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9 ELR 20176 | Environmental Law Reporter | copyright © 1979 | All rights reserved Natural Resources Defense Council, Inc. v. CostleNos. 2153-73, 75-0172, -1267, -1698 (D.D.C. March 9, 1979)After more than five years of litigation regarding the regulations by the Environmental Protection Agency (EPA) of toxic water pollutants under § 307 of the Federal Water Pollution Control Act (FWPCA), the court denies the industrial intervenors' motion to vacate a settlement agreement entered into in 1976, 6 ELR 20588, and grants the joint motion of plaintiffs and defendants to amend the settlement. In support of their motion, intervenors relied on statements made on the floor of the House of Representatives tending to indicate that Congress intended the 1977 amendments to the FWPCA to repudiate the settlement agreement and establish a new regulatory program. The court, however, finds such statements inconclusive, ruling that the 1977 amendments did not reject the settlement but instead relied upon it to supply missing details of a cohesive strategy for controlling toxic water pollution. The court also rejects intervenors' opposition to the joint motion for modification of the settlement agreement on the basis of mootness. Although two of the four cases which were consolidated into the present action are now arguably moot because of the effect of the 1977 amendments, two remaining cases contain live controversies, including the challenge to the validity of the criteria used by the Agency to identify toxic pollutants and the challenge to the Agency's failure to issue pretreatment standards. Thus, the entire settlement cannot be ruled moot because it is a comprehensive, interrelated whole rather than a divisible series of agreements. As to the intervenors' further contention that the proposed modification is so broad that it constitutes rule making to which notice and comment procedures should be attached under the Administrative Procedure Act (APA) and the due process clause of the Constitution, the court finds that the proposed modification is not sufficiently substantial to raise constitutional issues or to constitute rule making under the APA. Finally, the court denies intervenors' request that any modification be accompanied by an explanatory note limiting the authority of the court to enforce certain portions of the agreement in the future. Counsel for Plaintiffs Counsel for Defendants Counsel for Industrial Intervenors Flannery, J.: This matter comes before the court on the joint motion of the Natural Resources Defense Council, Inc. (NRDC) and other named plaintiffs and the defendant Environmental Protection Agency (EPA) to modify the Settlement Agreement of June 7, 1976 in the above-captioned actions and to modify the court's Final Order and Decree of June 8, 1976 approving the Agreement and directing compliance with its terms and conditions. Also before the court is a joint motion by the intervenor-defendants to vacate the Final Order and Decree. For the reasons set forth below, the court will grant the motion for modification and will deny the motion to vacate. The court's Order accompanying this Memorandum Opinion implements the modified Settlement Agreement between the plaintiffs and defendants. The plaintiffs brought the four captioned lawsuits to force EPA into more rapid and comprehensive action under various provisions of the Federal Water Pollution Control Act of 1972 (the Act or the 1972 Act), 33 U.S.C. §§ 1251-1376 (1976). Natural Resources Defense Council, Inc. v. Train, Civil Action No. 2153-73 [6 ELR 20588], sought an order requiring EPA to expand the list of toxic pollutants which it had published pursuant to § 307(a)(1) of the Act, id. § 1317(a)(1). Environmental Defense Fund, Inc. v. Train, Civil Action No. 76-0172, and Citizens for a Better Environment v. Train, Civil Action No. 75-1698 [6 ELR 20588], sought orders requiring EPA to promulgate effluent standards for those toxic pollutants the agency already had listed pursuant to § 307(a)(2), id. § 1317(a)(2). And Natural Resources Defense Council, Inc. v. Agee, Civil Action No. 75-1267 [6 ELR 20588], sought an order requiring EPA to promulgate final pretreatment standards pursuant to § 307(b), id. § 1317(b). In 1976, EPA and the plaintiffs settled these four lawsuits by entering into the Settlement Agreement at issue here. The Agreement established a detailed, comprehensive regulatory program for implementation by EPA of the toxic pollutant control and pretreatment objectives of the Act. In addition to specifying the regulatory mechanisms to be employed by EPA, the Agreement included detailed provisions governing the timing, scope, and nature of EPA's pollution control program. See Settlement Agreement reprinted in Natural Resources Defense Council v. Train, 8 ERC 2120, 2122-29 [6 ELR 20588] (D.D.C. 1976). The motions now before the court represent the culmination of proceedings that were initiated on September 26, 1978 when the plaintiffs moved the court for an order to show cause why EPA should not be held in contempt of this court for its alleged failure to comply with many of the deadlines set forth in the Settlement Agreement. On October 20, 1978, EPA filed pleadings in opposition to the motion to show cause. Also on October 20, the various industrial, chemical, mining, and utility intervenors (intervenors) in these consolidated actions filed numerous pleadings arguing that the court should vacate its Final Order and Decree of June 8, 1976 on the ground that subsequent congressional action allegedly had made continuation of the Decree inappropriate. After the parties agreed to a schedule for discovery, briefing, and a hearing, NRDC and EPA began negotiating a settlement to the current controversy between them. On November 28, 1978, EPA held a meeting with the intervenors and announced that it had reached a tentative agreement with NRDC. The intervenors were given 10 days to submit written comments regarding the tentative agreement. EPA and NRDC considered the intervenors' written comments and agreed to certain changes based upon the comments. On December 15, 1978, EPA and NRDC filed a joint motion to modify the Settlement Agreement, and withdrew all of their pleadings relating to the motion to show cause. The intervenors, however, declined