Westvaco Corp. v. U.S. E.P.A.

• Decision Date: 13 February 1990
• Docket Number: 89-2181,Nos. 89-2180,s. 89-2180
• Parties: 20 Envtl. L. Rep. 20,816 WESTVACO CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1383

899 F.2d 1383

20 Envtl. L. Rep. 20,816

WESTVACO CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents.

Nos. 89-2180, 89-2181.

United States Court of Appeals, Fourth Circuit.

Feb. 13, 1990.

ORDER

This matter is before the court on the motion of the United States Environmental Protection Agency (EPA) to dismiss consolidated petitions for review filed by Westvaco Corporation (Westvaco) challenging certain agency actions taken by EPA Region III on June 2, 1989. Specifically, on that date EPA proposed to partially disapprove lists of "impaired waters" submitted by the states of Maryland and Virginia, respectively, pursuant to Sec. 304(l ) of the Clean Water Act (CWA). 33 U.S.C. Sec. 1314(l ). EPA contends that this court lacks jurisdiction over these petitions. The parties have submitted extensive legal memoranda in support of and opposition to the motion to dismiss. We agree with the EPA's contentions and will dismiss the petitions for lack of jurisdiction in this court to review the challenged actions at this time.

I

The general legal background and procedural history of this case is given as agreed to by the parties.

As a primary means of achieving its ultimate goals, the CWA prohibits the discharge from any point source into protected national waters of any pollutant unless that discharge complies with specific requirements of the CWA. Section 301(a), 33 U.S.C. Sec. 1311(a); Sec. 502(12); 33 U.S.C. Sec. 1362(12). Compliance may be achieved by obtaining a permit issued pursuant to Sec. 402. 33 U.S.C. Sec. 1342.

Section 402 establishes the National Pollutant Discharge Elimination System (NPDES) permit program. 33 U.S.C. Sec. 1342. See Environmental Protection Agency v. California, 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed.2d 578 (1975). NPDES permits are issued by EPA or, in those states in which EPA has authorized a state agency to administer the NPDES program, by that agency subject to EPA review. 33 U.S.C. Sec. 1342(a)-(d). EPA has approved 39 states to issue NPDES permits, including Maryland and Virginia. See 33 U.S.C. Sec. 1342(b).

NPDES permits may be issued for terms up to five years. Section 402(b)(1)(B), 33 U.S.C. Sec. 1342(b)(1)(B). Permits must incorporate technology-based controls, i.e., limitations based on the degree of effluent control which can be achieved by point sources using various levels of pollution control technology. See Secs. 301, 304, 33 U.S.C. Secs. 1311, 1314. See also E.I. DuPont de Nemours & Co. v. Train, 430 U.S. 112, 126-36, 97 S.Ct. 965, 974, 51 L.Ed.2d 204 (1977). In addition to technology-based controls, permits must contain any more stringent limitations that are necessary to meet water quality standards developed by the states pursuant to Sec. 303. 33 U.S.C. Sec. 1313. If standards are not established by a state, EPA must establish the water quality standards for the waters in that state. Section 301(b)(1)(C), 33 U.S.C. Sec. 1311(b)(1)(C). Water quality standards consist of: (i) a designated "use" for the waters in question (e.g., public water supply), and (ii) "water quality criteria" specifying the amount of various pollutants which may be present in those waters and still achieve the designated use(s). 40 C.F.R. Secs. 131.2, 131.3 (1988). The state "water quality criteria" may be expressed as numerical concentration limits or in narrative form. 40 C.F.R. Sec. 131.3(b).

Unlike technology-based limitations, water quality standards are not developed based on an evaluation of the capability of pollution control technologies but on the physical attributes of the water segment necessary to support the designated uses. Once water quality standards have been set, NPDES permit limitations must be established to assure compliance, regardless of the availability or effectiveness of treatment technologies.

The CWA requires that approved states' NPDES permitting programs be consistent with minimum federal requirements. 33 U.S.C. Sec. 1314(i). Accordingly, EPA is given authority to review every state-issued NPDES permit. Section 402(b), 33 U.S.C. Sec. 1342(b). To facilitate EPA's task, the CWA requires the state permitting authority to provide EPA with a copy of each permit application and provide notice of developments during the permitting process. Section 402(d)(1), 33 U.S.C. Sec. 1342(d)(1); 40 C.F.R. Secs. 123.43(a)(1), 123.43(a)(2) (1988). Section 402(d)(2) prohibits issuance of a permit by a state if the Administrator of EPA objects within 90 days. 33 U.S.C. Sec. 1342(d)(2). If the state fails to submit a revised permit satisfying EPA's objections, EPA is authorized to issue a federal NPDES permit. Section 402(d)(4), 33 U.S.C. Sec. 1342(d)(4); 40 C.F.R. Sec. 123.44 (1988).

