161 F.3d 923 (5th Cir. 1998), 97-60042, Texas Oil & Gas Ass'n v. United States E.P.A.

Docket Nº:97-60042, 97-60321.
Citation:161 F.3d 923
Party Name:TEXAS OIL & GAS ASSOCIATION; Marathon Oil Company; Trustees for Alaska; Natural Resources Defense Council; Cook Inlet Keeper; National Wildlife Federation; Alaska Clean Water Alliance; Greenpeace; Alaska Center for the Environment; Alaska Marine Conservation Council; Kachemak Bay Conservation Society; Alaska Waveriders; Union Oil Co. CA; Phillips P
Case Date:December 10, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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161 F.3d 923 (5th Cir. 1998)

TEXAS OIL & GAS ASSOCIATION; Marathon Oil Company;

Trustees for Alaska; Natural Resources Defense Council;

Cook Inlet Keeper; National Wildlife Federation; Alaska

Clean Water Alliance; Greenpeace; Alaska Center for the

Environment; Alaska Marine Conservation Council; Kachemak

Bay Conservation Society; Alaska Waveriders; Union Oil Co.

CA; Phillips Petroleum; Shell Oil Co.; Railroad

Commission of Texas; State of Texas, Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

AMERICAN PETROLEUM INSTITUTE, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Carol M.

Browner, Administrator, United States

Environmental Protection Agency, Respondents.

RAILROAD COMMISSION; State of Texas, Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 97-60042, 97-60321.

United States Court of Appeals, Fifth Circuit

December 10, 1998

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Susan G. Zachos, Kelly, Hart & Hallman, Ray N. Donley, Austin, TX, for Texas Oil and Gas Ass'n.

Cherie L. Rogers, U.S. Dept. of Justice, Environment & Natural Resources Div., Mary Ellen Myers Levine, Carol Browner, EPA, Mary F. Edgar, Lois J. Schiffer, U.S. Dept. of Justice, Washington, DC, for United States Environmental Protection Agency and Carol M. Browner.

William J. Wynne, El Dorado, AR, for Interstate Oil and Gas Compact Com'n, Amicus Curiae.

Brian E. Berwick, Liz Bills, Natural Resources Div., Austin, TX, for Railroad Com'n of Texas and State of Texas.

Douglas Wayne Morris, George William Frick, Washington, DC, for American Petroleum Institute.

William D. Maer, Svend A. Brandt-Erichsen, Heller, Ehrman, White & McAuliffe, Seattle, WA, John Marx Miller, Marathon Oil Co., Houston, TX, for Marathon, Oil Co.

Peter H. Van Tuyn, Stephen Koteff, Trustees for Alaska, Anchorage, AK, Peter Lehner, Natural Resources Defense, New York City, for Trustees for Alaska, Natural Resources Defense Council, Cook Inlet Keeper,

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National Wildlife Federation, Alaska Clean Water Alliance, Greenpeace, Alaska Center for the Environment, Alaska Marine Conservation Council, Kachemak Bay Conservation Society and Alaska Waveriders.

Petitions for Review of Orders of the Environmental Protection Agency.

Before REAVLEY, DAVIS, and DUHE, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Eighteen petitioners from six consolidated actions seek review and reversal of a series of final effluent limitation guidelines for the coastal oil- and gas-producing industry, promulgated on January 15, 1997 by the United States Environmental Protection Agency ("EPA") pursuant to Sections 301, 304, 306-08, and 501 of the Clean Water Act ("CWA" or "Act"), 33 U.S.C. §§ 1311, 1314, 1316-18, 1361. Three of the petitioners also seek review of a general National Pollution Discharge Elimination System permit issued on January 9, 1995 by EPA Region 6 ("Region 6") pursuant to Section 402 of the CWA, 33 U.S.C. § 1342. Petitioners challenge the EPA's promulgation of zero discharge limits on produced water and produced sand, the EPA's decision to set more lenient discharge limits for coastal facilities in Cook Inlet, Alaska than for other coastal facilities, and Region 6's issuance of a general permit banning the discharge of produced water from coastal facilities in Texas.

For reasons that follow, we uphold the EPA's zero discharge limits for produced water and produced sand in the effluent limitation guidelines and its order setting more lenient discharge limits for produced water and drilling wastes in Cook Inlet. This decision makes it unnecessary for us to reach the challenges to the general permit.

I.

