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American Petroleum Inst. v. EPA

Citation: 12 ELR 20076
No. Nos. 76-4497 et al., 661 F.2d 340/16 ERC 1694/(5th Cir., 11/13/1981)

The Fifth Circuit Court of Appeals affirms in part and remands in part the Environmental Protection Agency's (EPA's) final effluent guidelines for the oil and gas extraction point source category, which were promulgated pursuant to §301 of the Federal Water Pollution Control Act (FWPCA). The court rules that it is within EPA's discretion to refuse to include upset and bypass provisions, which are contained in the generic national pollutant discharge elimination system regulations, in the guidelines. While EPA must afford oil and gas producers some means of upset and bypass relief, it is not required to insert those provisions in the guidelines. In addition, the court holds that the definition of severe property damage contained in the bypass regulations is not unconstitutionally vague, provided that it permits by passing rather than the shutting in of the wells. Next the court rules that EPA's decision to reclassify certain wells that discharge into coastal waters from the coastal subcategory to the onshore subcategory is not violative of the Administrative Procedure Act, since the Act does not prohibit an agency from changing its mind if that change assists the agency in its appointed task. However, the court rules that EPA did not satisfactorily comply with the FWPCA's cost analysis requirement since there is an unexplained discrepancy between EPA's cost study and petitioners' cost study. It therefore remands the reclassification decision to the Agency for a comparison and explanation of the difference. Finally, the court remands EPA's decision not to include stripper gas wells within the regulations applicable to stripper oil wells for reexamination in light of new information cited by petitioners.

Counsel for Petitioners
Gene W. Lafitte
Liskow & Lewis
One Shell Square, New Orleans LA 70139
(504) 581-7979

Robert K. Wrede
600 Wilshire Blvd., Los Angeles CA 90017
(213) 381-3411

Counsel for Respondent
Patrick J. Cafferty
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4169

Before BROWN, THORNBERRY and WILLIAMS, Circuit Judges.