to withdraw the motions to vacate. The intervenors advance three independent grounds that they contend require the court to vacate its Final Order and Decree of June 8, 1976. First, the intervenors argue that Congress clearly intended that the toxic pollutant provisions in the 1977 amendments to the Act, known as the Clean Water Act of 1977, would supersede the toxics program set forth in the Settlement Agreement. Second, they assert that each of the four lawsuits underlying the Agreement is moot and should be dismissed, with the result that court approval of a modified Agreement would constitute "extrastatutory judicial legislation." And, third, the intervenors maintain that modification of the Agreement would violate the public notice-and-comment requirements of the Administrative Procedure Act, the Clean Water Act, EPA's own regulations, and an Executive Order, and would contravene the due process clause of the Fifth Amendment. Further, the intervenors argue that, if the court does approve the modified Agreement, none of the programmatic undertakings specified therein should constitute enforceable obligations of EPA subject to future enforcement actions. The intervenors first contend that the court should vacate its Final Order and Decree of June 8, 1976 because the Settlement Agreement has been "supplanted" or "superseded" by the 1977 amendments to the 1972 Act, Pub. L. No. 95-217, 91 Stat. 1566. According to the intervenors, the 1977 amendments provide a comprehensive program to control the discharge of toxic pollutants, and "[n]ow that Congress has amended the statutory structure which gave rise to the Decree, the framework of the Decree should give way to the new statutory plan by Congress."1 Both EPA and NRDC argue that the amendments ratified the basic structure of the Settlement Agreement and that, inasmuch as the amendments did not exhaustively codify the Agreement, Congress intended that EPA would continue to comply with the terms of the settlement in those areas not modified by the amendments. Upon consideration of the statutory language and the legislative history of the 1977 amendments, the court will deny the motion to vacate on this ground. In support of their position, the intervenors principally rely upon a statement made by Congressman Roberts regarding the "intent" of the toxic pollutant provisions of the 1977 amendments. Congressman Roberts, who was the Vice Chairman of the House-Senate Conference Committee on the 1977 amendments and the House Floor Manager of the Conference Report, stated to the House of Representatives: Crisis-by-crisis reaction to the problem of toxics must no longer be the norm, but replaced by an orderly program for adding compounds to the list, with the Administrator fully in charge. It, therefore, would be entirely appropriate for the United States to petition the courts to relinquish jurisdiction over toxic pollutant control under Public Law 92-500, now that the statutory basis has been laid for a workable regulatory program the lack whereof led to the litigation resulting in the consent decree. This is particularly [9 ELR 20178] appropriate in view of the large number of potentially toxic chemicals to be addressed by the program and the need for administrative discretion within the revised regulatory framework to carry out the provisions of law enacted herein. This is the intent of this legislation, an outgrowth of House initiatives by the House conferees. 123 CONG. REC. H 12927-12928 (daily ed. Dec. 15, 1977). Noting that the toxic pollutant provisions were drafted in the Conference Committee, and that the Conference Report itself is silent on the effect of the amendments on the Settlement Agreement, the intervenors argue that Congressman Roberts' statement is the surest guide to the congressional intent concerning these provisions. NRDC assails Congressman Roberts' statement as "unreliable" on a number of grounds that the court finds are without merit. The focus of NRDC's challenge, however, is on the timing of the statement at issue. The intervenors assert that Congressman Roberts made his statement before the House vote adopting the Conference Report. In rebuttal, NRDC has submitted an affidavit of a former EPA official who asserts that he was present during the entire discussion in the House regarding the Conference Report. The affiant states, upon information and belief, that Congressman Roberts addressed the House "certainly no more than five minute and probably less than that," and that his remarks "did not deal with much, if any, of the substance of the Conference Report." Freedman Affidavit, PP4, 5. NRDC points out that the text of Congressman Roberts' remarks fills nearly 17 pages of the Congressional Record and that the statement here in question appears approximately at the halfway point in these remarks. It insists that the statement simply was part of the 17-page text of the Congressman Roberts' remarks, that the statement was not delivered orally on the House floor, that the full text was inserted into the Record after the House voted to adopt the Conference Report, and therefore that the statement constitutes an "after-the-fact" attempt to manufacture legislative history. The court cannot rely upon the type of affidavit testimony proffered by NRDC in its attempt to reconstruct the events preceding adoption of the Conference Report by the House. Even were it to rely upon the affidavit, however, the court could not conclude that the affiant has shed much light on the substance of Congressman Roberts' remarks to the House. The affiant, who is recalling comments made over one year ago, does not state specifically that Congressman Roberts did not make the statement at issue. Indeed, the affidavit does not instruct the court as to what portion, if any, of the Conference Report Congressman Roberts discussed on the floor of the House. The full text of Congressman Roberts' remarks is registered in the Record before the tally of the house vote on adoption of the Conference Report, and the court has seen no evidence that would disturb the presumption of regularity that attaches to congressional proceedings such as those at issue here. It is well settled that courts are to give particular weight to the views of sponsors and floor managers of legislation in determining congressional intent. See NLRB v. Fruit and Vegetable Packers and Warehousers, Local 760, 377 U.S. 58, 66-67 (1964); Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 394-95 (1954). Yet, contrary to the urging of the intervenors, it does not appear to the court that Congressman Roberts' statement evinces an intent by Congress that the 1977 amendments are automatically to supplant the Settlement Agreement. At most, Congressman Roberts' statement suggests that Congress has left the door open for the executive, which is charged with administering the Act, "to petition the courts to relinquish jurisdiction over toxic pollutant control. . . ." 