Natural Resources Defense Council, Inc. v. U.S. E.P.A.

Decision Date30 June 1987
Docket NumberNo. 80-1607,80-1607
Citation822 F.2d 104
Parties, 261 U.S.App.D.C. 372, 56 USLW 2017, 17 Envtl. L. Rep. 21,043 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Lee M. Thomas, Administrator, U.S. Environmental Protection Agency, Respondents, Chemical Manufacturers Association, American Iron & Steel Institute, Edison Electric Institute, et al., Cincinnati Gas & Electric Co., et al., Tenneco Oil Company, et al., Atlantic Cement Company, Inc., et al., National Coal Association, General Motors Corporation, Ford Motor Company, Alabama Power Company, et al., American Wood Preservers Institute, Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Petition for Review of Orders of the Environmental Protection agency.

Theodore L. Garrett, Washington, D.C., William B. Ellis, Richmond, Va., James K. Jackson, Washington, D.C., Robert E. Holden, New Orleans, La., Kristy A. Nichaus, and Robert A. Emmett, with whom Michael K. Glenn, Washington, D.C., Gene W. Lafitte, George J. Domas, New Orleans, La., Ralph M. Mellom, Seth A. Goldberg, Washington, D.C., George W. House, Greensboro, N.C., Corinne A. Goldstein, Joseph M. Fisher, Michael B. Barr, Edwin H. Seeger, Carl B. Nelson, Jr., Washington, D.C., Robert J. Wise, Turner T. Smith, Jr., Richmond, Va., and Stark Ritchie, Washington, D.C., were on the joint brief for industry petitioners, American Petroleum Institute, et al. in Nos. 80-1607, et al.

Ronald J. Wilson and Roger S. Greene, with whom James Tayler Banks, Washington, D.C., were on the briefs for environmentalist petitioners, Natural Resources Defense Council, Inc. and Citizens for a Better Environment in Nos. 80-1607, et al.

Lawrence R. Liebesman, Atty., Dept. of Justice, Ellen Siegler, and Karen M. Wardzinski, Attys., E.P.A. and Elliott P. Laws, Atty., Dept. of Justice, with whom Alan W. Eckert, Senior Litigator, E.P.A. and Dean K. Dunsmore, Atty., Dept. of Justice, Washington, D.C., were on the brief for respondents in Nos. 80-1607, et al.

Elizabeth Stein, Lloyd Guerci, Washington, D.C., Donald W. Stever, Jr., Stamford, Conn., Lee R. Tyner, David T. Buente, Jr., James W. Moorman, and Tony Z. Roisman, Attys., Dept. of Justice, Mark D. Gordon, Richard G. Stoll, Jr., and Todd Gulick, Attys., Environmental Protection Agency, Washington, D.C., also entered appearances for respondents in Nos. 80-1607, et al.

Kristine L. Hall, Washington, D.C., entered an appearance for the Environmental Defense Fund in Nos. 80-1607, et al.

John McN. Cramer, Pittsburgh, Pa., William C. Brashares, Thomas H. Truitt, Charles C. Abeles, David B. Weinberg, Greer S. Goldman, Charles M. Darling, IV, J. Patrick Berry, Stephen L. Teichler, Benjamin W. Boley, Michael S. Giannotto, Washington, D.C., Louis E. Tosi, Toledo, Ohio, and Julius J. Hollis, Detroit, Mich., entered appearances for industry petitioners in Nos. 80-1607, et al.

Thomas M. Lemberg and Leonard A. Miller, Washington, D.C., entered appearances for petitioner, The Ferroalloys Ass'n, in No. 80-1723.

Bill Forcade, Chicago, Ill., entered an appearance for petitioners, Citizens for a Better Environment, et al., in No. 80-1740.

Kenneth A. Strassner entered an appearance for petitioner, Kimberly-Clark Corp., in No. 80-1809.

Joseph H. Price and Roger Strelow, Washington, D.C., entered appearances for petitioner, Antex Fibers, Inc., in No. 80-1837.

Richard H. Caldwell, Houston, Tex., and Richard E. Powers, Jr., Washington, D.C., entered appearances for petitioners, American Petroleum Institute, et al., in Nos. 80-1875 and 80-1881.

William R. Weissman, Washington, D.C., entered an appearance for petitioners, Edison Elec. Institute, et al., in No. 80-1889.

John R. Quarles, Jr. and Kenneth A. Rubin, Washington, D.C., entered appearances for petitioner, Stablex Corp., in No. 80-1909.

Peter J. Nickles, Charles H. Montange and Kenneth E. Carroll, Washington, D.C., entered appearances for petitioners, Kerr-McGee Nuclear Corp., et al., in No. 80-1914.

Walter G. Talarek, Reston, Va., entered an appearance for petitioner, American Wood Preservers Institute, in No. 80-1923.

James R. Walpole, Roberta L. Halladay, Washington, D.C., and John D. Fognani, Denver, Colo., entered appearances for petitioners, American Mining Congress, et al., in Nos. 80-1927 and 80-1987.

Edward H. Forgotson and Lisa Anderson, Washington, D.C., entered appearances for petitioner, Texas Oil and Gas Corp., in No. 80-1929.

Jonathan Z. Cannon and Karl S. Bourdeau, Washington, D.C., entered appearances for petitioner, Dow Chemical Co., in Nos. 80-1933 and 80-1984.

