543 F.2d 328 (D.C. Cir. 1976), 74-1480, American Paper Institute v. Train

Docket Nº:74-1480, 74-1516, 74-1544, 74-1814 to 74-1821 and 74-1967.
Citation:543 F.2d 328
Party Name:Envtl. AMERICAN PAPER INSTITUTE, Petitioner, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Respondent. AMERICAN PAPER INSTITUTE, Petitioner, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Respondent. AMERICAN PAPER INSTITUTE, Petitioner, v. Russell E. TRAIN, Administrator, Environmental Protection Agency
Case Date:August 06, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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543 F.2d 328 (D.C. Cir. 1976)

Envtl.

AMERICAN PAPER INSTITUTE, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

AMERICAN PAPER INSTITUTE, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

AMERICAN PAPER INSTITUTE, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

BOISE CASCADE CORPORATION, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

GEORGIA-PACIFIC CORPORATION, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

INTERNATIONAL PAPER COMPANY, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

MEAD CORPORATION, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

OWENS-ILLINOIS INCORPORATED, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

PACKAGING CORPORATION OF AMERICA, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

WESTVACO, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

WEYERHAEUSER COMPANY, Petitioner,

v.

Russell E. TRAIN, Administrator, Environmental Protection

Agency, Respondent.

AMERICAN PAPER INSTITUTE et al., Appellants,

v.

Russell E. TRAIN, Administrator of the Environmental

Protection Agency.

Nos. 74-1480, 74-1516, 74-1544, 74-1814 to 74-1821 and 74-1967.

United States Court of Appeals, District of Columbia Circuit

August 6, 1976

Argued Sept. 22, 1975.

Certiorari Dismissed Nov. 17. 1976.

See 97 S.Ct. 398

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Thomas H. Truitt, Washington, D.C., with whom Charles Fabrikant, David R. Berz and Charles S. Fax, Washington, D.C., were on the brief for petitioners.

Bruce Diamond, Atty., Environmental Protection Agency and Thomas F. Bastow, Atty., Dept. of Justice, Washington, D.C., with whom Wallace H. Johnson, Asst. Atty. Gen., Robert V. Zener, Gen. Counsel, Environmental Protection Agency, Edmund B. Clark and Martin Green, Attys., Dept. of Justice, Washington, D.C., were on the brief for respondent. Raymond Zagone and Thomas C. Lee, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondent.

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

Before ROBB and WILKEY, Circuit Judges and SOLOMON,[*] United States Senior District Judge for the District of Oregon.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

These consolidated cases present challenges to regulations and actions of the Environmental Protection Agency and its Administrator pursuant to the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), 33 U.S.C. § 1251 et seq. (Supp. IV). In No. 74-1967 American Paper Institute (API), joined by eight companies engaged in the production of pulp, paper and paperboard, 1 challenged the EPA regulations by way of a suit in the United States District Court for the District of Columbia. The court held that under Section 509(b) (1) of the FWPCA jurisdiction to review these regulations was in a United States Court of Appeals and not in the District Court; accordingly the court granted EPA's motion to dismiss for lack of subject matter jurisdiction. American Paper Institute v. Train, 381 F.Supp. 553 (D.D.C.1974). The plaintiffs appeal.

The appeal from this dismissal has been consolidated here with petitions for review filed by API and the eight paper manufacturing companies. For convenience we shall refer to the appellants and the petitioners collectively as API. The petitions for review challenge both the regulations and the implementation of the FWPCA by EPA. These regulations were promulgated May 29, 1974 and establish effluent limitations guidelines and new source performance

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standards for five subcategories of the pulp, paper and paperboard industries. 2 We affirm the District Court's dismissal, uphold as valid the Agency's promulgated regulations and dismiss the various petitions for review.

