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Natural Resources Defense Council v. EPA

Citation: 11 ELR 20487
No. No. 79-1639, 656 F.2d 768/16 ERC 1417/(D.C. Cir., 05/07/1981)

The court upholds in part and remands in part the Environmental Protection Agency's (EPA's) regulations implementing § 301(h) of the Federal Water Pollution Control Act (FWPCA), which allow publicly owned treatment deadline set out in § 301(b). The Natural Resources Defense Council (NRDC) argued that the regulations are too permissive, and the Pacific Legal Foundation (PLF) argued that they are impracticable and too restrictive. The court first holds that it has jurisdiction to review the challenged regulations because they are "effluent limitations" within the meaning of § 509(b)(1)(E) of the FWPCA. Next, the court rejects NRDC's contention that § 301(h) applies only to dischargers located on the west coast and island jurisdictions and thus EPA erred in not restricting variance eligibility to municipalities located in those regions. Further, the court refuses to imply a statutory requirement that treatment plants must discharge less than a "substantial" amount of toxic chemicals in order to be eligible to apply for § 301(h) permits. The court next rules that EPA reasonably determined that § 301(h) does not require promulgation of a uniform minimum depth standard on applications for discharge permits. Similarly, EPA acted reasonably in altering the regulations to allow permit applications based upon either current or improved discharges. However, the court finds that EPA acted arbitrarily and capriciously in prohibiting the issuance of permits for discharges of sewage or sludge since § 301(h) authorizes applications for permits to discharge "any pollutants." In addition, EPA unreasonably prohibited the issuance of § 301(h) permits where the municipality is curently meeting effluent limitations based on secondary treatment. Accordingly, the court remands the regulations to the extent they restrict plants which have achieved secondary treatment and plants discharging sewage and sludge.

Counsel for Petitioner Natural Resources Defense Council, Inc.
J. Taylor Banks, Stephen H. Schroeder
Natural Resources Defense Council, Inc.
1725 I St. NW, Suite 600, Washington DC 20006
(202) 223-8210

Ronald J. Wilson
810 18th St. NW, Washington DC 20006
(202) 628-3160

Counsel for Petitioner Pacific Legal Foundation
Robert K. Best, Robert A. Zumbrun, David M. Shell
Pacific Legal Foundation
455 Capitol Mall, Suite 465, Sacramento CA 95814
(916) 444-0154

Eileen B. White, Raymond M. Momboisse
Pacific Legal Foundation
1990 M St. NW, Washington DC 20036
(202) 466-2686

Counsel for Respondents
Bethami Auerbach
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before: LUMBARD*, Senior Circuit Judge for the United States Court of Appeals for the Second Circuit; ROBB and GINSBURG, Circuit Judges.