Natural Resources Defense Council, Inc. v. Reilly

No. 89-2980 (D.D.C. April 23, 1991)

The court holds that the Environmental Protection Agency (EPA) violated Federal Water Pollution Control Act (FWPCA) § 304(m) by failing to issue effluent guidelines for industrial toxic polluters by the statutory deadline. The court first holds that FWPCA § 304(m)(1)(C) clearly requires EPA to promulgate new effluent limitations by the specified date; and EPA, in failing to meet the deadline, violated the statutory mandate. The court rejects EPA's argument that the February 1991 deadline was merely a target date. Also, with reference to the whole of FWPCA § 304(b), the court interprets § 304(m)(1)(A) and (B) as congressional commands to set a schedule for annual revision and review of promulgated effluent guidelines and to identify all industries currently discharging toxic and nonconventional pollutants in nontrivial amounts not currently subject to effluent limitation guidelines revision. On the contrary, the court holds that RCRA § 3018(b) gives EPA discretion to revise and promulgate regulations necessary for controlling hazardous pollutants mixed with sewage. The court therefore lacks the jurisdiction under RCRA's bifurcated jurisdictional scheme to hear the RCRA citizen suit challenging EPA's failure to issue regulations.

Counsel for Plaintiffs
Robert W. Adler
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Washington DC 20005
(202) 783-7800

Katherine Meyer, Eric Glitzenstein

Harmon, Curran & Tousley

2001 S St. NW, Ste. 430, Washington DC 20009

(202) 328-3500

[22 ELR 20109]

Lamberth, J.:

Opinion

This matter comes before the court on plaintiffs' motion for partial summary judgment and defendants' cross-motion for summary judgment and for judgment on the pleadings. After consideration of the papers filed by all parties, interventors and amicus curiae, and the record herein, plaintiffs' motion for partial summary judgment is granted in part and denied in part, defendants' motion for summary judgment is denied, and defendants' motion for judgment on the pleadings is granted in part and denied in part.

Background

At issue in this case are two statutes which concern the Environmental Protection Agency's (EPA) responsibilities for maintaining the integrity and safety of the nation's waters. The first, the Clean Water Act (CWA), 33 U.S.C. 1251 et seq. was enacted in 1972¹ and states as its goal the elimination of all discharges of pollutants into the nation's waters by 1985. 33 U.S.C. § 1251(a)(1) (1988) Congress planned to achieve this ambitious goal primarily through the implementation of two regulatory devices. First, the 1972 Act required EPA to set limits on the types and amounts of pollutants that could be discharged both directly into the nation's water and indirectly through public sewage treatment plants.² Second, Congress created the National Pollution Discharge Elimination System (NPDES), a program which requires that individuals who discharge pollutants into the water obtain permits either from the EPA³ or a properly designated state authority.⁴ Congress envisioned that the federally issued effluent limitations would constitute a regulatory floor⁵ below which permit standards could not fall and assist NPDES administrators in carrying out the permit program.⁶

In the early seventies, EPA began to develop effluent guidelines but failed to meet statutory deadlines, NRDC and the Environmental Defense Fund filed suits against the EPA and in June, 1976 the agency entered into a consent decree obligating it to initiate rulemaking proceedings to develop effluent limits, new source performance standards, and pretreatment standards for priority toxic pollutants.⁷ The following year, Congress amended the Clean Water Act⁸ codifying many of the terms of the 1976 consent decree and setting new deadlines for the promulgation of effluent guidelines for toxic pollutants. Despite high hopes that the 1977 amendments would goad EPA to take prompt regulatory action, continued agency inertia forced Congress to amend the Act yet again in 1987 with the Water Quality Act (WQA) amendments.⁹

Section 304(m) of WQA, commands EPA to publish by February 4, 1988 and biennially thereafter, a plan which shall:

(A) establish a schedule for the annual review and revision of promulgated effluent guidelines, in accordance with subsection (b) of this section;

(B) identify categories of sources discharging toxic or nonconventional pollutants for which guidlines [sic] under subsection (b)(2) of this section and section 1316 of this title have not previously been published; and

(C) establish a schedule for promulgation of effluent guidelines for categories identified in subparagraph (B), under which promulgation of such guidelines shall be no later than 4 years after February 4, 1987, for categories identified in the first published plan or 3 years after the publication of the plan for categories identified in later published plans.¹⁰

