Consolidation Coal Co. v. Costle, Nos. 76-1690

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before BUTZNER, WIDENER and HALL; BUTZNER; Referring to an analogous issue concerning the same statute
• Citation: 604 F.2d 239
• Parties: , 9 Envtl. L. Rep. 20,511 CONSOLIDATION COAL COMPANY, Petitioner, v. Douglas M. COSTLE, as Administrator, Environmental Protection Agency, Respondent. * to 76-2147, 77-1474, 77-1490, 77-1491, 77-1534, 77-1592 to 77-1594, 77-1828, 77-1845, 77-1892, 77-1893, 77-1957, 77-1989, 77-1990 and 77-2088.
• Docket Number: 76-2020,76-1981,76-1859,76-2019,Nos. 76-1690,76-1912,76-2059,76-1862,76-2145,76-1982
• Decision Date: 25 June 1979

Page 239

604 F.2d 239 13 ERC 1289, 9 Envtl. L. Rep. 20,511 CONSOLIDATION COAL COMPANY, Petitioner,
v.
Douglas M. COSTLE, as Administrator, Environmental
Protection Agency, Respondent. ^* Nos. 76-1690, 76-1859, 76-1862, 76-1912, 76-1981, 76-1982,
76-2019, 76-2020, 76-2059, 76-2145 to 76-2147, 77-1474,
77-1490, 77-1491, 77-1534, 77-1592 to 77-1594, 77-1828,
77-1845, 77-1892, 77-1893, 77-1957, 77-1989, 77-1990 and 77-2088. United States Court of Appeals,
Fourth Circuit. Argued Oct. 5, 1978.
Decided June 25, 1979.

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George C. Freeman, Jr., Richmond, Va. (Michael B. Barr, Hunton & Williams, Richmond, Va., on brief), for National Coal Association.

Theodore L. Garrett, Washington, D. C. (Covington & Burling, Washington, D. C., on brief), for Cedar Coal Company, Central Appalachian Coal Company, Central Coal Company, Central Ohio Coal Company, Southern Appalachian Coal Company, Southern Ohio Coal Company and Windsor Power House Coal Company.

Lawrence A. Demase, Pittsburgh, Pa. (Michael G. Kushnick, Washington, D. C., Ronald S. Cusano, Rose, Schmidt, Dixon, Hasley & Whythe, Pittsburgh, Pa., on brief), for Consolidation Coal Company and Bethlehem Steel Corporation.

Patrick McGinley, Pittsburgh, Pa. (John Philip Williams, East Tennessee Research Corporation, Lafollette, Tenn., on brief), for Citizen Environmental Group, petitioners.

K. W. James Rochow, Asst. Atty. Gen., Harrisburgh, Pa. (Gary Waxman, Asst. Atty. Gen., Harrisburgh, Pa., on brief), for Commonwealth of Pennsylvania, Department of Environmental Resources.

James A. Rogers, Associate Gen. Counsel, Environmental Protection Agency, Washington, D. C. (Joan Z. Bernstein, Gen. Counsel, Environmental Protection Agency, James W. Moorman, Asst. Atty. Gen., Angus Macbeth and Lee R. Tyner, Attys., Dept. of Justice, Washington, D. C., on brief), for respondent.

Robert F. Stauffer, Gen. Counsel, Washington, D. C., on brief, for National Coal Association.

Thos. E. Cahill, Evansville, Ind., and Thomas F. Linn, St. Louis, Mo., on brief, for Peabody Coal Company.

George L. Raymond, Indianapolis, Ind., on brief, for AMAX, Inc. and Gibralter Coal Corporation.

Peter G. Veeder, Frank J. Clements, Thorp, Reed & Armstrong, Pittsburgh, Pa., on brief, for National Steel Corporation, Republic Steel Corporation and United States Steel Corporation.

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William B. Long, Tuscaloosa, Ala., on brief, for The Drummond Company.

Jerry A. Fullmer, Ronald R. Janke, Jones, Day, Reavis & Pogue, Cleveland, Ohio, on brief, for The North American Coal Corporation.

Before BUTZNER, WIDENER and HALL, Circuit Judges.

BUTZNER, Circuit Judge:

In 27 consolidated cases, 17 coal producers, their trade association, 5 citizens' environmental associations, and the Commonwealth of Pennsylvania seek review, pursuant to 33 U.S.C. § 1369(b)(1)(E), of water pollution control regulations for existing facilities in the coal industry promulgated by the administrator of the Environmental Protection Agency. ¹ We uphold the regulations with the exception of a clause establishing criteria for variances.

I

The Federal Water Pollution Control Act of 1972 is a legislative mandate to restore and maintain the chemical, physical, and biological integrity of the nation's waters. ² The Act sets a national goal to eliminate the discharge of pollutants into the navigable waters by 1985. ³

As the first step toward the 1985 goal, ⁴ Congress provided in § 301(b)(1) (A) of the Act ⁵ that

there shall be achieved . . . not later than July 1, 1977, effluent limitations for point sources (of water pollution), other than publicly owned treatment works, (i) which shall require the application of the best practicable control technology currently available as defined by the Administrator (of the Environmental Protection Agency) pursuant to § 304(b) . . . .

