American Iron and Steel Institute v. E.P.A., Nos. 95-1348

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore GINSBURG, SENTELLE and RANDOLPH; PER CURIAM
Citation115 F.3d 979
Parties, 325 U.S.App.D.C. 76, 65 USLW 2831, 27 Envtl. L. Rep. 21,241 AMERICAN IRON AND STEEL INSTITUTE, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Administrator, U.S. Environmental Protection Agency, Respondents, National Wildlife Federation, et al., Intervenors.
Decision Date06 June 1997
Docket NumberNos. 95-1348,95-1452 and 95-1483,95-1378,95-1363,95-1360,95-1362

Page 979

115 F.3d 979
44 ERC 1769, 325 U.S.App.D.C. 76, 65
USLW 2831,
27 Envtl. L. Rep. 21,241
AMERICAN IRON AND STEEL INSTITUTE, Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner,
Administrator, U.S. Environmental Protection
Agency, Respondents,
National Wildlife Federation, et al., Intervenors.
Nos. 95-1348, 95-1360, 95-1362, 95-1363, 95-1378, 95-1452
and 95-1483.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 22, 1996.
Decided June 6, 1997.

Page 984

On Petitions for Review of Orders of the Environmental Protection Agency.

Fredric P. Andes, Chicago, IL, M. Cameron Davis, Ann Arbor, MI, Corrine A. Goldstein, Washington, DC, James N. Christman, Richmond, VA, Russell S. Frye, Kristy Bulleit and Angus Macbeth, Washington, DC, argued the cause for petitioners, with whom John H. Distin, Cleveland, OH, Glenn M. Young, Theodore L. Garrett, David F. Zoll, Washington, DC, Susan R. Connella, Arlington, VA, Stuart E. Hunt, Washington, DC, Lee A. Casey, James Warchall, Chicago, IL,

Page 985

and Cynthia H. Evans, Washington, DC, were on the joint briefs. Glenn P. Sugameli, Washington, DC, entered an appearance.

Mary F. Edgar, Seth M. Barsky and David L. Weigert, attorneys, U.S. Department of Justice, Washington, DC, and Tina Kaneen and Steven M. Neugeboren, Attorneys, U.S. Environmental Protection Agency, argued the cause for respondent, with whom Lois J. Schiffer, Assistant Attorney General, U.S. Department of Justice, Washington, DC, Jonathan Z. Cannon, General Counsel, Environmental Protection Agency, Washington, DC, Lee C. Schroer, Assistant General Counsel, Houston, TX, and Carol A. Siciliano, Attorney, were on the brief.

M. Cameron Davis, Corrine A. Goldstein, James N. Christman, Kristy A. Bulleit and Russell S. Frye, Washington, DC, argued the cause for intervenors, with whom Glenn M. Young Cynthia H. Evans, Theodore L. Garrett, David F. Zoll, Susan R. Connella, Lee A. Casey and Stuart E. Hunt, Washington, DC, were on the brief. Mark C. Van Putten, Ann Arbor, MI, entered an appearance.

Before GINSBURG, SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the Court filed PER CURIAM. 1

PER CURIAM:

The American Iron and Steel Institute and the National Wildlife Federation petition separately for review of the Environmental Protection Agency's Final Water Quality Guidance for the Great Lakes System. We grant the AISI's petition and vacate the Guidance insofar as it would eliminate mixing zones for bioaccumulative chemicals of concern (BCCs) and impose water quality based effluent limitations (WQBELs) upon internal facility waste streams. We also vacate the criteria for polychlorinated biphenyls (PCBs) in light of the EPA's conceded error. Petitioners' other challenges are either unripe for review or without merit.

I. Background

Section 118 of the Clean Water Act (CWA) requires the EPA to promulgate Water Quality Guidance for the Great Lakes. 33 U.S.C. § 1268(c)(2). The Guidance must contain "numerical limits on pollutants in ambient Great Lakes waters to protect human health, aquatic life, and wildlife," as well as "minimum water quality standards, antidegradation policies, and implementation procedures." § 118(c)(2)(A). Each state in the Great Lakes System--Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin--has two years from the date of promulgation to incorporate into its water quality standards and National Pollutant Discharge Elimination System (NPDES) permit programs provisions that are "consistent with" the Guidance, failing which the EPA is to impose such standards, policies, and procedures upon the state. § 118(c)(2)(C).

