City of Portland v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2007 Decided November 6, 2007

No. 06-1068

CITY OF PORTLAND, OREGON,

PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT

CITY OF NEW YORK, NEW YORK,

INTERVENOR FOR PETITIONER

On Petition for Review of an Order of the

Environmental Protection Agency

John M. Stevens, argued the cause for petitioner. With him

on the briefs was Jonathan M. Ettinger.

Martin F. McDermott, Attorney, U.S. Department of

Justice, argued the cause for respondent. With him on the brief

was Caroline H. Wehling, Assistant General Counsel.

Susan E. Amron, Assistant Corporation Counsel, was on the

brief for intervenor City of New York in support of petitioner.

Christopher G. King, Counsel, entered an appearance.

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Diane Curran was on the brief for amici curiae Oregon

Wild, et al. in support of petitioner.

Timothy Donaldson and Charles B. Roe, Jr. were on the

brief for amicus curiae City of Walla Walla, Washington.

Before: GINSBURG, Chief Judge, and SENTELLE and TATEL,

Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In this case Portland and New York

City challenge an Environmental Protection Agency rule

regulating microbial contaminants in drinking water. The rule

requires the two cities to take several steps to eliminate the

parasite Cryptosporidium from their drinking water. The cities

challenge the rule on many grounds, arguing that EPA

improperly conducted a required cost-benefit analysis, provided

inadequate notice and opportunity for public comment, ignored

significant comments on the draft rule, failed to use the best

available science, and issued a final rule unsupported by the

record. Because we find the cities’ arguments either meritless,

irrelevant, or both, we deny the petition for review.

I.

Cryptosporidium is a parasite found in human and animal

feces. When ingested, it can cause cryptosporidiosis, which

generally leads to mild flu-like symptoms, but can be deadly in

children, the elderly, and those with weak immune systems (e.g.,

AIDS patients). From 1984 to 2000, the United States

experienced ten reported cryptosporidiosis outbreaks linked to

drinking water. By far the most serious outbreak occurred in

Milwaukee, Wisconsin, in 1993, killing more than fifty people

and sickening hundreds of thousands of others. See National

Primary Drinking Water Regulations: Long Term 2 Enhanced

3

Surface Water Treatment Rule; Final Rule, 71 Fed. Reg. 654,

659-61 (Jan. 5, 2006) (to be codified at 40 C.F.R. pts. 9, 141,

142).

Most cities try to protect against Cryptosporidium by

running their “source water”—the river or lake from which they

draw water—through high-tech filters. New York and Portland,

however, are two of the rare large cities that do not filter their

water before it reaches consumers. Instead, the two cities seek

to protect public health by carefully controlling the sources from

which their water originates. In particular, they have taken steps

to ensure that their watersheds are entirely off-limits to human

activity and domestic animals. Thus, wild animals represent the

only likely cause of Cryptosporidium in their source waters.

Portland and New York are also unusual in that they use

uncovered reservoirs, rather than covered reservoirs, to store

their “finished water”—water that goes directly to consumers

without further treatment. The cities say they have gone to great

lengths to protect their reservoirs from sources of

Cryptosporidium. Though located in urban areas, the reservoirs

were carefully constructed to prevent runoff from draining into

them, fences and security exclude people and animals from

them, and overhead wires (in New York but not Portland)

discourage flocks of birds from landing on them. According to

EPA, however, Cryptosporidium can still enter these reservoirs

via bird droppings, small animals able to penetrate the fences,

and intentional human contamination.

The Safe Drinking Water Act (SDWA), 42 U.S.C. §§ 300f

to 300j-26, requires EPA to protect the public from

Cryptosporidium and other drinking water contaminants.

Because the SDWA was the basis for the rule challenged in this

case, we describe the Act’s basic provisions before turning to

the details of the rule at issue here.

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The SDWA regulates public water systems by limiting the

allowable level of contaminants in such systems. It requires

EPA to set a “maximum contaminant level goal” (MCLG) for

each identified contaminant at a level at which no known

adverse health consequences will occur. Id. § 300g-1(b)(4)(A).

