American Petroleum Institute v. E.P.A., s. 74-1465

• Decision Date: 11 August 1976
• Docket Number: 74-1621 and 74-1622,Nos. 74-1465,74-1466,s. 74-1465
• Citation: 540 F.2d 1023
• Parties: , 6 Envtl. L. Rep. 20,748 AMERICAN PETROLEUM INSTITUTE et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY et al., Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1023

540 F.2d 1023

9 ERC 1252, 6 Envtl. L. Rep. 20,748

AMERICAN PETROLEUM INSTITUTE et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY et al., Respondents.

Nos. 74-1465, 74-1466, 74-1621 and 74-1622.

United States Court of Appeals Tenth Circuit.

Aug. 11, 1976.

Edward W. Warren, of Kirkland, Ellis & Rowe, Washington, D. C. (Frank H. Morison, Edwin S. Kahn and Gerald W. Grandey, of Holland & Hart, Denver, Colo., Frederick M. Rowe, Robert F. VanVoorhees, and Philip J. Davis, of Kirkland, Ellis & Rowe, Washington, D. C., of counsel, Stark Ritchie, Chicago, Ill., Clyde R. Hampton, Alexandria, Va., Jess W. Van Ert, Kansas City, Mo., William E. Schweinle, Jr., Houston, Tex., Carl W. Jones, James A. Evans, Midland, Tex., Fredrick H. Hawkins, San Francisco, Cal., William J. Webb, Cleveland, Ohio, Nicholas I. Cantor, Philadelphia, Pa., Cornelius C. Smith, Jr., and Donald Gearhart, on the brief), for petitioners.

Michael D. Graves, Dept. of Justice and Alan W. Eckert, Deputy Associate Gen. Counsel, E.P.A., Washington, D. C. (Peter R. Taft, Asst. Atty. Gen., Alfred T. Ghiorzi, Dept. of Justice, Robert V. Zener, Gen. Counsel, E.P.A., Washington, D. C., on the brief), for respondents.

Before SETH, BREITENSTEIN and DOYLE, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The American Petroleum Institute, an incorporated trade association of companies in the petroleum industry, and ten companies engaged in petroleum refining and related activities, have petitioned for review of regulations promulgated by the Administrator of the Environmental Protection Agency under the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. §§ 1251-1376. The regulations are contained in 40 C.F.R. Part 419, Petroleum Refining Point Source Category. The Administrator at times will be referred to as EPA. The statutory references will be those found in the Act as set out in 86 Stat. 816 et seq. ¹ Petitioners will be referred to as Refineries.

Section 509(b)(1)(E) confers jurisdiction on the court of appeals. American Petroleum Institute v. Train, 10 Cir., 526 F.2d 1343, sustains that jurisdiction and will not be reconsidered.

I. THE ACT

The Act resulted from dissatisfaction with predecessor statutes which relied unsuccessfully on water quality standards as the primary method of pollution control. See S.Rep. No. 92-414, 92 Cong. 2d Sess., 2 U.S.Code Cong. & Adm.News '72 3668, 3674. The objective of the Act "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 101(a). The goal is the elimination by 1985 of "the discharge of pollutants into the navigable waters." § 101(a)(1). Section 301(a) provides that "the discharge of any pollutant by any person shall be unlawful" except "as in compliance" with specified sections of the Act. The number of dischargers has been variously estimated from 30,000 to 70,000.

The control is by effluent limitations on discharges from point sources. See § 301. The Act provides progressively severe limitations. By July 1, 1977, the limitations "shall require the application of the best practicable control technology currently available" (BPT). For July 1, 1983, the requirement is "the best available technology economically achievable," (BAT). For new sources, i. e., those whose construction commences after the promulgation of pertinent regulations, the Act provides a "standard of performance" reflecting "the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives," (BADT).

Primary enforcement of the Act is secured through the permit system established by § 402. Discharge permits may be issued by the Administrator, § 402(a)(1), or by a state which has adopted a permit program approved by the Administrator. § 402(b). The Administrator has veto power over a state issued permit. § 402(d)(2). The Administrator may withdraw approval of a state permit program if he finds that it is not being administered in accordance with the Act. § 402(c)(3). All permits shall comply with the applicable provisions of §§ 301 (effluent limitations), 306 (new source standards), and other specified sections of the Act. See § 402(a)(1) and (b)(1)(A).

The issuance or denial of a permit may be reviewed by the appropriate court of appeals. § 509(b)(1)(F). A violation of any conditions or limitations imposed by specified sections of the Act or by a permit may result in the imposition of both civil and criminal penalties. § 309. "Citizen Suits" alleging violations of the Act may be brought under § 505.

Section 304(a)(1) provides that within one year after enactment the Administrator must publish "criteria for water quality accurately reflecting the latest scientific knowledge" on enumerated subjects. Within the same period the Administrator shall publish regulations "providing guidelines for effluent limitations." § 304(b). Subsection (b)(1)(A) applies to the 1977 step and subsection (b)(2)(A) to the 1983 step. Each subsection mandates consideration of specified factors.

