ELR Citation: ELR 20538
No(s). 86-4877 (5th Cir. Feb 10, 1988)

The court holds that the Environmental Protection Agency (EPA) may impose conditions in defendant's national pollutant discharge elimination system (NPDES) permit regulating internal waste streams that discharge into treatment ponds at defendant's plant. EPA had denied defendant's application for a permit modification deleting these conditions. The court first holds that its review of modification denials is narrower than its review of permit issuance. The Federal Water Pollution Control Act (FWPCA) sets a time limit for seeking permit review, and a petition for modification does not provide a second chance for full review after that limit expires. Since defendant petitioned for modification on grounds of "technical mistakes" or "mistaken interpretations of law," the court will only review the permit for such errors. The court next holds that its review of modification denials is more deferential to EPA than its review of permit issuance. Modification is not a way for dischargers freely to relax effluent limitations, but a way for EPA to correct routine errors or respond to changed circumstances. EPA is not required to modify any NPDES permit, and defendant bears a heavy burden to show that EPA's discretionary denial of a modification should be reversed.

The court next holds that EPA's rule authorizing regulation of internal waste streams is not a mistaken interpretation of law. Although another EPA regulation states that treatment ponds are not waters of the United States, EPA views the internal waste stream rule as an exception to this exclusion. The court holds that it must defer to the Agency's reasonable interpretation of its regulations. Moreover, invalidating the internal waste stream rule would unreasonably restrict EPA's power to regulate pollution under the FWPCA. It is sometimes necessary to regulate internal discharges in order to control final discharges. The court thus holds that regardless of whether internal waste streams are waters of the United States, the internal waste stream rule falls under EPA's power to promulgate regulations necessary to control discharges into waters of the United States. The FWPCA authorizes EPA tomonitor waste streams at any locations necessary to determine whether a person is violating an effluent limitation, and to impose permit conditions to assure compliance with effluent limitations. The court therefore holds that the internal waste stream rule is justified by EPA's responsibility to measure and control effluent discharges. End-of-pipe monitoring is sometimes ineffective because treatment dilutes some pollutants to less than measurable levels, and the FWPCA's goal is reduction, not dilution, of pollutants. The court also holds that the internal waste stream rule is justified by EPA's responsibility to monitor and enforce the effectiveness of treatment technology. EPA cannot assess the effectiveness of a treatment process unless it knows the water's pollutant contents both before and after treatment. The court further holds that EPA's decision that it was impractical to assess defendant's compliance with effluent and technology standards by measuring pollutants only at the final discharge point, and therefore that it should apply the internal waste stream rule to defendant's plant, was not a "technical mistake." "Technical mistakes" include only calculation errors, clerical errors, computer errors, and the like. Expanding the term to cover EPA findings of fact such as determinations of the impracticality of measurement at final discharge points would allow judicial review of EPA's scientific determinations after the permit review deadline. Since EPA's findings of fact are not relevant to defendant's application for modification, the court holds that it lacks jurisdiction to review those findings. Finally, the court holds that it lacks jurisdiction to review alleged procedural deficiencies in EPA's application of the internal waste stream rule to defendant's plant because procedural deficiencies are not grounds for modification.

[A related opinion is published at 16 ELR 20939.]

Counsel for Petitioner
Paul G. Gosselink, Leslie E. Barras
Lloyd, Gosselink, Ryan & Fowler
Suite 1100, 815 Brazos, Austin TX 78767
(512) 472-4551

Counsel for Respondents
Brian Faller
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2308

Before WISDOM, GEE, and CAROLYN DINEEN KING, Circuit Judges.