It then requires EPA to set a “maximum contaminant level”

(MCL) for each contaminant as close to the MCLG as is

feasible. Id. § 300g-1(b)(4)(B). Under the statute, “feasible”

means “feasible with the use of the best technology, treatment

techniques and other means which the Administrator finds . . .

are available (taking cost into consideration).” Id. § 300g-

1(b)(4)(D). If EPA determines that ascertaining the level of a

contaminant will be either economically or technologically

infeasible—for example, because no adequate testing procedure

exists—the Agency can require a certain “treatment technique”

instead of an MCL. Id. § 300g-1(b)(7)(A). Treatment

techniques must “prevent known or anticipated adverse effects

on the health of persons to the extent feasible.” Id.

Based on these requirements, EPA convened a large group

of stakeholders in 1992 to develop rules to combat microbial

contamination in drinking water, including Cryptosporidium.

The group issued its recommendations in two stages. Acting on

the first set of recommendations, EPA issued a 1998 rule that

did four things relevant to the issue we face here: (1) it

established an MCLG of zero for Cryptosporidium, meaning

there is no safe level of Cryptosporidium in drinking water; (2)

it imposed treatment techniques, rather than an MCL, to control

Cryptosporidium, because EPA had earlier concluded that it

would be infeasible to measure Cryptosporidium at the low

levels at which the parasite can threaten human health; (3) it

required that all finished water reservoirs built after the rule’s

issuance have covers; and (4) it required systems that filter their

water to treat it for Cryptosporidium. See National Primary

Drinking Water Regulations: Interim Enhanced Surface Water

5

Treatment, 63 Fed. Reg. 69,478, 69,483-84 (Dec. 16, 1998)

(codified at 40 C.F.R. pts. 9, 141, 142). The rule also warned

that EPA was considering requiring that all existing finished

water reservoirs be covered, but explained that the Agency

needed more time to analyze the issue. Id. at 69,494.

Acting on the basis of the stakeholders’ second set of

recommendations, EPA issued a 2003 proposed rule that did

three things: (1) it required all water systems to monitor their

source water for Cryptosporidium; (2) it required systems that

do not filter their water, such as New York and Portland, to treat

their source water for Cryptosporidium; and (3) it imposed new

requirements on existing uncovered reservoirs, giving cities with

such reservoirs three options: covering their reservoirs, treating

the water in them for viruses (but not Cryptosporidium), or

implementing a state-approved risk mitigation plan. See

National Primary Drinking Water Regulations: Long Term 2

Enhanced Surface Water Treatment Rule; Proposed Rule, 68

Fed. Reg. 47,640, 47,644-45 (proposed Aug. 11, 2003) (to be

codified at 40 C.F.R. pts. 141, 142). Unlike most cities,

Portland and New York were affected by all three aspects of this

rule because they had uncovered reservoirs and provided

unfiltered water.

The final rule, which EPA issued in 2006, was identical to

the proposed rule except for two key differences. First, the final

rule eliminated the risk mitigation option, forcing cities with

uncovered reservoirs to cover them or treat the water in them.

Second, rather than requiring treatment of finished water only

for viruses, the final rule required treatment for Cryptosporidium

as well. 71 Fed. Reg. at 657. Thus, under the final rule, New

York and Portland have two choices: they may either treat their

source water for Cryptosporidium and cover their reservoirs, or

they may leave the reservoirs uncovered and treat the water for

Cryptosporidium as it leaves the reservoirs. The basic idea is

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that at some point the two cities must treat their water for

Cryptosporidium and, following treatment, protect it from

potential sources of Cryptosporidium.

After EPA issued its final rule, Portland filed a petition for

review pursuant to 42 U.S.C. § 300j-7(a), which gives this court

jurisdiction over challenges to final EPA rules promulgated

under the SDWA. We granted New York’s motion to intervene.

The cities challenge two of the final rule’s requirements: that

they either cover their reservoirs or treat the water leaving them

for Cryptosporidium (the “cover or treat” requirement), and that

they treat their source water for Cryptosporidium (the “source

water treatment” requirement). The cities allege that EPA

improperly conducted a cost-benefit analysis required by the

SDWA, provided insufficient opportunity for notice and

comment, and failed to use the best available science. They also

argue that the rule is arbitrary and capricious because EPA failed

to respond adequately to significant public comments and

because the rule lacks support in the record and relies on a

mistaken estimate of Cryptosporidium’s infectivity (the amount

of Cryptosporidium necessary to infect a person).

