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American Iron & Steel Inst. v. EPA

ELR Citation: 27 ELR 21241
Nos. Nos. 95-1348 et al., 115 F.3d 979/(D.C. Cir., 06/06/1997)

The court vacates the U.S. Environmental Protection Agency's (EPA's) Final Water Quality Guidance for the Great Lakes Water System criteria for polychlorinated biphenyls (PCBs), and further vacates the guidance insofar as it would impose point-source water quality-based effluent limitations on a facility's internal waste streams and would eliminate mixing zones for bioaccumulative chemicals of concern. Other challenges against the guidance brought by an iron and steel association and an environmental group were either unripe for review or without merit. After determining that it has jurisdiction, the court first holds that EPA has authority to create the guidance in the form of a regulation. It is clear that Congress gave EPA the authority to issue the guidance in this form. The court next holds that EPA's interpretation of the Federal Water Pollution Control Act (FWPCA) in creating the guidance is permissible. Both of the conditions set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 14 ELR 20507 (U.S. 1984) doctrine have been met. The court then holds that EPA was justified in developing and imposing basinwide standards. Establishing uniformity across the Great Lakes seems to have been one of the primary purposes of the statute. Next, the court holds that petitioners' challenge to the procedures for site-specific modifications to the wildlife criteria is not ripe. Petitioners misinterpreted the guidance. EPA allows the development of site-specific modifications on grounds other than a lower bioaccumulation factor, contrary to petitioners' interpretation. The court then holds that the Tier II methodology created in the guidance was not scientifically inadequate. The Tier II methodology, by scaling the uncertainty factors to reflect existing data, properly correlates risk with knowledge. The court then holds that EPA did not violate petitioners' due process rights nor act arbitrarily and capriciously in setting the limits of quantification.

The court then holds that although EPA has the statutory authority to require the monitoring of discharges from sources within a facility, the Agency exceeded its authority when it sought to impose effluent limitations on nonpoint-source discharges. Therefore, the court vacates a portion of the guidance insofar as it would impose the point-source water quality-based effluent limitations on a facility's internal waste streams. The court also vacates the guidance insofar as it would eliminate mixing zones for bioaccumulative chemicals of concern. Although EPA appeared to have shown that eliminating mixing zones is not without some environmental benefit, the agency simply failed to address whether the measure is cost-justified.

The court then holds that EPA's requirement that a mixing zone encompass no more than 25 percent of the receiving water's design flow is not arbitrary or capricious. EPA reasonably decided to rely on conservative but adequately supportive science. The court next holds that petitioners' challenges to the guidance provisions applicable to intake pollutants are unripe for review. They have not yet been implemented in a particular factual setting. The court also upholds the guidance's reasonable potential procedures, and holds that the guidance is consistent with objectives and provisions of the Great Lakes Water Quality Agreement. The court also upholds the guidance's endangered species provisions based on language contained in the guidance. Next, the court holds that EPA did not act arbitrarily or capriciously in using an old acceptable daily exposure value in setting the guidance's criteria for mercury. However, the court vacates the guidance's human health and wildlife criteria for the PCBs. EPA conceded that it applied a flawed mathematical process to an incorrect numerical base.

Counsel for Petitioner
Angus Macbeth
Sidley & Austin
1722 I St. NW, Washington DC 20006
(202) 736-8271

Counsel for Respondent
Mary F. Edgar
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Tina Kaneen
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before GINSBURG, SENTELLE and RANDOLPH, Circuit Judges.