ELR Citation: ELR 20984
No(s). 89-1499 (D.C. Cir. Jun 22, 1993)

The court upholds a U.S. Environmental Protection Agency (EPA) regulation that requires national pollutant discharge elimination system (NPDES) permit writers to use one of three mechanisms to translate "narrative" water quality criteria into chemical-specific effluent limits. The court also upholds EPA's definition of "applicable standard," which includes numeric and narrative criteria standards, requires states to develop individual control strategies (ICSs) to reduce point source discharges to streams when a state does not expect those streams to meet either numeric or narrative criteria standards.

The court first addresses the regulation affecting the mechanism by which NPDES permit writers translate "narrative" criteria. Section 301 of the Federal Water Pollution Control Act (FWPCA) requires that NPDES permits contain discharge limitations sufficient to assure that a receiving waterway satisfies water quality standards. Water quality standards comprise designated "uses" for a body of water and a set of "criteria" specifying the maximum concentration of pollutants that may be present in the water without impairing its suitability for designated uses. Criteria are either specific numeric limitations or more general narrative statements applicable to a wide set of pollutants. Permit writers have alleged problems using narrative criteria in determining what limitations on effluent discharges are necessary to assure that waterways meet the general narrative statements requirements. Therefore, EPA promulgated a regulation that requires NPDES permit writers to establish effluent limits in one of three ways: from narrative criteria by deriving numeric criteria from proposed state numeric criteria, or explicit state policies or regulations interpreting narrative criteria; EPA-recommended numeric criteria, supplemented where necessary by relevant information; and/or limits on the discharge of an indicator parameter.

The court upholds EPA's regulation addressing the narrative criteria, because the regulation seems to provide an eminently reasonable means of effectuating both the intent of the previously adopted narrative criteria and Congress' intent that all state water quality standards be enforced through meaningful limitations in individual NPDES permits. The regulation merely requires that permit writers engage in the task of permit writing to create chemical-specific limitations on discharges of pollutants and gives those writers three tools with which to do this work in a fairly regularized fashion. The court finds that the regulation's inclusion of an interpretive mechanism that uses the recommended federal criteria only as a starting point does not alter the statutorily created balance of state and federal power by which states have the leading role in creating water quality standards. The court rejects the petitioners' argument based on federal concerns that in several states where the federal government runs the NPDES permit program, a federal permit writer is now charged with interpreting the state standard, because the state's ability to deny certification ultimately assures that it can insist that its standards are accurately interpreted by federal employees. Finally, the court rejects the petitioners' argument that FWPCA §303(c)(2)(B), a 1987 amendment that requires states to formulate numeric criteria for certain priority toxic pollutants, would not have been necessary if Congress believed that EPA had the authority to interpret preexisting narrative criteria into numeric criteria. The Agency's initiative is a preeminent example of gap-filling in the interest of a continuous and cohesive regulatory regime in a way that is both reasonable and consistent with both Congress' long-standing directive that permits contain limitations necessary to meet all water quality standards and its more recent preference for numeric criteria, as indicated in §303(c)(2)(B).

The court also upholds EPA's definition of "applicable standard," which expands the number of standards applicable to the ICSs that a state is required to develop to include not only numeric standards, but now narrative standards, even after technology-based requirements are met. ICSs are intended to reduce point source discharges to streams that a state does not expect to meet numeric or narrative standards due to point source discharges. The court finds that EPA's broader construction of the term "applicable standard" to include both numeric and narrative standards is reasonable. There is no evidence in the text, history, or amendments of the FWPCA that Congress was concerned only with violations of numeric criteria, and the term may plausibly be interpreted to include all standards that apply to state waters, including those standards that contain narrative criteria.

Counsel for Petitioners
Russell S. Frey
Chadbourne & Parke
1101 Vermont Ave. NW, Washington DC 20005
(202) 289-3000

Counsel for Respondent
Michael A. McCord
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before WALD, BUCKLEY and WILLIAMS, Circuit Judges.