American Paper Institute, Inc. v. U.S. E.P.A.

• Citation: 996 F.2d 346
• Decision Date: 22 June 1993
• Docket Number: 89-1590,Nos. 89-1499,89-1612,90-1265,89-1773,s. 89-1499
• Parties: , 302 U.S.App.D.C. 80, 62 USLW 2016, 23 Envtl. L. Rep. 20,984 AMERICAN PAPER INSTITUTE, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Natural Resources Defense Council, Inc., Intervenor. DELMARVA POWER & LIGHT COMPANY, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Natural Resources Defense Council, Inc., Intervenor. WESTVACO CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; William K. Reilly, Administrator, Respondents. The CITY OF AKRON, OHIO, A Municipality, Petitioner, v. William K. REILLY, Administrator, United States Environmental Protection Agency; United States Environmental Protection Agency, Respondents, Natural Resources Defense Council, Inc., Intervenor. USX CORPORATION, Gary Works, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and William K. Reilly, Administrator of the United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 346

996 F.2d 346

36 ERC 2025, 302 U.S.App.D.C. 80, 62

USLW 2016,

23 Envtl. L. Rep. 20,984

AMERICAN PAPER INSTITUTE, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Natural Resources Defense Council, Inc., Intervenor.

DELMARVA POWER & LIGHT COMPANY, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Natural Resources Defense Council, Inc., Intervenor.

WESTVACO CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; William K.

Reilly, Administrator, Respondents.

The CITY OF AKRON, OHIO, A Municipality, Petitioner, v. William K. REILLY, Administrator, United States

Environmental Protection Agency; United States

Environmental Protection Agency, Respondents,

Natural Resources Defense Council, Inc., Intervenor.

USX CORPORATION, Gary Works, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and William K. Reilly,

Administrator of the United States Environmental

Protection Agency, Respondents.

Nos. 89-1499, 89-1590, 89-1612, 89-1773, 90-1265.

United States Court of Appeals, District of Columbia Circuit.

Argued April 15, 1993.

Decided June 22, 1993.

Petitions for Review of an Order of the United States Environmental Protection Agency.

Russell S. Frye, Washington, DC, argued the cause for petitioners American Paper Institute, Inc., USX Corp. and Delmarva Power & Light Co., et al. and the City of Akron, Ohio. With him on the joint briefs were Stephen J. Axtell, Washington, DC, Charles R. McElwee, Charleston, WV, and Kristy N. Bulleit. James R. Walpole, Andrew A. Giaccia and Matthew B. Van Hook, Washington, DC, entered appearances for petitioner American Paper Institute.

Van Carson, Cleveland, OH, filed the brief for petitioner the City of Akron, Ohio.

Manning Gasch, Jr., James N. Christman and Joseph M. Spivey, III, Richmond, VA, entered appearances for petitioner Westvaco Corp.

Michael A. McCord, Asst. Chief, U.S. Dept. of Justice, Washington, DC, argued the cause for respondent. David A. Carson, Atty., U.S. Dept. of Justice and Carol Ann Siciliano, Atty., U.S. E.P.A., Washington, DC, filed the brief for respondent. Richard Stewart, Washington, DC, entered an appearance.

Jessica C. Landman and Robert W. Adler, Washington, DC, filed the brief for intervenor Natural Resources Defense Council, Inc. Richard E. Ayres, Washington, DC, entered an appearance.

Before WALD, BUCKLEY and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

In these consolidated petitions for review, the American Paper Institute, Inc., the USX Corporation, Westvaco Corporation, the City of Akron, Ohio and a host of utilities contest several new Environmental Protection Agency ("EPA") regulations interpreting the Clean Water Act ("CWA" or the "Act") and its amendments. The petitioners primarily take issue with an EPA rule requiring writers of pollution discharge permits to use one of three methods to interpret state water quality standards containing so-called "narrative criteria" (e.g., "no toxics in toxic amounts") so as to create precise chemical-specific effluent limitations in those permits. For the reasons discussed below, we find the regulation in question as well as other, related regulations challenged by petitioners to constitute reasonable, authorized attempts at necessary gap-filling in the CWA statutory scheme. Accordingly, we deny the petitions for review.

I.

In enacting the CWA, Congress sought to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Toward that end, Congress constructed a system in which discharges of pollutants into the waters of the United States from "point source[s]"-- Of primary importance in this case is section 301's second requirement--i.e., that permits contain discharge limitations sufficient to assure that the receiving waterway satisfies water quality standards. Under the CWA, the water quality standards referred to in section 301 are primarily the states' handiwork. State water quality standards in effect at the time of the Act's passage in 1972 were deemed to be the initial water quality benchmarks for CWA purposes (so long as the standards passed an EPA review). See 33 U.S.C. § 1313(a). The states were to revisit and, if necessary, revise those initial standards at least once every three years--a process commonly known as triennial review. See 33 U.S.C. § 1313(c)(1). Triennial reviews consist of public hearings in which current water quality standards are examined to assure that they "protect the public health or welfare, enhance the quality of water and serve the purposes" of the Act. 33 U.S.C. § 1313(c)(2)(A). Additionally, the CWA directs states to consider a variety of competing policy concerns during these reviews, including a waterway's "use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes." Id.

