Maier v. U.S. E.P.A.

• Decision Date: 28 May 1997
• Docket Number: No. 95-9525,95-9525
• Citation: 114 F.3d 1032
• Parties: , 65 USLW 2792, 27 Envtl. L. Rep. 21,272, 97 CJ C.A.R. 806 Peter MAIER, P.E.; Intermountain Water Alliance; Atlantic States Legal Foundation; and Kay Henry, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Carol Browner, Administrator, United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1032

114 F.3d 1032

44 ERC 1705, 65 USLW 2792, 27 Envtl.

L. Rep. 21,272,

97 CJ C.A.R. 806

Peter MAIER, P.E.; Intermountain Water Alliance; Atlantic

States Legal Foundation; and Kay Henry, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Carol

Browner, Administrator, United States

Environmental Protection Agency, Respondents.

No. 95-9525.

United States Court of Appeals,

Tenth Circuit.

May 28, 1997.

Matthew Gilbert Kenna, Durango, Colorado, for Petitioners.

Jon M. Lipshultz, Environmental Defense Section, Environment and Natural Resources Division, U.S. Department of Justice (Lois J. Schiffer, Assistant Attorney General, and Stephen J. Sweeney, Water Division, U.S. Environmental Protection Agency, with him on the brief), Washington, D.C., for Respondents.

Before SEYMOUR, Chief Judge, ALARCON ^*, and LUCERO, Circuit Judges.

SEYMOUR, Chief Judge.

Appellants Peter Maier, the Intermountain Water Alliance, the Atlantic States Legal Foundation, the Utah Wilderness Association, and Kay Henry ¹ petitioned the Environmental Protection Agency (EPA) to initiate rulemaking under the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387. Mr. Maier contended that recent developments in municipal wastewater technology have rendered the EPA's regulations for secondary treatment inadequate, and therefore the EPA must promulgate new standards. The EPA denied the petition, and Mr. Maier appealed to this court. We affirm.

I.

A.

We start with an overview of the relevant statutory scheme. The CWA aims "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" by reducing and eventually eliminating the discharge of pollutants. 33 U.S.C. § 1251(a), (a)(1). "[T]he basic structure of the [CWA] ... translates Congress' broad goal of eliminating 'the discharge of pollutants into the navigable waters' into specific requirements that must be met by individual point sources." EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 69, 101 S.Ct. 295, 300, 66 L.Ed.2d 268 (1980) (quoting 33 U.S.C. § 1251(a)(1)) (citations omitted). A "point source" is defined as "any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). The CWA prohibits the discharge of any pollutant from a point source unless that discharge complies with the CWA's requirements. 33 U.S.C. § 1311(a). Compliance can be achieved by obtaining a National Pollutant Discharge Elimination System (NPDES) permit, pursuant to 33 U.S.C. § 1342, which establishes technology-based controls and ensures compliance with state or federal water quality standards. 33 U.S.C. § 1311(b)(1)(C). These permits generally contain quantitative limits on the amounts of specified pollutants that may be discharged. See generally Oklahoma v. EPA, 908 F.2d 595, 597-98 (10th Cir.1990), rev'd on other grounds sub nom., Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992).

The CWA mandates varying standards of technology-based treatment as the minimum requirement for different categories of point sources. 33 U.S.C. §§ 1311, 1314. Under section 1311, "effluent limitations for point sources, other than publicly owned treatment works [POTWs] ... require the application of the best practicable control technology currently available as defined by the Administrator." Id. § 1311(b)(1)(A). By contrast, the same section requires "for publicly owned treatment works ... effluent limitations based upon secondary treatment." ² Id. § 1311(b)(1)(B). The EPA may supplement the minimum requirements by using individual permits to impose "any more stringent limitation ... necessary to meet water quality standards." Id. § 1311(b)(1)(C). When Congress first enacted these provisions, it intended to phase in a requirement that publicly owned treatment works utilize "best practicable waste treatment technology," a stricter standard than secondary treatment. 33 U.S.C. § 1311(b)(2)(B) (1973); see also S.REP. NO. 92-414, at 43 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3709 ("Publicly-owned treatment systems must meet the secondary treatment requirement of Phase I and, in Phase II, the mandate requires the best practicable treatment...."). In 1981, however, Congress repealed this general requirement and limited the stricter standard to federally-funded POTWs. Municipal Wastewater Treatment Construction Grant Amendments of 1981, Pub.L. No. 97-117, § 21(b), 95 Stat. 1623, 1632 (1981).

B.

