BP Exploration & Oil, Inc.(93-3310) v. U.S. E.P.A., s. 93-3310
| Citation | 66 F.3d 784 |
| Decision Date | 04 January 1996 |
| Docket Number | 93-3473,93-3761 and 93-3888,93-3587,Nos. 93-3310,93-3489,s. 93-3310 |
| Parties | , 26 Envtl. L. Rep. 20,037 BP EXPLORATION & OIL, INC. (93-3310), American Petroleum Institute (93-3473), Conoco Inc., et al. (93-3489), Marathon Oil Company (93-3761), Natural Resources Defense Council, Inc. (93-3587), Svedala Industries, Inc. (93-3888), Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Jeffrey C. Conrad, Cleveland, OH, for BP Exploration & Oil Inc.
Timothy Burns (argued), U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, Mary Elizabeth Ward (argued and briefed), U.S. Dept. of Justice, Environment & Natural Resources, Washington, DC, Mary Ellen Levine (briefed), U.S. E.P.A., Office of the Gen. Counsel, Washington, DC, for U.S. E.P.A. in No. 93-3310.
Timothy Burns, U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, for Carol Browner in No. 93-3310.
J. Berry St. John, Jr. (argued and briefed), Liskow & Lewis, New Orleans, LA, for Conoco, Inc., Amoco Production Co., Atlantic Richfield Co., Texaco Inc., Exxon Co., U.S.A., Shell Offshore Inc., Pennzoil Co., Chevron U.S.A. Inc. and Mobil Exploration & Producing U.S. Inc. in Nos. 93-3310 and 93-3473.
Douglas W. Morris, American Petroleum Institute, Washington, DC, for American Petroleum Institute in Nos. 93-3310 and 93-3587.
Robert W. Adler (argued), Salt Lake City, UT, for Natural Resources Defense Council, Inc. in Nos. 93-3310, 93-3473 and 93-3489.
Darryl J. Hebert (briefed), Eunice, LA, for State of Louisiana amicus curiae.
Douglas W. Morris, G. William Frick, Ellen Siegler, American Petroleum Institute, Washington, DC, for American Petroleum Institute in No. 93-3473.
Timothy Burns (argued), U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, Mary Elizabeth Ward (argued and briefed), U.S. Dept. of Justice, Environment & Natural Resources, Washington, DC, Mary Ellen Levine, U.S. E.P.A., Office of the Gen. Counsel, Washington, D.C. for U.S. E.P.A.
Mary Elizabeth Ward, U.S. Dept. of Justice, Environment & Natural Resources, Washington, D.C., for Carol Browner in Nos. 93-3473 and 93-3489.
J. Berry St. John, Jr. (argued and briefed), Scott C. Seiler, Liskow & Lewis, New Orleans, LA, for Conoco, Inc., Amoco Production Co., Atlantic Richfield Co., Texaco Inc., Exxon Co., U.S.A., Shell Offshore Inc., and Pennzoil Co., in No. 93-3489 and Marathon Oil Co. in No. 93-3761.
J. Berry St. John, Jr., Liskow & Seiler, New Orleans, LA, for Chevron U.S.A. Inc., and Mobil Exploration & Producing U.S. Inc. in No. 93-3489.
Jessica C. Landman, Natural Resources Defense Council, Washington, DC, Robert W. Adler, Salt Lake City, UT, for Natural Resources Defense Council, Inc. in No. 93-3587.
Valdas V. Adamkus, U.S. E.P.A., Office of Regional Counsel, Region V, Chicago, IL, William K. Reilly, Adm'r, E.P.A., Timothy Burns, U.S. Dept. of Justice, Environmental Defense Section, Mary Elizabeth Ward, U.S. Dept. of Justice, Environment & Natural Resources, Mary Ellen Levine, U.S. E.P.A., Office of the Gen. Counsel, Washington, DC, for U.S. E.P.A. and Carol Browner in No. 93-3587.
Timothy Burns (argued), U.S. Dept. of Justice, Environmental Defense Section, Mary Elizabeth Ward (argued and briefed), U.S. Dept. of Justice, Environment & Natural Resources, Carol Browner, Office of U.S. E.P.A., Adm'r, Mary Ellen Levine (briefed), U.S. E.P.A., Office of the Gen. Counsel, Washington, DC, for U.S. E.P.A. in No. 93-3761.
Timothy Burns, U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, Carol Browner, Office of U.S. EPA, Adm'r, Washington, DC, Mary Ellen Levine, U.S. E.P.A., Office of the Gen. Counsel, Washington, DC, for Carol Browner in No. 93-3761.
Amy E. Hancock (argued and briefed), J. Craig Potter, Pamela S. Reiman, McDermott, Will & Emery, Washington, DC, for Svedala Industries, Inc.
