915 F.2d 1314 (9th Cir. 1990), 89-70135, Natural Resources Defense Council v. United States E.P.A.

Docket Nº:89-70135.
Citation:915 F.2d 1314
Party Name:NATURAL RESOURCES DEFENSE COUNCIL, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Case Date:September 28, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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915 F.2d 1314 (9th Cir. 1990)

NATURAL RESOURCES DEFENSE COUNCIL, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 89-70135.

United States Court of Appeals, Ninth Circuit

September 28, 1990

Argued and Submitted April 16, 1990.

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Robert W. Adler, Natural Resources Defense Council, Washington, D.C., for the petitioner; Frances A. Dubrowski, Washington, D.C., on brief.

Thomas M. Pacheco, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for respondent.

Petition for Review of an Action of the United States Environmental Protection Agency.

Before LIVELY, [*] FLETCHER and REINHARDT, Circuit Judges.

FLETCHER, Circuit Judge:

The Natural Resources Defense Council (NRDC) petitions for review of a final rule issued by the Environmental Protection Agency (EPA). The rule provides that with regard to some, but not all, of the polluted waters listed pursuant to section 304(l ) of the Clean Water Act, 33 U.S.C. Sec. 1314(l ), the states must identify the factories and other "point sources" responsible for discharging toxic pollutants into those waters and must develop strategies to control the pollution from those sources in an expedited manner. 40 C.F.R. Secs. 123.46, 130.10. The NRDC argues that with regard to all of the listed waters, the states must identify "point source" toxic polluters and must develop strategies to control all the sources identified.

We grant the petition with respect to the claim that identification of toxic polluters must be made for all listed waters and remand for EPA to reconsider the question of individual control strategies.

I.

STATUTORY BACKGROUND

The Water Quality Act of 1987 (WQA), Pub.L. No. 100-4, 101 Stat. 7, amended the Clean Water Act (CWA), 33 U.S.C. Secs. 1251 et seq., adding a number of new provisions, including section 304(l ), 33 U.S.C. Sec. 1314(l ), which is the focus of this petition.

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Section 304(l ) refers to other provisions in the Clean Water Act; its proper construction requires a familiarity with the history, the structure, and, alas, the jargon of the federal water pollution laws.

A.

Prior to 1972, Congress attempted to control water pollution by focusing regulatory efforts on achieving "water quality standards," standards set by the states specifying the tolerable degree of pollution for particular waters. See EPA v. State Water Resources Control Board, 426 U.S. 200, 202-03, 96 S.Ct. 2022, 2023-24, 48 L.Ed.2d 578 (1976). This scheme had two important flaws. First, the mechanism of enforcement was cumbersome. Regulators had to work backward from an overpolluted body of water and determine which entities were responsible; proving cause and effect was not always easy. Second, the scheme failed to provide adequate incentives to individual entities to pollute less; an entity's dumping pollutants into a stream was ignored if the stream met the standards. Id. The scheme focused on "the tolerable effects rather than the preventable causes" of pollution. Id.

In 1972, Congress passed the Clean Water Act, which made important amendments to the water pollution laws. The amendments placed certain limits on what an individual firm could discharge, regardless of whether the stream into which it was dumping was overpolluted at the time. Firms were required to use progressively more advanced technology; by 1977 they were to use the "best practicable control technology," CWA Sec. 301(b)(1)(A), 33 U.S.C. Sec. 1311(b)(1)(A), and by 1987 at the latest they were to use the more demanding "best available technology" to limit the discharge of pollutants. CWA Sec. 301(b)(2)(A), 33 U.S.C. Sec. 1311(b)(2)(A); CWA Sec. 402, 33 U.S.C. Sec. 1342. With regard to toxic pollutants listed pursuant to CWA Sec. 307, 33 U.S.C. Sec. 1317, 1 compliance with the "best available technology" was required by 1984. CWA Sec. 301(b)(2)(A). The limits on discharges were to be effectuated by a system of permits, the National Pollution Discharge Elimination System (NPDES). Without a permit, no person could "discharge ... any pollutant." CWA Sec. 301(a), 33 U.S.C. Sec. 1311(a). Section 301(a)'s ban on the discharge of pollutants sounded bolder than it really was. The term "discharge of any pollutant" was a statutorily defined term meaning, "any addition of any pollutant to navigable waters from any point source." CWA Sec. 502(12), 33 U.S.C. Sec. 1362(12). The Clean Water Act defined a "point source" as a discrete location from which pollutants could be discharged, such as a pipe or drain from a factory. CWA Sec. 502(14), 33 U.S.C. Sec. 1362(14). 2 The Act thus banned only discharges from point sources. The discharge of pollutants from nonpoint sources--for example, the runoff of pesticides from farmlands--was not directly prohibited. 3 The Act focused on point source polluters presumably because they could be identified and regulated more easily than nonpoint source polluters.

