541 F.2d 1018 (4th Cir. 1976), 74-1407, E. I. du Pont De Nemours & Co. v. Train

Docket Nº:74-1407, 74-1588 to 74-1590, 74-1670, 74-1671 and 74-1741.
Citation:541 F.2d 1018
Party Name:E. I. DuPONT de NEMOURS & COMPANY et al., Petitioners, v. Russell E. TRAIN, as Administrator of the Environmental Protection Agency, Respondent. [*] Nos. 74-1261, 74-1290, 74-1296 to 74-1304, 74-1357, 74-1406,
Case Date:March 10, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1018

541 F.2d 1018 (4th Cir. 1976)

E. I. DuPONT de NEMOURS & COMPANY et al., Petitioners,

v.

Russell E. TRAIN, as Administrator of the Environmental

Protection Agency, Respondent. [*]

Nos. 74-1261, 74-1290, 74-1296 to 74-1304, 74-1357, 74-1406,

74-1407, 74-1588 to 74-1590, 74-1670, 74-1671 and 74-1741.

United States Court of Appeals, Fourth Circuit

March 10, 1976

Argued April 22, 1975.

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Robert C. Barnard, Washington, D. C., for petitioners. With him on the briefs were Douglas E. Kliever and Charles F. Lettow.

Kathryn A. Oberly, Washington, D. C., for respondent. With her on the briefs were Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, Atty., Dept. of Justice, Alan G. Kirk, II, Asst. Administrator for Enforcement and Gen. Counsel, and Ray E. McDevitt, Atty., Environmental Protection Agency, Washington, D. C.

Briefs of amici curiae were filed by Angus Macbeth, New York City, and Edward L. Strohbehn, Jr., Washington, D. C., for Natural Resources Defense Council.

Frederick M. Rowe, Washington, D. C., Edward W. Warren, Scranton, Pa., and Robert F. VanVoorhees, Fairfax, Va., for American Petroleum Institute, et al.

Russell E. Leasure and Elliot S. Azoff, Cleveland, Ohio, for RMI Co.

George C. Freeman, Jr., Turner T. Smith, Jr., and William A. Anderson, II, Richmond, Va., for Allegheny Power System, Inc., et al.

Milton A. Smith, Lawrence B. Kraus, James F. Rill, Max N. Edwards, Richard E. Schwartz, and Collier, Shannon, Rill & Edwards, Washington, D. C., for the Chamber of Commerce of the United States.

Robert H. Young, Kenneth R. Myers, Philadelphia, Pa., and Archibald A. Campbell, Wytheville, Va., for New Jersey Zinc Co.

Before RIVES [**] and BREITENSTEIN [***], Senior Circuit Judges, and WIDENER, Circuit Judge.

BREITENSTEIN, Senior Circuit Judge.

Companies engaged in the production of inorganic chemicals have filed 20 petitions for review of various regulations promulgated by respondent Train as Administrator of the Environmental Protection Agency. The petitions have been consolidated for presentation and disposition. The regulations were promulgated under the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. §§ 1251-1376. Herein for brevity and clarity the Administrator at times will be referred to as EPA and the statutory references will be those found in the Act as set out in 86 Stat. 816 et seq. 1 Petitioners will be referred to collectively as Industry.

Industry's attack on the jurisdiction of the court of appeals has been rejected by our opinion in DuPont & Company v. Train, 4 Cir., 528 F.2d 1136.

The objective of the Act "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 101(a). The goal is the elimination by 1985 of "the discharge of pollutants into the navigable waters." § 101(a)(1). Earlier legislation, which placed on the states the primary responsibility to maintain water quality, had proven inadequate. S.Rep.No.92-414, 92 Cong. 2d Sess., 2 U.S.Cong. & Adm.News '72 p. 3674. The Act made "a major change in the enforcement mechanism of the Federal water pollution control program from water quality standards to effluent limits." Ibid. at p. 3675.

Section 301(a) provides that except in compliance with specified sections of the Act "the discharge of any pollutant by any person shall be unlawful." Section 301(b) says that "to carry out the objective of this Act there shall be achieved" stated effluent limitations. Not later than July 1, 1977, those limitations for point sources, except

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publicly owned treatment works with which we are not concerned, "shall require the application of the best practicable control technology." § 301(b)(1)(A). For July 1, 1983, the requirement is "the best available technology economically achievable." § 301(b)(2)(A).

