6 ELR 20485 | Environmental Law Reporter | copyright © 1976 | All rights reserved

American Frozen Food Institute v. Train

No. 74-1464 (D.C. Cir. May 11, 1976)

ELR Digest

Petitioners attack on a broad front the EPA Administrator's actions in promulgating regulations setting national effluent limitations for the potato processing industry under §§ 301, 304 and 306 of the Federal Water Pollution Control Act Amendments of 1972. After detailed consideration of petitioners' claims, the court holds that it has subject matter jurisdiction and that the Administrator's interpretations of the statute are valid. By enacting the FWPCA Amendments of 1972, Congress embarked upon a wholly new approach to water pollution control. The statute ultimately imposes a flat prohibition upon all pollutant discharges, and establishes a complex regulatory structure designed to achieve that goal by gradually decreasing discharge levels through the imposition of effluent limitations to be met in 1977 and 1983. After summarizing the skeletal structure of the Act, the court examines the legislative history in order to determine the proper interrelationship among §§ 301, 304, 306, 309, 402 and 509. This review of the language and structure of the Act and its legislative history leads the court to the tentative conclusions that (1) § 301 is the fundamental control section of the Act and contemplates national standards of effluent limitation (rather than individual plant standards); and (2) exclusive review of § 301 effluent limitations lies in the various courts of appeals by virtue of § 509 of the Act.

Amici curiae chemical and oil industries argue that the statute does not give the Administrator authority to issue nationwide effluent limitations under § 301, and that the challenged regulations were instead issued as guidelines pursuant to § 304. As such, they contend, the regulations are not subject to exclusive court of appeals review under § 509. CPC International v. Train, 515 F.2d 1032, 5 ELR 20392 (8th Cir. 1975). This view is mistaken because it ignores the fact that § 301 is the basic enforcement mechanism relied upon by Congress. That section requires effluent limitations, and the drafters' intent that the Administrator promulgate such standards is made clear by § 509. Furthermore, § 501(a) gives the Administrator wide authority to issue such regulations "as are necessary to carry out his functions under the Act." Giving effect to the argument advanced by amici and CPC International would effectively emasculate the Act by defeating the plainly expressed congressional purpose of requiring nationally uniform limitations upon like sources of pollution. Because the interpretation sought by amici curiae contradicts clearly expressed congressional intent, the court rejects the no jurisdiction holding of the Eighth Circuit and joins the Third, Fourth, Seventh and Tenth Circuits in holding that the United States courts of appeals have jurisdiction to review the actions of the EPA Administrator. American Iron & Steel Institute v. EPA, 526 F.2d 1027, 6 ELR 20068 (3d Cir. 1975); DuPont v. Train, 528 F.2d 1136, 6 ELR 20117 (4th Cir. 1975); American Meat Institute v. EPA, 526 F.2d 442, 6 ELR 20029 (7th Cir. 1975); American Petroleum Institute v. EPA, 526 F.2d 1343 (10th Cir. 1975). The court also concludes that EPA's fusing the requirements of §§ 301 and 304(b) into one set of regulations represents a permissible interpretation of the Act, and does not require that the regulations be invalidated. Train v. Natural Resources Defense Council, 421 U.S. 60, 5 ELR 20264 (1975).

In addition, the court holds that the Act does not require the Administrator to set "guidelines" and "effluent limitations" for individual plants rather than nationally effective effluent standards, that the Administrator was not prohibited from relying on two Canadian plants in establishing the $304 guidelines and the § 301 effluent limitations, and that he adequately considered the economics of particular pollution control measures as applied to the potato processing industry in complying with the requirements of § 304. The 1983 standards for fecal coli represent an abuse of discretion, however, and must be remanded to the agency because inadequate opportunity was allowed for public comment. The court upholds the remaining § 301 effluent limitations for existing and new sources against petitioners' various challenges. The technological and economic studies upon which these standards are based are neither faulty nor inadequate. Nor were the limitations required to be stated as ranges rather than as single numbers. And finally, the court holds that the variance provision in the regulations can adequately accomodate any unavoidable variability in the operation of waste water treatment facilities.

The full text of this opinion is available from ELR (69 pp. $8.75, ELR Order No. C-1041; with appendices, 122 pp. $15.50, ELR Order No. C-1014(A)).

Counsel for Petitioners
Edward Brown Williams
Jeffrey Lee Greenspan
Jan Edward Williams
Harter, Calhoun & Williams
423 Washington Bldg.
Washington DC 20005
(202) 628-3733

Counsel for Respondents
Edmund B. Clark
Martin Green
Joan M. Cloonan
John E. Varnum
Department of Justice
Washington DC 20530
(202) 739-2748

Pamela Quinn
Robert V. Zener, General Counsel
Environmental Protection Agency
Washington DC 20460
(202) 755-2500

Counsel for Amici Curiae Union Carbide Corp. et al.
Robert C. Barnard
Charles F. Lettow
Cleary, Gottleib, Steen & Hamilton
1250 Connecticut Ave., NW
Washington DC 20036
(202) 223-2151

Counsel for Amicus Curiae Natural Resources Defense Council, Inc.
Edward L. Strohbehn
Natural Resources Defense Council
917 15th St., NW
Washington DC 20005
(202) 737-5000

Edwards, J., for himself, Bazelon, C.J. & McGowan, J.


6 ELR 20485 | Environmental Law Reporter | copyright © 1976 | All rights reserved