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4 ELR 20108 | Environmental Law Reporter | copyright © 1974 | All rights reserved Natural Resources Defense Council, Inc. v. TrainNo. 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 Counsel for Defendants Green, J. 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 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. 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 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]
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 |