Natural Resources Defense Council, Inc. v. U.S. E.P.A.
| Decision Date | 07 May 1981 |
| Docket Number | 79-1934,79-1935 and 79-2360,Nos. 79-1639,s. 79-1639 |
| Citation | 211 U.S.App.D.C. 179,656 F.2d 768 |
| Parties | , 211 U.S.App.D.C. 179, 11 Envtl. L. Rep. 20,487 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. U. S. ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, U. S. Environmental Protection Agency, Respondents, City of Skagway, Marina County Water District, City of Wrangell, Alaska, Intervenors. PACIFIC LEGAL FOUNDATION, a nonprofit California Corporation, Petitioner, v. Douglas M. COSTLE, in his official capacity as Administrator of the United States Environmental Protection Agency, Respondent. CITY OF SKAGWAY, a municipality, and Marina County Water District, a public agency, Petitioners, v. Douglas M. COSTLE, in his official capacity as Administrator of the United States Environmental Protection Agency, and U. S. Environmental Protection Agency, Respondents. The MUNICIPALITY OF ANCHORAGE, ALASKA, Petitioner, v. Douglas M. COSTLE, in his official capacity as Administrator of Environmental Protection Agency, and U. S. Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Stephen H. Schroeder, Washington, D. C., with whom Ronald J. Wilson, Washington, D. C., was on the brief for petitioner Natural Resources Defense Council, Inc. in No. 79-1639.
Robert K. Best, Sacramento, Cal., with whom Robert A. Zumbrun, David M. Shell, Sacramento, Cal., Raymond M. Momboisse and Eileen B. White, Washington, D. C., were on the brief for petitioners in Nos. 79-1934 and 79-1935, and intervenors, Marina County Water District, et al. in No. 79-1639.
Lee C. White, with whom Robert J. Saner, II, John McElroy Atkisson and Kenneth Norman, were on the brief for petitioner Municipality of Anchorage, Alaska in No. 79-2360.
Nancy S. Bryson, Atty., Dept. of Justice and Bethami Auerbach, Atty., E. P. A. of the bar of the District of Columbia Court of Appeals pro hac vice by special leave of Court, Washington, D. C., with whom James W. Moorman, Asst. Atty. Gen., Angus MacBeth, Deputy Asst. Atty. Gen., Donald W. Stever, Jr., Atty., Dept. of Justice, Washington, D. C., were on the brief for respondents. John Hammock and Joan M. Cloonan, Attys., Dept. of Justice, Washington, D. C., also entered appearances for respondents.
Before LUMBARD *, Senior Circuit Judge for the United States Court of Appeals for the Second Circuit, and ROBB and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBB.
In this case the petitioners challenge regulations promulgated by the Administrator of the Environmental Protection Agency (EPA) to implement section 1311(h), 33 U.S.C. § 1311(h) (Supp. II 1978), of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (1976) (the Act). Section 1311(b)(1)(B) of the Act required municipal sewage plants to achieve a minimum sewage treatment standard by 1977, 33 U.S.C. § 1311(b)(1)(B) (1976); Montgomery Environmental Coalition v. Costle, 646 F.2d 568 at 574 (D.C.Cir., 1980). Section 1311(h), a 1977 amendment, allows municipalities to apply for a variance from the minimum standard of section 1311(b), 33 U.S.C. § 1311(h) (Supp. II 1978). The challenged regulations provide the standards for section 1311(h) variances.
On June 22, 1979 the Natural Resources Defense Council (NRDC) filed in this court a petition for review of the regulations. Later in June the Pacific Legal Foundation, the City of Skagway, Alaska, and the Marina County, California Water District (collectively referred to as PLF) filed petitions for review in the Ninth Circuit. The City of Wrangell, Alaska moved to intervene in the PLF action on August 24, 1979. On September 12, 1979, by motion of PLF, this court entered an order staying the final application deadline pending review of regulations. Anchorage, Alaska filed a petition for review of the regulations in the Ninth Circuit on September 19, 1979. Subsequently, the Ninth Circuit transferred the PLF, Wrangell and Anchorage petitions to this court and we consolidated the petitions on January 2, 1980.
NRDC argues that the Administrator has misinterpreted the law to provide too great an opportunity for variance applications. PLF and Anchorage argue that the regulations are too restrictive and impracticable. We conclude that but for two exceptions, the regulations faithfully implement the mandate of the statute.
