Public Service Co. v. United States Environmental Protection Agency

No. 90-9505 (949 F.2d 1063, 34 ERC 1273) (10th Cir. November 25, 1991)

The court holds that the Federal Water Pollution Control Act (FWPCA) authorizes the Environmental Protection Agency (EPA) to impose effluent limitations on the internal waste streams of a national pollutant discharge elimination system permittee. The permit at issue contains effluent limitations on the internal piping system of a power plant pursuant to an EPA regulation providing for effluent limitations on internal waste streams when it would be impractical or infeasible to monitor the effluent at the point of discharge into U.S. waters. The court holds that there is no clear congressional or presidential intent expressly forbidding EPA from imposing internal waste stream effluent limitations when such limitations would be impracticable to monitor at the end of the pipe. Further, EPA's interpretation of its authority is entitled to substantial deference. Finally, the court notes that the Fifth Circuit has held that the internal waste stream regulation falls within EPA's authority under the FWPCA to monitor and impose limitations on pollutants that eventually will be discharged into U.S. waters.

Counsel for Petitioner
Timothy J. Flanagan, Robert J. Eber, Lloyd W. Landreth
Kelly, Stansfield & O'Donnell
550 15th St., Ste. 900, Denver CO 80202
(303) 825-3534

Counsel for Respondents
Karen L. Egbert, Barry M. Hartman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Anne M. Ryan, E. Donald Elliott, Susan C. Lepow
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before BALDOCK, BARRETT and EBEL, Circuit Judges.

[22 ELR 20441]

PER CURIAM.

We have only one issue before us: whether the Federal Water Pollution Control Act of 1972 (Clean Water Act), codified at 33 U.S.C. §§ 1251-1387, authorizes the Environmental Protection Agency (EPA) to impose effluent limitations on the internal waste streams of a National Pollutant Discharge Elimination System (NPDES) permittee. Every entity that wishes to discharge pollutants into the waters of the United States must obtain a NPDES permit from EPA or an authorized state agency. See 33 U.S.C. §§ 1311(a) & 1342; 40 C.F.R. §§ 122-136, 400-501. NPDES permits impose a variety of restrictions on polluting entities, and these restrictions include effluent limitations. In this case, the NPDES permit at issue contains effluent limitations on the internal piping system of the Fort St. Vrain Station, a power plant operated by petitioner, Public Service Company of Colorado.

EPA placed the internal piping system effluent limits in the Fort St. Vrain NPDES permit pursuant to the EPA internal waste stream regulation. 40 C.F.R. § 122.45(h) (1990). The regulation provides for effluent limitations on internal waste streams when it would be "impractical or infeasible" to monitor the effluent at the point of discharge into the waters of the United States. Id.¹ Petitioner brought a facial challenge to the regulation before the EPA Regional Administrator, contending that the regulation was ultra vires.² The Regional Administrator refused to grant a hearing on the matter, and the EPA Administrator affirmed the denial on appeal. Petitioner seeks review of the EPA Administrator's final order. We have jurisdiction pursuant to 33 U.S.C. § 1369(b).

Petitioner contends that the plain language, structure and legislative history of [22 ELR 20442] the Clean Water Act indicate a clear Congressional intent to restrict EPA's authority to impose effluent limitations to the physical point of discharge into the waters of the United States. Given the clarity of Congressional intent, petitioner urges us to exercise plenary review and declare the internal waste stream regulation ultra vires.

We have reviewed petitioner's arguments, and find them unpersuasive. Upon study of the Clean Water Act and its legislative history, we find no clear Congressional or Presidential intent expressly forbidding EPA from imposing internal waste stream effluent limitations when such limitations would be impracticable to monitor at the end of the pipe. Therefore, we owe substantial deference to EPA's interpretation of its authority. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S. Ct. 2778, 2781-83, 81 L. Ed. 2d 694 (1984); Oklahoma v. Environmental Protection Agency, 908 F.2d 595, 598-99 (10th Cir.1990), cert. granted, U.S. , 111 S. Ct. 1412, 113 L. Ed. 2d 465 (1991).

Addressing arguments similar to petitioner's, and applying the Chevron standard of review, the Fifth Circuit has held that the internal waste stream regulation falls within EPA's authority under the Clean Water Act to monitor and impose limitations on pollutants which eventually will be discharged into the waters of the United States. Texas Municipal Power Agency v. Administrator, 836 F.2d 1482, 1486-90 (5th Cir.1988). We agree with the Fifth Circuit's analysis of the pertinent Clean Water Act provisions and its conclusion that the internal waste stream regulation is a valid exercise of EPA authority.

REVIEW DENIED.

1. The regulation provides:

(h) Internal waste streams.

(1) When permit effluent limitations or standards imposed at the point of discharge are impractical or infeasible, effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances, the monitoring required by § 122.44(i) shall also be applied to the internal waste streams.

(2) Limits on internal waste streams will be imposed only when the fact sheet under § 122.56 sets forth the exceptional circumstances which make such limitations necessary, such as when the final discharge point is inaccessible (for example, under 10 meters of water), the wastes at the point of discharge are so diluted as to make monitoring impracticable, or the interferences among pollutants at the point of discharge would make detection or analysis impracticable.

40C.F.R. § 122.45 (1990).

2. The original NPDES permit in this case was issued by the Colorado Water Quality Control Division (CWQCD), an EPA approved State agency. EPA, exercising its oversight authority, objected to the permit. See 33 U.S.C. § 1342(d)(2); 40 C.F.R. § 123.44. Neither CWQCD nor any interested party responded to EPA objections within the statutorily prescribed period; therefore, exclusive permitting authority transferred to EPA. See 33 U.S.c. § 1342(d)(4); 40 C.F.R. § 123.44(h)(1). Petitioner challenged the resulting EPA draft permit, requesting an "evidentiary hearing" before the Regional Administrator. See 40 C.F.R. § 124.74(a). Because the request involved only legal issues (whether the regulation was ultra vires), the Regional Administrator denied review pursuant to EPA regulations. See id. § 124.74(b)(1).