On August 25, 1988, six months after the deadline by which EPA was to have issued its first final plan, EPA published a notice of its first proposed 304(m) plan and solicited public comment. 53 Fed. Reg. 32,584 - 32,589. The plan identified ten industry categories as "potential candidates" for the issuance of new guidelines and new source performance standards and listed five industry categories for review of existing effluent limitation guidelines. After review of the public comments, EPA issued on January 2, 1990 its final plan¹¹ identifying three industry categories for review and three categories for revision of existing guidelines. 55 Fed. Reg. 97. Additionally, the 304(m) plan set out schedules extending into the mid- 1990's for the promulgation of effluent guidelines for five industry categories not currently subject to any effluent guidelines. 55 Fed. Reg. 97 - 98.¹²

The second pollution control act at issue in this case is the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6921 et. seq. (as amended). Like the CWA, RCRA delegates to the EPA broad responsibility for enacting regulations to control the discharge of pollutants into water. Enacted for the purpose of "assuring that [22 ELR 20110] hazardous waste management practices are conducted in a manner which protects human health and the environment," 42 U.S.C. 6902(a)(4), RCRA requires EPA to develop a comprehensive program for the identification of hazardous wastes¹³ and promulgation of regulations to govern their treatment, storage, and disposal.¹⁴

Section 1004(27) exempts from RCRA requirements "solid or dissolved material in domestic sewage."¹⁵ This exemption, known as the Domestic Sewage Exclusion (DSE), covers industrial wastes that are mixed with domestic sewage and discharged into publicly owned treatment works (POTWs), even though such wastes would be considered hazardous if disposed of by other means. Congress permitted this exclusion on theassumption that hazardous wastes discharged to POTWs would be comprehensively regulated under the pretreatment provisions of the CWA.¹⁶

In response to concerns that the DSE constituted a major regulatory loophole in the RCRA structure,¹⁷ Congress in 1984 enacted the Hazardous and Solid Waste Amendments.¹⁸ Section 3018(a), 42 U.S.C. § 6939(a), of that Act requires EPA to prepare a report by February, 8, 1986 on the types and amounts of pollutants in wastewater treated by POTWs and the environmental effects of the DSE. Section 3018(b) commands that within eighteen months of the submission of its report, EPA takes regulatory action "as . . . necessary to assure that [hazardous substances under RCRA] which pass through a sewer system to a publicly owned treatment works are adequately controlled to protect human health and the environment." 42 U.S.C. § 6939(b).

On February 7, 1986, EPA submitted to Congress the DSE study¹⁹ (hereinafter "DSS") required by § 3018(a) in which it acknowledged that because of the DSE, significant quantities of hazardous materials are discharged to POTW's each year.²⁰ The study evaluated the effectiveness of existing EPA programs and considered ways to redress gaps in the regulation of the discharge of hazardous wastes into POTWs and offered several recommendations. Among its suggestions, the DSS recommended that the Domestic Sewage Exclusion be retained since "[f]rom a regulatory standpoint, CWA authorities can work as an effective mechanism to control hazardous waste discharges to sewer systems." The DSS recognized, however, that "deficiencies exist in Federal pretreatment standards"²¹ and suggested possibilities for regulatory reform, including implementation of categorical pretreatment standards.²²

Following publication of the DSS, EPA proposed a rule amending the general pretreatment regulations²³ for existing and new requirements for POTWs.²⁴ The rule prohibits the discharge of (1) hazardous pollutants which create a fire or explosion hazard in the POTW, 55 Fed. Reg. at 30,087 (to be codified at 40 C.F.R. § 403.5(b)(1)) (2) hazardous pollutants which result in toxic gases, vapors, or fumes within the POTW which may endanger the health and safety of POTW workers, id. at 30,090 (to be codified at 40 C.F.R. § 403.5(b)(7)) and (3) petroleum and certain other oils, id. at 30,092 (to be codified at 40 C.F.R. § 403.5(b)(6)). The rule also requires POTWs to test their discharges to ensure compliance with water quality standards and to take other precautions. See e.g., 55 Fed. Reg. at 30,097 (to be codified at 40 C.F.R. § 403.8(f)).