The foregoing requirements apply to existing sources. For new sources, § 306(a)(1) requires a standard of performance "which reflects the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology." Section 306(b)(1)(A) directs the Administrator within 90 days after enactment to publish a list of categories which at the minimum shall include 27 named industries among which is "inorganic chemicals manufacturing." Within one year after publication of the list of categories, the Administrator shall publish Federal standards of performance for new sources within each category. § 306(b)(1)(B).

Primary enforcement of the Act is secured through the permit system established by § 402. Permits for pollutant discharge may be issued by the Administrator, § 402(a)(1), or by a state which has adopted a permit program approved by the Administrator. § 402(b). The Administrator has veto power over a state issued permit. § 402(d)(2). All permits shall comply with the applicable provisions of §§ 301, 306, and other specified sections not including § 304. See § 402(a)(1) and (b)(1)(A).

Section 304 is the cause of much of the controversy. Within one year after enactment, the Administrator must publish "criteria for water quality accurately reflecting the latest scientific knowledge" on enumerated subjects. § 304(a)(1). Within the same period the Administrator shall publish regulations "providing guidelines for effluent limitations." § 304(b). Subsection (b)(1)(A) applies to the 1977 step and subsection (b)(2)(A) to the 1983 step. Each subsection mandates consideration of specified factors.

The Administrator did not act within the one year requirements of § 304. Compliance was not within the realm of reality. There are some 28,000 industrial dischargers and 27,000 others. About 30,000 applications for permits were filed. EPA characterizes the Act as "incredibly complex and demanding." A private suit was brought to compel compliance. The result was a court imposed timetable. Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 710-714.

On March 12, 1974, EPA promulgated "effluent limitations guidelines for existing sources and standards of performance * * * for new sources in the inorganic chemicals manufacturing category of point sources." 39 Fed.Reg. 9612 et seq. These are the regulations under attack. In so doing EPA stated that it acted "pursuant to sections 301, 304(b) and (c), 306(b) and (c) and 307(c)." We are not concerned with § 307 which covers certain toxic pollutants. The regulations prescribe "effluent limitations guidelines for existing sources" and "standards of performance for new sources." 40 C.F.R. 401.10.

Industry attacks the regulations generally and specifically. We shall first consider the objections going to all of the regulations and then discuss those applying to particular sources.

I

GENERAL VALIDITY OF REGULATIONS

(a) Notice.

Industry argues that the regulations are invalid because of EPA's failure to give the notice required by the Administrative Procedure Act, 5 U.S.C. § 553(b). In its October 11, 1973, notice of proposed rule-making, 38 Fed.Reg. 28174 et seq., EPA stated that its proposed action was taken pursuant to §§ 301, 304(b) and (c), 306(b), and § 307(c). Public comments received thereafter are contained in pp. 4884-5346 of the Appendix. In its March 12, 1974, promulgation of the regulations, EPA summarized the comments. See 39 Fed.Reg. 9612-9615.

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The rule-making and notice provisions of APA "were designed to assure fairness and mature consideration of rules of general application." National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759, 764, 89 S.Ct. 1426, 1429, 22 L.Ed.2d 709. Notice is sufficient if it provides a description of the subjects and issues involved. 5 U.S.C. § 553(b)(3) and California Citizens Band Association v. United States, 9 Cir., 375 F.2d 43, 49, cert. denied 389 U.S. 844, 88 S.Ct. 96, 19 L.Ed.2d 112. Industry had adequate notice and took advantage of it.

(b) EPA's power to establish effluent limitations by regulations.

This issue goes to the heart of the controversy. Industry says that the Administrator promulgates guidelines to be considered by the permit issuer. EPA says that the Administrator establishes effluent limitations by regulations which, with exceptions to be noted later, have uniform application throughout the nation and which must be applied by the permit issuer.

(1) Applicable Law.

The Administrative Procedure Act, 5 U.S.C. § 706(2)(A), authorizes a reviewing court to set aside agency action which is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." As said in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 825, 28 L.Ed.2d 136, "the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." See also Appalachian Power Company v. Environmental Protection Agency, 4 Cir., 477 F.2d 495, 506-507. The court may not substitute its judgment for that of the agency. Overton Park, 401 U.S. at 416, 91 S.Ct. 814. If the agency's construction of the controlling statute is "sufficiently reasonable" it should be accepted by the reviewing court. Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 75, 95 S.Ct. 1470, 43 L.Ed.2d 731.

The grounds upon which the agency acted must be clearly disclosed in, and sustained by, the record. Federal Trade Commission v. Sperry and Hutchinson Co., 405 U.S. 233, 249, 92 S.Ct....

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