123 CONG. REC. H. 12927-12928 (daily ed. Dec. 15, 1977). In amending other sections of the 1972 Act, Congress demonstrated that it could speak clearly in dealing with judicial judgments it wished to repudiate.2 The instant action does not present a comparable case of express congressional disapproval. As intervenors acknowledge, the Conference Report is silent on the issue of the effect of the amendments on the 1976 Agreement. Moreover, there is nothing in the remarks to the Senate by Senator Muskie, who was the Senate Floor Manager of the Conference Report, to support the construction of the amendments advanced by the intervenors. See id. S. 19636-19657.3 The court finds such silence significant in view of the fact that the Congress had the Settlement Agreement before it when it enacted the toxic pollutant provisions of the 1977 amendments, and that, in Senator Muskie's words, "[t]he conference agreement was specifically designed to codify the so-called 'Flannery decision,' . . . ." Id. S. 19647. In the court's view, the 1977 amendments themselves do not imply an intention to supplant the Settlement Agreement. The revised Act's departures from the terms of the Agreement, most notably in the amendment providing for additions and deletions from the statutory toxics list, 33 U.S.C.A. § 1317(a)(1) (1978), and in the amendment giving EPA added time to promulgate its best-available-technology regulations, id. § 1317(a)(2), do not constitute a congressional rejection of the 1976 settlement or create a new program for regulating toxic pollutant discharges. Rather, they build on that settlement and attempt to conform the statute to the reality of EPA's program. The intervenors argue that Congress indicated its intention to supplant the settlement as much by what it did not do in 1977 as by what it did. The 1977 amendments did not address several important aspects of the toxic pollutant control program worked out in 1976, including the development of pretreatment standards for 21 industries, 65 toxic pollutants, and other incompatible pollutants (paragraphs 3, 4, and 13 of the Agreement) and the establishment of more stringent control requirements (paragraph 12 of the Agreement). The intervenors interpret that EPA no longer was to be bound by any provisions of the Agreement that were not specifically incorporated into the amendments. In view of Congress's general endorsement of the approach of the Agreement, a more plausible inference to be drawn from congressional inaction in these areas is that Congress intended for the Agreement to remain in effect to supply the missing details to a cohesive strategy for controlling toxic water pollution. Therefore, the motion to vacate is not supported by necessary implication arising from the 1977 amendments.4 The intervenors next contend that the court lacks jurisdiction to approve the proposed modification because the four causes of [9 ELR 20179] action underlying the Settlement Agreement have become moot. They assert that the "toxic pollutant effluent standards cases," Civil Action Nos. 75-0172 and 75-1698, and the "toxic pollutant list case," Civil Action No. 2153-73, are moot because the 1977 amendments changed the statute in such a way as to remove the controversies raised by those actions. With respect to the plaintiffs' "pretreatment case," Civil Action No. 75-1267, the intervenors argue that EPA's actions pursuant to paragraph 13 of the Agreement fully satisfy the complaint, thereby eliminating the controversy raised by that suit. The court is not convinced either that all of the controversies underlying the 1976 settlement have been extinguished or that it lacks jurisdiction under the mootness doctrine to approve all aspects of the proposed modification. NRDC concedes that the 1977 amendments repealing both the requirement for toxic pollutant effluent standards and the sixmonth deadlines for promulgating final toxic pollutant effluent standards under § 307(a)(2) of the 1972 Act, 33 U.S.C. § 1317(a)(2) (1976), effectively removed the basis for the plaintiffs' claims in Civil Action Nos. 75-0172 and 75-1698. The repeal of § 307(a)(1) of the 1972 Act, id. § 1317(a)(1), and its replacement by a new § 307(a)(1), 33 U.S.C.A. § 1317(a)(1) (1978), however, did not similarly affect the plaintiffs' claim in Civil Action No. 2153-73. In that case, the plaintiffs contended, first, that EPA had developed its list of toxic pollutants by using selection criteria that were not specified in § 307(a)(1) and that improperly limited the list and, second, that EPA unlawfully had failed to list 25 additional substances. The intervenors argue that no controversy survives with respect to these allegations, because Congress in 1977 replaced EPA's former, non-discretionary duty to list pollutants with a basic list of 65 pollutants and with broad discretion for the Administrator to add pollutants to, or remove pollutants from, that basic list. Yet, Congress left unchanged the statutory factors against which plaintiffs had compared EPA's selection criteria. To date, EPA has not renounced the allegedly arbitrary and unauthorized criteria it used, nor has it published revised selection criteria. Because the plaintiffs in the toxic list case requested such relief, that case, even under the intervenors' application of mootness principles, is not moot.5 Although Congress did not amend any of the statutory provisions underlying the complaint in the pretreatment case, the intervenors maintain that EPA's actions under paragraph 13 of the Agreement satisfy that complaint. NRDC does not contest the fact that EPA has discharged its obligations pursuant to paragraph 13 to issue pretreatment standards regulations for eight industry