Where EPA assumes permit-issuing authority pursuant to Sec. 402(d) and 40 C.F.R. Sec. 123.44(h), EPA's regulations provide a comprehensive process for issuance of a final permit. See 40 C.F.R. Secs. 124.6-124.15. If EPA intends to issue the permit, the Agency publishes a public notice of, and solicits public comment on, the draft permit. 40 C.F.R. Sec. 124.10. After the close of the public comment period, EPA issues a final permit decision. 40 C.F.R. Sec. 124.15(a). Any interested person may request an evidentiary hearing on EPA's final permit decision, with review before the Administrator. 40 C.F.R. Secs. 124.74(a), 124.91. Final agency action on a permit does not occur until administrative remedies have been exhausted. 40 C.F.R. Sec. 124.60(g). The Administrator's action in issuing or denying a permit is reviewable in the Courts of Appeals. Section 509(b)(1)(F), 33 U.S.C. Sec. 1369(b)(1)(F).

In 1987, Congress passed the Water Quality Act (WQA) which placed greater emphasis on attaining state water quality standards. In particular, Sec. 308 of the WQA amendments made several changes to the provisions of the CWA to focus attention on attaining water quality standards for toxic pollutants.

The first component of the WQA Sec. 308 water quality program for toxic pollutants was the establishment of the Sec. 304(l ) program, entitled "Individual Control Strategies for Toxic Pollutants." 33 U.S.C. Sec. 1314(l ). Section 304(l)(1)(D) requires the states, within two years after February 4, 1987, to establish individual control strategies (ICS) which will reduce point source discharges of toxic pollutants sufficient to attain the water quality standards within three years. 33 U.S.C. Sec. 1314(l)(1)(D). Section 304(l) requires EPA to approve or disapprove the state submissions of ICSs by June 4, 1989. 33 U.S.C. Sec. 1314(l)(2). In the event of a state's failure to submit the lists and ICSs, or if EPA disapproves an ICS, EPA is required to develop the lists and the ICSs in cooperation with the state. Section 304(l), 33 U.S.C. Sec. 1314(l)(3). These deadlines have effectively required the states and EPA to place high priority on identifying and controlling certain "toxic hot spots."

In order to identify these "toxic hot spots," Sec. 304(l)(1)(B) requires the states to list those waters that are not expected to achieve applicable water quality standards, after application of technology based controls, due to discharges from point sources of toxic pollutants. 33 U.S.C. Sec. 1314(l)(1)(B). This list is commonly referred to as the "B list." For each water segment listed on the B list, Sec. 304(l)(1)(C) requires the states to identify the point sources responsible for the discharges of the toxic pollutants. 33 U.S.C. Sec. 1314(l)(1)(C). This list is commonly referred to as the "C list."

For each point source on the C list, Sec. 304(l)(1)(D) requires the states to develop the individual control strategy (ICS) discussed above.

Section 304(l) did not change the basic requirements of the CWA; rather it simply established a mandatory schedule for the completion of a toxic pollutant subset of the water quality-related activities that the CWA already imposed. Thus, before 1987, Sec. 303(g) already had required states--without any deadline--to evaluate their waters and identify those which needed controls beyond technology-based controls. 33 U.S.C. Sec. 1313(d). Section 301(b)(1)(C) already had required limitations in permits to meet water quality standards for all pollutants. 33 U.S.C. Sec. 1311(b)(1)(C).

EPA has now promulgated final regulations interpreting and implementing Sec. 304(l). See 54 Fed.Reg. 246-58 (Jan. 4, 1989) and 23,868-99 (June 2, 1989) (to be codified at 40 C.F.R. Secs. 130.10, 123.46). The regulations establish the procedure for review of a state's lists of ICSs. In the event of a preliminary disapproval of the lists or ICSs, the procedures is similar to agency rulemaking, in that public participation is sought. On the other hand, if EPA approves a state's lists and ICSs, the Sec. 304(l) listing process is complete and, therefore, constitutes final agency action. (Codified at 40 C.F.R. Sec. 130.10(d)(8)). The regulations specify that EPA will make preliminary disapprovals by June 6, 1989. (To be codified at 40 C.F.R. Sec. 130.10(d)(8)). The regulations require EPA to solicit and respond to public comment before any final disapproval decision on the lists or ICSs is made. (To be codified at 40 C.F.R. Sec. 130.10(d)(10)). The public comment period is 120 days from the date of the region's preliminary disapproval. (To be codified at 40 C.F.R. Sec. 130.10(d)(10)(vi)). Once the public comment period ends, EPA must make a final decision by June 1990, taking into account the public comments. (To be codified at 40 C.F.R. Sec. 130.10(d)(11)). The regulations contemplate that EPA's preliminary disapproval of a state's lists and associated ICSs may be modified (i.e., waters and point sources may be added or deleted) based on the additional data or information EPA receives during the public comment period. (To be codified at 40 C.F.R. Sec. 130.10(d)(11)(i)).

Exercising its agency discretion, EPA has defined an ICS to be a draft or final NPDES...