This provision for effluent limitations marked a major change from prior law. Before the 1972 Act, water pollution control had been based upon water quality standards specifying the acceptable levels of pollution in the navigable waters. The program proved ineffective in part because the standards focused on the tolerable effects rather than the preventable causes of water pollution. Effluent limitations eliminate this problem because they directly restrict the concentrations of pollutants that may be discharged by any plant in a given industrial subcategory. ⁶

Section 304(b)(1) ⁷ requires the Administrator to publish regulations which must

identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources . . . and specify factors to be taken into account in determining the control measures and practices to be applicable to point sources . . . within such categories or classes.

The administrator promulgated final water pollution control regulations for existing plants in the coal industry on April 26, 1977. ⁸ The regulations divide the industry into two categories (1) coal mines and (2) coal preparation plants and associated

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areas. These categories are each subdivided according to acidic and alkaline discharges. For each of the resulting subcategories, the regulations establish maximum concentrations of iron and total suspended solids. They also limit the permissible range of acidity and alkalinity of discharge water, and they restrict manganese concentrations in acidic drainage. None of the petitions before us challenges these maxima. ⁹ The petitions question the validity of seven aspects of the regulations which we will discuss in parts II-VIII of this opinion.

Our review is governed by § 10(e)(2) of the Administrative Procedure Act. ¹⁰ We must set aside any portion of the 1977 effluent limitations that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" is in excess of statutory authority; or is "without observance of procedure required by law." ¹¹ The ultimate standard of review is narrow. This court is not empowered to substitute its judgment for that of the agency. ¹² The Federal Water Pollution Control Act is to be given the broadest possible reading consistent with the commerce clause, ¹³ and ambiguities as to the administrator's powers under the Act are to be resolved in his favor. ¹⁴ Congress has required the agency to act quickly and decisively despite a recognized absence of exact data on pollution control technology, and we must hesitate to draw substantive conclusions differing from those of the agency in this area of imprecise knowledge. An overly expansive exercise of the judicial review power can impede accomplishment of the Act's goal of eliminating water pollution and thwart its requirement of national uniformity in effluent reduction technology. ¹⁵

II. Variance Statutory Factors

The industrial petitioners challenge the "fundamentally different factors" variance clause contained in the regulations ¹⁶ complaining that this provision fails to require the permit issuer to consider the factors set forth in §§ 304(b)(1)(B) ¹⁷ and 301(c) ¹⁸ of the Act.

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An identical variance clause was before the court in National Crushed Stone Association v. EPA, ¹⁹ which controls our disposition of this issue. National Crushed Stone holds that the clause is unduly restrictive, relying on Appalachian Power Co. v. EPA. ²⁰ Accordingly, we set aside the variance clauses contained in 40 C.F.R. §§ 434.22, 434.32, and 434.42 and remand them for revision to conform with National Crushed Stone.

III. Variance Environmental Benefits

The industrial petitioners also insist that the regulations dealing with variances must be disapproved because they fail to require the agency to consider the environmental benefits of applying the effluent limitations to a particular source of pollution. The only specific error they attribute to the regulations is the absence of a provision requiring the agency to take into account the quality of the receiving water when it decides whether to grant a variance.

At the outset, we reject the agency's argument that consideration of this aspect of the variance regulations would be premature. In a recent adjudicatory proceeding, the administrator unequivocally ruled that the Act and, consequently, the regulations, do not authorize him to grant a variance to an industrial discharger by providing "relief from technology-based effluent limitations guidelines due solely to the characteristics of particular receiving waters . . . ." ²¹ Since the administrator's interpretation of the regulations precludes any speculation about its meaning, review is not premature. ²² We therefore turn to the merits of the petition.

The pertinent regulations authorize the administrator to allow deviations from the national effluent limitations if factors peculiar to a specific source of pollution are fundamentally different from the factors considered in the establishment of the guidelines. ²³ The precise issue, therefore, is whether the factors peculiar to a source of pollution must include comparison of the expected improvements in the receiving water with the cost of achieving them. We dealt with this issue in Appalachian Power, ²⁴ where, in response to Consolidated Edison's request to be relieved of the effluent guidelines, we said:

(S)o far as its petition may be read as a request for leniency because of the already polluted condition of the harbor, it must be rejected. The 1972 amendments to the statute changed the system from that of control of the quality of the body of water to effluent limitations as we have before noted.

The Court of Appeals for the District of Columbia Circuit also examined this issue in Weyerhaeuser Co. v. Costle, ²⁵ and affirmed the administrator's refusal to consider receiving water quality in setting limitations.

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These decisions...