On October 30, 1989, plaintiffs filed this action, asserting in their complaint that EPA's actions fail to satisfy the duties prescribed in both § 304(m) and § 3018(b). First, plaintiffs argue, EPA's § 304(m) plan fails to identify all industries currently discharging toxic and non-conventional pollutants and which are not subject to guidelines,²⁵ sets schedules for the promulgation of guidelines beyond the time frame dictated by statute, and neglects to provide for review and revision of existing effluent guidelines. With respect to § 3018(b), plaintiffs assert that by neglecting to issue categorical treatment standards, EPA has not met its obligation to implement regulations necessary to redress the problems identified in the Domestic Sewage Exemption Study in contravention of § 3018(b). Plaintiffs now move for partial summary judgment asking this court to declare EPA in violation of its statutory duties.

Analysis

Construing § 304(m)

When a court is faced with the task of assessing whether agency action violates statutorily mandated duties, its first point of reference is the language of the statute itself. As the Supreme Court stated in Chevron, U.S.A. v. NRDC, 467 U.S. 837 [14 ELR 20507] (1984), if the language of the statute is clear and the court can conclude that "Congress had an intention on the precise issue,"²⁶ the court need look no further. Only if ambiguities in the language and legislative history cannot allow a court to conclude that Congress' intent was clear should the court assess whether the agency's interpretation of the statute is a reasonable one.²⁷

Step one of the Chevron test readily allows this court to dispose of defendants' contention that § 304(m)(1)(C)'s February 4, 1991 deadline for the promulgation of new effluent limitation guidelines²⁸ is merely a "target date".²⁹ EPA argues that at the time that § 304(m) was passed, Congress was aware of the laborious and time-consumingprocess through which proposed effluent guidelines must go before final enactment.³⁰ EPA posits that "[h]ad Congress intended such a dramatic increase in the pace of the guidelines program, it is reasonable to expect that this would have been made clear on the face of the statute and in the legislative history."³¹

Although EPA's elaborate description of the current promulgation process³² does convey to the court some sense of the ponderousness and enormity of the agency's task, EPA cannot excuse its failure to meet the February, 1991 deadline simply by presenting feasibility and scientific integrity arguments. For regardless of EPA's assertions of good faith, the indisputable fact is that Congress has spoken unqualifiedly and EPA has failed to comply. Indeed, were the court to accept EPA's excuses and recharacterization of the statutory deadline as a mere "target date", Congressional timetables would serve no purpose: statutory deadlines would have meaning only to the extent that agency action happens to occur within the stated "deadline."³³ Since a court should not fail to give import to the explicit dates set by [22 ELR 20111] Congress, the court finds that February 4, 1991 is an unambiguous deadline and that EPA is in default of this statutory mandate.

More difficult to resolve, from a statutory construction viewpoint, are the parties' conflicts over the obligations imposed by § 304(m)(1)(A) and (B). Since the court cannot conclude from the language and legislative history alone Congress' specific intent with respect to these two portions of the statute, the court advances to step two of the Chevron analysis and considers whether the agency's understanding of sections (A) and (B) of the statute is reasonable. For the reasons stated below, the court finds that the agency's interpretations are not.

The court considers first EPA's contention that its § 304(m) plan satisfies the terms of § 304(m)(1)(A). EPA argues that because Congress did not specify a deadline and referenced § 304(b) with its "if appropriate" language,³⁴ Congress intended to afford discretion to the agency to set its ownschedule for the review and revision of guidelines.

Although the § 304(b) cross-reference does create some ambiguity as to the duties imposed by § 304(m)(1)(A), the application of fundamental rules of statutory construction allow this court to reject defendants' interpretation. Under defendants' reading, § 304(m)(1)(A) serves no purpose beyond restating the discretionary duty to review and revise existing effluent limitations imposed by § 304(b). Since a court should not regard Congressional acts as meaningless and the amendment of acts to be "mere surplusage,"³⁵ the court cannot consider defendants' reading to be reasonable.

The court must assume that in passing § 304(m)(1)(A), Congress had a purpose in mind. Reading the whole of § 304(b), rather than focusing solely on the two words "if appropriate" allows the court to arrive at an interpretation of the § 304(m)(1)(A) which gives import to all the words of the statute³⁶ and credits Congress with passing legislation which is not merely redundant.