categories by May 15, 1977. Rather, NRDC strenuously disputes the intervenors' contention that the plaintiffs restricted their original request for relief to specific pollutants or chemical classes of pollutants and that paragraph 13 contains the only obligations EPA undertook in exchange for NRDC's agreement not to litigate the pretreatment action. As to the first contention, NRDC points out that the complaint broadly alleged violations and requested relief pertaining to "all pollutants which are determined not to be susceptible to treatment by [publicly owned treatment works] or which would interfere with the operation of such works." Complaint in Civil Action No. 75-1267, p. 18. Moreover, the plaintiffs listed 37 point source categories as specifically subject to their complaint and listed nine additional categories for which proposed standards had not been published. The court agrees with NRDC that the plaintiffs did not exchange their rights to pursue the broad allegations of the pretreatment complaint in return for EPA's agreement to regulate eight industries. A fair reading of the comprehensive, interrelated Agreement yields the conclusion that paragraphs 3, 4, and 7 must be seen as closely related to, and in settlement, of, plaintiffs' pretreatment suit. Because not all of the provisions in those paragraphs have been satisfied by EPA, even under the intervenors' theory the pretreatment case is not moot. Even assuming that the toxic pollutant effluent standards cases are moot,6 the court cannot conclude that, because two of the controversies underlying the 1976 settlement have been eliminated by statutory developments, the court lacks jurisdiction to approve the joint modification in its entirety. The court agrees with NRDC that the four original causes of action have become inseparable as a result of the settlement. The Agreement represents a comprehensive, interrelated package of concessions made by EPA in return for the plaintiffs' agreement not to pursue the claims raised in the four lawsuits.Because it was the settlement as a whole that represented an acceptable bargain to both sides, it cannot be said that each portion of the Agreement is specifically responsive to a particular claim contained in one or more of the original complaints. It would do violence to the settlement for the court to attempt to separate aspects of the Agreement that rest on the arguably moot causes of action from those that do not. The intervenors nowhere have suggested that the two causes of action as to which controversies still survive would not alone have provided a substantial basis for the settlement approved by the court in 1976. Therefore, the intervenors' mootness challenge must fail. The intervenors argue vigorously that the proposed modification imposes substantial new burdens and obligations upon both EPA and the industries regulated by EPA. Because agency action in modifying the Agreement will have a significant impact upon the regulated parties, contend the intervenors, EPA must provide notice and an opportunity for public comment before taking such action. The intervenors assert that implementation of the modified settlement without public commentary would violate both the Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq. (1976), and the due process clause of the Fifth Amendment. The court disagrees with both the intervenors' characterization of the significance of the proposed modification and with the contention that EPA has not satisfied requirements imposed upon it by the APA and the Constitution. Contrary to the contention of the intervenors, the proposed modification does not commit EPA to major new programmatic intiatives not covered by the original Agreement. The joint modification contains four substantive changes. First, it extends the deadlines for the proposal and promulgation of technology-based effluent limitations, standards of performance, and pretreatment standards under paragraphs 1, 2, 3, and 7 of the Agreement, as well as the deadlines for the publication of water quality criteria pursuant to paragraph 11. Second, it broadens paragraph 8 of the Agreement, which allows EPA to exclude certain pollutants from regulation, to exclude not merely pollutants but entire categories and subcategories from regulation when EPA determines that their environmental significance does not warrant promulgation in accordance with the schedule contained in the Agreement. Third, it provides EPA with additional time and flexibility to develop pretreatment standards for incompatible pollutants beyond the 65 pollutants specifically mentioned in the Agreement. And fourth, the proposed modification clarifies paragraph 12 of the Agreement by specifying in more detail the investigatory [9 ELR 20180] steps EPA must take to determine when and if effluent limitations more stringent than the technology-based limitations pursuant to paragraphs 1, 2, 3, and 7 of the Agreement are necessary to protect aquatic life or human health. To buttress their contention that EPA has agreed to a new extensive regulatory program, the intervenors point specifically to the new paragraph 4(c). That paragraph requires EPA to investigate incompatible pollutants in addition to the 65 pollutants covered explicitly by the Agreement. The court cannot agree with the intervenors that paragraph 4(c) calls for EPA to assume major additional programmatic responsibilities under the Agreement. It commits EPA only to investigate an unspecified number of incompatible pollutants, within its discretion, and gives EPA discretion to exclude pollutants as it pursues its investigatory program. Even if the court were to accept the intervenors' characterization of the significance of the proposed modification, it could not conclude that EPA has breached obligations imposed upon it by the APA. The intervenors argue that the modification is a "rule" within the meaning of § 551(4) of the APA, 5 U.S.C. § 551(4) (1976), and therefore that the modification process is subject to the rule-making requirements of the APA, which call for publication of notice of the proposed rule and provision to interested persons of an opportunity to comment. Id. § 553. The APA defines "rule" to mean: the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency. . . . Id. § 551(4). The United States Court of Appeals for the