Natural Resources Defense Council, Inc. v. E.P.A., No. 125
| Court | U.S. Court of Appeals — Second Circuit |
| Writing for the Court | Before MOORE; MOORE |
| Citation | 537 F.2d 642 |
| Parties | , 6 Envtl. L. Rep. 20,461 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Celanese Corporation et al., Intervenors. ocket 74--1258. |
| Decision Date | 28 April 1976 |
| Docket Number | D,No. 125 |
Page 642
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Celanese Corporation et al., Intervenors.
Second Circuit.
Decided April 28, 1976.
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Angus MacBeth, New York City (Natural Resources Defense Council, Inc., Richard M. Hall, New York City, of counsel), for petitioner.
Raymond W. Mushal, Jeff Zimmerman (Wallace H. Johnson, Asst. Atty., Gen., Edmund B. Clark, Martin Green, Attys., Dept. of Justice, Washington, D.C., Henry J. Bourguignon, Toledo, Ohio, on the brief, and G. William Frick, Associate Gen. Counsel for Water Environmental Protection Agency, Washington, D.C., of counsel), for respondent.
Robert C. Barnard, Washington, D.C. (Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., and New York City, of counsel, Douglas E. Kliever, Charles F. Lettow, Washington, D.C., on the brief), for intervenors.
Before MOORE, Circuit Judge, and BRYAN and DUFFY, * District Judges.
MOORE, Circuit Judge:
Natural Resources Defense Council, Inc. ('NRDC' or 'Petitioner'), petitions this Court to review and set aside identical portions of related regulations 1 promulgated by the Environmental Protection Agency ('EPA') assertedly pursuant to the mandate of the Federal Water Pollution Control Act Amendments, 33 U.S.C. §§ 1251 et seq. ('Act').
The regulations, so-called 'effluent limitation guidelines', define the maximum permissible effluent discharge of various existing point source categories. 2 We have
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already sketched the role played by such regulations in the overall operation of the Act in our accompanying opinion Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620 (Apr. 28, 1976, Dkt. No. 74--1687) ('74--1687'). Briefly, maximum permissible levels prescribed by the regulations are incorporated by permit-granting agencies into the permits for individual point sources. 3 The individual point sources fulfill their obligations under the Act by complying with the conditions incorporated by the permit grantors into the permits. 4The challenged portion of the regulations authorizes the permit-grantor to except individual plants from the regulation's restrictions upon a showing that the discrete plant's relevant factors are 'fundamentally different' from those which were considered by the EPA in the promulgation of the regulations themselves. The challenged portion reads as follows:
'In establishing the limitations set forth in this section, EPA took into account all information it was able to collect, develop and solicit with respect to factors (such as age and size of plant, raw materials, manufacturing processes, products produced, treatment technology available, energy requirements and costs) which can effect the industry subcategorization and effluent levels established. It is, however, possible that data which would affect these limitations have not been available and, as a result, these limitations should be adjusted for certain plants in this industry. An individual discharger or other interested person may submit evidence to the Regional Administrator (or to the State, if the State has the authority to issue NPDES permits) that factors relating to the equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from the factors considered in the establishment of the guidelines. On the basis of such evidence or other available information, the Regional Administrator (or the State) will make a written finding that such factors are or are not fundamentally different for that facility compared to those specified in the Development Document. If such fundamentally different factors are found to exist, the Regional Administrator or the State shall establish for the discharger effluent limitations in the NPDES permit either more or less stringent than the limitations established herein, to the extent dictated by such fundamentally different factors. Such limitations must be approved by the Administrator of the Environmental Protection Agency. The Administrator may approve or disapprove such limitations, specify other limitations, or initiate proceedings to revise these regulations.' See, e.g., 39 Fed.Reg. 6583 (February 20, 1974).
NRDC asserts that this 'variance' clause violates the 'Congressional direction that the rulemaking process of determining subcategories of industry categories be the only method for dealing with the major variations among dischargers (of pollutants).' 5 While Respondent EPA agrees with Petitioner that subject matter jurisdiction is validly predicated on § 509 of the Act, 6 it asserts that the 'variance' clause is valid.
The issues might have remained restricted to the propriety of the 'variance' clause but for a motion to intervene by a group of chemical companies: Celanese Corporation,
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Union Carbide Corporation, Monsanto Company, Dow Chemical Company, FMC Corporation, Olin Corporation, American Cyanamid Company, E. I. DuPont de Nemours & Company, Allied Chemical Corporation and Hercules Incorporated (hereinafter referred to collectively as 'Intervenors'). The motion was granted by this Court. Intervenors challenge the jurisdiction of this Court to review, under § 509 of the Act, the regulations which they assert were issued by EPA exclusively pursuant to § 304(b). 7 As a corollary they question whether EPA is authorized to issue regulations under § 301 8 of the Act, whether proper notice had been given in compliance with the requirements of the Administrative Procedure Act, 9 and whether the regulations comply with the requirements of § 304(b). Finally, they contend that the 'variance' clause is invalid.Briefs were also filed by amici curiae Allegheny Power System, Inc. et al., Chamber of Commerce of the United States of America ('Chamber of Commerce') and American Iron and Steel Institute, Inc. Amici Allegheny Power et al. echo Intervenors' construction of §§ 301 and 304 but hedge on the question of the 'variance' clause's validity. Amicus Chamber of Commerce also echoes Intervenors' construction of...
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...Court upheld EPA's rules containing provisions for alternative requirements as reasonable interpretations of the statute. NRDC v. EPA, 537 F.2d 642, 647 (2d Cir. 1976) (``the establishment of the variance clause is a valid exercise of the EPA's rulemaking authority pursuant to section 501(a......
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