539 F.2d 107 (D.C. Cir. 1976), 74-1464, American Frozen Food Institute v. Train

Docket Nº:74-1464, 74-1513 and 74-1840.
Citation:539 F.2d 107
Party Name:Envtl. AMERICAN FROZEN FOOD INSTITUTE, Petitioner, v. Russell E. TRAIN, Administrator, and Environmental Protection Agency, Respondents (two cases). POTATO PROCESSORS OF IDAHO, Petitioner, v. Russell E. TRAIN, Administrator, and Environmental Protection Agency, Respondents.
Case Date:May 11, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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539 F.2d 107 (D.C. Cir. 1976)

Envtl.

AMERICAN FROZEN FOOD INSTITUTE, Petitioner,

v.

Russell E. TRAIN, Administrator, and Environmental

Protection Agency, Respondents (two cases).

POTATO PROCESSORS OF IDAHO, Petitioner,

v.

Russell E. TRAIN, Administrator, and Environmental

Protection Agency, Respondents.

Nos. 74-1464, 74-1513 and 74-1840.

United States Court of Appeals, District of Columbia Circuit

May 11, 1976

Argued May 28, 1975.

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Petition for Review of an Order of the Environmental Protection agency.

Edward Brown Williams, Washington, D. C., with whom Jeffery Lee Greenspan, Washington, D. C., was on the brief for petitioners. Jan Edward Williams, Washington, D. C., also entered an appearance for petitioners.

Edmund B. Clark, Atty., Dept. of Justice and Pamela P. Quinn, Atty., E.P.A., Washington, D. C., with whom Wallace H. Johnson, Asst. Atty. Gen., Robert V. Zener, Gen. Counsel, E.P.A., Martin Green and Joan M. Cloonan, Attys., Dept. of Justice, Washington, D. C., were on the brief for respondents. John E. Varnum, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for respondents.

Robert C. Barnard, Washington, D. C., filed a brief on behalf of Union Carbide Corp., Monsanto Company, Dow Chemical Co., E. I. duPont De Nemours and Co. and Celanese Corp. as amici curiae urging reversal. Charles F. Lettow, Washington, D. C., also entered an appearance for Union Carbide Corp. and others as amici curiae.

Edward L. Strohbehn, Jr., Washington, D. C., filed a brief on behalf of Natural Resources Defense Council, Inc., as amicus curiae urging affirmance.

Before BAZELON, Chief Judge, McGOWAN, Circuit Judge and EDWARDS, [*] Circuit Judge for the Sixth Circuit.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge.

This case requires this court to review and interpret the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251, et seq. (Supp. III, 1973) (hereinafter referred to as the Act). This is a complicated and lengthy statute which, in mandatory terms, demands solution of one of America's most important problems, the increasing and nationally threatening pollution of our magnificent natural water resources, rivers, lakes and bounding oceans. In its Declaration of Goals and Policy, the Act imposes on American industry (and the American public through passed-on product costs) the economic burden of ending all discharges of pollutants by the year 1985. Section 101(a), 33 U.S.C. § 1251(a) (Supp. III, 1973). In some instances the statute clearly contemplates the closing of marginal plants which cannot function economically with the costs added by water pollution controls.

One expert on ecology has recently stated in cosmic terms the problem which engaged the urgent attention of the Congress for this nation:

WE, AS HUMAN BEINGS, are part of a complex array of living creatures that started to deploy on earth about three billion years ago and has never stopped diversifying. The only life system we know of and we are part of is based on carbon chemistry and cannot develop without water. . . .

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Some recent findings tend to establish that within the outer space of one galaxy, some organic chemical compounds are widely spread that could be considered as the building blocks of amino acids. This could be an indication of a sort of universal insemination, and that the stage is set in the cosmos for the potential development of life anywhere where circumstances are favorable; such favorable circumstances are based on the existence on a given planet of an abundance of water in the liquid state. Now, the liquid state itself of any element or of any compound is much rarer in the universe than solid state or gaseous state, and it is even much rarer in the case of water that remains liquid only in a very narrow range of temperature. The obvious consequence is that, even if life exists elsewhere, it is exceedingly sporadic, and very seldom finds on a celestial body the exceptional and lasting conditions that existed on Earth for three billion years and are likely to be enjoyed for another four or five billion years.