District of Columbia Circuit has observed that "[t]his broad definition obviously could be read literally to encompass virtually any utterance by an agency. . . ." Pacific Gas & Electric Co. v. FPC, 164 U.S. App. D.C. 371, 375, 506 F.2d 33, 37 (1974). This court does not believe that Congress intended the definition of "rule" to reach modification of judicial settlements such as that in the present case. The intervenors have cited no decision by any court holding that an action as preliminary to the regulatory process as that at issue here constitutes rule making. In rejecting a similar challenge made by the intervenors to the original Agreement, the court noted that "[t]he agreement merely requires the EPA to initiate rulemaking proceedings for the pollutants and industries listed in the appendices." Natural Resources Defense Council, Inc. v. Train, supra, 8 ERC at 2121-22 [6 ELR at 20589]. See also In Re Corporate Patterns Report Litigation, 432 F. Supp. 291, 302 (D.D.C. 1977). The proposed modification does not change the fundamental character of the Agreement. When EPA undertakes rule making under the deadlines set forth in the Agreement, the intervenors and the public will be entitled to receive notice of the proposed rules and will have full opportunity to comment.7 The court finds little merit in the suggestion by the intervenors that implementation of the joint modification would violate due process rights secured by the Constitution. The intervenors have cited several cases in which courts have required that effective prior notice be given to those parties affected by a proposed decree in the context of a settlement agreement. See, e.g., Cunningham v. English, 106 U.S. App. D.C. 92, 269 F.2d 539, cert. denied, 361 U.S. 905 (1959). In the present case, however, the effect of the settlement upon the intervenors is not similarly direct or immediate, and the court must conclude that those parties have not been denied the process which is constitutionally due them.8 Finally, the intervenors suggest that, if the court approves the proposed modification to the Settlement Agreement, it should include an "explanatory" provision expressly limiting its enforcement authority to certain portions of the Decree. The clause proposed by the intervenors would provide that no parts of the Agreement other than those relating to the deadlines for carrying out various programs would be enforceable by contempt or otherwise in subsequent proceedings, and that EPA's compliance with the deadlines will be judged against the good-faith standard articulated by the court in its May 26, 1976 letter to the parties and its opinion accompanying entry of the Final Order and Decree of June 8, 1976, see Natural Resources Defense Council, Inc. v. Train, supra, 8 ERC at 2121 [6 ELR 20589]. The intervenors argue that such a provision would comport with the court's previously expressed "special concern" not to become "involved in the affairs of the EPA" by "review[ing] substantive judgments made by the Administrator of the EPA." Id. Moreover, the intervenors point out that this "clarification" of the court's limited role would prevent repetition of the "disruptive, expensive and time-consuming proceedings" that have followed in the wake of the filing of the plaintiffs' show cause motion. The court is unpersuaded that it should curtail its authority to supervise and enforce its own Decree. In its decision accompanying entry of the Decree, the court distinguished between the requirement in the original settlement proposal that the court exercise oversight regarding technical matters, which the court said it felt was inappropriate, and the requirement that the court enforce compliance with the terms and conditions of the Agreement, which the court recognized called for a function "regularly perform[ed] by courts." Id. The proposed modifications to the Settlement Agreement do not seek to expand the court's supervisory role beyond the boundaries established when the court approved the original Agreement. Avoidance of the costs associated with the conduct of contempt proceedings clearly is not a sufficient reason for the court to limit even further its role in overseeing implementation of the settlement in these cases. An appropriate Order accompanies this Memorandum Opinion. Upon consideration of the Joint Motion for Modification of Settlement Agreement and court's Order and intervenors' Joint Motion to Vacate and the memoranda of counsel submitted in connection therewith and in opposition thereto, and the court having heard the oral argument of counsel, and for the reasons set forth in the court's Memorandum Opinion filed this day, it is, by the court, this ninth day of March 1979. ORDERED that the Joint Motion for Modification of Settlement Agreement and court's Order be, and the same hereby is, granted; and it is further ORDERED that intervenors' Joint motion to Vacate be, and the same hereby is, denied; and it is further ORDERED that the attached modification of the Settlement Agreement is approved. Plaintiffs (Natural Resources Defense Council, Environmental Defense Fund, Citizens for a Better Environment, National Audubon Society, and Businessmen for the Public Interest) and defendants (the Environmental Protection Agency) hereby agree [9 ELR 20181] to modify the Settlement Agreement between the parties dated June 7, 1976 and filed with this court; and to modify the court's final Order and Decree of June 8, 1976, as follows: 1. That the date contained in Paragraph 1 of the Agreement, "June 30, 1983" be deleted and replaced by the date "June 30, 1984." 2. That the following words in Paragraph 4(a) be deleted: and (ii) to such other pollutants which are introduced into such treatment works and which are not susceptible to treatment by such treatments works or which interfere with, pass through, or are otherwise incompatible with such works; and (ii) to such other pollutants known to the agency which are introduced into such treatment works and which are not susceptible to treatment by such treatment works or which interfere with, pass through, or are otherwise incompatible with such works, and which either pose significant threats to the operation of such treatment works or to water quality or public health as a result of being incompatible with such treatment works, or are traditional pollutants of concern in the specific industry category. 