The discharge of sewage into a body of water may create severe environmental damage. The decomposition of organic matter consumes oxygen, and excessive oxygen demands may deprive fish, shellfish and aquatic wildlife of dissolved oxygen necessary to life. Solid matter from sewage may settle in layers on the floor of the water body and suffocate life forms that cannot escape. Acids and heavy metals may poison the water. In short, unrestricted In 1972 Congress reacted to the continuing decline of our nation's waters by passing the Federal Water Pollution Control Act Amendments of 1972, Pub.L.No.92-500, 86 Stat. 816 (1972). The objective of the 1972 Act is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (1976). An interim goal of fishable, swimmable waters was set for July 1, 1983. 33 U.S.C. § 1251(a)(2) (1976). The ultimate goal of eliminating the discharge of pollutants into the nation's navigable waters was set for 1985. 33 U.S.C. § 1251(a)(1) (1976).
discharges of sewage can cause environmental damage which in turn will affect the nation's health and welfare. The legacy of unrestricted sewage discharge is disease, reduced fishery and recreation resources, poisoned water supplies and ugly water bodies. See Council on Environmental Quality, Environmental Quality: First Annual Report, 29-42 (1970).
In order to achieve these goals restrictions were imposed on individual polluters by means of a permit system administered by EPA. 1 The statute made it unlawful to discharge a pollutant without a permit. 33 U.S.C. § 1311(a) (1976). The Administrator of the EPA (Administrator) issues a permit only if the applicant meets the criteria set out in the Act. 33 U.S.C. § 1342(a)(1) (1976).
One of the requirements of the 1972 Act was that publicly owned treatment works 2 in existence on July 1, 1977 at least meet effluent standards based on secondary treatment of sewage. 3 33 U.S.C. § 1311(b)(1)(B) (1976). Although some treatment works met the deadline, thousands failed to achieve secondary treatment by July 1, 1977. See 3 A Legislative History of the Clean Water Act of 1977, 95th Cong., 2d Sess., Ser.No. 95-14, 450-51 (Remarks of Sen. Muskie) (1978) (hereinafter cited as Leg.Hist.); Note, The Clean Water Act of 1977 Modifications of the Municipal Program, 2 Harv.Envt'l L.Rev. 127, 129 (1977). The principal reason for this failure was the unavailability of federal construction funds due to a Presidential impoundment. See Note, Highlights of the Clean Water Act of 1977, 8 Envt'l Law. 869, 873 (1978).
The uniform requirement of secondary treatment of sewage by publicly owned treatment works was criticized by some cities as being unnecessary to full protection of the environment. For example, a representative of the city of Seattle testified before a Senate Subcommittee that the uniform secondary treatment requirement is an unnecessary burden on taxpayers because the treatment is not necessary to assure compliance with water quality standards in Puget Sound, Hearing Before the Subcommittee on Environmental Pollution of the Committee on Environment and Public Works of the United States Senate, 95th Cong., 1st Sess., Ser.No. 95-H25, Pt. 3, 60-63 (1977) (hereinafter cited as Senate Subcommittee Hearings ). The city of Port Angeles, Washington argued that the characteristics of the water body into which the city discharged reduced the value of secondary treatment of sewage for its discharge. Senate Subcommittee Hearings at 352-55. Anchorage, Alaska informed the Subcommittee In 1977 Congress responded to such assertions by amending the Federal Water Pollution Control Act to provide for a variance from the secondary treatment requirement for treatment plants that can meet certain conditions. See 3 Leg.Hist. at 320-23. Congress expressed a desire to avoid "treatment for treatment's sake". Id. at 320. The full text of that provision is:
that Cook Inlet, into which its three sewage plants discharge, has tidal ranges in excess of 30 feet. The Inlet is fed by over 620 million gallons of water per day from freshwater streams. The rapid dilution of the discharge under such conditions renders secondary treatment unnecessary, according to Anchorage. Senate Subcommittee Hearings, Part 8, at 269-71.
The Administrator, with the concurrence of the State, may issue a permit under section 1342 of this title which modifies the requirements of subsection (b)(1) (B) of this section with respect to the discharge of any pollutant in an existing discharge from a publicly owned treatment works into marine waters, if the applicant demonstrates to the satisfaction of the Administrator that
(1) there is an applicable water quality standard specific to the pollutant for which the modification is requested, which has been identified under section 1314(a)(6) of this title;
(2) such modified requirements will not interfere with the attainment or maintenance of that water quality which assures protection of public water supplies and the protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife, and allows recreational activities, in and on the water;
(3) the applicant has established a system for monitoring the impact of such discharge on a representative sample of acquatic biota, to the extent practicable;
(4) such modified requirements will not result in any additional requirements on any other point or nonpoint source;
(5) all applicable pretreatment requirements...
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