Arkansas Poultry Federation v. U.S. E.P.A.

• Decision Date: 30 June 1988
• Docket Number: No. 87-1529,87-1529
• Citation: 852 F.2d 324
• Parties: , 57 USLW 2067, 18 Envtl. L. Rep. 21,384 ARKANSAS POULTRY FEDERATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 324

852 F.2d 324

27 ERC 2266, 57 USLW 2067, 18 Envtl.

L. Rep. 21,384

ARKANSAS POULTRY FEDERATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 87-1529.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 13, 1988.

Decided June 30, 1988.

Michael H. Mashbrun, Fayetteville, Ark., for petitioner.

Dov Weitman, Washington, D.C., for respondent.

Before LAY, Chief Judge, and McMILLIAN and ARNOLD, Circuit Judges.

McMILLIAN, Circuit Judge.

In January 1987 the Administrator of the Environmental Protection Agency (EPA) promulgated final regulations defining "interference" and "pass through" for purposes of the National Pretreatment Standards. 40 C.F.R. Sec. 403.3(i), (n) (1987). The Arkansas Poultry Federation filed this petition seeking review of the Administrator's action in promulgating these definitions. Petitioner argues the definitions are inconsistent with Sec. 307(b)(1) of Federal Water Pollution Control Act Amendments of 1972 (the Act), 33 U.S.C. Sec. 1317(b)(1), as amended by the Water Quality Act of 1987, Pub.L. No. 100-4, 101 Stat. 41 (1987), as construed by the Third Circuit in National Ass'n of Metal Finishers v. EPA, 719 F.2d 624 (3d Cir.1983) (NAMF ), rev'd on other grounds sub nom. Chemical Manufacturers Ass'n v. NRDC, 470 U.S. 116, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985). Petitioner also argues the definitions are unconstitutionally vague. For the reasons discussed below, we deny the petition for review.

JURISDICTION AND STANDARD OF REVIEW

Under Sec. 509(b)(1)(C) of the Act, 33 U.S.C. Sec. 1369(b)(1)(C), we have jurisdiction to exercise a limited review of the Administrator's action in promulgating the 1987 definitions. NAMF, 719 F.2d at 632 n. 4; see Modine Manufacturing Corp. v. Kay, 791 F.2d 267, 269-71 (3d Cir.1986) (applicability of general pretreatment standards to brass cleaning company); Cerro Copper Products Co. v. Ruckelshaus, 766 F.2d 1060, 1066 (7th Cir.1985) (pretreatment standards for wastewater).

Under Sec. 10(e) of the Administrative Procedure Act, we may not set aside agency action unless we find it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). We must defer to any reasonable interpretation given the statute by the agency charged with its administration. EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 83, 101 S.Ct. 295, 307, 66 L.Ed.2d 268 (1980), citing Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). "Great deference" is especially appropriate when a "complex" statute like the Act is at issue. Train v. NRDC, 421 U.S. 60, 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731 (1975). An agency's interpretation of its own regulation is similarly entitled to "great deference" unless that interpretation is "plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945). The agency's actions are thus entitled to a presumption of regularity, and the party petitioning for review has the burden of overcoming that presumption. E.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). We do not, however, merely rubberstamp agency action. E.g., Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance

Co., 463 U.S. 29, 48-49, 103 S.Ct. 2856, 2869-2870, 77 L.Ed.2d 443 (1983).

STATUTORY BACKGROUND

Petitioner's members are poultry producers who discharge biological wastes into municipal sewage systems or publicly owned treatment works (POTWs). After the POTW treats the wastewater, the POTW discharges the treated wastewater into the nation's waters. For purposes of the Act, the POTW is a "direct" discharger and its discharge must meet certain conditions, or effluent limitations, contained in a permit issued under the National Pollutant Discharge Elimination System (NDPES), 33 U.S.C. Sec. 1342. See id. Secs. 1311(b)(1)(B), (C), 1314(d)(1). Similarly, the sludge, or sewage residue that is a by-product of the POTW's treatment processes, must meet certain requirements governing its use or disposal.

Most municipal sewage systems, or POTWs, were designed and built to treat domestic sewage and other similar biological waste. However, industrial users of POTWs may discharge wastes in concentrations or volumes that cannot be adequately treated by the receiving POTW. How indirect industrial discharges can adversely affect the operation of the receiving POTW was summarized by the EPA in the supplementary information accompanying the 1987 definitions.