Section 304(b) is a lengthy statute which describes in detail EPA's obligations with respect to setting guidelines based on different levels of pollution control technology. For BAT guidelines, for example, EPA regulations shall:

(2)(A) identify, in terms of amounts of constituents and chemical, physical, and biological characteristics of pollutants, the degree of effluent reduction attainable through the application of the best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods, and other alternatives for classes and categories of point sources (other than publicly owned treatment works); and

(B) specify factors to be taken into account in determining the best measures and practices available to comply with subsection (b)(2) of section 1311 of this title to be applicable to any point source (other than publicly owned treatment works) within such categories or classes. Factors relating to the assessment of best available technology shall take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate.³⁷

Understanding the section (b) reference as a Congressional command to review and revise guidelines in conformity with the parameters set out at length in §304(b) makes logical sense and allows this court to interpret § 304(m)(1)(A) in a way which does not render the words of the statute superfluous.

At the center of the § 304(m)(1)(B) dispute is whether the statute's command to "identify categories of sources discharging toxic or nonconventional pollutants for which guidelines under section (b)(2) of this section and section 1316 of this title have not previously been published" accords the agency discretion to "identify" in its first plan only some categories of industries in need of regulation, or whether, as plaintiffs insist, the term "identify" imposes on the agency a non-discretionary duty to identify all industries currently discharging toxic and nonconventional pollutants in non-trivial amounts not currently subject to effluent limitation guidelines.

Engaging in the first step of Chevron's two step inquiry, the court cannot conclude from the language and legislative history alone Congress' specific intent. As defendants point out, the word "all" does not appear on the face of the statute. Plaintiffs' understanding of the statute is not, however, contradicted by the plain language of the section and is buttressed by powerful policy considerations.

Since the statute is "susceptible to more than one interpretation,"³⁸ the court must proceed to step two of the Chevron analysis and consider whether the agency's understanding of the statute is a reasonable one. After review of the overall structure of the act, the history of the guidelines development project, and the policy concerns underlying the passage of § 304(m), the court finds that the agency's interpretation is not "reasonable and consistent with the statute's purpose."³⁹

EPA posits that its § 304(m) plan which identifies a limited number of categories for guidelines development and sets forth the agency's method for identifying and prioritizing industrial categories satisfies the terms of the statute. First, EPA argues that its reading of its § 304(m)(1)(B) responsibilities makes sense because if Congress intended for all industries to be identified in the first plan, Congress would not have imposed upon EPA a requirement to provide additional plans biennially. EPA contends that construing § 304(m) to require identification of "all" categories in the first plan "renders much of § 304(m) superfluous" because "[t]here would be little purpose in requiring the issuance of a plan every two years if, as NRDC urges, the first plan covered every category which discharged toxic and nonconventional pollutants in 'non-trivial' amounts.'"⁴⁰

Defendants' interpretation is a colorable one, but not a reasonable one when considered in light of EPA's unfortunate history with respect to achieving Congress' longstanding goal of enacting a comprehensive set of effluent guidelines. As plaintiffs point out, under defendants' interpretation of the statute, EPA avoids altogether the (1)(c) requirement to promulgate guidelines by selectively omitting industries from the agency's § 304(m) plan — industrieswhich the agency knows discharge toxic and non-conventional pollutants.⁴¹ Surely the Congress which passed § 304(m) out of frustration with the agency's sluggishness⁴² did not intend to confer upon the agency discretion to limit the scope and set the pace of effluent guidelines preparation simply by refraining from "identifying" known polluters.⁴³

The biennial plan requirement which the EPA insists renders nonsensical NRDC's interpretation of § 304(m) in fact is wholly consistent with the Act's purpose. First, advances in pollution detection technology may allow EPA to uncover industries not currently known to be dischargers of dangerous chemicals. The biennial update requirement imposes on EPA the duty to continue collecting the technical data necessary to identify polluters in need of effluent guidelines and to list them in future § 304(m) plans. Second, the continuing obligation to prepare biennial plans provides a way for Congress and the public⁴⁴ to monitor the vigilance of EPA over the nation's water quality. In short, rather than undermining NRDC's reading of § 304(m)(1)(B), the biennial plan requirement furthers the Clean Water Act's goal of creating and maintaining up-to-date water standards.

[22 ELR 20112]

The untenability of defendants' position is all the more apparent when one considers the critical role of federal effluent limitations in the overall structure of the CWA. As described above, the zero water pollutant goal of the statute is to be met in large part through the National Pollutant Discharge Elimination System (NPDES). Without national effluent standards on which to base its determinations of appropriate pollutants levels, states must establish on their own technology-based effluent limitations using "Best Professional Judgment."⁴⁵ In addition to being extremely expensive and time-consuming, permit-by-permit development of effluent standards results in disparities in standards among states, causing industry to forum shop for the states with the most lenient water pollution control standards.⁴⁶ Since EPA's interpretation of its obligations to "identify" industry categories and to promulgate guidelines works at cross-purposes with the CWA's goal of creating uniform effluent limitations for classes and categories, the court cannot sanction EPA's reading as a reasonable one.