The EPA published Proposed Water Quality Guidance for the Great Lakes System on April 16, 1993. 58 Fed.Reg. 20802. In response the agency received more than 26,000 pages of comments, data, and other information from some 6,000 interested parties. After reviewing those submissions the agency promulgated the Final Water Quality Guidance for the Great Lakes System on March 23, 1995. 60 Fed.Reg. 15366.

II. Jurisdiction

Although all parties agree that we have jurisdiction over the petitions for review, we have independently examined the matter in order to satisfy ourselves that we may proceed. Section 509(b)(1) of the CWA, 33 U.S.C. § 1369(b)(1), grants original jurisdiction to the federal courts of appeals in these terms:

Review of the Administrator's action ... (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, (F) in

Page 986

issuing or denying any permit under section 1342 of this title ... may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person. 2

The words "effluent limitation" in § 509(b)(1)(E) are defined elsewhere in the Act to mean "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents, which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance." 33 U.S.C. § 1362(11). EPA's Guidance contains provisions within that statutory definition. These provisions include the Tier II methodology to derive values for additional pollutants, 40 C.F.R. § 132.4(c), the prohibition in Guidance Procedure 3.C against using mixing zones for new and existing BCC discharges, 60 Fed.Reg. at 15,417, 40 C.F.R. pt. 132, App. F, Proc. 3.C, the mercury criteria and the PCB criteria. 40 C.F.R. pt. 132, Tables 3 and 4. AISI challenges each of these effluent limitations.

It is true that § 118 of the Act, the section directing EPA to publish the Guidance, is not one of the provisions listed in § 509(b)(1)(E). However, § 118 directs EPA to promulgate the Guidance "pursuant to this section and the Administrator's authority under this chapter." § 118(c)(2)(B). In compliance with this directive, the Guidance states that "[t]he Great Lakes States and Tribes shall adopt requirements applicable to waters of the Great Lakes System for the purposes of sections 118, 301, 303, and 402 of the Clean Water Act that are consistent with" the provisions of the Guidance. 40 C.F.R. § 132.4. Section 301, 33 U.S.C. § 1311, entitled "Effluent limitations," is specifically mentioned in § 509(b)(1)(E). We therefore have jurisdiction over the portion of the Guidance containing effluent limitations. See NRDC v. EPA, 673 F.2d 400, 405 (D.C.Cir.1982); Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 196-97, 100 S.Ct. 1093, 1094-95, 63 L.Ed.2d 312 (1980).

AISI challenges other parts of the Guidance not specified for direct judicial review under § 509(b)(1). Nonetheless we have jurisdiction to pass upon them. As we held in Morrow v. District of Columbia, 417 F.2d 728, 737-38 (D.C.Cir.1969), "questions ancillary to, or growing out of, the main action ... may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its authority over the principal matter" (internal quotation omitted). The magnitude and technical character of the record in this case strongly militates against splitting the case into pieces. See E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 128 & n. 18, 97 S.Ct. 965, 975 & n. 18, 51 L.Ed.2d 204 (1977). The interest in "assuring a forum capable of treating the case coherently might justify the comparatively modest displacement of the district court." International Brotherhood of Teamsters v. Pena, 17 F.3d 1478, 1482 (D.C.Cir.1994). And "[n]ational uniformity, an important goal in dealing with broad regulations, is best served by initial review in a court of appeals." NRDC, 673 F.2d at 405 & n. 15. Since most of the case is within our direct jurisdiction, we can properly assert ancillary jurisdiction over the remainder.

III. Statutory Authority

Petitioners argue that the EPA exceeded its statutory authority under § 118 of the Clean Water Act. They contend that § 118 authorized the agency to do no more than issue suggestions that the states could then decide whether to follow. They characterize the agency Guidance as "an inflexible regulatory mandate" that is far beyond § 118's limited grant of authority. Brief for Petitioners at 10. They present this argument in the form of four specific challenges to the Guidance. We reject each of the four.

A. Issuing a Binding Regulation

The Great Lakes Critical Programs Act of 1990, Pub.L. No. 101-596, 104 Stat. 3000,

Page 987

modified § 118 of the Clean Water Act, adding § 118(c)(2) in its present form. Section 118(c)(2)(A) directs the Administrator of the agency to "publish ... for public notice and comment proposed water quality guidance for the Great Lakes System." Section 118(c)(2)(B) directs the Administrator to publish "final water quality guidance" in the Federal Register. Section 118(c)(2)(C) directs the Great Lakes States to adopt standards, policies, and procedures "consistent with" the guidance published by the Administrator.