Congress enacted the CWA in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). As part of this mission, the Act declared a national goal that the discharge of pollutants into the navigable waters be eliminated by 1985. 33 U.S.C. § 1251(a)(1). It was designed to achieve this goal through a system of effluent limitations guidelines ("ELGs") and National Pollutant Discharge Elimination System ("NPDES") permits that set technology-based discharge limits for all categories and subcategories of water pollution point sources. 1 Although the statutory framework of the CWA has already been detailed at length by both the Supreme Court and this Court, see EPA v. Nat'l Crushed Stone Ass'n, 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980); Am. Petroleum Inst. v. EPA, 661 F.2d 340 (5th Cir.1981), a brief review of ELGs and NPDES permits is helpful in understanding the present case.

ELGs are the rulemaking device prescribed by the CWA to set national effluent limitations for categories and subcategories of point sources. 33 U.S.C. § 1314(b). An "effluent limitation" is "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance." 33 U.S.C. § 1362(11). These limitations are technology-based rather than harm-based; that is, they reflect the capabilities of available pollution control technologies to prevent or limit different discharges rather than the impact that those discharges have on the waters. See generally E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 130-31, 97 S.Ct. 965, 976-77, 51 L.Ed.2d 204 (1977); Am. Petroleum Inst., 661 F.2d at 343-44. The CWA prescribes progressively more stringent technological standards that the EPA must use as a guidepost in setting discharge limits for regulated pollutants. 33 U.S.C. § 1311(b)(1).

Under this scheme, since March 31, 1989, a majority of ELGs--including most of those

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at issue in the present case--have been required to represent the "best available technology economically achievable" ("BAT"). 33 U.S.C. §§ 1311(b)(2), 1314(b)(2). In other words, in promulgating ELGs the EPA must set discharge limits that reflect the amount of pollutant that would be discharged by a point source employing the best available technology that the EPA determines to be economically feasible across the category or subcategory as a whole. BAT is the CWA's most stringent standard. "Congress intended these limitations to be based on the performance of the single best-performing plant in an industrial field." Chem. Mfrs. Ass'n v. EPA, 870 F.2d 177, 226 (5th Cir.1989).

The CWA specifies several factors that must be considered by the EPA in determining BAT limits:

Factors relating to the assessment of best available technology shall take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate....

33 U.S.C. § 1314(b)(2)(B). The EPA nonetheless has considerable discretion in evaluating the relevant factors and determining the weight to be accorded to each in reaching its ultimate BAT determination. See Natural Resources Defense Council v. EPA, 863 F.2d 1420, 1426 (9th Cir.1988). Thus, the EPA has significant leeway in determining how the BAT standard will be incorporated into final ELGs.

Despite their central role in the framework of the CWA, ELGs are not self-executing. They cannot be enforced against individual dischargers, and individual dischargers are under no legal obligation to obey the limits set by ELGs. Rather, ELGs achieve their bite only after they have been incorporated into NPDES permits. See Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 350 (D.C.Cir.1993) (the "rubber hits the road" only when ELGs are incorporated into NPDES permits); American Petroleum Inst., 661 F.2d at 344 (NPDES permits "transform[ ] generally applicable effluent limitations ... into obligations (including a timetable for compliance) of the individual discharger.") (quoting EPA v. California Ex Rel. State Water Resources Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1976)).

NPDES permits are the CWA's implementation mechanism; they are the instrument by which ELGs are made binding on individual dischargers. The CWA makes it unlawful to discharge any pollutant from any point source without an NPDES permit. 2 33 U.S.C. § 1311(a); Am. Petroleum Inst. v. EPA, 787 F.2d 965, 969 (5th Cir.1986). These permits must generally incorporate, as a technology-based floor, all applicable ELGs promulgated by the EPA for the pertinent point source category or subcategory. 33 U.S.C. § 1342(a)(1). There are only two ways for an individual discharger to avoid the incorporation of applicable ELGs into an NPDES permit: first, where the discharger is operating under a permit that was issued prior to the promulgation of the ELGs 3; or second, in rare cases, where the EPA grants the discharger a variance based on the discharger's demonstration that it is "fundamentally different" from other dischargers in the category or subcategory. 33 U.S.C. § 1311(n); 40 C.F.R. §§ 122.21(m)(1), 125.30-125.32.

In situations where the EPA has not yet promulgated any ELGs for the point source category or subcategory, NPDES permits must incorporate "such conditions as the Administrator determines are necessary to carry out the provisions of the Act." 33 U.S.C. § 1342(a)(1). See also Am. Petroleum Inst., 787 F.2d at 969. In practice, this means that

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the EPA must...

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