Valdas V. Adamkus, U.S. E.P.A., Office of Regional Counsel, Region V, Chicago, IL, William K. Reilly, Adm'r, E.P.A., Washington, DC, Timothy Burns (argued), U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, Mary Elizabeth Ward (argued and briefed), U.S. Dept. of Justice, Environment & Natural Resources, Washington, DC, Mary Ellen Levine (briefed), U.S. E.P.A., Office of the Gen. Counsel, Washington, DC, for U.S. E.P.A. and Carol Browner in No. 93-3888.
Before: BOGGS and BATCHELDER, Circuit Judges; ALDRICH, District Judge. *
In these consolidated cases, petitioners BP Exploration & Oil, Inc., American Petroleum Institute, Conoco Inc., Marathon Oil Co., Natural Resources Defense Council, Inc., and Svedala Industries, Inc., challenge the effluent limitations promulgated for the offshore oil and gas industry by the United States Environmental Protection Agency under the Clean Water Act. For the reasons that follow, we affirm the effluent limitations promulgated by the Environmental Protection Agency (EPA) for the offshore oil and gas industry.
The disputed effluent limitations guidelines are the final regulations and standards of performance for the "Offshore Subcategory of the Oil and Gas Extraction Point Source Category," 1 published pursuant to sections 301, 304, and 306 of the Clean Water Act (CWA or "Act"). 33 U.S.C.A. Secs. 1311, 1314, 1316 (West 1986) (hereinafter "Sec. ___"). 2 These regulations (the "Final Rule") were also formulated in response to a Consent Decree entered on April 5, 1990, in NRDC v. Reilly, C.A. No. 79-3442 (D.D.C.) (subsequently modified on May 28, 1992). The Final Rule 3 became effective on April 5, 1993, ending a process that began in 1975 with EPA's publication of interim guidelines for the offshore oil and gas industry.
Petitioners BP Exploration & Oil, Inc., American Petroleum Institute, Conoco Inc., Marathon Oil Co., and Svedala, Inc. (hereinafter referred to as "Industry petitioners"), contend that the effluent standards are too stringent. Generally, Industry petitioners allege that the Environmental Protection Agency (EPA) violated the CWA by (1) setting an unreasonable standard for the discharge of oil and grease in effluent discharges, (2) prohibiting the discharge of certain drilling wastes within three miles of shore, and (3) banning the discharge of contaminated sand. At the other end of the spectrum, petitioner Natural Resources Defense Council, Inc. (NRDC), representing environmental interests, contends that EPA violated the CWA by promulgating effluent standards that are generally too lenient. In short, NRDC alleges that EPA (1) illegally rejected zero discharge of drilling wastes, (2) violated the Act by failing to regulate radioactive pollutants in discharged water, and (3) should have required reinjection of polluted water.
The objective of the CWA "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Sec. 1251. Congress' original goal was for the discharge of all pollutants into navigable waters to be eliminated by the year 1985. Sec. 1251(a)(1). Consequently, the discharge of any pollutant is illegal unless made in compliance with the provisions of the CWA. Because numerous other courts have fully described the CWA, see E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977), it is unnecessary here to include more than an outline of the statutory structure for promulgating effluent limitations.
The CWA directs EPA to formulate national effluent limitation guidelines for those entities that discharge pollutants into the navigable waters of the United States. In formulating these guidelines, the CWA directs EPA to institute progressively more stringent effluent discharge guidelines in stages. Congress intended EPA to consider numerous factors in addition to pollution reduction: "The Committee believes that there must be a reasonable relationship between costs and benefits if there is to be an effective and workable program." Clean Water Act of 1972, Pub.L. No. 92-500, 1972 U.S.C.C.A.N. (86 Stat.) 3713.
At the first stage of pollutant reduction, EPA is to determine the level of effluent reduction achievable within an industry with the implementation of the "best practicable control technology currently available" (BPT). Sec. 1314(b)(1)(A). In general, BPT is the average of the best existing performances by industrial plants of various sizes, ages, and unit processes within the point source category or subcategory. In arriving at BPT for an industry, EPA is to consider several factors, including the total cost of the application of the technology in relation to the effluent reduction benefits to be achieved from such application. 4 For the offshore oil and gas subcategory, BPT was to be achieved by July 1, 1977. Sec. 1311(b)(1)(A).
At the second stage, EPA is to set generally more stringent standards for toxic and conventional pollutants. For toxic pollutants, 5 EPA is to set the standard for the "best available technology economically achievable" (BAT). BAT represents, at a minimum, the best economically achievable performance in the industrial category or subcategory. NRDC, Inc. v. EPA, 863 F.2d 1420, 1426 (9th Cir.1988) (citing EPA v. National Crushed Stone Ass'n., 449 U.S. 64, 74, 101 S.Ct. 295, 302, 66 L.Ed.2d 268 (1980)). Compared to BPT, BAT calls for more stringent control technology that is both technically available and economically achievable. Among the factors 6 that EPA must consider and take into account when setting BAT are the cost of achieving such effluent reduction and the non-water quality environmental impact including the energy requirements of the technology. Sec. 1314(b)(2)(B). For the offshore oil and gas subcategory, BAT was to be achieved by July 1, 1987. 7 Sec. 1311(b)(2)(A).
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