American Association of Meat Processors v. Costle

No. 77-1260 (8th Cir. June 7, 1977)

The court grants a motion to dismiss a challenge to point source effluent guidelines for the meat product industry. The court finds that the requirement in § 509(b) of the Federal Water Pollution Control Act for petitions to be submitted within 90 days after promulgation of guidelines can only be waived if the petition is based on grounds arising after that period. The court holds that this exception to the statute of limitations was meant to cover challenges based on newly available scientific information rather than delays resulting from legal uncertainties over the proper forum for judicial review. While equitable considerations might require tolling of the 90-day period, petitioners' failure to file any petition within the period outweighs any prejudice caused by the uncertainty.

Counsel for Petitioners
John J. Faust
706 Chestnut St., St. Louis MO 63101
(314) 241-8907

Richard D. Siegel
Braude, Margulies & Sacks
Suite 770, 1775 Pennsylvania Ave., NW, Washington DC 20006
(202) 293-2993

Counsel for Respondents
Alfred T. Ghiorzi, Lloyd S. Guerci
Department of Justice, Washington DC 20530
(202) 739-2717

James A. Rodgers
Office of General Counsel, Environmental Protection Agency
401 M St., SW, Washington DC 20460
(202) 755-2511

Lay, Ross, and Webster, JJ.

[7 ELR 20518]

Per curiam:

On March 25, 1977, petitioners filed with this court, pursuant to 33 U.S.C. § 1369(b), a petition seeking review of the existing source effluent guidelines for the meat products point source category, promulgated by the Environmental Protection Agency pursuant to the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq. The challenged guidelines were issued on February 28, 1974. See 40 C.F.R. pt. 432 (1976). Respondent has moved to dismiss the petition as untimely, relying on the limitations provisions of § 1369(b), which provides:

Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day.

Petitioners concede that their petition was filed more than 90 days after promulgation of the guidelines, but assert that their petition is based on grounds arising after the ninetieth day, or, alternatively, that these same grounds provide an equitable basis for tolling the 90-day limitations period.

The circumstances relied upon by petitioners are as follows. In 1974, the National Independent Meat Packers Association (NIMPA), which is not a party to the instant proceeding, timely filed a petition in this court to review the same guidelines challenged here.¹ Subsequently, in CPC International, Inc. v. Train, 515 F.2d 1032 [5 ELR 20392] (8th Cir. 1975), this court held that effluent guidelines for existing sources are not reviewable in the courts of appeals under § 1369(b), but must be challenged in the district courts. Accordingly, NIMPA's petition was dismissed. National Independent Meat Packers Ass'n v. EPA, 517 F.2d 1407 (8th Cir. 1975). On October 14, 1975, petitioners commenced an action in the United States District Court for the District of Nebraska to review the guidelines here in question. On February 23, 1977, the Supreme Court, contrary to our holding in CPC, ruled that effluent guidelines for existing sources are reviewable in the courts of appeals. E.I. DuPont de Nemours & Co. v. Train, 97 S. Ct. 965 [7 ELR 20191] (1977). Accordingly, on March 9, 1977, the district court dismissed petitioners' action.

The circumstances detailed above reveal that the period preceding the Supreme Court's decision in DuPont was marked by substantial uncertainty as to the proper forum in which to seek review of existing source effluent guidelines. Petitioners, however, made no attempt to challenge the guidelines in any forum within made no attempt to challenge the guidelines in any forum within 90 days after their promulgation. Therefore, we cannot say that the uncertainty noted above has so prejudiced petitioners that equitable considerations require that we toll the statute of limitations.² We also find that the circumstances recounted above do not constitute grounds arising after the ninetieth day within the meaning of § 1369(b). The provision allowing belated review was designed to accomodate challenges based on scientific information which was not available at the time the guidelines were promulgated. S. Rep. No. 92-414, 92d Cong., 1st Sess. (1971), reprinted in [1972] U.S. CODE CONG. & ADMIN. NEWS 3668, 3751.

The petition for review is dismissed.

1. The American Association of Meat Processors was an amicus curiae in that action.

2. The situation would be different had petitioners originally sought to challenge the guidelines in a timely manner. See National Independent Meat Packers Ass'n v. EPA, NO. 74-1387 (8th Cir. Apr. 6, 1977) (unpublished), in which we recalled our mandate dismissing NIMPA's petition for review.