W.R. Grace & Co. v. United States Environmental Protection Agency

MANSMANN, dissenting:

I respectfully dissent from the majority opinion because I would hold that the *345EPA’s July 29 Order, though perhaps suffering from poor draftsmanship, nonetheless passably fulfills the requirements of the SDWA. I do not disagree with the majority opinion’s presentation of the law proscribing the EPA’s power to order cleanup under section 1431 when there is not any threat to the public’s health. I would emphasize, however, the highly deferential standard of review in this case. The high degree of deference we are to accord the EPA is a cornerstone to the EPA’s power, enshrined in the SDWA, “to protect the public, health, the environment, and public water supplies from the pernicious effects of toxic wastes.” United States v. Price, 688 F.2d 204, 214 (3d Cir.1982). Consequently, I have resolved that the EPA’s actions here were neither arbitrary nor capricious, and that the EPA satisfactorily demonstrated that the ammonia contamination in the Saginaw aquifer endangers the public’s health.

As the majority explains, a court must uphold any EPA actions taken pursuant to the Act unless the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard of review presumes the validity of agency action. Frisby v. HUD, 755 F.2d 1052, 1055 (3d Cir. 1985); Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Dir.1976). “The ultimate standard is a narrow one,” under which the court is not “to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Our sole task in reviewing the EPA action, as the majority points out, “is to determine whether [the EPA] considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Southwestern Pa. Growth Alliance v. Browner, 121 F.3d 106, 111 (3d Cir.l997)(quoting Baltimore Gas & Elec. v. Natural Res. Def. Coun., 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). Unlike the majority, however, I am satisfied that the EPA considered the relevant factors and articulated a basic rational connection.

I am particularly mindful that we are a reviewing court, experts in the law, and not expert environmental toxicologists examining data ab initio. All the more reason to apply the presumption of correctness to the EPA. “A reviewing court ‘must generally be at its most deferential’ when reviewing factual determinations within an agency’s area of special expertise.” Southwestern Pa. Growth Alliance, 121 F.3d at 117 (internal citation omitted). An agency’s evaluation of specific evidence forming the basis of its decision is “entitled to respectful consideration” by the reviewing court. Tri-Bio Labs. v. United States, 836 F.2d 135, 142 (3d Cir.1987). Thus, where the agency decision turns on issues requiring the exercise of scientific judgment, as it does here, the court “must look at the decision not as a chemist, biologist or statistician that we are qualified neither by training, nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.” Ethyl Corp., 541 F.2d at 36-37.

I would uphold the agency action here because I would find that the EPA’s actions, in accordance with a complex statute are sufficiently rational so as to preclude us from substituting our judgment for that of the EPA.1 See e.g. Chemical Mfrs. Ass’n v. Natural Res. Defense Council, 470 U.S. 116, 125, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985). I agree with the EPA that the *346SATET report2 provides sufficient support for the EPA’s findings that a cleanup standard of 1.2 mg/1 is necessary to protect the health of persons who may use that drinking water system, and that remediation of the aquifer through Approach 1 is necessary to protect the health of those persons. This would remain my position even if some other figure or another approach were ultimately shown to adequately protect the public drinking water.

The evidence shows the following regarding the SATET investigation and report. In March 1999, Grace agreed to participate in a technical evaluation review committee to identify and evaluate options to protect the Saginaw aquifer. Accordingly, Grace formed SATET. SATET meetings were attended by representatives of Grace, the EPA, Michigan Department of Environmental Quality and Lansing Water. SATET conducted a technical study of the Dye Water conditioning plant in order to determine how much influent ammonia, as nitrogen, the Dye Water conditioning plant could handle and still maintain adequate protection of human health and comply with current and future drinking water regulations. The Technical Evaluation Team concluded that the maximum amount of influent ammonia, as nitrogen, that the Dye Water conditioning plant can handle and still adequately protect human health, as well as comply with current and future drinking water regulations, is 1.2 milligrams per liter, as nitrogen.

SATET also concluded that the Disposal Site ammonia contamination in the Saginaw aquifer will cause the Dye Water conditioning plant to experience influent ammonia concentrations above 1.2 mg/1, which will compromise the Water Conditioning Plant’s ability to protect human health and comply with current and future drinking water regulations. SATET concluded that the only way to avoid this risk was through the removal of excess ammonia from the Saginaw aquifer.

