Bad Facts Make Bad Law-Commentary on the D.C. Circuit’s Chlorine Decision. D. Hattis, Clark University
The DC Circuit Court has recently ruled that EPA’s decision to set a zero aspirational guideline level for chloroform in drinking water to be "arbitrary and capricious" because EPA disregarded a technical advisory committee’s conclusion that there was likely to be a "nonlinear" mode of action for chloroform carcinogenesis in some available animal cancer bioassays. In doing this, the court incorporated strong language to the effect that the technical advisory committee’s work constituted the best available evidence for EPA rulemaking, and that the "nonlinear" category implied a population threshold for chloroform carcinogenicity. I believe there is good reason to be critical of the technical analysis in this case, and the implicit use of a "more likely than not" evidentiary criterion in discarding a plausible low dose linear genetic component for chloroform carcinogenesis as well as carcionogenesis by other chemicals with reactive metabolites. On the other hand, EPA should clearly have gone to much greater lengths to justify its apparent disregard of the technical panel’s conclusions. Adaptations seem to be needed to EPA’s currently proposed guidance to its technical panels for evaluating and classifying mode of action information for carcinogens.
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