Natural Resources Defense Council v. EPA
Citation: 17 ELR 21043
No. Nos. 80-1607 et al., 822 F.2d 104/26 ERC 1153/(D.C. Cir., 06/30/1987) Regulations substantially upheld
The court upholds substantially all of the Environmental Protection Agency's (EPA's) national pollutant discharge elimination system (NPDES) permit regulations under the Federal Water Pollution Control Act (FWPCA), but holds that EPA lacks the authority under the FWPCA or the National Environmental Policy Act (NEPA) to ban construction of new sources pending the issuance of an NPDES permit. The case consolidates challenges by industry representatives and environmental groups to final NPDES regulations promulgated by EPA implementing a 1982 NPDES settlement agreement between the Agency and industry, with some modifications as a result of notice and comment under the Administrative Procedure Act (APA). The court first holds that "new source" under FWPCA § 306 means a facility on which construction has commenced after EPA's proposal of new source performance standards (NSPS), but only if the standards become final within 120 days of their proposal. In a footnote, the court expressly disagrees with the Third Circuit's conclusion that NSPS apply to facilities on which construction has commenced after their proposal, regardless of whether or not the NSPS became final within the 120-day period. The court next holds that § 306's exemption for new sources for 10 years following their construction from any more stringent standard of performance applies only to more stringent standards promulgated as a result of advances in technology, and does not exempt new sources from more stringent water-quality based standards. As part of this holding, the court construes the phrase "applicable standards of performance" as used in § 306(d) to include not only NSPS, but also other technology-based standards, including best available technology economically available, best practicable control technology, and best conventional pollutant control technology standards.
The court next holds that the disclosure requirements of NPDES permit regulations mandating that each applicant provide EPA with a list of any toxic pollutant used or manufactured at the facility under regulation is reasonable even where the toxic substance is not expected to be discharged as a pollutant. FWPCA §§ 308 and 404(a)(2) endow EPA with a broad grant of authority to require disclosure of even confidential information concerning toxic substances on the premises of regulated facilities. It is reasonable that such substances could be accidentally discharged and for EPA to prescribe management practices to prevent unintentional spillage, leaking, or drainage as conditions in an NPDES permit. The reasonableness of the regulation is underscored by provisions that allow alternatives where disclosure would be unduly burdensome on the applicant. The court further holds that the final NPDES regulations implementing the 1982 settlement did not violate the notice and comment provisions of the APA since the record showed that industry had commented extensively on the proposed rules, and the final rules did not vary significantly from the proposed rules. Even if EPA did not provide sufficient notice, however, any procedural error in the rulemaking was harmless, because of the extensive opportunities for industry to comment.
The court next holds that the EPA ban on bypasses, the intentional diversion of waste from a treatment facility, is reasonable even where permitting a temporary bypass would not result in the exceedance of an effluent limitation. All discharges of pollutants are illegal under FWPCA, except those that are allowed by an NPDES permit, and a permittee is not allowed to temporarily bypass treatment of wastes simply because it is economically reasonable for the permittee to do so. The court holds that EPA's regulations allowing bypasses only in necessary circumstances, such as for essential maintenance and to prevent personal injury or severe property damage, are a reasonable accommodation of industry interests and the goal of the FWPCA. Finally, the court holds that NEPA does not give EPA the authority to ban by regulation the construction of new sources to preserve the status quo for as long as necessary to complete NEPA review, since NEPA does not-confer any substantive authority on an agency. FWPCA § 511(c)(1) does not authorize the ban, either, even though that section defines the issuance of a permit to be a "major Federal action," because the private construction of a facility is not a federal act. The court holds that it is only when the facility applies for a discharge permit that EPA has authority to regulate the facility.
Counsel for Petitioners
Ronald J. Wilson
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Suite 300, Washington DC 20530
Counsel for Respondents
Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Before: ROBINSON, SCALIA,* and STARR, Circuit Judges.