I. THE STATUTE

The FWPCA establishes a comprehensive scheme for federal regulation of water pollution. The ultimate objective of the Act is to eliminate completely the discharge of pollution into navigable waters by 1985. The Act seeks to accomplish this by means of phased reductions in the amounts of pollutants which are discharged from municipal and industrial sources. Recently, in a lengthy and detailed opinion by another panel, this court reviewed and interpreted certain provisions of the Act which play a key role in this process. American Frozen Food Institute v. Train, 176 U.S.App.D.C. 105, 539 F.2d 107, No. 74-1464 (1976). Because the present case involves a discussion of these same statutory provisions, we dispense with an elaborate analysis of what is indeed a "complicated and lengthy statute," AFFI v. Train, supra, 539 F.2d at 115, and simply sketch, in abbreviated fashion, those sections of the Act with which we must deal.

Section 301, entitled "Effluent Limitations", requires all existing point source 3 dischargers of pollution to meet two levels of effluent standards: one level by July 1, 1977, and the other by July 1, 1983. 33 U.S.C. § 1311. The 1977 level requires the application of the "best practicable control technology currently available" for point sources other than publicly owned treatment works. (BPCTCA or "best practicable") Section 301(b)(1)(A). The 1983 level requires the application of the "best available technology economically achievable" for these same sources. (BATEA or "best available") Section 301(b)(2)(A). These same provisions of Section 301 also state that the defined levels of technology are to be given more specific meaning in regulations issued by the EPA pursuant to Section 304.

Section 304, entitled "Information and Guidelines", indicates the method by which precise definitions for the two standards are to be achieved. 33 U.S.C. § 1314. Under Section 304(b)(1), which applies to the 1977 BPCTCA standard, the Administrator is to establish guidelines for effluent limitations. These regulations are to (1) identify the degree of effluent reduction attainable through best practicable control technology currently available for classes and categories of point sources, other than publicly owned treatment works, and (2) specify factors to be taken into account in determining the control measures and practices applicable to such point sources. Section 304(b)(1)(A) & (B). Under Section 304(b)(2), which applies to the 1983 BATEA standard, the Administrator is to publish regulations which take into account similar considerations. Thus, the effluent limitations required under Section 301 are to be achieved pursuant to guidelines established by EPA under Section 304.

Another section of importance in this case is Section 306. 33 U.S.C. § 1316. Unlike Sections 301 and 304 which pertain to effluent standards required for existing sources, Section 306 governs the standard for new sources of pollution discharge. This section specifies twenty-seven industries for which standards for new sources must be set, including the pulp, paper and paperboard industry. The standard for new sources must reflect the greatest degree of effluent reduction achievable through application of the "best available demonstrated control technology" (BADCT), including where practicable, a standard permitting no discharge of pollutants.

Hence, under Sections 301, 304 and 306 of the FWPCA the Administrator is responsible

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for regulations which define three separate levels of pollution control:

(a) the 1977 "best practicable" (BPCTCA) standard for existing sources;

(b) the 1983 "best available" (BATEA) standard for existing sources;

(c) the "best available demonstrated" (BADCT) standard for new sources.

In general, the statute envisions the 1977 standard as a minimum level of control, the 1983 standard as more stringent, and the new source performance standards as the most stringent. 4

Primary enforcement of these standards is to be accomplished under Section 402 of the Act. 33 U.S.C. § 1342. This section establishes a permit system as the basic mechanism for enforcing the effluent limitations established under Section 301. Permits for pollutant discharge may be issued by the Administrator or by a state which has adopted a permit program approved by the Administrator. Section 402(a) and (b). The function of the permit is to define precisely each individual discharger's obligations under the Act. EPA retains authority to review operation of a state's permit program and may withdraw approval of a program which is not being administered in compliance with this section. Section 402(c) and (d).

The final statutory provision that is important here is Section 509. 33 U.S.C. § 1369. This section, entitled "Administrative Procedure and Judicial Review", establishes that the United States courts of appeal have exclusive jurisdiction to review the Administrator's actions in promulgating effluent limitations under Section 301. Section 509(b)(1)(E).

II. EPA PROCEEDINGS

In January 1973 EPA contracted with a private engineering consultant firm, Wapora, Inc., to make an analysis of the pulp and paper industry to aid EPA in developing effluent limitations and...

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