"discernable, confined and discrete conveyance[s]," 33 U.S.C. § 1362(14), such as factory pipes--are normally permissible only if made pursuant to the terms of a National Pollution Discharge Elimination System ("NPDES") permit. See 33 U.S.C. §§ 1311(a), 1342. Under the Act, those licenses must be obtained from the EPA or, in the approximately 40 states the EPA has authorized to administer their own NPDES program, from a designated state agency. See 33 U.S.C. § 1342(a)-(d); see also 57 Fed.Reg. 43,733, 43,734-35 (1992) (listing states with permitting authority). In either case, section 301 of the Act mandates that every permit contain (1) effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls, see 33 U.S.C. § 1311(b)(1)(A), and (2) any more stringent pollutant release limitations necessary for the waterway receiving the pollutant to meet "water quality standards." 33 U.S.C. § 1311(b)(1)(C).

In accord with Congress' intent to cast the states in the featured role in the promulgation of water quality standards, the EPA may step in and promulgate water quality standards itself only in limited circumstances. It may act only where (1) it determines that a state's proposed new or revised standard does not measure up to CWA requirements and the state refuses to accept EPA-proposed revisions to the standard or (2) a state does not act to promulgate or update a standard but, in the EPA's view, a new or revised standard is necessary to meet CWA muster. See 33 U.S.C. § 1313(c)(3)-(4).

The water quality standards that emerge from this state/federal pas de deux have two primary components: designated "uses" for a body of water (e.g., public water supply, recreation, agriculture) and a set of "criteria" specifying the maximum concentration of pollutants that may be present in the water without impairing its suitability for designated uses. See 33 U.S.C. § 1313(c)(2)(A). Criteria, in turn, come in two varieties: specific numeric limitations on the concentration of a specific pollutant in the water (e.g., no more than .05 milligrams of chromium per liter) or more general narrative statements applicable to a wide set of pollutants (e.g., no toxic pollutants in toxic amounts). ¹ See also Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 288 (D.C.Cir.1981) (approving the use of narrative criteria). In deciding what criteria suit particular designated uses, the states are not left entirely to their own devices. As required by the CWA, see 33 U.S.C. § 1314(a)(1), the EPA has promulgated a set of recommended numeric criteria for certain listed pollutants that the states can, and quite often do, refer to in selecting appropriate criteria. See 57 Fed.Reg. 60,848, 60,874 (1992) (EPA notes that states generally rely on recommended criteria in establishing water quality standards).

Of course, the water quality standards by themselves have no effect on pollution; the rubber hits the road when the state-created standards are used as the basis for specific effluent limitations in NPDES permits. As noted above, once a water quality standard has been promulgated, section 301 of the CWA requires all NPDES permits for point sources to incorporate discharge limitations necessary to satisfy that standard. See, e.g., Westvaco Corp. v. EPA, 899 F.2d 1383, 1385 (4th Cir.1990). On its face, section 301 imposes this strict requirement as to all standards--i.e., permits must incorporate limitations necessary to meet standards that rely on narrative criteria to protect a designated use as well as standards that contain specific numeric criteria for particular chemicals. The distinctive nature of each kind of criteria, however, inevitably leads to significant distinctions in how the two types of criteria are applied to derive effluent limitations in individual permits. When the standard includes numeric criteria, the process is fairly straightforward: the permit merely adopts a limitation on a point source's effluent discharge necessary to keep the concentration of a pollutant in a waterway at or below the numeric benchmark. Narrative criteria, however, present more difficult problems: How is a state or federal NPDES permit writer to divine what limitations on effluent discharges are necessary to assure that the waterway contains, for example, "no toxics in toxic amounts"? Faced with this conundrum, some permit writers threw up their hands and, contrary to the Act, simply ignored water quality standards including narrative criteria altogether when deciding upon permit limitations. See Natural Resources Defense Council v. EPA, 915 F.2d 1314, 1317 (9th Cir.1990). Additionally, when standards containing narrative criteria were enforced--often through the device of whole effluent discharge limitations based on biological monitoring techniques, ² see 48 Fed.Reg. 51,400, 51,402 (1983) (noting that biological monitoring is one method of testing compliance with narrative criteria)--the...