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Maier v. EPA

ELR Citation: 27 ELR 21272
Nos. 95-9525, 114 F.3d 1032/(10th Cir., 05/28/1997)

The court affirms the U.S. Environmental Protection Agency's (EPA's) denial of a petition for a rulemaking to set parameters for nitrogenous biochemical oxygen demand (NOD) and ultimate biochemical oxygen demand in secondary treatment standards under (NOD) and ultimate biochemical oxygen demand in secondary treatment standards under the Federal Water Pollution Control Act (FWPCA). Petitioner contended that new developments in municipal wastewater technology for treating NOD have rendered EPA's regulations for secondary treatment inadequate. EPA maintained that NOD would be better dealt with on a case-by-case basis in national pollutant discharge elimination system (NPDES) permitting. The court first holds that it has jurisdiction over this action under FWPCA §509. Section 509 provides that review of the Administrator's action in approving or promulgating any effluent limitation or other limitation under §§301, 302, or 306 may be had by any interested person in the U.S. circuit court of appeals. The legislative history indicates that Congress plainly intended that the Administrator's refusal to institute rulemaking in the face of new information could be reviewed directly in a circuit court. And petitioner does not contend that EPA has failed to comply with a nondiscretionary duty; thus, a district court could not exercise jurisdiction over his claim under §505.

Applying the standard set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 14 ELR 20507 (U.S. 1984), for reviewing an agency's statutory interpretations, the court determines that Congress has not directly spoken to the precise question whether EPA has discretion to conclude that reductions in NOD are not required to be achieved by generally applicable effluent limitations, but may instead be imposed by permit. Furthermore, the court holds that EPA's secondary treatment regulations are a permissible exercise of its authority under §§301 and 304. The court rejects the argument that §304(d)(1) requires the Administrator to publish secondary treatment regulations for any pollutant that can be controlled via secondary treatment. Thus, EPA is not required under that provision to issue regulations limiting NOD discharges from publicly owned treatment works (POTWs). As a matter of statutory delegation and practical necessity, EPA exercises its expertise to determine if a given technology ought to form the basis of the standard "secondary treatment" under §304(d)(1). Even if reductions of NOD and nutrients potentially fall within the definition of "secondary treatment." EPA must determine if it should promulgate generally applicable effluent limitations for these specific pollutants.

The court holds that EPA's position that the statute allows the Agency to impose limits for NOD on a case-by-case basis through the permitting process is a reasonable and permissible reading of the statute, to which the court must defer. This is not a situation in which EPA has chosen to ignore a pollutant or category of pollutants for which effluent reductions are attainable by secondary treatment. EPA and the states approved to administer the NPDES permit program routinely impose NOD and nutrient limitations on the POTWs on a case-by-case basis by permit. The court rejects the petitioner's argument that technological feasibility is the only criterion that EPA may use to determine which secondary treatment controls ought to be generally applicable. EPA's decision to control NOD and nutrients by permit is supported by two factual predicates that lie within its expertise: the impact of NOD and nutrients on water quality is highly variable with the characteristics of the receiving body of water, and control of NOD by permit adequately protects water quality where necessary.

Counsel for Petitioners
Matthew G. Kenna
Kenna & Associates
1300 Meadow Rd., Durango CO 81301
(970) 385-6941

Counsel for Respondents
Jon M. Lipshultz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before SEYMOUR, Chief Judge, ALARCON*, and LUCERO, Circuit Judges.