The agency responded to these statutory commands by initiating rule-making proceedings. It issued a comprehensive proposed Guidance in April 1993. During the public comment period it received comments from over 6,000 persons and entities. It then issued a final Guidance in March 1995. The final Guidance announced that state and tribal programs would be considered "consistent with" the Guidance if they were "as protective as" the provisions in the Guidance. 40 C.F.R. § 132.5(g). If a state or tribe fails to submit a plan that meets this requirement, the standards listed in the Guidance will then become applicable within that state or federal Indian...

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  • Environmental Defense Center, Inc. v. U.S. E.P.A., No. 00-70014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 15, 2003
    ...uses to account for any imperfections in its data and the situation to which those means are applied. Id.; Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1004 (D.C.Cir.1997). The record indicates a reasoned basis for EPA's decision that regulating small construction sites was necessary "to pr......
  • Texas Oil & Gas Ass'n v. U.S. E.P.A., Nos. 97-60042
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 10, 1998
    ...between the means used to account for any imperfections and the situation to which those means are applied. Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1004 (D.C.Cir.1997) (citation omitted). Here, the EPA found that the only relevant distinction between pre-1980 wells and post-1980 wells ......
  • Oceana Inc. v. Locke ., Civil Action No. 08-318(ESH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 23, 2010
    ...factors.’ ” Id. (quoting Texas Mun. Power Agency v. EPA, 89 F.3d 858, 876 (D.C.Cir.1996)); see also Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1005 (D.C.Cir.1997). The record belies plaintiff's argument that NMFS failed to consider the issue of bias in developing and approving the SBRM Am......
  • San Luis & Delta-Mendota Water Auth. v. Jewell, Nos. 11–15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...of a flaw ... does not require us to hold that the agency's use of the model was arbitrary.” [747 F.3d 621]Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1005 (D.C.Cir.1997) (per curiam). Rather, we will “reject an agency's choice of a scientific model ‘only when the model bears no rational r......
  • Request a trial to view additional results
66 cases
  • Environmental Defense Center, Inc. v. U.S. E.P.A., No. 00-70014.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 15, 2003
    ...uses to account for any imperfections in its data and the situation to which those means are applied. Id.; Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1004 (D.C.Cir.1997). The record indicates a reasoned basis for EPA's decision that regulating small construction sites was necessary "to pr......
  • Texas Oil & Gas Ass'n v. U.S. E.P.A., Nos. 97-60042
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 10, 1998
    ...between the means used to account for any imperfections and the situation to which those means are applied. Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1004 (D.C.Cir.1997) (citation omitted). Here, the EPA found that the only relevant distinction between pre-1980 wells and post-1980 wells ......
  • Oceana Inc. v. Locke ., Civil Action No. 08-318(ESH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 23, 2010
    ...factors.’ ” Id. (quoting Texas Mun. Power Agency v. EPA, 89 F.3d 858, 876 (D.C.Cir.1996)); see also Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1005 (D.C.Cir.1997). The record belies plaintiff's argument that NMFS failed to consider the issue of bias in developing and approving the SBRM Am......
  • San Luis & Delta-Mendota Water Auth. v. Jewell, Nos. 11–15871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 13, 2014
    ...of a flaw ... does not require us to hold that the agency's use of the model was arbitrary.” [747 F.3d 621]Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1005 (D.C.Cir.1997) (per curiam). Rather, we will “reject an agency's choice of a scientific model ‘only when the model bears no rational r......
  • Request a trial to view additional results
3 books & journal articles
  • Water quality standards
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...that the beneits were in any way related to its costs, the court vacated that portion of the rule. American Iron & Steel Inst. v. EPA , 115 F.3d 979, 27 ELR 21241 (D.C. Cir. 1997). 4. Do anti-degradation policies apply to mixing zones? he Tenth Circuit found that the EPA’s interpretation th......
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    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...American Farm Bureau Fed’n v. EPA, 792 F.3d 281 (3d Cir. 2015) ..................263, 984 American Iron & Steel Inst. v. EPA, 115 F.3d 979, 27 ELR 21241 (D.C. Cir. 1997) ..................................................................................................308 American Iron & Ste......
  • Introduction to Air Pollution
    • United States
    • Air pollution control and climate change mitigation law
    • August 18, 2010
    ...2002) (citing Appalachian Power Co. v. EPA, 135 F.3d 791, 802, 28 ELR 20521 (D.C. Cir. 1998) (citing American Iron & Steel Inst. v. EPA, 115 F.3d 979, 1005, 27 ELR 21241 (D.C. Cir. 1997))). 201. Environmental Defense v. EPA, 369 F.3d 193, 34 ELR 20031 (2d Cir. 2004). 202. Id. at 205 . For a......

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