Hooker Chemicals & Plastics Corp. v. Train
| Decision Date | 28 April 1976 |
| Docket Number | D,No. 796,796 |
| Citation | 537 F.2d 620 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | , 6 Envtl. L. Rep. 20,467 HOOKER CHEMICALS & PLASTICS CORP. et al., Petitioners, v. Russell E. TRAIN, as Administrator, Environmental Protection Agency, Respondent. ocket 74--1687. |
R. C. Barnard, D. E. Kliever, Washington, D.C. (Cleary, Gottlieb, Steen & Hamilton, Washington, D.C. and New York City, of counsel, Henry J. Plog, Jr., Washington, D.C., on the brief), for petitioners.
Jeff Zimmerman, Pamela Quinn, Washington, D.C. (Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, Dept. of Justice, Alan G. Kirk, II, Attys., Washington, D.C., on the brief), for respondent.
Before MOORE, Circuit Judge, and BRYAN and DUFFY, * District Judges.
Three chemical companies, Hooker Chemicals and Plastics Corporation, Stauffer Chemical Company and Monsanto Company ('Petitioners'), in an action against Russell E. Train, Administrator of The Environmental Protection Agency ('EPA'), seek by petition to review and set aside regulations establishing effluent limitation guidelines 1 for the phosphate manufacturing industry, issued on February 20, 1974, by the EPA pursuant to the Federal Water Pollution Control Act Amendments ('Act') 33 U.S.C. § 1251, et seq.
Although Petitioners contend that this Court lacks jurisdiction, asserting that the In 1972, Congress, anxious to end pollution of our Nation's waters, enacted the Act. It was radically different from previous laws on the subject, and drastically changed the national approach to the control of water pollution. Enforcement of predecessor statutes, which had relied on water quality standards as the primary method of pollution control, had been largely unsuccessful. It was too difficult to establish the necessary correlation between effluent discharges by particular sources 3 and the quality of the body of water into which the effluent flowed. To solve the dilemma the Act, while retaining water quality standards, predicated pollution control on the application of control technology on the plants themselves rather than on the measurement of water quality.
regulations must be initially reviewed in the District Court pursuant to the Administrative Procedure Act ('APA'), 5 U.S.C. §§ 701--06, they have filed their petition as a 'protective measure' to avoid the risk of losing their right to challenge the regulations for failure to file the petition within 90 days of promulgation as required by § 509(b) 2 of the Act.
In the Act, Congress declared its sweeping and praiseworthy goals of which the following are representative: 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters'; to eliminate discharge of pollutants by 1985; to achieve by July 1, 1983, 'whereever attainable', a water quality which would provide for the protection of fish, shellfish and wildlife; to develop technology necessary to eliminate discharge of pollutants, and to protect 'the primary responsibilities and rights of States' to eliminate pollution. 4
The Act distinguishes between existing effluent dischargers and those constructed after the promulgation of the Act's operative regulations. For the 'new' effluent dischargers § 306 5 of the Act requires the Administrator to promulgate regulations which 'reflect the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology.' When the 'new' discharger obtains a permit which incorporates as permit conditions the applicable 'new' source regulations, compliance with the permit constitutes compliance with the Act. 6
The same permit mechanism applies to existing effluent discharges, but the Act prescribes two-tiered restrictions.
Section 301(b)(1)(A) 7 provides:
'(i)n order to carry out the objective of this Act, there shall be achieved . . . not later than July 1, 1977, effluent limitations for point sources . . . which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 1314(b) (§ 304(b)) . . ..'
Stiffer restrictions are mandated to commence not later than July 1, 1983. Section 301(b)(2)(A) 8 provides that:
'In order to carry out the objective of this Act, there shall be achieved . . . 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 Section 304(b) 9 to which both parts of § 301 refer states, inter alia:
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 1314(b)(2) (§ 304(b)(2)) . . ..'
'For the purpose of adopting or revising effluent limitations under this Act the Administrator shall . . . publish within one year of enactment of this title, regulations, providing guidelines for effluent limitations. . . . 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 . . . (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 . . ..'
For 1977 limitations, the factors to be considered are:
'the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application . . . 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.' 10
Comparable factors are specified for 1983 limitations. 11
The first question in this case is whether we have subject matter jurisdiction of the controversy. Under § 509, 12 the jurisdictional section of the Act, review of the Administrator's action 'in approving or promulgating any effluent limitation or any other limitation under section 1311 (§ 301), 1312 (§ 302), or 1316 (§ 306)' and 'in issuing or denying any permit under section 1342 (§ 402)' may be had in the Courts of Appeals. The status of the contested regulations as effluent limitations promulgated under § 301 is the jurisdictional linchpin. The parties' views on that issue vary with their views of the way the Act is to be administered for existing point sources.
Petitioner argue that we lack jurisdiction because the regulations were promulgated exclusively under § 304, which § 509 omits from the enumeration of sections whose regulations are reviewable initially in the Courts of Appeals. They arrive at this conclusion by a process of elimination. The regulations assertedly were not promulgated pursuant to § 301, which is merely declarative of the Act's objectives and the time limits for their achievement. Those objectives are effectuated pursuant to the authority conferred by other sections of the Act. The 'effluent limitations' mentioned in § 301, they claim, are only established during a case-by-case permit-application procedure. In that process, permit-grantors apply to individual effluent discharges the § 304 guidelines which identify for 1977 'the degree of effluent reduction attainable through the application of the best practicable control technology' and for 1983 'the degree of effluent reduction attainable through the application of the best control measures and practices achievable.' Since the Administrator does not need guidelines to guide himself, the intention of Congress, they argue, was to guide the permit-issuing official or agency who, in issuing permits for specific plants, would thereby create the effluent limitations for that plant.
Thus, since the regulations were not promulgated pursuant to § 301, Petitioners conclude that the regulations are 'effluent limitation guidelines' promulgated solely EPA claims that the Administrator has combined in the regulations 'effluent limitations' promulgated pursuant to § 301 and 'effluent limitation guidelines' promulgated pursuant to § 304 and that Congress intended that EPA promulgate § 301 'effluent limitations' by regulation before the permit-granting procedure is initiated. The Administrator promulgated § 304 'effluent limitation guidelines' which assertedly define in concrete terms the abstract norms of § 301 'effluent limitations'. These definitions are then incorporated into § 301 'effluent limitations' and the limitations are then incorporated into permits by permit-grantors. No express statutory authority supports this conclusion except that the effluent limitations of § 301 are to be 'as defined by the Administrator pursuant to section 304(b).' On this fragile nexus of § 304 to § 301 to § 509, jurisdiction in the Court of Appeals is asserted to rest.
pursuant to § 304, a section not included in the reviewable sections listed in § 509. The record, upon which the regulations are based, is steeped in technological data and the only section dealing with specific technology and factors to be considered in determining controls and practices applicable to point sources is § 304.
Seeking guidelines of our own from the other Courts of Appeals which have had to cope with this problem of jurisdiction, a brief review of recent decisions from the Third, Fourth, Seventh and Eighth Circuits is a useful introduction to our discussion.
In CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975), the Eighth Circuit concluded that 'the guidelines (§ 304) for existing plants cannot be directly reviewed' 13 and...
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