John B. Fahey, East Hartford, Conn., entered an appearance for petitioners, United Technologies Corp., et al., in No. 80-1966.

Louis E. Tosi, Toledo, Ohio, Julius J. Hollis and Leonard F. Charla, Detroit, Mich., entered appearances for petitioner, General Motors Corp., in Nos. 80-1970 and 81-1747.

Clare Dalton, Washington, D.C., entered an appearance for petitioners, Chemical Manufacturers Ass'n, et al., in No. 80-1975.

Robert V. Percival, Washington, D.C., entered an appearance for petitioner, Environmental Defense Fund, Inc., in No. 80-1978.

R. Brooke Jackson and John D. Austin, Jr., Washington, D.C., entered appearances for petitioners, American Min. Congress, et al., in No. 80-1987.

William L. Rosbe, Richmond, Va., entered an appearance for petitioner, Ford Motor Co., in No. 80-1989.

Norton F. Tennelle, Jr. and Lester Sotsky, Washington, D.C., entered appearances for petitioner, Amax, Inc., in No. 80-2002.

Blake A. Biles, Washington, D.C., entered an appearance for petitioner, Lubrizol Corp., in No. 80-2007.

Bill Forcade, Chicago, Ill., entered an appearance for petitioners, Citizens for a Better Environment, et al., in Nos. 80-2114 and 82-1563.

Alfred V.J. Prather, Washington, D.C., entered an appearance for petitioner, Kennecott Corp., in No. 80-2279.

George C. Freeman, Jr., Richmond, Va., and J. Thomas Wolfe entered appearances for petitioners, Virginia Elec. & Power Co., et al., in No. 81-1569.

Robert E. Payne and David E. Evans, Richmond, Va., entered appearances for petitioners, American Paper Institute, et al., in No. 81-1573.

Arnold S. Block, Washington, D.C., entered an appearance for petitioners, American Petroleum Institute, et al., in Nos. 81-1577 and 81-1709.

Larry B. Feldcamp, Houston, Tex., entered an appearance for petitioner, Pennzoil Co., in No. 81-1708.

T.S. Ellis, III, Richmond, Va., entered an appearance for petitioner, Ford Motor Company, in No. 81-1748.

Daniel A. Masur, Pittsburgh, Pa., entered an appearance for petitioners, American Iron & Steel Institute, et al., in No. 85-1009.

Lewis T. Smoak, Greenville, S.C., entered an appearance for petitioner, American Textile Mfrs. Institute, Inc., in No. 85-1017.

Charles D. Ossola, Washington, D.C., entered an appearance for petitioner, National Coal Ass'n, in No. 85-1024.

Charles S. Mullen, Seattle, Wash., entered an appearance for petitioner, Wyckoff Co., in No. 85-1067.

Before ROBINSON, SCALIA, ** and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

The objective of the Clean Water Act is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251 (1982). Under the Act, the discharge of any pollutant into the navigable waters of the United States is unlawful. Id. Sec. 1311(a). This basic rule admits of a critical exception--the discharge of pollutants is permitted if the source obtains and complies with a permit that limits the amounts and kinds of pollutants which can lawfully be discharged. Thus, the cornerstone of the Clean Water Act's pollution control scheme is the National Pollution Discharge Elimination System (NPDES) permit program, established under the Federal Water Pollution Control Act Amendments of 1972. See 33 U.S.C. Sec. 1342 (1982).

The original regulations implementing the NPDES program were promulgated by the Environmental Protection Agency in 1972 and 1973. Prompted by its experience during the "first round" of permitting, as well as statutory changes wrought by the Clean Water Act Amendments of 1977, EPA comprehensively revised the NPDES regulations in 1979. 44 Fed.Reg. 32,854 (June 7, 1979). Petitions for review of these regulations were filed in this and other circuits by numerous challengers, including trade associations, corporations, the Natural Resources Defense Council (NRDC), and Citizens for a Better Environment (CBE). Eventually, all petitions for review of both sets of regulations were consolidated in this court. NRDC v. EPA, 673 F.2d 392 (D.C.Cir.1980), cert. denied sub nom. Chemical Manufacturers Association v. EPA, 459 U.S. 879, 103 S.Ct. 175, 74 L.Ed.2d 143 (1982); Virginia Electric and Power Co. v. EPA, 655 F.2d 534 (4th Cir.1981). 1 At that time, the litigants identified about 55 issues under challenge. See Status Reports of Industry NPDES Petitioners, Respondents, and NRDC and CBE (filed Sept. 14, 1981).

After almost two years of settlement negotiations, EPA and the industry representatives (Industry) entered into an NPDES Settlement Agreement (Agreement) (filed June 9, 1982) covering 27 of 47 issues raised by Industry's challenge. 2 In the wake of this development, our court remanded the record to the agency to permit implementation of the Agreement. Order (Aug. 6, 1982). After notice and comment, EPA promulgated final revisions to the NPDES regulations. 49 Fed.Reg. 37,997 (Sept. 26, 1984). By virtue of the Agreement, Industry signatories were free to renew their challenges to the extent that the final regulations were not substantially the same as or altered the meaning of the terms of the Agreement. Because the final regulations reflected various changes from the Agreement, another flurry of petitions for review, both new and amended, were filed and consolidated in this court.

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