Before considering these arguments, we observe that

amicus Walla Walla raises an entirely different issue, arguing

that EPA improperly chose to use treatment techniques, rather

than an MCL, to regulate Cryptosporidium. Because neither

Walla Walla nor any other party raised this argument before the

Agency during the rulemaking process, however, it is waived,

and we will not consider it. See, e.g., Military Toxics Project v.

EPA, 146 F.3d 948, 956 (D.C. Cir. 1998).

II.

Portland and New York first attack the rule by claiming

EPA bungled the cost-benefit analysis required by the SDWA.

Section 300g-1(b)(3)(C) requires EPA to conduct a cost-benefit

7

analysis when proposing a treatment technique or MCL. With

respect to treatment techniques, the statute says:

When proposing a national primary drinking

water regulation that includes a treatment

technique . . . , the Administrator shall publish

and seek public comment on an analysis of the

health risk reduction benefits and costs likely to

be experienced as the result of compliance with

the treatment technique and alternative treatment

techniques that are being considered . . . .

Id. § 300g-1(b)(3)(C)(ii). If, based on this cost-benefit analysis,

EPA concludes that the costs of an MCL outweigh its benefits,

the Agency may set a less stringent MCL. Id. § 300g-

1(b)(6)(A).

Central to the issue before us, however, is whether the

SDWA bars EPA from using cost-benefit analysis to establish

a treatment technique for Cryptosporidium less stringent than

the most stringent feasible. Section 300g-1(b)(6)(C), enacted in

the wake of the Milwaukee outbreak, provides: “The

Administrator may not use the authority of this paragraph . . . to

establish a maximum contaminant level or treatment technique

requirement for the control of Cryptosporidium.” “[T]he

authority of this paragraph” refers to section 300g-1(b)(6)(A),

which says: “if [EPA] determines . . . that the benefits of [an

MCL] . . . would not justify the costs of complying with the

[MCL], [EPA] may . . . promulgate [an MCL] for the

contaminant that maximizes health risk reduction benefits at a

cost that is justified by the benefits.” Put another way,

paragraphs 6(A) and 6(C) together provide that if EPA

determines that an MCL is not cost effective, the Agency may

select a cost-effective MCL—unless the MCL relates to

Cryptosporidium. Paragraph 6 contains an undeniable oddity:

8

6(C) says clearly that the power of 6(A) cannot be used to

establish a treatment technique for Cryptosporidium, but 6(A)

addresses only the establishment of MCLs, not treatment

techniques. We conclude that the power granted by 6(A) must

be understood to apply to establishing treatment techniques, lest

the phrase “or treatment technique requirement” in 6(C) be

surplusage. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)

(“It is ‘a cardinal principle of statutory construction’ that ‘a

statute ought, upon the whole, to be so construed that, if it can

be prevented, no clause, sentence, or word shall be superfluous,

void, or insignificant.’” (quoting Duncan v. Walker, 533 U.S.

167, 174 (2001))). In summary, then, the statute prohibits EPA

from using cost-benefit analysis to choose a Cryptosporidium

treatment technique less stringent than the most stringent

feasible.

In their opening briefs, the cities dispute none of this. In

fact, they never even mention section 300g-1(b)(6)(C)’s ban on

using cost-benefit analysis to choose a Cryptosporidium

treatment technique. Instead, they argue that section 300g-

1(b)(3)(C)(ii)—“When proposing . . . a treatment technique . . . ,

the Administrator shall publish . . . an analysis of the . . .

benefits and costs likely to be experienced as the result of

compliance with the treatment technique”—means EPA has to

analyze separately the costs and benefits of each treatment

technique it imposes. They then argue that EPA violated this

requirement by performing only one aggregated cost-benefit

analysis for the rule’s two treatment techniques—the cover or

treat and source water treatment requirements.

As EPA points out in its brief, however, the cities’

argument ignores key sections of the statute. In particular,

section 300g-1(b)(7)(A) requires EPA to choose treatment

techniques that “prevent known or anticipated adverse effects on

the health of persons to the extent feasible,” and section 300g-

9

1(b)(6)(C) prohibits it from choosing less stringent treatment

techniques for Cryptosporidium based on cost-benefit analysis.