In light of the compelling need for federal effluent guidelines, the well-documented history of agency inertia, and the general structure of the act, the court cannot accept as reasonable defendants' construction of § 304(m)(1)(B). Accordingly, the court finds EPA's § 304(m) plan identifying only a select handful of industries for guidelines promulgation to be inadequate and not in conformity with the mandate of the statute.

§ 3018(b) RCRA

Before the court may reach the merits of the parties' arguments with respect to § 3018(b), the court must consider the issue of whether it has jurisdiction to hear this claim.

The RCRA creates a bifurcated jurisdictional scheme. "[W]here there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator," 42 U.S.C. § 6972(a)(2), suit shall be brought in federal district court.⁴⁷ The statute, however, places exclusive jurisdiction over "review of . . . any regulation, or requirement under this chapter" in the Court of Appeals for the District of Columbia. 42 U.S.C. § 6976(a)(1).

In this case, defendants insist that EPA has exercised the discretion which 42 U.S.C. § 6939(b) explicitly grants the agency and has issued a final rule. Having fulfilled its § 3018(b) obligations, defendants argue, challenges to the final regulations cannot be brought in this court. The court agrees.

The wording of § 3018(b) defines the scope of the agency's duties. In plain language, the statute accords the administrator discretion to revise and promulgate regulations "as are necessary" to assure that hazardous compounds are "adequately controlled to protect human health and the environment." 42 U.S.C. § 6939(b). The statute does not require that the administrator rubber stamp and implement all of the DSS suggestions. Indeed, under the language of the statute, it was clearly within the Administrator's prerogative to reject certain recommended options and to decide only to enact general — rather than categorical — pretreatment standards. Accordingly, the court rejects plaintiffs' argument that the DSS determination that "[t]he implementation of categorical [pretreatment] standards can result in substantial reduction of pollutants discharged" imposed on EPA a nondiscretionary duty enforceable in this court to issue categorical pretreatment standards.

Since the court finds that EPA had discretion not to implement categorical pretreatment standards, plaintiffs' RCRA claim will be dismissed for lack of jurisdiction.⁴⁸

Conclusion

For the reasons stated above, the court finds that EPA has failed to meet the duties set forth in § 304(m) of the Clean Water Act and accordingly will grant a declaratory judgments for plaintiffs. Additionally, the court finds that it lacks jurisdiction to review the merits of plaintiffs' RCRA claim and therefore will enter judgment on that claim on the pleadings on behalf of defendants.

A separate order will accompany this memorandum opinions.

Order

Upon consideration of plaintiffs' motion for partial summary judgment, defendants' motion for summary judgment and for judgment on the pleadings, the opposition and reply briefs, the papers of intervenors and amicus curiae, and the record herein, it is hereby, for the reasons set forth in the accompanying memorandum opinion.

ORDERED, that plaintiffs' motion for partial summary judgment as to their Clean Water Act (33 U.S.C. § 1314(m) claim is granted, and it is hereby DECLARED, ADJUDGED and DECREED that EPA is in violation of its statutory responsibilities under 33 U.S.C. § 1314(m), as set forth in this court's accompanying memorandum opinion, and it is further

ORDERED, that defendants' motion for summary judgment with respect to plaintiffs' Clean Water Act (33 U.S.C. § 1314(m)) claim is DENIED, and it is further

ORDERED, that defendants' motion for judgment on the pleadings with respect to plaintiff's Resource Conservation and Recovery Act (42 U.S.C. § 6939(b)) claim is GRANTED, and plaintiffs' RCRA claim is hereby DISMISSED, for lack of subject matter jurisdiction, and it is further

ORDERED, that plaintiffs' motion for partial summary judgment with respect to their Resource Conservation and Recovery Act (42 U.S.C. § 6939(b)) claim is DENIED, and it is further

ORDERED, that a status conference shall be set by the court at which time the court will set a schedule for the establishment of a timetable for the proper implementation of 33 U.S.C. § 1314(m).

SO ORDERED.

1. The Clean Water Act was originally enacted as the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500. The 1977 amendments to the Federal Water Pollution Control Act changed the popular name of the Act to the Clean Water Act.

