Natural Resources Defense Council, Inc. v. Train

4 ELR 20108 | Environmental Law Reporter | copyright © 1974 | All rights reserved


Natural Resources Defense Council, Inc. v. Train

No. 1609-73 (D.D.C. November 27, 1973)

The court grants plaintiff's motion for summary judgment after determining that defendants violated § 304(b)(1)(A) of the FWPCA Amendments of 1972 by failing to publish within one year of the Act's passage final effluent limitation guidelines for comprehensive coverage of all point sources. In order that the final guidelines may be applied meaningfully in the National Pollutant Discharge Elimination System (NPDES) permit program established by § 402 of the Act, the court directs the defendants to publish these guidelines according to a detailed schedule set forth in the order, and in no case later than November 29, 1974. The court retains jurisdiction until final effluent guidelines have been published.

Counsel for Plaintiff
Edward L. Strohbehn, Jr.
1710 N St., N.W.
Washington, D.C. 20036

Counsel for Defendants
James A. Glasgow
Department of Justice
Washington, D.C. 20530

[4 ELR 20108]

Green, J.

ORDER

This matter having come before the Court for hearing by Order of this Court of November 1, 1973, in the captioned case, it is by the Court this 15th day of November 1973,

Determined that defendants have violated Section 304(b)(1)(A) of the Federal Water Pollution Control Act Amendments of 1972, Public Law No 92-500, 86 Stat. 816, 33 U.S.C. §§ 1251, et seq., 1314(b)(1)(A), [the "Act"], and it is

ORDERED that plaintiff's Motion for Summary Judgment is granted; and it is

FURTHER ORDERED that:

1. Defendants have a mandatory, non-discretionary duty to publish within one year of enactment of the Act final Section 304(b)(1)(A) effluent limitation guidelines necessary to provide comprehensive coverage of all point source discharges;

2. The proposed schedule for publication of the guidelines shall have a final deadline of no later than October 1, 1974, in order that the guidelines may be applied meaningfully in the NPDES permit program established by Section 402 of the Act.

3. Defendants shall prepare and submit to the Court by the close of business November 21, 1973, their counterproposals, if any, to the schedule submitted by plaintiff. Where defendants' schedule is at variance with plaintiff's, the defendants shall set forth in detail any reasons for the variance.

4. The defendants shall give particular attention to those dates proposed by the power industry.The Court, having determined at the November 14, 1973, hearing that the proposal appeared reasonable, the defendants must justify any variance therefrom.

5. The defendants shall provide copies of their proposed schedule and memorandum, if any, to counsel for plaintiff and amici curiae on November 21, 1973. Plaintiff and amici may respond by 4:30 p.m. November 23, 1973; and it is

FURTHER ORDERED that this matter shall be heard November 26, 1973, at 10:00 a.m. in Courtroom 7.

ORDER

This matter having come before the Court for hearing by Order of this Court of November 15, 1973, in the captioned case, it is by the Court, this 26th day of november 1973,

Found that defendants' violation of the Federal Water Pollution Control Act Amendments of 1973, [the "Act"], Public Law No. 92-500, 86 Stat. 816, 33 U.S.C. §§ 1251, et seq., as determined by this Court's November 15, 1973, Order has irreparably injured the rights and interests of plaintiff and the public; and it is hereby

ORDERED that:

1. Defendants are directed to publish as expeditiously possible and no later than November 29, 1974, final Section 304(b)(1)(A) effluent limitation guidelines necessary to provide comprehensive coverage of all point source discharges;

2. To ensure that Section 304(b)(1)(A) guidelines will be published in time to be applied meaningfully in the National Pollutant Discharge Elimination System (NPDES) permit program established by Section 402 of the Act, 33 U.S.C. § 1342, defendants are directed to publish Section 304(b)(1)(A) guidelines consistent with the following Schedule which establishes the latest dates for publication of final guidelines for each category:

a. The scope of point source coverage of each listed category in this Schedule is determined by the number in parentheses which appears after each listed category. This number corresponds to the category number contained in the Appendix [omitted] to this Order which lists the detailed Standard Industrial Classification (SIC) Code numbers covered by the Group I and Group II categories. For categories not listed in the Appendix, the scope of point source coverage for such categories is determined by the SIC number in parentheses which appears after each such category.

b. The Section 304(b)(1)(A) guideline issued for each of the listed categories in the Schedule will cover at least 95% of NPDES permit applications received within the category (and in the case of steam electric power plants regulations also issued under § 316(a)).

c. The guidelines scheduled for publication on or before the publication dates of January 15, 1974, to and including March 22, 1974, shall become effective no later than 60 days following the publication dates stated in the Schedule. The guidelines scheduled for publication on or before the publication date of March 29, 1974, shall become effective no later than 45 days following this publication date. The guidelines scheduled for publication on or before the publication dates of May 17, June 14 and July 30, 1974, shall become effective no later than 30 days following these publication dates. The guidelines for all other categories listed in the schedule shall become effective immediately upon their publication in the Federal Register.

