this
ground, and do not address whether the intrastate sale of
drinking water has a sufficiently substantial impact on inter-
state commerce to justify federal regulation. See Reno v.
Condon, 528 U.S. 141, 148–49 (2000).
Because the Commerce Clause provides the constitutional
authority for the Act, the only issue under the Tenth Amend-
ment is whether the Act regulates the states in a permissible
manner. See Condon, 528 U.S. at 149. The Act does not
compel the states to pass legislation or to enforce the federal
standards for arsenic. Rather, it regulates the states only in
their capacity as public water system owners. The Act
therefore comports with the Tenth Amendment. See id. at
151.
The petition for judicial review is denied.
So ordered.
Act on the ground that ‘‘possession of a gun in a local school zone is
in no sense an economic activity that might, through repetition
elsewhere, substantially affect any sort of interstate commerce.’’
Lopez, 514 U.S. at 567. After Lopez we therefore have continued to
invoke the Salerno test in response to a facial challenge based on
the Commerce Clause. See Rancho Viejo, LLC, 323 F.3d at 1077–
78.
3 Although the administrative record does not contain these facts,
we take judicial notice of the information on the EPA’s database.
See FED. R. EVID. 201(b) & (f); Laborers’ Pension Fund v. Black-
more Sewer Constr., Inc., 298 F.3d 600, 607 (7th Cir. 2002); cf.
Washington Post v. Robinson, 935 F.2d 282, 291 (D.C. Cir. 1991).