2. Direct dischargers, for example, were to comply with the best practicable control technology currently available (BPT) by July 1, 1977, 33 U.S.C. § 1311(b)(1)(A), and meet the standard which requires the application of the best available technology economically achievable (BAT) by July 1, 1983. 33 U.S.C. § 1311(b)(2)(A).

Indirect discharges were to comply with pretreatment standards analogous to those for direct dischargers. 33 U.S.C. § 1317(b)

The Act also required the application of heightened standards for new sources. 33 U.S.C. § 1316(a)(1) and 33 U.S.C. § 1317(c) which the statute defines as "any source, the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source, if such standard is thereafter promulgated in accordance with this section." 33 U.S.C. § 1316(a)(2).

For a general description of the various types of regulations and technology-based standards, see F. Grad, Treatise on Environmental Law § 3.03[4][a]-[g] (1990).

3. 33 U.S.C. § 1342(a).

4. 33 U.S.C. § 1342(b). As of February, 1990, thirty-nine states had been delegated authority to manage their NPDES permit programs. 55 Fed. Reg. 5,661.

5. 33 U.S.C. §§ 1342(a) & (b).

6. See NRDC v. Train, 510 F.2d 692, 710 [5 ELR 20046, 20696] (D.C. Cir. 1974) (holding that "The general expectation of Congress was that the Administrator would define classes and categories of point sources and would publish guidelines prior to the issuance of the individual permits. . . .").

7. See NRDC v. Train, 8 Env't Rep. Cas. (BNA) 2120 [6 ELR 20588] (D.D.C. 1976), modified sub. nom. NRDC v. Costle, 12 Env't Rep. Cas. (BNA) 1833 [9 ELR 20176] (D.D.C. 1979), modified sub. nom. NRDC v. Gorsuch, No. 72-2153 [12 ELR 20570] (D.D.C. 1982), modified sub. nom. NRDC v. Ruckelshaus, No. 73-2153 [14 ELR 20185] (D.D.C. 1983).

8. Pub. L. No. 95-217.

9. Pub. L. No. 100-4.

10. 33 U.S.C. § 1314(m)(l).

11. 55 Fed. Reg. 80-103.

12. Of the five industries, two — the pesticide chemicals manufacturing and offshore oil and gas industries — were already "committed rulemaking project[s]" 55 Fed. Reg. 92. Additionally, EPA has committed to develop effluent standards for two of the three remaining industries for only some facilities within each category. With respect to the machinery manufacturing and rebuilding industry, EPA only "intends at this time . . . to develop guidelines covering 7 of 15 groups of facilities" which account for "20 percent of [machine manufacturing and rebuilding] facilities." 55 Fed. Reg. 94. With respect to the hazardous waste treatment industry, EPA concedes that "[t]his category consists of three groups of facilities: a. Facilities that treat aqueous hazardous waste; b. Hazardous waste incinerators with wet scrubbers; and c. Municipal and hazardous waste landfills with leachate collection." 55 Fed. Reg. 93. EPA has only committed to promulgating effluent guidelines for the first group. 55 Fed. Reg. 98.

13. 42 U.S.C. § 6921.

14. 42 U.S.C. §§ 6923-6925.

15. See also 40 § C.F.R. 261.4(a)(1)(ii) (excluding from coverage "[a]ny mixture of domestic sewage and other wastes that passes through a sewer system to a publicly-owned treatment works for treatment.")

16. See 51 Fed. Reg. 30,166 ("The Exclusion avoids the potential redundnacy of subjecting hazardous wastes mixed with domestic sewage to RCRA management requirements if these wastes are already subject to appropriate pretreatment requirements under the CWA.")

17. See 129 Cong. Rec. 30,822 (daily ed. Nov. 3, 1983) (comments of Rep. Molinari).

18. Pub.L. No. 98-616.

19. Report to Congress on the Discharge of Hazardous Wastes to Publicly Owned Treatment Works.

20. The Study estimated that 7,260,000 pounds of hazardous metal constituents and between 81,400,000 and 132,000,000 pounds of priority hazardous organic constituents are discharged to POTWs even after implementation of categorical pretreatment standards. Additionally, approximately 138,600,000 pounds of nonpriority hazardous constituents are discharge to POTWs each year, few of which are regulated by categorical standards. See DSS § 3.7.