Industrial users' discharges can inhibit or disrupt a POTW and thereby cause POTW noncompliance [with its NPDES permit limits] by physically disrupting the flow of wastewater through the POTW's system, by chemically or physically inhibiting the treatment processes, or by hydraulically overloading the plant so that proper settlement does not occur or wastes are retained for too short a time to receive adequate treatment before discharge. Pollutants discharged by industrial users [which cannot by treated by the POTW may pass through the POTW in amounts or concentrations that exceed the POTW's NPDES permit limits and] may also contaminate the sewage sludge that is a by-product of the POTW's treatment processes and thereby prevent the POTW from complying with requirements governing its chosen sewage sludge use of disposal practices.

General Pretreatment Regulations, 52 Fed.Reg. 1,586, 1,590 (1987) (hereinafter GPR).

Congress recognized that the pollutants discharged by some industrial users of POTWs could interfere with the operation of the POTWs or could pass through the POTWs without adequate treatment and required industrial users to pretreat their wastes before discharging them into POTWs. Section 307(b) of the Act authorizes the Administrator to establish pretreatment standards "to prevent the discharge of any pollutant through [POTWs], which pollutant interferes with, passes through, or is otherwise incompatible with such works." 33 U.S.C. Sec. 1317(b)(1).

REGULATORY HISTORY AND THE NAMF LITIGATION

EPA first promulgated a regulation specifically defining "interference" in 1978. 43 Fed.Reg. 27,736 (1978). The 1978 regulation defined "interference" as an "inhibition or disruption of a POTW's sewer system, treatment processes or operations which contributes to a violation of any requirement of [the POTW's] NPDES permit."

In 1979 the Administrator proposed to narrow the ambit of the definition by requiring an inhibition or disruption which "causes or significantly contributes" to the violation of the POTW's permit, and by including a "safe harbor" provision exempting from the definition inhibitions and disruptions caused by an [industrial user] "in compliance with specific prohibitions or standards developed by Federal, State or local governments." As promulgated, however, the 1981 general pretreatment amendments omitted the safe harbor provision and defined "significantly contributes" using three numbered categories. The [1981] amended regulations thus redefine[d] "interference" as:

an inhibition or disruption of the POTW ... which is a cause of or significantly contributes to either a violation of any requirement of the POTW's NAMF, 719 F.2d at 639, citing 40 C.F.R. Sec. 403.3(i) (1982) (1981 amended definitions).

NPDES permit (including any increase in the magnitude or duration of a violation) or to the prevention of sludge use or disposal by the POTW [examples of significant contribution omitted].

EPA first defined "pass through" in the 1981 General Pretreatment Regulations, 40 C.F.R. Sec. 403.3(n) (1982). The definition was very similar to the amended definition of "interference." "Pass through" was defined as "the Discharge of pollutants through the POTW into navigable waters in quantities or concentrations which are a cause of or significantly contribute to a violation of any requirement of the POTW's NPDES permit (including an increase in the magnitude or duration of a violation)." Like the definition of "interference," the definition further defined what constituted significant contribution.

The 1981 amended definitions were at issue in the NAMF litigation. The petitioners argued that the 1981 amended definitions of "interference" and "pass through" were inconsistent with the Act because industrial users could be subjected to liability for interference or pass through without regard to fault, causation or consequences. The Third Circuit agreed and held that "neither the language of the Act nor the intent of Congress appears to contemplate liability without causation." 719 F.2d at 640. The court held that because the "significantly contributes to" language in the definition of "interference" could result in liability even when the disruption of the POTW treatment process or the sludge disposal program was not caused by the industrial user's discharge but by a mistake or malfunction of the POTW, the definition was inconsistent with the Act. Id. at 640-41. The court noted, however, that "[i]f the definition of 'interference' [had] required that an indirect discharger be both 'the cause of' and 'significantly contribute to' the POTW's permit violation, it would [have been] consistent with [the Act's] causation requirement." Id. at 641 (emphasis in original). The court did not reach the merits of the definition of "pass through" because the definition had not been promulgated in compliance with the notice and comment requirement of the Administrative Procedure Act, 5 U.S.C. Sec. 553(c). 719 F.2d at 641. Both definitions were remanded to the Administrator for revision.

In accordance with the decision in NAMF, EPA suspended the definitions of "interference" and "pass through" on February 10, 1984. 49 Fed.Reg. 5,131 (1984).

THE 1987 DEFINITIONS

In June 1985 EPA published proposed definitions of "interference" and "pass through." 50 Fed.Reg....