Thus, even if, as the cities insist, the statute requires EPA to

perform separate cost-benefit analyses for each treatment

technique and EPA failed to do so, the Agency’s error was

harmless. See 5 U.S.C. § 706 (“[D]ue account shall be taken of

the rule of prejudicial error.”); PDK Labs. Inc. v. DEA, 362 F.3d

786, 799 (D.C. Cir. 2004) (“If the agency’s mistake did not

affect the outcome, if it did not prejudice the petitioner, it would

be senseless to vacate and remand for reconsideration.”). Cost-

benefit analysis could have affected this rulemaking only if it

showed that the treatment techniques EPA proposed were

infeasible—something neither city claims. Indeed, EPA’s cost-

benefit analysis shows that the rule will cost the vast majority of

households less than $12 per year. 71 Fed. Reg. at 743.

In their reply briefs, the cities finally acknowledge section

300g-1(b)(6)(C)’s ban on using cost-benefit analysis to choose

a less stringent Cryptosporidium treatment technique, but insist

that EPA must still conduct the cost-benefit analysis properly for

three reasons, none of which has merit. First, the cities argue

that EPA can use the cost-benefit analysis for purposes of

section 300g-1(b)(4), which requires the Agency to determine

whether an MCL’s benefits justify its costs, or section 300g-

1(b)(5), which allows EPA to set a less stringent MCL if the

most stringent feasible MCL would interfere with other

treatment techniques. Nothing in section 300g-1(b)(4),

however, allows EPA to choose a treatment technique other than

the most stringent feasible, and although section 300g-1(b)(5)

allows the Agency to set a less stringent MCL in the rare

instance when a strict MCL would actually interfere with other

treatment techniques, the cities never said this was the case here.

Second, the cities claim that the cost-benefit analysis must be

done properly in order to inform the public and allow EPA to

make a reasoned decision. This argument fails because the

10

statute requires EPA to choose the most stringent feasible

treatment technique for Cryptosporidium regardless of its own

or the public’s views about whether the benefits justify the costs;

Congress already made this determination in section 300g-

1(b)(6)(C). Third, the cities insist that the analysis must be done

properly because a treatment technique is only “feasible” if its

benefits outweigh its costs. But if “feasible” meant that the

technique’s benefits justified its costs, section 300g-

1(b)(6)(A)—which allows EPA to use cost-benefit analysis to

set less stringent standards than the most stringent

feasible—would be surplusage. See TRW, 534 U.S. at 31.

Moreover, when Congress wanted EPA to undertake cost-

benefit analysis, it said so expressly. See, e.g., 42 U.S.C.

§ 300g-1(b)(4)(C) (directing EPA to “publish a determination as

to whether the benefits of the [MCL] justify . . . the costs”).

Thus, “feasible” must mean what EPA says it does: technically

possible and affordable. Cf. Am. Textile Mfr.’s Inst., Inc. v.

Donovan, 452 U.S. 490, 509-12 (1981) (“[C]ost-benefit analysis

. . . is not required by the [Occupational Safety and Health Act]

because feasibility analysis is. . . . When Congress has intended

that an agency engage in cost-benefit analysis, it has clearly

indicated such intent on the face of the statute. . . . Certainly in

light of its ordinary meaning, the word ‘feasible’ cannot be

construed to articulate such congressional intent.” (footnotes and

citations omitted)).

Next, the cities argue that EPA’s interpretation of the statute

leads to an absurd result, namely that the Agency is required to

conduct cost-benefit analysis when issuing Cryptosporidium

regulations but prohibited from using that analysis to choose a

less stringent treatment technique. We see nothing absurd about

this result. Although Congress forbade EPA from using cost-

benefit analysis to choose a less stringent technique, the analysis

could still serve some purpose. For example, if the analysis

showed that a proposed treatment technique was infeasible or

11

would have no effect on Cryptosporidium levels, it would

influence what technique EPA imposed. Moreover, Congress’s

unwillingness to allow a broader role for cost-benefit analysis in

setting Cryptosporidium standards is hardly surprising, given

that it added section 300g-1(b)(6)(C)’s prohibition on using

cost-benefit analysis to the SDWA largely in response to the

deadly Milwaukee outbreak.

In rejecting the cities’ challenge to EPA’s cost-benefit

analysis, we emphasize that nothing we say in this opinion

implies either that agencies may ignore statutorily required

procedures or that we will tolerate rules based on arbitrary and

capricious cost-benefit analyses. In the narrow context of this

case, however, where the SDWA largely prohibits EPA from

using the very cost-benefit analysis the same statute requires it

to prepare, remanding this rule to the Agency based on flaws in

its cost-benefit analysis would be pointless. Even were EPA to

redress its alleged errors, the final rule would remain unchanged,

making this the epitome of harmless error.