On April 12, 1999, the EPA withdrew an emergency administrative order under Section 1431 of the Safe Drinking Water Act that it had issued to Grace on February 26, 1999. The EPA withdrew the Order because Grace agreed to form SA-TET. On May 26, 1999, SATET sent to the EPA and to Grace specific findings and recommendations concerning both the remediation of the Saginaw aquifer and the protection of Lansing Water’s Dye Water Conditioning Plant. The EPA then re-issued an emergency administrative order under Section 1431 of the Safe Drinking Water Act based upon SATET’s findings and recommendations.

With respect to the technical study of Lansing Water’s Dye Water Conditioning Plant, in a relatively short period of time, SATET examined and reviewed a substantial corpus of information concerning the ammonia problem. As the SATET report states, “The SATET met in Lansing on April 8, 15, and 29, 1999. A technical workshop meeting which included the SA-TET and an additional technical representative from W.R. Grace & Co. was held in Lansing on May 5, 1999. In each of the meetings the SATET endeavored to understand the data available, recommend additional data ... needed, and discuss alternative ways the mission could be met.” Moreover, “[t]o develop an understanding of Dye [plant] operations, the SA-TET received briefings from Dye [plant] engineering personnel. Key information gained through these briefings included an *347understanding of the order of operation of the [Dye plant] wells.”

Specifically regarding the amount of ammonia that the plant could safely tolerate, the report states: “An incoming ammonia concentration no greater than 1.0 mgyl will ensure that the plant can meet the maximum disinfectant residual levels required for chloramines. Spikes in influent ammonia concentration should be limited to 0.2 mg/1, an increase that can easily be handled by the plant based on existing fluctuations in ammonia concentrations.” The report concluded that the Dye plant could handle 1.2 mg/1 of ammonia and still provide safe drinking water in sufficient quantities to its customers. Similarly, with respect to the adoption of the plan to remove excess ammonia from the Saginaw aquifer, the SATET report states that “[t]he ultimate resolution of the Cooperating Parties [sic] concerns regarding the Saginaw aquifer and [Dye plant] operations lies in the remediation of the Saginaw Aquifer.” Although this standard may have been reached by virtue of a compromise, it is nonetheless valid for the EPA, using its expertise and experience, to set forth a standard which is generally supported but does not have a specific and identical source in the record.

I agree with the majority that “for the sake of clarity [the EPA] would be better advised to make a finding of ‘imminent and substantial endangerment’ under its formally articulated findings of fact.” The SDWA’s plain language reads that the Administrator may act “upon receipt of information that ... an underground source of drinking water may present an imminent and substantial endangerment to the health of persons.” 42 U.S.C. § 300L This language is mirrored in the EPA order. Moreover, when faced with a problem of statutory construction, we are bound as a federal court to show “great deference to the interpretation given the statute by the officers or agency charged with its administration.” EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 83, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980) (quoting Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965)). “[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chemical Mfrs. Ass’n v. Natural Res. Defense Council, 470 U.S. 116, 125, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985). To uphold an agency interpretation, a court need only find that the agency’s understanding of a complex statute “is a sufficiently rational one to preclude a court from substituting its judgment for that of [the agency].” Id. Permitting the EPA the understanding that it may include the phrase “may present an imminent and substantial endangerment to the health of persons” where it did within the order is surely rational, though with good reason, we may prefer other placement.

As we have held previously, in enacting the endangerment provisions of the SDWA,

Congress ... sought to invoke nothing less than the full equity powers of the federal courts in the effort to protect public health, the environment, and public water supplies from the pernicious effects of toxic wastes. Courts should not undermine the will of Congress by either ivithholding relief or granting it grudgingly.

United States v. Price, 688 F.2d at 214. (emphasis added).3

. The majority states that we accept the finding of 1.2 milligrams per liter "on face value.” Instead, we accept this finding because we conclude that it is rationally based.

. Grace’s active participation in SATET is conspicuous, though I hesitate to suggest that Grace has in any way waived its right to protest the SATET report.

. Just three years ago, the Fourth Circuit, deciding a case, Trinity American v. U.S. EPA, *348150 F.3d 389 (4th Cir.1998), under the same provision of the SDWA, held similarly:

So that EPA can act promptly and effectively when a threat to public health is imminent, courts must ensure that the agency's power under the Act remains "relatively untrammeled.”

Id. at 395 (citation omitted). The Second Circuit is also in accord. See United States v. Hooker Chemicals and Plastics, 749 F.2d 968, 989 (2d Cir.1984).