d. This schedule shall be deemed satisfied if the Administrator signs the guidelines for each listed category on or before the publication date specified in the Schedule for such category. The Administrator will use his best efforts to obtain the earliest possible Federal Register publication following his signing of each guideline.

e. Where essential, defendants may on a limited basis substitute one Group I category in the Schedule for another Group I category, and similarly may substitute within Group II, so long as no fewer than the indicated total number of categories, on a cumulative basis, are published by each indicated publication date. Defendants shall inform the Court and plaintiff of any such substitution.

f. The Schedule is as follows: [4 ELR 20109]

Cumulative total
of Categories
by Publication
Date by GroupCategoryPublication Date
*3*Group I, Phase I
1Insulation FiberglassJanuary 15, 1974
Manufacturering (25)
2Beet Sugar Processing (8)January 18, 1974
4Cement Manufacturing (10)
Feedlots (11)January 25, 1974
6Phosphate Manufacturing (21)February 1, 1974
8Rubber Processing (27)
Ferroalloy Manufacturing (23)February 8, 1974
10Electroplating (12)
Asbestos Manufacturing (26)February 15, 1974
12Inorganic Chemicals
Manufacturing (14)
Meat Product andFebruary 22, 1974
Rendering Processing (3)
15Plastic and Synthetic
Materials Manufacturing (15)
Nonferrous Metals Manufacturing (20)
Sugar Processing (8)March 1, 1974
18Canned and Preserved Fruits
and Vegetables Process-
ing (6)
Grain Mills (5)
Soap and Detergent Manufacturing (16)March 8, 1974
20Fertilizer Manufacturing (17)
Petroleum Refining (18)March 15, 1974
23Dairy Product Processing (4)
Leather Tanning and Finishing (24)
Pulp, Paper and Paperboard Mills (1)March 22, 1974
27Organic Chemicals Manufacturing (13)
Builders Paper and Board Mills (2)
Canned and Preserved
Seafood Processing (7)
Timber Products Processing (28)March 29, 1974
28Iron and Steel Manufacturing (19)May 17, 1974
29Textile Mills (9)June 14, 1974
30Steam Electric Power Plants (22)July 30, 1974
*3*Group I, Phase II
32Rubber Processing (27)
Electroplating (12)August 19, 1974
36Timber Products Processing (28)
Inorganic Chemicals
Manufacturing (14)
Plastics and Synthetic
Materials Manufacturing (15)
Ferroalloy Manufacturing (23)August 26, 1974
38Organic Chemicals Manufacturing (13)
Nonferrous Metals Manufacturing (20)September 16, 1974
42Phosphate Manufacturing (21)
Fertilizer Manufacturing (17)
Asbestos Manufacturing (26)
Meat Products and
Rendering Processing (3)September 23, 1974
49Grain Mills (5)
Canned and Preserved
Seafood Processing (7)
Glass Manufacturing (25)
Sugar Processing (8)
Iron and Steel Manufacturing (19)
Pulp, Paper and Paperboard Mills (1)
Builders Paper and Board Mills (2)October 1, 1974
*3*Group II
1Auto and Other Laundries (40)October 4, 1974
2Paving and Roofing Materials
(Tar and Asphalt) (39)October 11, 1974
4Transportation Industries (37)
Paint and Ink FormulationOctober 18, 1974
and Printing (42)
6Fish Hatcheries and Farms (38)October 25, 1974
8Canned and Preserved
Fruits and Vegetables
Industry (6)
Miscellaneous Chemicals (35)November 1, 1974
10Miscellaneous Food and
Beverages (34)
Machinery and Mechanical Products
Manufacturing (29)November 8, 1974
12Coal Mining (30)
Petroleum and Gas Extraction,
Handling, Storage and
Residues Disposal (31)November 15, 1974
17Mineral Mining and Processing (32)
Water Supply (33)November 22, 1974
20Ore Mining and Dressing (36)
Steam Supply (43)November 29, 1974
*3*Additional Group II Categories
17Structural Clay Products (SIC 325)
Pottery and Related Products (SIC 326)
Concrete, Gypsum andNovember 22, 1974
Plaster Products (SIC 327)
20Furniture and FixturesNovember 29, 1974
Manufacturing (SIC 25)
*3*Residual Category
1Point Source Discharge
Categories Not Otherwise
CoveredNovember 29, 1974
3. Defendants are directed to take all necessary steps in timely fashion and consistent with the obligation to publish comprehensive final Section 304(b)(1)(A) guidelines as expediticusly as possible, including as necessary the execution of contracts of appropriate duration and the initiation of in-house agency research and development efforts, in order to ensure that the Schedule set out herein is met.

4. Defendants shall also provide a public comment period of at least 90 days for regulations applicable to steam electric power plants, and between 60 and 90 days for agency consideration of such comments prior to publication in final form.

5. The Court shall retain jurisdiction of this matter until defendants have published all final effluent guidelines required by Section 304(b)(1)(A).


4 ELR 20108 | Environmental Law Reporter | copyright © 1974 | All rights reserved