3. That a new paragraph 4(c) be added as follows: 4(c) The Administrator shall establish and implement a program to identify and study other pollutants which are introduced into such treatment works and which are not susceptible to treatment by such works or which interefere with, pass through, or are otherwise incompatible with such works. The program shall, at a minimum, address those pollutants listed in Appendix C identifiable by computer-based mass spectra search programs ("computer matching"), and shall consist of steps to: tentatively identify by computer matching pollutants discharged by point source categories listed in Appendix B; determine frequencies of occurrence and order-of-magnitude concentrations for the tentatively identified pollutants; analytically confirm the computer identification of those pollutants found with significant frequency in at least one subcategory and in high concentrations (the term "high" to be based on comparison with the concentrations of other pollutants found or known to be in the discharge and, where possible, on readily available information with respect to toxicity of the pollutants); determine for those pollutants analytically confirmed, based upon a comprehensive literature search of the latest scientific knowledge, the kind and extent of all identifiable effects on aquatic organisms and human health; develop from the above information a list of pollutants that are candidates for national regulation; determine, by molecular structure analysis and/or laboratory test data and/or field studies, or other appropriate means where practicable, both the probable compatibility of the listed pollutants with treatment works (as defined in Section 212 of the Act) which are publicly owned, and the probable extent to which industrial technology designed to remove pollutants included in Appendix A also will remove listed pollutants. The Administrator may remove pollutants from said pollutant candidate list that he deems to be compatible with publicly owned treatment works or effectively controlled by industrial technology upon which pretreatment standards promulgated pursuant to § 307(b) of the Act are based, or are present in only trace amounts and are neither causing nor likely to cause toxic effects. The agency shall complete this program by July 1, 1983. Immediately thereafter, the Administrator shall undertake regulatory action for those pollutants remaining on the list. 4. That Paragraph 7(b) be deleted, and replaced as follows: 7(b) The regulations required to be developed under this Agreement for each category shall be proposed and promulgated pursuant to the following schedule:
8(a) The Administrator may exclude from regulation under the effluent limitations and guidelines, standards of performance, and/or pretreatment standards contemplated by this Agreement a specific pollutant or category or subcategory of point sources for any of the following reasons, based upon information available to him: (i) For a specific pollutant or a subcategory or category, equally or more stringent protection is already provided by an effluent, new source performance, or pretreatment standard or by an effluent limitation and guideline promulgated pursuant to Section(s) 301, 304, 306, 307(a), 307(b) or 307(c) of the Act; (iii) For a specific pollutant, the pollutant is not detectable (with the use of analytical methods approved pursuant to 304(h) of the Act, or in instances where approved methods do not exist, with the use of which it is discharged and, for pretreatment standards, the specific pollutant is present in the effluent which is introduced into treatment works (as defined in Section 212 of the Act) which are publicly owned solely as a result of its presence in the point source's intake waters, provided however, that such point source may be subject to an appropriate effluent limitation for such pollutant pursuant to the requirements of Section 307; (iii) For a specific pollutant, the pollutant is not detectable (with the use of analytical methods approved pursuant to 304(h) of the Act, or in instances where approved methods do not exist, with the use of analytical methods which represent state-of-the-art capability) in the direct discharges or in the effluents which are introduced into publicly-owned treatment works from sources within the subcategory or category; or is detectable in the effluent from only a small number of sources within the subcategory and the pollutant is uniquely related to only those sources; or the pollutant is present only in trace amounts and is neither causing nor likely to cause toxic effects; or is [9 ELR 20182] present in amounts too small to be effectively reduced by technologies known to the Administrator; or the pollutant will be effectively controlled by the technologies upon which are based other effluent limitations and guidelines, standards of performance, or pretreatment standards; or (iv) For a category or subcategory, the amount and the toxicity of each pollutant in the discharge does not justify developing national regulations in accordance with the schedule contained in Paragraph 7(b). (b) The Administrator may exclude from regulation under the pretreatment standards contemplated by this Agreement all point sources within a point source category or point source subcategory: (i) if 95 percent or more of all point sources in the point source category or subcategory introduce into treatment works (as defined in Section 212 of the Act) which are publicly owned only pollutants which are susceptible to treatment by such treatment works and which do not interfere with, do not pass through, or are not otherwise incompatible with such treatment works; or (ii) if the toxicity and amount of the incompatible pollutants (taken together) introduced by such point sources into treatment works (as defined in Section 212 of the Act) that are publicly owned is so insignificant as not to justify developing a pretreatment regulation in accordance with the schedules set out in paragraphs 7 and 13 of this Agreement. (c) Whenever the Administrator decides to exclude a point source category or a specific pollutant from coverage pursuant to this section of this Agreement, he shall promptly serve upon the parties to the captioned cases, or their