III.

The cities next argue that the rule is arbitrary and capricious

because it lacks support in the record, because it rests on a

mistaken estimate of Cryptosporidium’s infectivity, and because

EPA failed to respond adequately to significant public

comments. Highly deferential, “[t]he arbitrary and capricious

standard . . . ‘presumes the validity of agency action.’” Nat’l

Ass’n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228 (D.C.

Cir. 2007) (quoting AT&T Corp. v. FCC, 349 F.3d 692, 698

(D.C. Cir. 2003)). “We must uphold an agency’s action where

it ‘has considered the relevant factors and articulated a rational

connection between the facts found and the choice made.’” Id.

(quoting Allied Local & Reg’l Mfrs. Caucus v. EPA, 215 F.3d

61, 68 (D.C. Cir. 2000)). “The requirement that agency action

not be arbitrary or capricious includes a requirement that the

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agency . . . respond to ‘relevant’ and ‘significant’ public

comments.” Public Citizen, Inc. v. FAA, 988 F.2d 186, 197

(D.C. Cir. 1993) (citations omitted). Measured by these

standards, the challenged rule easily survives.

To begin with, the source water treatment requirement finds

ample support in the record. EPA provided abundant evidence

that Cryptosporidium is present in the source water of most

water systems. 71 Fed. Reg. at 662-63. Indeed, in its own

submissions to EPA, Portland acknowledged that tests had

discovered Cryptosporidium in its source water. White Paper

from Portland to EPA 5-6 (June 2005). The record also contains

evidence that the newly required treatment techniques for such

source water will reduce Cryptosporidium levels substantially.

71 Fed. Reg. at 662-63. Given this, the SDWA required EPA to

impose these treatment techniques unless they were

infeasible—something neither city claims.

Challenging the cover or treat provision, Portland argues

that “[t]he Rule’s requirement that finished water stored in open

reservoirs be treated for Cryptosporidium . . . bears no rational

relationship to the evidence in the record.” Pet’r’s Opening Br.

18. According to Portland, the only study in the record

demonstrating the presence of Cryptosporidium in uncovered

reservoirs, by Professor Mark LeChevallier, looked at reservoirs

that were less protected than Portland’s. New York attacks the

same study, claiming it showed no Cryptosporidium threat from

uncovered reservoirs.

In truth, however, EPA relied on multiple relevant studies

in promulgating the rule. It cited studies showing that birds

often visit uncovered reservoirs and that bird feces can be a

source of Cryptosporidium. 71 Fed. Reg. at 713. EPA also

documented human contamination of reservoirs in urban areas

via illegal swimming or throwing things into reservoirs. Id.

13

Moreover, the LeChevallier study the cities attack is more

relevant than they claim. It examined six reservoirs, some of

which were quite similar to New York’s and Portland’s. For

example, the Stanley Levine reservoir was fenced, protected

from runoff, and could be contaminated only by birds and small

animals—just like New York’s and Portland’s reservoirs. See

Mark W. LeChevallier et al., Protozoa in Open Reservoirs, J.

AM. WATER WORKS ASSOC., Sept. 1997, at 84, 88. Yet water

leaving the reservoir contained more Cryptosporidium than it

had when it entered, id. at 91, “most likely caused by wastes

from indigenous animals or birds,” id. at 94.

To be sure, the LeChevallier study never said whether the

Cryptosporidium found was viable, and concluded that the

public health risk from the level of Cryptosporidium present was

likely low. See id. at 92-93. In its 1998 rulemaking, however,

EPA determined that there was no safe level of Cryptosporidium

in drinking water, a determination unchallenged by the cities.

Thus, section 300g-1(b)(7)(A) required EPA to choose treatment

techniques that would reduce Cryptosporidium levels as close to

zero as feasible. Though New York and Portland may be right

that the amount of Cryptosporidium entering their reservoirs

poses a minimal threat, neither city denies that covering or

treating the reservoirs will reduce the amount of

Cryptosporidium in them. Thus, record evidence amply

supports the rule.

Next, the cities argue that the rule relies on a mistaken

estimate of Cryptosporidium’s infectivity. But EPA provided a

detailed explanation of its infectivity estimate and based the

estimate on advice from its expert Science Advisory Board. 71

Fed. Reg. at 662. Given this, EPA’s estimate easily satisfies our

highly deferential standard of review. Nat’l Wildlife Fed’n v.