The recent access of our minds to these cosmic considerations endows human consciousness with a new dimension and invites our reason to give objectively even a higher prize to our lives than we used to do subjectively. The logical conclusion is that, of all priorities, the supreme imperative is to conserve, to protect, to nurse the water system of our planet; because its life is our own life, because its fate is our fate.

There are only two logical attitudes for the men of today: either to have a wonderful time . . . to consume and burn everything, and "Apres moi le deluge," or to take the four billion year challenge for mankind, that is, to try to keep our species alive as long as the Earth will offer acceptable conditions, and organize the world along non-kinesian principles, to pass it over in good shape to the next generation.

"A Time to Choose," address by Captain Jacques-Yves Cousteau to the Remote Sensing Symposium at University of Michigan, October 7, 1975.

Petitioners, who are representatives of the potato processing industry, attack on a broad front the Environmental Protection Administrator's actions under and his interpretation of the Federal Water Pollution Control Act Amendments of 1972 in applying the Act to the industry concerned. Certain other industry representatives have filed briefs amici curiae claiming that this court has no jurisdiction in this case.

The principal questions presented by this case are:

Does the United States Court of Appeals have jurisdiction to review the actions here complained of?

Did the Administrator violate the Act by combining in one document issued on one day his response to the requirements of Sections 301, 304 and 306 of the Act, thereby necessitating that his orders be set aside?

Did the Administrator violate the Act by promulgating national effluent limitations applicable to categories and subcategories of the industries concerned rather than by promulgating limitations for individual plants?

Other issues include petitioners' claims that the Administrator violated the Act by using Canadian plants as examples and that he abused his discretion by both procedural and substantive errors in the rule-making which resulted in the guidelines and the effluent limitations for the potato processing industry.

After detailed consideration of these specific questions, referred to above, we hold that this court has jurisdiction of this case. We also hold that the Administrator's interpretations of the Act are valid in the respects complained of. We find abuse of discretion in only one minor instance.

In Parts I and II of this opinion we set forth a general outline of the main features of the Act and its legislative history. This discussion provides a necessary basis for our more detailed interpretation of the Act in Part III. In Part IV we shall deal with the

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remaining issues, principally the claim of abuse of administrative discretion.

I. THE STRUCTURE OF THE ACT

In Title I of the Act, we find the following sweeping Declaration of Goals and Policy:

DECLARATION OF GOALS AND POLICY

Sec. 101. (a) The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act

(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;

(2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983;

(3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;

(4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;

(5) it is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; and

(6) it is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone, and the oceans.

33 U.S.C. § 1251(a) (Supp. III, 1973) (Emphasis added.)

Concern about pollution of the nation's lakes, rivers, harbors and contiguous oceans is by no means new:

The Federal Water Pollution Control Act . . . was originally enacted by act June 30, 1948, c. 758, 62 Stat. 1155, and amended by Acts July 17, 1952, c. 927, 66 Stat. 755; July 9, 1956, ch. 518, 70 Stat. 498; June 25, 1959, Pub.L. 86-70, 73 Stat. 141; July 12, 1960, Pub.L. 86-624, 74 Stat. 411; July 20, 1961, Pub.L. 87-88, 75 Stat. 204; Oct. 2, 1965, Pub.L. 89-234, 79 Stat. 903; Nov. 3, 1966, Pub.L. 89-753, 80 Stat. 1246; Apr. 3, 1970, Pub.L. 91-224, 84 Stat. 91; Dec. 31, 1970, Pub.L. 91-611, 84 Stat. 1818; July 9, 1971, Pub.L. 92-50, 85 Stat. 124; Oct. 13, 1971, Pub.L. 92-137, 85 Stat. 379; Mar. 1, 1972, Pub.L. 92-240, 86 Stat. 47.

However, the Federal Water Pollution Control Act Amendments of 1972 are not mere amendments to previous control attempts. Preceding pollution control measures were fundamentally designed to determine what lakes and streams had become polluted beyond toleration and then to locate the particular polluters and suppress the discharges that were causing the condition. Determination of which polluter...

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