E. I. du Pont De Nemours & Co. v. Train, 74--2237

• Decision Date: 19 April 1976
• Docket Number: No. 74--2237,74--2237
• Citation: 528 F.2d 1136
• Parties: , 6 Envtl. L. Rep. 20,117 E. I. du PONT de NEMOURS AND COMPANY et al., Appellants, v. Russell E. TRAIN, as Administrator, Environmental Protection Agency, and John R. Quarles, as Deputy Administrator, Environmental Protection Agency, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1136

528 F.2d 1136

8 ERC 1506, 6 Envtl. L. Rep. 20,117

E. I. du PONT de NEMOURS AND COMPANY et al., Appellants, v. Russell E. TRAIN, as Administrator, Environmental Protection

Agency, and John R. Quarles, as Deputy

Administrator, Environmental Protection

Agency, Appellees.

No. 74--2237.

United States Court of Appeals, Fourth Circuit.

Argued April 22, 1975.

Decided Dec. 30, 1975.

Certiorari Granted April 19, 1976.

See 96 S.Ct. 1662.

Robert C. Barnard, Washington, D.C. (Douglas E. Kliever and Charles F. Lettow, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., John L. Walker, Jr., Roanoke, Va., on brief), for appellants.

Kathryn A. Oberly, U.S. Atty. Dept. of Justice, Paul R. Thomson, Jr., Asst. U.S. Atty. (Wallace H. Johnson, Asst. Atty. Gen. Alan G. Kirk, II, Asst. Administrator for Enforcement and Gen. Counsel, Edmund B. Clark, Bruce J. Chasan, Attys., U.S. Dept. of Justice, Ray E. McDevitt, Atty., Environmental Protection Agency, on brief), for appellees.

Before RIVES ^* and BREITENSTEIN ^** Senior Circuit Judges, and WIDENER, Circuit Judge.

WIDENER, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Western District of Virginia dismissing appellants' action for lack of subject matter jurisdiction. Suit was filed in the district court by the appellants, eight chemical manufacturers, who sought review of certain regulations promulgated under the Federal Water Pollution Prevention and Control Act of 1972. 33 U.S.C. § 1251 et seq. (hereinafter the Act). These regulations, which purport to establish effluent limitations for inorganic chemicals, were issued by the Administrator of the Environmental Protection Agency (EPA), appellee herein, on March 12, 1974, and consist of:

(1) Standards of performance for new plants.

(2) Pretreatment standards for new plants discharging wastes into municipal treatment plants.

(3) Effluent limitations for existing plants.

39 Fed.Reg. 9612 et seq., 40 CFR 415.

The only question presented in this appeal is whether the district courts have jurisdiction to review effluent limitations regulations issued by the Administrator to control effluent discharges from existing plants. A necessary corollary is whether the courts of appeals have jurisdiction under § 509 of the Act, 33 U.S.C. § 1369(b)(1), to review, on direct petition for review, regulations for existing plants, for if we have the jurisdiction, the district courts do not. ¹ We conclude for the reasons stated below that the courts of appeals do have jurisdiction to review directly the regulations in question, and, therefore, the judgment of the district court must be affirmed.

As the district court noted, the issue presented was largely one of first impression. Although the matter has now been considered directly or indirectly by some few courts, it is yet relatively new and we think it appropriate that we ascertain the intent of Congress in adopting the Act in its present form by looking to the language of the statute itself and its legislative history, as well as the decisions on the subject. The original Act dates from 1948, but did not assume its present form until 1972 when the then existing statutory language was extensively revised. The object of these revisions, as noted in the body of the statute itself, was and is the restoration and maintenance of the chemical, physical, and biological integrity of the nation's waters. 33 U.S.C. § 1251. This goal is to be accomplished primarily through the control of pollutants discharged into navigable waters. It should be kept in mind that the 1972 amendments changed the emphasis in the statutory scheme of water pollution control from that of regulating the quality standard of the body of water involved to regulating not only the quality standard of the body of water but also the quality of effluent discharged into the body of water. Compare the various statutes itemized in footnotes to 33 U.S.C.A. § 1251 et seq.; and see, eG., Senate Report 92--214, dated October 28, 1971; House Report 92--911 dated March 11, 1972; U.S.Code Cong. & Admin. News, p. 3668; CPC International v. Train, 515 F.2d 1032, 1034--36 (8th Cir. 1975).