The Administrator did not act within the one year requirements of § 304. Compliance was not within the realm of reality. An estimated 30,000 applications for permits were filed. EPA characterizes the Act as "incredibly complex and demanding." See duPont II infra. A private suit was brought to compel compliance. Natural Resources Defense Council, Inc. v. Train (NRDC), 166 U.S.App.D.C. 312, 510 F.2d 692. The result was a court imposed timetable. Ibid. at 710-714. The regulations here under attack were promulgated in May and September, 1974, and some were amended in May, 1975.

The EPA regulations relating to industrial discharge of pollutants have produced much litigation. Decisions to date of various courts of appeals are, in chronological order:

1 CPC International, Inc. v. Train, 8 Cir., 515 F.2d 1032 (Corn Wet Milling);

2 American Iron and Steel Institute v. Environmental Protection Agency, 3 Cir., 526 F.2d 1027 (Iron and Steel Manufacturing);

3 American Meat Institute v. Environmental Protection Agency, 7 Cir., 526 F.2d 442 (Meat Products);

4 American Petroleum Institute v. Train (API I), 10 Cir., 526 F.2d 1343 (Jurisdiction);

5 E. I. duPont de Nemours & Company v. Train (duPont I), 4 Cir., 528 F.2d 1136. Filed December 30, 1975, cert. granted --- U.S. ----, 96 S.Ct. 1662, 48 L.Ed.2d 174 (Jurisdiction);

6 E. I. duPont de Nemours & Company v. Train (duPont II), 4 Cir., --- F.2d ----. Filed March 10, 1976, cert. granted --- U.S. ----, 96 S.Ct. 3165, 49 L.Ed.2d --- (Inorganic Chemicals);

7 Tanners' Council of America, Inc. v. Train, 4 Cir., --- F.2d ----. Filed March 10, 1976 (Leather Tanning);

8 FMC Corporation v. Train, 4 Cir., 539 F.2d 973. Filed March 10, 1976 (Plastic and Synthetic Materials);

9 Hooker Chemicals & Plastics Corp. v. Train, 2 Cir., 537 F.2d 620. Filed April 28, 1976 (Phosphorous Manufacturing existing sources);

10 Hooker Chemicals & Plastics Corp. v. Train, 2 Cir., 537 F.2d 639. Filed April 28, 1976 (Phosphorous Manufacturing new sources);

11 Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 2 Cir., 537 F.2d 642. Filed April 28, 1976 (Variance Clauses);

12 American Frozen Food Institute v. Train, D.C.Cir., --- F.2d ----. Filed May 11, 1976 (Frozen Potato Products); and

13 Appalachian Power Co. v. Train, 4 Cir., --- F.2d ----. Filed July 16, 1976 (Steam Electric Power).

A cursory glance at the above listed decisions reveals the difficulties which the federal courts of appeals have had with the Act. Popular demand for legislative action to control water pollution is shown by the fact that on the votes to override the presidential veto, only 12 senators and 23 representatives voted to sustain the veto. Perhaps the pressure on Congress to do something was a major cause of the unsatisfactory legislation. The Act is difficult to understand, construe and apply. We can add nothing to the comments of other courts. See Second Circuit, Hooker Chemicals at 626-627; Third Circuit, Steel Institute, 526 F.2d at 1037 n. 14a; and Fourth Circuit, duPont II, at ---- - ----.

The two volume, 1766 page, legislative history does not help us much. The Second Circuit has said, Hooker Chemicals, at p. 627, that "(t)he legislative history compounds the difficulty." See also statements of Fourth Circuit, duPont II, at ----. A comparison of the discussion of the legislative history by the Eighth Circuit in the Corn Wet Milling case, 515 F.2d at 1039-1042 with that found in E. I. duPont de Nemours and Company v. Train, W.D.Va., 383 F.Supp. 1244, 1254-1255, highlights the problem. We can add nothing to the explication of legislative history by the Third Circuit in the Steel Institute case, 526 F.2d at 1043-1045, and by the Seventh Circuit in the Meat Institute case, 526 F.2d at 451-452.

In a case involving the Act before us, Train v. Colorado Public Interest Research Group, Inc., the Supreme Court said, --- U.S. ----, 96 S.Ct. 1938, 48 L.Ed.2d 434, in a quote from United States v. American Trucking Associations, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 84 L.Ed. 1345 that "(w)hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its (legislative history's) use, however clear the words may appear on 'superficial examination.' " (Footnotes omitted). The difficulty with the present case is that sometimes the statutory words, phrases, and provisions are clear and sometimes they are not. The same can be said of the legislative history.

We consider both the statute and its legislative history. As said by the Second Circuit, Hooker Chemicals, at p. 627: "The very magnitude of the task undertaken by Congress and delegated to the EPA for fulfillment probably accounts for the lack of clarity." In the discussion which follows, the guiding star is the...