CPC Intern., Inc. v. Train

Decision Date05 May 1975
Docket NumberNos. 74-1447,s. 74-1447
Citation515 F.2d 1032
Parties, 5 Envtl. L. Rep. 20,392 CPC INTERNATIONAL INC., et al., Petitioners, v. Russell E. TRAIN et al., Respondents (two cases). PENICK & FORD, LTD., Petitioner, v. Russell E. TRAIN, Respondent. to 74-1449.
CourtU.S. Court of Appeals — Eighth Circuit

Robert C. Barnard and Charles F. Lettow, Washington, D. C., for petitioners.

Kathryn A. Oberly, U. S. Dept. of Justice and Pamela Quinn, Environmental Protection Agency, Washington, D. C., for respondents.

Before MATTHES, Senior Circuit Judge, and HEANEY and WEBSTER, Circuit Judges.

HEANEY, Circuit Judge.

The petitioners are engaged in the processing of corn into starch, syrup, dextrose, animal feed and corn oil. They file petitions for direct review of three distinct groups of regulations 1 promulgated by the Administrator of the Environmental Protection Agency under the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. §§ 1251 et seq. 2 The regulations relate to the "Corn Wet Milling Subcategory" of the "Grain Mills Point Source Category," and consist of:

(1) Standards of performance for new plants, promulgated under § 306(b);

(2) Pretreatment standards for new plants which discharge wastes into municipal treatment plants, promulgated under § 307(c); and

(3) Effluent limitations guidelines for existing plants, promulgated under § 304(b). 3

All parties agree that we have jurisdiction under § 509(b) to directly review the regulations relating to new plants. The petitioners assert, however, that we do not have jurisdiction to directly review the guidelines for existing plants, and that such review is in the United States District Courts under the Administrative Procedure Act. 5 U.S.C. § 701 et seq. It is only because the EPA asserts that the guidelines are directly reviewable in the Courts of Appeals under § 509(b) that the companies have filed a protective petition here. 4

We conclude that the guidelines for existing plants cannot be directly reviewed by this Court. Accordingly, we dismiss the petitions with respect to them. We set forth our reasons for this dismissal in Part I of this opinion and examine the new plant regulations in Parts II and III.

I. JURISDICTION TO REVIEW THE GUIDELINES FOR EXISTING PLANTS.
A. THE SCHEME OF THE 1972 ACT.

The Federal Water Pollution Control Act Amendments of 1972 restructure the federal program for water pollution control. The 1972 Act was enacted against a background of frustration and ineffectiveness in controlling the quality of the nation's waters. The keystone of the pre-1972 program had been the setting of "water quality standards" for interstate navigable waters. Under that program if wastes discharged into receiving waters reduced the quality below permissible standards, legal action could be commenced against the discharger. To establish that a given polluter had violated the federal legislation, a plaintiff had to cross a virtually unbridgeable causal gap by demonstrating that the cause of the unacceptable water quality was the effluent being discharged by the defendant. The enforcement mechanism of the prior legislation was so unwieldy that only one case had reached the courts in more than two decades. See S.Rep.No.92-414, 92d Cong., 1st Sess. (1971), reported in A Legislative History of the Water Pollution Control Act Amendments of 1972 at 1423 (1973), U.S.Code Cong. & Admin.News, 1972, p. 3668. 5

The 1972 Act brought about a major change in the enforcement mechanism by shifting the focus from water quality standards to effluent limitations. See id. at 1425. It provides in § 301(a) that the discharge of any pollutant is unlawful unless it is in compliance with conditions (effluent limitations) contained in a permit issued under § 402. Permits are to be issued by the EPA, or by those states whose permit programs have been approved by the EPA pursuant to § 402(a)(5). 6

The Act declares that "it is the national goal that the discharge of all pollutants into the navigable waters be eliminated by 1985." § 101(a)(1). To move the country toward this goal, the Act establishes a system of standards and guidelines under which permit conditions are to become more and more restrictive, culminating hopefully in a "zero-discharge" condition.

For new sources, the Administrator is directed to categorize sources and to "publish regulations establishing Federal standards of performance." § 306(b)(1)(B). The new source standards are to reflect

* * * 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, including, where practicable, a standard permitting no discharge of pollutants.

§ 306(a)(1).

For existing sources, § 301(b) of the Act provides: 7

* * * (T)here shall be achieved

(1)(A) not later than July 1, 1977, effluent limitations for point sources, other than publicly owned treatment works, * * * which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) * * * .

(2)(A) not later than July 1, 1983, effluent limitations for categories and classes of point sources * * * which * * * shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) * * * which such effluent limitations shall require the elimination of discharges of all pollutants if the Administrator finds * * * that such elimination is technologically and economically achievable for a category or class of point sources as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) * * * .

The phrases used in § 301(b), "best practicable control technology currently available" and "best available technology economically achievable," are to be given content by the Administrator of the EPA in regulations which he is directed to publish under § 304(b):

For the purpose of adopting or revising effluent limitations under this Act the Administrator shall, after consultation with appropriate Federal and State agencies and other interested persons, publish within one year of enactment of this title (October 18, 1972), regulations, providing guidelines for effluent limitations, and, at least annually thereafter, revise, if appropriate, such regulations. Such regulations shall

(1)(A) 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

(B) 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. Factors relating to the assessment of best practicable control technology currently available to comply with subsection (b)(1) of section 301 * * * shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, and shall also take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate;

(2)(A) 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 control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods, and other alternatives for classes and categories of point sources * * *; and

(B) specify factors to be taken into account in determining the best measures and practices available to comply with subsection (b)(2) of section 301 * * * to be applicable to any point source * * * within such categories or classes. Factors relating to the assessment of best available technology shall take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate * * *.

B. THE JURISDICTIONAL ISSUE.

The jurisdictional issue hinges on the relationship of § 304(b) to § 301(b) and their relationship to the permit-issuing process under § 402. The parties agree that this Court has jurisdiction under § 509(b) 8 to directly review only certain actions of the EPA. The parties also agree that guidelines published under § 304(b) are not directly reviewable by this Court under § 509 and that, therefore, if the existing source regulations were published exclusively pursuant to § 304(b), we do not have jurisdiction to examine them in an original proceeding.

The EPA urges that the regulations were promulgated not only pursuant to a § 304(b) power to publish guidelines, but also pursuant to a § 301(b) power to publish limitations. 9 It contends that, in using the passive voice, "there shall be achieved * * * effluent limitations," Congress intended to require the EPA to promulgate effluent limitations by regulation under § 301(b). Such effluent limitations would then serve as minimum national standards for industry...

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