In the course of adopting the 1972 amendments, a great deal of attention was focused on the proper function of the States in the regulation and control of overall water quality. This is reflected in Congress' concern, written into the statute, that the 'primary responsibilities and rights of States to prevent, reduce, and eliminate pollution' be preserved. 33 U.S.C. § 1251(b). Although the United States in the last analysis regulates, in most cases, the amount of pollution discharged into the nation's waters, the States, through the permit granting plan (§ 402, 33 U.S.C. § 1342), are intended to take a large part in the administration and application of the statutory plan, including the application of regulations issued by the EPA as well as the application of the statute. ² There is here no need to, and we do not, express an opinion as to the extent, construction, effect, or application of any regulation issued by EPA.

Central to the statutory framework within which the permit system is to operate are the regulations providing for or establishing effluent limitations. The EPA contends that the Act contemplates that the Administrator promulgate actual effluent limitations which will be uniformly applied in issuing permits under the Act. ³ According to its construction, Congress intended that the Administrator issue effluent limitations through regulations promulgated under § 301(b), 33 U.S.C. § 1311(b). That section provides:

'(b) In order to carry out the objective of this Act there shall be achieved--

(1) (A) not later than July 1, 1977, effluent limitations for point sources, 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 pursuant to section 304(b) of this Act . . ..

(2) (A) not later than July 1, 1983, effluent limitations for categories and classes of point sources, other than publicly owned treatment works, which (i) shall require application of the best available technology economically achievable . . . as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) of this Act.'

The Administrator asserts that he has combined his rulemaking authority under this section with that specifically provided for under § 304(b), 33 U.S.C. § 1314(b), to arrive at the comprehensive set of regulations which are here under review. Since § 509 of the Act states that actions of the Administrator under § 301 are directly reviewable by courts of appeals, the EPA asserts that the district court was correct in dismissing the complaint for lack of jurisdiction.

Appellants, on the other hand, while not challenging the right of this court to directly review any action of the Administrator under § 301, contend that he lacks authority to issue effluent limitation regulations under the provisions of that section. They argue that the language of § 301 requires only that effluent limitations be 'achieved,' not that they be independently established and achieved. Thus, according to their interpretation of the Act, § 301 merely sets forth the statutory objectives to be attained, and the means of actually reaching these objectives are set out in § 304 of the Act, 33 U.S.C. § 1314, which states in part:

'(a) (1) The Administrator . . . shall develop and publish . . . criteria for water quality . . ..

'(b) For the purpose of adopting or revising effluent limitations under this Act the Administrator shall . . . publish . . . regulations, providing guidelines for effluent limitations . . .. Such regulations shall--

'(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 of this Act . . ..'

The challenged regulations must, therefore, according to appellants, be deemed to have been issued under § 304(b) and neither under § 301 nor a combination of § 301 and § 304(b) as the EPA asserts. Based upon this interpretation of the statutory provisions in issue, appellants contend that review in the courts of appeals pursuant to § 509(b)(1) is not available and that the action was properly brought before the court below in accordance with the provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. As a corollary to this construction, appellants seek a ruling that the effluent limitations for existing point sources issued by EPA are invalid because they say the Administrator had no authority to issue them under § 301, and could only have issued them under § 304(b).

The case of CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975), appears to agree with appellants' interpretation of the statutory provisions involved. In that case, the court stressed the fact that § 301 provides the Administrator with no separate power to promulgate effluent limitations for existing point sources. The court noted,

'(o)ther sections of the Act demonstrate that the omission of such a provision (providing for the issuance of regulations under § 301) was not an oversight, for Congress provided unambiguously for the promulgation of national standards in other sections of the Act. Nationally promulgated standards were expressly mandated for new sources in § 306(b)(1)(B) . . ..' 515 F.2d at 1038.

Thus, the court concluded that jurisdiction to review such actions of the EPA, which were deemed to have been taken in accordance with § 304(b), did not lie in the courts of appeals because the EPA could not promulgate effluent limitations for existing sources by regulations under § 301.

The court below, on the other hand, ruled that the effluent limitations standards at issue were promulgated pursuant to § 301 'apart from section 402 permit proceedings,' and, as a result, it...