designated representative or attorney, a statement under oath designating the point source category or subcategory or specific pollutant to be excluded together with the reasons therefor. Such statement shall detail the reasons for the Administrator's exclusion, and shall set forth the date and information forming the basis for the exclusion. Proposed regulations for each point source category or subcategory shall identify each such exclusion, shall summarize the Administrator's statement, and shall invite public comments on such exclusion. (d) The Agency shall submit statements as required by Paragraph 8(c) for all categories, subcategories or specific pollutants with respect to which the Agency has already curtailed studies required by Paragraph 7(a) or any other necessary studies, no later than January 31, 1979. After January 31, 1979, the Agency shall submit statements as required by Paragraph 8(c) as soon as possible after the Agency has made a decision to curtail, or not to initiate studies required by the Agreement. (e) The authority of the Administrator pursuant to this paragraph may be delegated to the Assistant Administrator for Water and Waste Management. 6. That Paragraph 10(b) be modified by replacing the date of "June 30, 1983" with the date of "June 30, 1984." 7. That Paragraph 11 of the Agreement be deleted and replaced by the following: The Administrator shall publish, under Section 304(a) of the Act, water quality criteria accurately reflecting the latest scientific knowledge on the kind and extent of all identifiable effects on aquatic organisms and human health of each of the pollutants listed in Appendix A. Such water quality criteria shall state, inter alia, for each of the pollutants listed in Appendix A, the recommended maximum permissible concentrations (including where appropriate zero) consistent with the protection of aquatic organisms, human health and recreational activites. Such water quality criteria shall be proposed and published pursuant to the following schedule:
12(a) Whenever in the judgment of the Administrator the discharge of any pollutant listed in Appendix A by a point source or group of point sources would, with application of effluent limitations, guidelines and standards otherwise mandated under this Agreement, interfere with the attainment or maintenance of that water quality in specific portion of the navigable waters which shall assure protection of public water supplies, agricultural and industrial uses, and the protection and propagation of a balanced population of shellfish, fish and wildlife and allow recreational activities in and on the water, the Administrator shall forthwith establish more stringent effluent limitations, guidelines, standards (including alternative effluent control strategies) or other necessary controls for such point source or sources pursuant to his authority under Sections 302, 301/303 or 307(a), or under any other authority available to the Administrator. 12(b) Not later than June 30, 1978, the Administrator shall establish a specific and substantial program with the objective and capability of determining whether more stringent effluent limitations, guidelines and standards or other controls are necessary under this Paragraph 12. In order to have the objective and capability of making such determinations, the specific and substantial program required by this paragraph shall include; (i) a process for identifying, after surveying a substantial number of portions of the navigable waters, those portions that are seriously contaminated by discharges of toxic pollutants listed in Appendix A, as well as the presence and amounts of specific pollutants and their sources that are causing such contamination, with respect to which more stringent limitations, guidelines, standards, or other controls may be necessary; (ii) a process for identifying those toxic pollutants listed in Appendix A, with respect to which more stringent limitations, guidelines and standards may be necessary on a nationwide or other broad geographical basis; and (iii) a process that is consistent with the objectives and requirements of subparagraph (a) for developing and implementing necessary strategies, under the Act or any other authority available to the Administrator, for reducing or eliminating discharges of toxic pollutants, either in specific portions of the navigable waters as identified pursuant to subparagraph(b)(i), or on a nationwide or other broad geographical basis for any pollutants identified pursuant to subparagraph(b)(ii). 12(c) The Administrator shall complete the identifications under subparagraphs (b)(i) and (b)(ii) no later than July 1, 1981. Not later than December 31, 1981, the Administrator shall publish the Agency's strategies for reducing or eliminating discharges of toxic pollutants in those portions of the navigable waters, and/or with respect to those pollutants, that have been identified pursuant to subparagraphs(b)(i) and (b)(ii). Each such strategy shall, at a minimum, identify the statutory and regulatory authorities or mechanisms that shall be utilized by the Agency, and include an estimated schedule for implementation. 9. That a new Paragraph 19 be added as follows: 19. Nothing herein shall be construed to limit the Administrator's right to exercise any statutory authority he may have at any time or, as between the parties, to affect [9 ELR 20183] his obligation to perform any non-discretionary duty not specifically covered by this agreement. 1. Memorandum in Support of Intervenors' Joint Motion to Vacate the June 8, 1976 Consent Decree and in Response to Plaintiffs' Motion to Show Cause, p.3. 2. See, e.g., S. REP. NO. 370, 95th Cong., 1st Sess. 68 (1977) (authors of amendments to §§ 313 and 404 of the Act explicitly rejected the holding in Minnesota v. Hoffmann, 543 F.2d 1198 (8th Cir. 1976); id. at 60 (Senate Report discussion of the new provision for compliance orders under § 309 of the 1972 Act repudiated the holding in Republic Steel Corp. v. Train, 557 F.2d 91 (6th Cir. 1977)). 3. The intervenors argue that Senator Muskie's comments are entitled to less weight than those of Congressman Roberts, because Senator Muskie was prevented by ill health from attending the conference. In his remarks to the Senate, however, Senator Muskie stated that he "undertook to follow developments in the conference." 