510 F.2d 692 (D.C. Cir. 1974), 74--1433, Natural Resources Defense Council, Inc. v. Train

Docket Nº:74--1433.
Citation:510 F.2d 692
Party Name:Envtl. , 5 Envtl. NATURAL RESOURCES DEFENSE COUNCIL, INC. v. Russell E. TRAIN, in his official capacity as administrator, environmental protection agency, et al., Appellants.
Case Date:December 05, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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510 F.2d 692 (D.C. Cir. 1974)

Envtl. ,

5 Envtl.

NATURAL RESOURCES DEFENSE COUNCIL, INC.

v.

Russell E. TRAIN, in his official capacity as administrator,

environmental protection agency, et al., Appellants.

No. 74--1433.

United States Court of Appeals, District of Columbia Circuit

December 5, 1974

Argued Sept. 24, 1974.

As Modified Mar. 10, 1975.

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Lawrence E. Shearer, Atty., Dept. of Justice, Washington, D.C., with whom Carl Strass, Atty., Dept. of Justice, Washington, D.C., was on the brief, for appellants. Wallace H. Johnson, Asst. Atty. Gen., also entered an appearance for appellants.

Edward L. Strohbehn, Jr., Washington, D.C. with whom J. G. Speth, Washington, D.C., was on the brief, for appellee.

Before LEVENTHAL and ROBB, Circuit Judges, and NICHOLS, [*] Judge, United States Court of Claims.

LEVENTHAL, Circuit Judge:

The Natural Resources Defense Council (NRDC) brought an action in federal district court against the Environmental Protection Agency (EPA) and its Administrator (then Robert W. Fri, now Russell E. Train), seeking to compel the publication of effluent limitation guidelines called for by section 304(b)(1) (A) of the Federal Water Pollution Control Act Amendments of 1972. 1 This appeal from the District Court's orders of November 15 and 27, 1973, granting relief sought by NRDC 2 presents questions pertaining to the duty imposed upon the Administrator by that section and the operation of the citizen suits provisions of the Act. (Pertinent provisions of the Act are gathered in Appendix A.)

The Act, enacted on October 18, 1972, after extensive consideration and debate, establishes a comprehensive program designed 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters' in pursuit of a 'national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.' 3 Although the statute launches a multipronged attack on the problem of water pollution, 4 it relies primarily on a permit program for the achievement of effluent limitations--restrictions on the quantity of pollutants that may be discharged into the nation's waters--to attain its goals.

A brief sketch of the provisions of the Act relating to the formulation and implementation of the effluent limitations will indicate the relationship of the particular

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subsection at issue to the working of the Act. Section 301(b) sets forth two stages of effluent limitations which are to be achieved as intermediate steps in pursuit of the 1985 objective. The first step requires conformity not later than July 1, 1977, with effluent limitations for point sources other than publicly owned treatment works that shall require the application of the best practicable control technology currently available. 5 The second stage, to be completed no later than July 1, 1983, contemplates the reduction of the discharge of pollutants to an effluent limitation level attainable by the application of the best available technology economically achievable for such classes and categories of point sources. 6

A primary means created by the Act for achieving the effluent limitations by the deadlines contained in section 301(b) is the National Pollutant Discharge Elimination System (NPDES) established by section 402. 7 After dates set forth in that section, a person must obtain a permit and comply with its terms in order to discharge any pollutant. 8 The conditions of the permit must assure that any discharge complies with the applicable requirements of numerous sections including the effluent limitations of section 301(b). 9

The timetable for permit issuance is set forth in section 402(k). For the first 180 days after the enactment of the statute, the discharge of any pollutant shall not be a violation of the Act if the discharger applies for a permit within the 180 day period. Until December 31, 1974, the pendency of an application for a permit containing the necessary information for processing of the application will prevent a polluter from being in violation of the permit requirement. 10 After December 31, 1974, the Act contemplates that all discharges from point sources shall be made in conformity with a permit. The permits may be issued by the states under approved programs or by the Administrator in the absence of a state program. 11 The Act vests the Administrator with final review authority for permits issued by the states. 12

The effluent limitations incorporated in the permit conditions are to be based on regulations published under section 304(b) providing guidelines '(f)or the purpose of adopting or revising effluent limitations.' 13 Subsection (1) of that provision deals with guidelines for the effluent limitations to be achieved by July 1, 1977, limitations based on use of the best practicable control technology currently available. The provision involved in this appeal, section 304(b)(1)(A), requires the identification of the 'degree of effluent reduction attainable through the application' of that technology to classes and categories of point sources 'in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants.' The companion provision, section 304(b)(1)(B), calls on the Administrator to set forth factors for determining the

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control measures and practices to be applied to point sources.