Secondary treatment, which is the basic requirement for all POTWs, is principally concerned with removing biological pollutants which affect the oxygen content of wastewater. Healthy waters contain dissolved oxygen upon which flora and fauna rely, but biological pollutants "demand" and consume this oxygen. The rate at which dissolved oxygen is consumed is measured by a parameter called "biochemical oxygen demand" (BOD). BOD actually measures the effect of two components of oxygen depletion which, with proper testing, can be disaggregated: CBOD and NOD. ³ The EPA's regulations for standard secondary treatment have always focused on BOD, and in particular on control of CBOD. ⁴

Initially, the EPA required testing for BOD by a standard five-day test of overall BOD levels, the so-called BOD sub5 test. See rec. at 121-22. But the EPA became concerned that the BOD sub5 test produced erroneous indications of effluent quality. Secondary treatment with existing technology ⁵ under some operating conditions could lead to increased nitrification (NOD), and inflated BOD sub5 values, despite producing effluent of better quality than facilities with lower BOD sub5 . Id.; Secondary Treatment Information, 48 Fed.Reg. 52,272, 52,275-6. In a 1984 rulemaking, the EPA addressed the problem by revising its regulations to allow the permitting authority to require facilities to employ a more specific measure of CBOD rather than the general test for BOD. See Secondary Treatment Regulation, 49 Fed.Reg. 36,986, 36,988-90, 36,998-99 (1984) (to be codified at 40 C.F.R. pt. 133). In effect, EPA recognized that NOD can constitute a significant component of BOD levels, but concluded that measuring NOD in some cases might distort rather than enhance accurate assessment of effluent quality.

During this rulemaking, commenting parties, including Mr. Maier, suggested that secondary treatment standards ought to directly address NOD or ultimate BOD. ⁶ See id. at 36,999; rec. at 297. The EPA concluded, however, that NOD levels were quite variable and were therefore inappropriate as a criterion for generally-applicable standards. The EPA maintained that NOD would be better dealt with on a case-by-case basis in NPDES permitting. Secondary Treatment Regulation, 49 Fed.Reg. at 36,999; rec. at 297-98. The EPA therefore characterized NOD controls as a form of "advance treatment" to be imposed by permit where necessary. The EPA also noted that total impact on dissolved oxygen level (ultimate BOD) is to be considered in the NPDES permitting process. Secondary Treatment Regulation, 49 Fed.Reg. at 36,999. The EPA's 1984 rulemaking was not appealed to the federal courts. Thus, current regulations for secondary treatment do not establish standards for NOD, although an individual facility's NPDES permit may well impose requirements for NOD.

In 1993, Mr. Maier filed a petition requesting the EPA to initiate rulemaking to set parameters for NOD and ultimate BOD as part of its secondary treatment regulations. Mr. Maier argued that the existing regulations, setting parameters only for CBOD and BOD sub5 , were inadequate because new secondary treatment technology made it feasible and cost-effective to control both CBOD and NOD. The EPA did not controvert that controlling NOD was now feasible and cost-effective for some (but not all) POTWs, but emphasized that the impact of NOD is highly variable and dependent upon such factors as temperature and rate of flow of the receiving water body. In the EPA's view, this variability continues to justify its regulatory decision to control CBOD with a generally-applicable regulation, but to control NOD on a case-by-case basis through the permitting process. Consequently, the EPA denied Mr. Maier's petition. Mr. Maier filed the instant petition for review in this Court pursuant to 33 U.S.C. § 1369(b)(1).

II.

We first determine whether we have jurisdiction. Although both parties agree that we have jurisdiction, "no action of the parties can confer subject-matter jurisdiction upon a federal court." Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982). We have an independent duty to examine our own jurisdiction. Lopez v. Behles, 14 F.3d 1497, 1499 (10th Cir.), cert. denied, 513 U.S. 818, 115 S.Ct. 77, 130 L.Ed.2d 31 (1994).

The CWA establishes a bifurcated system of judicial review. Section 1365 "confers jurisdiction on the federal district courts, not courts of appeal, to review any action 'where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator.' " Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir.1984) (quoting 33 U.S.C. § 1365(a)(2)). Section 1369 of the CWA provides that "[r]eview of the Administrator's action ... (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316 of this title ... may be had by any interested person in the Circuit Court of Appeals of the United States." 33 U.S.C. § 1369(b)(1). ⁷ The jurisdictional grant in section 1369 is exclusive. American Petroleum Inst. v. Train, 526 F.2d 1343, 1344 (10th Cir.1975). We must determine whether the EPA's denial of Maier's petition to institute rulemaking constitutes an "action ... in approving or promulgating any effluent limitation or other limitation," and thus falls within the ambit of section 1369(b)(1).

The District of Columbia Circuit...