Congress, in passing the Clean Water Act, thus shifted the focus of the water pollution laws away from the enforcement of water quality standards and toward the

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enforcement of technological standards. But Congress recognized that even if all the firms discharging pollutants into a certain stream segment were using the best available technology, the stream still might not be clean enough to meet the water quality standards set by the states. To deal with this problem, Congress supplemented the "technology-based" limitations with "water-quality-based" limitations. See CWA Secs. 302, 303, 33 U.S.C. Sec. 1312, 1313.

The water quality standard for a particular stream segment was to be determined in the following manner. First, the state in which the stream segment was located was to designate the uses to which it wished to put the segment. The designations that the states had made prior to the 1972 Clean Water Act were deemed to be the initial designations under that Act; however, states were thereafter to review their designations at least once every three years. CWA Sec. 303(c)(1), 33 U.S.C. Sec. 1313(c)(1). Pursuant to the statute's policy that the designation of uses "enhance" the quality of water, CWA Sec. 303(c)(2), 33 U.S.C. Sec. 1313(c)(2), EPA enacted regulations setting limits on the states' ability to downgrade previously designated uses. If a state wished to redesignate a use so that the new use did not require water clean enough to meet the statutory goal of fishable, swimmable water, see CWA Sec. 101(a)(2), 33 U.S.C. Sec. 1251(a)(2), it had to conduct a "use attainability analysis" as a condition to federal approval of the redesignated use. CWA Sec. 303(c)(3), 33 U.S.C. Sec. 1313(c)(3); 40 C.F.R. Secs. 131.10(j), 131.3(g) (1989). If the result of the "use attainability analysis" was that it was feasible to attain fishable, swimmable waters, EPA would reject the redesignated use.

Second, the state was to determine the "criteria" for each segment--the maximum concentrations of pollutants that could occur without jeopardizing the use. These criteria could be either numerical (e.g. 5 milligrams per liter) or narrative (e.g. no toxics in toxic amounts). The criteria, like the uses, were subject to federal review. The EPA was to reject criteria that did not protect the designated use or that were not based on a "sound scientific rationale." 40 C.F.R. Sec. 131.11 (1989).

Under sections 301(b)(1)(C) and 402(a)(1), 33 U.S.C. Secs. 1311(b)(1)(C), 1342(a)(1), NPDES permit writers were to impose, along with the technology-based limitations, any more stringent limitations on discharges necessary to meet the water quality standards. Although ostensibly they were supposed to impose these more stringent limitations, in practice they often did not.

One explanation for this failure is that the criteria listed by the states, particularly for toxic pollutants, were often vague narrative or descriptive criteria as opposed to specific numerical criteria. These descriptive criteria were difficult to translate into enforceable limits on discharges from individual polluters. As one commentator put it:

The descriptive criteria, in particular, call for both expert testimony and a receptive forum to transform, let us say, a general obligation to maintain 'recreational' uses into a specific obligation to reduce loadings of phosphorus or nitrogen from a particular source. The decision requires, among other things, judgments about the degree of algal bloom that interferes with 'recreational' uses such as swimming or boating, estimates of loadings from all contributing point and nonpoint sources, assumptions about degrees of control elsewhere, and predictions of how a water segment will respond to a hoped-for change of parameters.

Rodgers, 2 Environmental Law Sec. 4.16 at 250-51 (1986). The Clean Water Act dealt with the difficulty of these decisions and judgments in various ways, for example by calling for the publication by the EPA of criteria documents spelling out causes and effects of various pollutant loads, see CWA Sec. 304(a), 33 U.S.C. Sec. 1314(a), and by requiring states to set total maximum daily loads for certain pollutants (but...

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