123 CONG. REC. S. 19636 (daily ed. Dec. 15, 1977). 4. The intervenors rely heavily upon the Supreme Court's decision in System Federation No. 91 v. Wright, 364 U.S. 642 (1961), to support their contention that due to the changes in the 1972 Act the court should vacate this decree. In Wright, nonunion employees of a railroad brought suit against the railroad and certain unions of its employees, alleging that the defendants had breached the Railway Labor Act, which prohibited union-shop agreements between railroads and labor unions. The parties entered into a consent decree forbidding the defendants to discriminate against nonunion employees because of their refusal to join unions. After the Act was amended in 1951 to permit union-shop agreements between railroads and labor unions, the unions moved that the decree be modified so as not to prohibit the defendants from entering into such agreements. The district court, which had retained jurisdiction of the suit, denied the motion. The Supreme Court reversed, declaring that it was an abuse of discretion to deny modification of the injunction. Speaking for the Court, Justice Harlan observed that "the District Court's authority to adopt a consent decree comes only from the statute which the decree is intended to enforce." Id. at 651. Therefore, just as the adopting court is free to reject agreed-upon terms as not in furtherance of statutory objectives, so must it be free to modify the terms of a consent decree when a change in law brings those terms in conflict with statutory objectives. . . . The court must be free to continue to further the objectives of that Act when its provisions are amended. The principle enunciated in Wright will not be contravened by approval of the joint modification in the present case, because the modification furthers, rather than conflicts with, the objectives of the 1972 Act, as amended. The only clear instance of congressional intent to alter the Decree's requirements is the extension of the deadline for compliance with best-available-teschnology effluent limitations from July 1, 1983, the date in the 1972 Act, to July 1, 1984. The joint modification would conform the Decree to this amendment. 5. Even if EPA were to renounce its selection criteria, the list case would not be moot if the court were to determine that there was a sufficient threat of repetition of the allegedly illegal action by the agency. See, e.g., United States v. Concentrated Phosphate Export Association, Inc., 393 U.S. 199, 203 (1968). NRDC also claims that the list case is not moot because seven of the pollutants it named in the original complaint are not on the list that was published pursuant to the new § 307(a)(1). The intervenors state that they can identify only four pollutants that are not on the list and argue that, because Congress chose to exclude the four pollutants, NRDC can have no continuing complaint or rights against EPA. The court cannot resolve the factual discrepancy regarding the number of omitted pollutants on the basis of the pleadings and need not reach the question to hold that the list case is not moot. 6. The intervenors base their mootness attack on the toxic pollutant effluent standards cases and on the toxic pollutant list case upon the principle that a case is moot when the controlling statute has been amended to eliminate the controversy between the parties. The instant case, however, does not present the usual situation where statutory changes have destroyed the justiciability of a suit previously suitable for adjudication. The cases cited by the intervenors, e.g., Kremens v. Bartley, 431 U.S. 119 (1977) and Hall v. Beals, 396 U.S. 45 (1969), addressed the question of a court's jurisdiction to enforce a cause of action where some statutory development has deprived the court of its ability to provide any presently meaningful remedy. The Supreme Court in those cases held that an action is moot where a statute had been changed in such a way as to give the plaintiff the relief originally requested. NRDC argues that, inasmuch as the pending motion to modify the Decree merely amounts to a settlement of the plaintiffs' attempt to enforce relief already granted, the authorities cited above are not applicable. Because the court concludes that two of the four original controversies survive under the intervenors' theory, it need not reach the question of the legal soundness of that theory. 7. The intervenors also claim that notice-and-commentrule making is required because these procedures are followed by the Department of Justice in approving antitrust consent judgments. The Justice Department's practice, however, is mandated by statute. 15 U.S.C. § 16(b) (1976). Moreover, as EPA points out, settlements in the antitrust area have direct, immediate, and substantial effect upon the parties and the public, unlike the preliminary actions authorized by the Settlement Agreement in this case. 8. The court finds without merit the intervenors' further contention that the negotiations between NRDC and EPA leading to the joint modification contravened the notice-and-comment requirement set forth in § 101(e) of the Clean Water Act, 33 U.S.C.A. § 1251(e) (1978), and its implementing regulations, 40 C.F.R. part 105. The proposed modification does not constitute "any regulation, standard, effluent limitation, plan or program" within the compass of § 101(e). Further, the court is unpersuaded that EPA's actions in agreeing to the proposed modification failed to comply with the requirements of Executive Order No. 12044, 43 Fed. Reg. 12661 (March 24, 1978). That Order requires regulatory agencies to provide an opportunity for public participation in the development of "significant regulations." Id. at 12662. The intervenors concede that the draft modification itself does not establish regulations, but apparently argue that, insofar as the proposed modification obligates EPA to follow specified procedures in developing regulations, the public participation requirements of the Order apply to the ageny's actions. This extension of the public comment requirement urged by the intervenors has no warrant in the language of the Order and, in the court's view, is not necessarily inferrable from it. 9 ELR 20176 | Environmental Law Reporter | copyright © 1979 | All rights reserved |