EPA, 286 F.3d 554, 565 (D.C. Cir. 2002) (“We may reject an

14

agency’s choice of a scientific model ‘only when the model

bears no rational relationship to the characteristics of the data to

which it is applied.’” (quoting Appalachian Power Co. v. EPA,

135 F.3d 791, 802 (D.C. Cir. 1998))).

In any event, the cities’ criticism of the infectivity estimate

is beside the point. As explained above, the SDWA requires

EPA to impose the most stringent feasible treatment technique

for Cryptosporidium regardless of cost-benefit analysis. Thus,

even if EPA’s infectivity estimate was mistaken, the error was

harmless. Although the alleged mistake could have caused the

Agency to overstate the rule’s benefits, it could not have

affected the final rule because it had no impact on the feasibility

of the prescribed treatment techniques.

Finally, the cities argue that EPA ignored a comment that

questioned the Agency’s rejection of an infectivity estimate

developed by one of its scientists in a 2001 study. They also

argue that in estimating the occurrence of cryptosporidiosis,

EPA ignored their public health data. We disagree on both

counts. In the final rule, EPA explained that more recent studies

led it to believe that Cryptosporidium was more infective than

the Agency previously thought. 71 Fed. Reg. at 662. EPA also

explained that based on evidence from the Milwaukee outbreak

and various studies, it believed that underreporting of

cryptosporidiosis was severe. Id. at 660-61. Though New York

and Portland cogently attack the merits of EPA’s responses, the

Agency clearly thought about the cities’ objections and provided

reasoned replies—all the APA requires. See Public Citizen, 988

F.2d at 197 (“[T]he agency’s response to public comments need

only ‘enable us to see what major issues of policy were

ventilated . . . and why the agency reacted to them as it did.’”

(quoting Auto. Parts & Accessories Ass’n v. Boyd, 407 F.2d 330,

338 (D.C. Cir. 1968))).

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Moreover, whether EPA adequately responded to these

comments makes no difference because the Agency had no

obligation to respond to them in the first place. “‘EPA is

required to give reasoned responses to all significant comments

in a rulemaking proceeding.’” Int’l Fabricare Inst. v. EPA, 972

F.2d 384, 389 (D.C. Cir. 1992) (quoting PPG Indus., Inc. v.

Costle, 630 F.2d 462, 466 (6th Cir. 1980)) (emphasis added).

Significant comments are those “which, if true, raise points

relevant to the agency’s decision and which, if adopted, would

require a change in an agency’s proposed rule.” Home Box

Office, Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. Cir. 1977)

(emphasis added). Measured by this standard, the comments

Portland and New York point to are insignificant. Because the

SDWA requires EPA to impose the most stringent feasible

treatment technique for Cryptosporidium, and because neither

comment showed the techniques imposed here to be infeasible,

the comments were incapable of affecting the final rule, and

EPA could disregard them.

IV.

Portland and New York next argue that EPA provided

inadequate opportunity for notice and comment. They say they

were unaware that they needed to comment on the safety of

uncovered reservoirs because the proposed rule, which included

the risk mitigation option and did not require treating finished

water for Cryptosporidium, represented a consensus of the

stakeholders’ committee. They also argue that EPA’s request

for comments on this issue was too vague. Again, we disagree.

“[A]n agency may issue rules that do not exactly coincide

with the proposed rule so long as the final rule is the ‘logical

outgrowth’ of the proposed rule.” Fertilizer Inst. v. EPA, 935

F.2d 1303, 1311 (D.C. Cir. 1991). “Under the ‘logical

outgrowth’ test . . . , the key question is whether commenters

‘should have anticipated’ that EPA might” issue the final rule it

16

did. City of Waukesha v. EPA, 320 F.3d 228, 245 (D.C. Cir.

2003) (quoting Small Refiner Lead Phase-Down Task Force v.

