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American Petroleum Inst. v. EPA

Citation: 6 ELR 20748
No. No. 74-1465, 540 F.2d 1023/9 ERC 1252/(10th Cir., 08/11/1976)

Trade association and ten petroleum refiners challenged regulations at 40 C.F.R. pt. 419, issued by the Administrator of the Environmental Protection Agency pursuant to §§ 301 and 304 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1311 and 1314, ELR 41112-14, which establish effluent limitations guidelines for the petroleum refining point source category. Petitioners claim that EPA lacks authority to promulgate the regulations generally and that EPA's record did not sustain the specific regulations.

Siding with a majority of the circuits, and often citing the decision in E.I. DuPont de Nemours & Co. v. Train (DuPont II), 6 ELR 20371 (4th Cir. Mar. 10, 1976), cert. granted, 44 U.S.L.W. 3733 (June 21, 1976), the Tenth Circuit panel not only upholds the authority of EPA to issue the regulations in question but holds that the regulations fully comply with the FWPCA. EPA's record provides an adequate and rational basis for the regulations in all but two instances, which the court sets aside and remands for reconsideration; storm water runoff regulations, 40 C.F.R. §§ 419.12(c)(1), 419.15(c)(1), 419.22(c)(1), 419.25(c)(1), 419.32(c)(1), 419.35(c)(1), 419.42(c)(1), 419.45(c)(1), 419.52(c)(1) and 419.55(c)(1), and 1983 step control regulations, 40 C.F.R. §§ 419.13, 419.23, 419.33, 419.43 and 419.53.

Despite plaintiffs' arguments that only a discharge permit issuer, rather than EPA by general regulations, may impose point source effluent limitations and that EPA's regulations are nonbinding § 304 guidelines, the court, relying heavily on DuPont II, holds that EPA's promulgation of the limitations in regulations is a reasonable exercise of congressionally-delegated power and that the uniform application of the regulations is not contrary to the FWPCA. Additionally, the court acknowledges that variances from the limitations are possible in specific instances. The court cites as its lodestar in evaluating the FWPCA the policy of congress to improve and preserve the quality of the nation's waters, and defines the real issue in thiscase as whether the facts in the record supporting EPA's actions in promulgating the regulations are "adequately adduced and rationally applied."

On the specifics, the court upholds the use of precise single numbers rather than a range of numbers in the limitations because the legislative history was unclear as to the intent of Congress on this issue and because, as noted, variances can be allowed in specific cases. On the question of the 1977 limitations, the court finds that EPA's record supports its regulations in all of the following respects: in-plant process changes rather than end-of-pipe treatment systems, because the necessary in-plant modifications are reasonably within normal industry practice; regulations based on results from the plants using the best technology rather than the industry average; granular media filtration requirement for the 1977 limitations for total suspended solids and oil and grease; gross limitations on the total amount of pollutants discharged, rather than net limitations on the excess of pollutants discharged over the pollutants in the intake water, because in appropriate specific situations the rule may be modified; variability factors, because EPA's choice of statistical methods lay within its sound discretion; subcategorization of petrochemical plants, notwithstanding an alleged competitive disadvantage with the organic chemical industry; and the extent of EPA's consideration of technology cost factors in promulgating the 1977 regulations through a cost-effectiveness analysis, rather than requiring a quantified cost-benefit analysis. Finally, the court upholds the new source standards because the 1977 limitations, from which they are derived, are proper and because plaintiffs failed to show that the flow rates for new sources are unattainable.

In setting aside and remanding the storm water runoff and 1983 step regulations, the court finds that there is no support in the record fot the regulations.

The full text of this opinion is available from ELR (47 pp. $6.00, ELR Order No. C-1082).

Counsel for Petitioners
Edward W. Warren
Frederick M. Rowe
Robert F. VanVoorhees
Philip J. Davis
Kirkland, Ellis & Rowe
1776 K St., NW
Washington DC 20006
(202) 833-8400

Frank H. Morison
Edwin S. Kahn
Gerald W. Grandey
Holland & Hart
730 Seventeenth St.
Denver CO 80202
(303) 292-9200

Counsel for Respondents
Peter R. Taft, Asst. Attorney General
Alfred T. Ghiorzi
Michael D. Graves
Land and Natural Resources Division
Department of Justice
Washington DC 20530
(202) 739-4496

Alan W. Eckert, Dep. Assoc. General Counsel
Environmental Protection Agency
Washington DC 20460
(202) 755-0413

Breitenstein, J., joined by Seth & Doyle, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]