The primary question in this case is the interpretation of the time limit imposed for the publication of regulations under section 304(b)(1)(A). The section states in pertinent part:

(b) (T)he Administrator shall . . . publish within one year of enactment of this title, regulations, providing guidelines for effluent limitations and, at least annually thereafter, revise, if appropriate, such regulations. Such regulations shall--

(1) (A) identify . . . the degree of effluent reduction attainable . . . for classes and categories of point sources (other than publicly owned treatment works). . . .

NRDC claims that the regulations for all classes and categories of point sources were due on October 18, 1973, 'in order to provide time to apply these guidelines to all point sources through the permits which must be issued by December 31, 1974.' 14 EPA argues that section 304 must be administered in the light of section 306. Section 306(b)(1)(A) provides that the Administrator shall publish, within 90 days after the October 18, 1972, date of enactment, and from time to time thereafter shall revise, a list of categories and sources. It specifies that the list 'shall, at the minimum, include: pulp and paper mills; * * * timber products processing.' This minimum list consists of 27 specified sources. EPA's position is that guidelines for categories of sources specified in section 306(b)(1)(A) were required by October 18, 1973, but that the agency has discretion regarding the publication date of regulations for other point source categories. 15

The circumstances which culminated in the filing of the present action by NRDC relate back to public meetings held in early 1973 at which EPA officials discussed the agency's plans for implementing section 304(b)(1)(A). 16 Those plans called for the publication of guidelines in three groups in October, 1973, May, 1974, and October, 1974. 17 On April 12, 1973, J. G. Speth, counsel for NRDC, wrote Robert McManus, Office of General Counsel, EPA, to protest the 'plainly illegal course' embodied in the implementation plans. 18 The letter set forth NRDC's understanding of EPA's position and argued that the Act required publication of all section 304(b)(1)(A) guidelines by October 18, 1973. Robert V. Zener, Acting Deputy General Counsel of EPA, responded on June 15, 1973, reaffirming the agency's position and claiming that it was supported by the language and the legislative history of the provision. 19

On August 14, 1973, NRDC filed a complaint in the United States District Court for the District of Columbia seeking a declaration that the Administrator had a nondiscretionary duty under section 304(b)(1)(A) to promulgate effluent limitation guidelines for all classes and categories of point sources (other than publicly owned treatment works) within one year of the enactment of the Act and an order requiring that such guidelines be promulgated as expeditiously as possible and in no event later than April 1, 1974. 20 On November 15, 1973, Judge Green granted plaintiff's motion for summary judgment, declaring that the 'defendants have a mandatory, non-discretionary duty to publish within one year of enactment of the Act final Section 304(b)(1)(A) effluent limitation guidelines necessary to provide comprehensive coverage of all point source discharges' and ordering a proposed schedule for publication of guidelines with a final deadline of October 1, 1974. 21 A subsequent order, issued November 27,

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1973, enjoined the defendants to comply with a detailed timetable for publication of guidelines that divided point sources into two groups--Group I, corresponding to the 27 categories of sources listed in section 306(b)(1)(A), and Group II, including all other classes and categories of point sources. 22 That order allocated the categories contained in the two groups among 29 publication dates beginning on January 15, 1974, and ending on November 29, 1974. Guidelines for all Group I categories were due on October 1, 1974, with publication of Group II guidelines to commence on October 4, 1974. 23 The trial court established this timetable '(t)o ensure that Section 304(b)(1)(A) guidelines will be published in time to be applied meaningfully in the National Pollutant Discharge Elimination System (NPDES) permit program established by Section 402 of the...

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