21. DSS 7-8.

22. See DSS 7-8 - 7-12.

23. General pretreatment standards prohibit all dischargers from engaging in certain activities. Categorical pretreatment standards for new and existing sources apply to specific industrial categories.

24. See 51 Fed. Reg. 30,166-30, 175.

25. Plaintiffs point out that as of 1989, 59,338 of 74,525 active polluters examined by EPA, including facilities discharging substances that are highly toxic to humans and aquatic life, are not subject to BAT standards. See Plaintiffs' Motion for Summary Judgment at 17.

26. Chevron, U.S.A. v. NRDC, 467 U.S. 837, 843 n.9 (1984).

27. Id. at 844.

28. The court discusses below the scope of EPA's obligation to issue guidelines for industries known to discharge toxic and nonconventional pollutants. The court considers here only the issue of whether § 304(m)(1)(C) sets a target date or a judicially enforceable deadline.

29. Points and Authorities in Support of Defendant's Motion for Summary Judgment and for Judgment on the Pleadings, and in Opposition to Plaintiffs' Motion for Partial Summary Judgment. (hereinafter Defendants' SJ) at 44.

30. See Defendants' SJ at 34 - 35.

31. 55 Fed. Reg. 81 - 82.

32. See id. 83-86.

33. See e.g., Sierra Club v. Gorsuch, 551 F. Supp. 785, 789 [13 ELR 20231] (N.D. Cal 1982) (stating that "[t]o accept EPA's proposal for further, indefinite, and virtually open-ended extension of the time for compliance, without a more convincing demonstration of evident impossibility, would be to, in effect, repeal the Congressional mandate."); New York v. Gorsuch, 554 F. Supp. 1060, 1063 [13 ELR 20248] (S.D.N.Y. 1983) ("To ignore or modify the statutory timetable would be to flout the considered judgment of Congress.").

34. 33 U.S.C. § 1314(b) states in part: "For the purpose of adopting or revising effluent limitations under this chapter the Administrator shall . . . publish within one year of October 18, 1972, regulations, providing guidelines for effluent limitations, and, at least annually thereafter, revise, if appropriate, such regulations." (emphasis added)

35. NRDC v. Train, 545 F.2d 320, 325 [7 ELR 20004][ (2d. Cir. 1976).

36. See Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1978) (stating that "[i]n construing a statute we are obliged to give effect, if possible, to every word Congress used.").

37. 33 U.S.C. §§ 1314(b)(2)(A) & (B).

38. Chem. Mfrs. Ass'n v. EPA, 870 F.2d 177, 198 [19 ELR 20989] (5th Cir. 1989).

39. Chem. Mfrs. Ass'n v. EPA, 919 F.2d 158, 163 [21 ELR 20365] (D.C. Cir. 1990).

40. Defendants' SJ at 29 - 30.

41. See e.g., 55 Fed. Reg. 81 ("There are many industry categories discharging toxic or nonconventional pollutants for which guidelines have not been published.").

42. See S. Rep. No. 50, 99th Cong., 1st Sess. 3 (1985).

43. Cf. NRDC v. Train, 545 F.2d 320 (7 ELR 20004] (2d Cir. 1976) (holding that § 108(a)(1) of the Clean Air Act, as amended, 42 U.S.C. § 1857(c)-3(a)(1) places on EPA a non-discretionary duty to name lead on its list of harmful air pollutants once EPA has conceded that lead met the standard for pollutants that "endanger [the] public health or welfare.").

44. Failure to issue plans every two years would subject EPA to suit under the citizen suit provision of the CWA, 33 U.S.C. § 1365(a)(2).

45. 40 C.F.R. §§ 125.3.

46. See Memorandum of Amicus Curiae States of Arizona, California, Connecticut, Florida, Indiana, Maine, Massachusetts, Mississippi, New Mexico, New York, Ohio and Pennsylvania in Support of Plaintiffs' Motion for Partial Summary Judgment at 2 - 3.

47. 42 U.S.C. § 6972(a).

48. Although this court is not empowered to rule on the merits of plaintiffs' RCRA claim, plaintiffs have recourse in the court of appeals under 42 U.S.C. § 6976. The court notes that plaintiffs have filed a petition for review in the Court of Appeals for the D.C. Circuit (No. 90-1497) and that the Court of Appeals, on December 28, 1990, granted respondent Reilly's unopposed motion to stay proceedings pending this court's decision on the jurisdictional issue.