EPA, 705 F.2d 506, 549 (D.C. Cir. 1983)). In the proposed rule,

EPA made clear that it “continue[d] to be concerned about

contamination occurring in uncovered finished water storage

facilities.” 68 Fed. Reg. at 47,719. And EPA’s first two

questions in the “Request for Comments” section of that portion

of the proposed rule asked: “Is it appropriate to allow systems

with uncovered finished water storage facilities to implement a

risk management plan or treat the effluent to inactivate viruses

instead of covering the facility?” and “If systems treat the

effluent of an uncovered finished water storage facility instead

of covering it, should systems be required to inactivate

Cryptosporidium . . . [since it has] been found to increase in

uncovered storage facilities?” Id. From this, the cities should

have known not only that EPA still had concerns about

uncovered reservoirs, but also that the final rule might require

covering open reservoirs or treating them for Cryptosporidium.

The cities claim that because the proposed rule flowed from

a negotiated rulemaking and exactly mirrored the stakeholders’

suggestions, EPA should have given clearer notice that the rule

might be revised. This argument, however, ignores that the

Agreement in Principle EPA executed with the stakeholders in

this rulemaking expressly reserved the Agency’s right to modify

the final rule in response to comments. See Stage 2 Microbial

and Disinfection Byproducts Federal Advisory Committee

Agreement in Principle, 65 Fed. Reg. 83,015, 83,017 (Dec. 29,

2000). Moreover, neither the Negotiated Rulemaking Act, 5

U.S.C. §§ 561-570a, nor any other statute we know of requires

an agency to provide more detailed notice of possible changes

in its draft rules just because they evolve from negotiated

rulemaking. Indeed, adopting the cities’ suggestion would make

it easier for disappointed parties to overturn negotiated rules

than non-negotiated rules, thus discouraging agencies from

17

engaging in negotiated rulemaking—exactly the opposite of

what Congress intended. See id. § 569 (encouraging negotiated

rulemaking).

V.

This brings us to the cities’ final attack on the rule—that

EPA failed to use the best available science. The SDWA

provides: “to the degree that an agency action is based on

science, the Administrator shall use—(i) the best available, peer-

reviewed science . . . ; and (ii) data collected by accepted

methods or best available methods.” 42 U.S.C. § 300g-

1(b)(3)(A). Portland and New York claim that EPA violated

this provision by using outdated science in several parts of its

cost-benefit analysis.

The cities first claim that EPA should have reduced

estimated tap water consumption in sensitive subpopulations

(e.g., AIDS patients) because such populations tend to drink

more bottled water than normal. EPA, however, rationally

declined to do so because it lacked data to support this claim or

estimate its impact. See Public Comment and Response

Document for the Long Term 2 Enhanced Surface Water

Treatment Rule § 20.2.2 (Dec. 2005).

The cities next argue that EPA used old data to estimate the

amount of Cryptosporidium in unfiltered drinking water. Again,

however, EPA explained that none of the newer available data

relates to unfiltered sources, the ones covered by the source

water treatment requirement. See 71 Fed. Reg. at 662. Thus,

EPA’s use of the older data was perfectly rational.

Finally, the cities argue that EPA ignored its own scientist’s

Cryptosporidium infectivity estimate and instead adopted one

that was exceptionally high. But EPA explained that its higher

estimate rested on studies done after its expert’s study, and was

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developed using advice from its Science Advisory Board, 71

Fed. Reg. at 662, which we have treated as an acceptable form

of peer review, see City of Waukesha, 320 F.3d at 250. Thus,

although EPA’s new estimate was much higher than its previous

one, the Agency provided a plausible explanation for choosing

it, and it represented the best available, peer-reviewed science at

the time.

Moreover, even if EPA did rely on inadequate science, its

mistake—like many of the mistakes alleged by Portland and

New York—was harmless. Although the mistakes the cities

allege, if true, might mean that EPA’s cost-benefit analysis

overstated the rule’s benefits, they could not have affected the

final rule because the SDWA required EPA to choose the most

stringent feasible treatment technique for Cryptosporidium

regardless of cost-benefit analysis. Had EPA used outdated or

unreliable science to determine that the rule was feasible, the

cities might have a valid complaint, but none of the science the

cities challenge relates to the feasibility of the required treatment

techniques.

VI.

In conclusion, Portland’s and New York’s attacks on this

rulemaking are all either inaccurate, irrelevant, or both. EPA

used the best available science and provided ample evidence to

support the rule, clear notice to the public about what it was

considering, and adequate responses to comments. Even if

EPA’s cost-benefit analysis, use of science, and responses to

comments were as flawed as the cities insist, these errors had no

effect on the final rule and were thus harmless. We therefore

deny the petition for review.

So ordered.