Maier v. United States Environmental Protection Agency

arrested, Gallegos was not the officers did probable justify need cause to their ac-

tions.8 Sergeant Lofgren and Are Officer

C. Qualified Entitled to Immu-

Santos

nity for their Actions? Gallegos we have

Because determined deprived rights

was his Amendments,

Fourth and Fourteenth we qualified not address the immu-

need issue of

nity.

IV. CONCLUSION reasons, foregoing hereby

Based we

AFFIRM the decision of the court. district MAIER, P.E.;

Peter Intermountain Water

Alliance; Legal Atlantic States Founda-

tion; Kay Henry, Petitioners,

UNITED STATES ENVIRONMENTAL AGENCY;

PROTECTION Carol Brown-

er, Administrator, United Envi- States Respon- Agency,

ronmental Protection

dents.

No. 95-9525.

United States Court Appeals,

Tenth Circuit.

May stances, subjective not the intent of officers in- 8. Because find the arm bar maneuver volved). Here, totality subsequent Gallegos take-down of Mr. based based on the of the cir- was perceived cumstances, on a reasonable safety, threat to the officer’s we conclude the detention Mr. procedures satisfy we conclude these Gallegos Terry stop valid that did not prong supra, Terry inquiry, p. second see escalate into an arrest. 88 S.Ct. and were reasonable under the Fourth Amendment. chemical, physical,

store and maintain biological integrity of the Nation’s wa by reducing eventually ters” eliminating discharge pollutants. 33 U.S.C. (a)(1). 1251(a), § “[T]he basic structure of ... Congress’ [CWA] translates broad goal eliminating discharge pollu ‘the navigable specific tants into the waters’ into requirements by that must be met individual point sources.” EPA v. National Crushed Ass’n, 295, Stone 449 U.S. 101 S.Ct. (1980) 300, (quoting 66 L.Ed.2d 268 33 U.S.C. (citations 1251(a)(1)) omitted). § “point A discernible, “any source” defined as con Kenna, Durango, Matthew Gilbert Colora- conveyance fined and discrete ... from do, for Petitioners. pollutants discharged.” which Lipshultz, Jon M. Environmental Defense 1362(14). § prohibits 33 U.S.C. The CWA Section, Environment and Natural Resources discharge pollutant any point from a Division, (Lois Department U.S. of Justice J. discharge complies source unless that Schiffer, General, Attorney Assistant requirements. the CWA’s 33 U.S.C. Sweeney, Division, Stephen J. Water U.S. 1311(a). § Compliance can by be achieved Agency, Environmental Protection with him obtaining a Discharge National Pollutant brief), Washington, D.C., Respon- (NPDES) System permit, pursu dents. Elimination § ant to 33 U.S.C. which establishes SEYMOUR, Judge, Before Chief technology-based controls and ensures com *, LUCERO, Judges. ALARCON and Circuit pliance quality with state or federal water 1311(b)(1)(C). SEYMOUR, Judge. § standards. 33 U.S.C. Chief permits generally These quantitative contain Maier, Appellants Peter the Intermountain specified pollutants limits on the amounts Alliance, Water the Atlantic Legal States Foundation, discharged. generally See Okla the Utah Wilderness Associa- tion, Kay Henry1 EPA, (10th petitioned the Envi- homa v. F.2d 597-98 (EPA) Agency ronmental Protection to initi- Cir.1990), nom., grounds rev’d on other sub ate under the Clean Water Act Oklahoma, Arkansas U.S. (CWA), §§ 33 U.S.C. 1251-1387. Maier 1046, 117 L.Ed.2d 239 developments contended recent in mu- nicipal varying The CWA mandates technology standards of wastewater have rendered the EPA’s technology-based treat- treatment as minimum inadequate, ment and therefore the EPA requirement categories point for different promulgate must new The EPA standards. §§ sources. 33 U.S.C. 1314. Under petition, appealed denied the and Mr. Maier point section “effluent limitations for to this court. We affirm. sources, publicly other than owned treatment require application works ... [POTWs]

I. practicable best control A. currently available as defined the Admin- 1311(b)(1)(A). contrast, § Id. By istrator.” We with an start overview of the relevant statutory scheme. The CWA “to requires publicly aims re- the same section “for owned * Alarcon, The Honorable Arthur L. Senior United 1. The Utah Wilderness Association was dismissed Circuit, sake, Judge Circuit sitting appeal. States for the simplicity’s Ninth from this For we shall by designation. petitioner. only to refer Mr. Maier removing pollu- biological concerned with works ... effluent oxygen tants which affect the content of Id. upon based treatment.”2 Healthy wastewater. waters contain dis- 1811(b)(1)(B). may supplement The EPA oxygen upon solved which flora fauna using individ- requirements the minimum rely, biological pollutants “demand” and stringent “any more permits impose ual oxygen. The consume this rate necessary quali- ... meet water limitation oxygen is measured dissolved consumed 1311(b)(1)(C). When ty Id. standards.” parameter oxygen called “biochemical de- provisions, Congress first these enacted (BOD). actually mand” BOD measures the requirement pub- phase in a intended to components depletion oxygen effect of two “best licly works utilize owned treatment which, testing, disaggre- proper can be technology,” a practicable treatment waste regula- gated: and The EPA’s CBOD NOD.3 than stricter standard tions for standard treatment have 1311(b)(2)(B) (1973); also see 33 U.S.C. always BOD, in particular focused 92-414, (1972), reprinted 43 No. S.Rep. control of CBOD.4 3668, (“Publicly- 1972 3709 U.S.C.C.A.N. meet sec- systems must owned treatment Initially, testing required the EPA I requirement of Phase ondary treatment five-day BOD a standard test of overall and, II, requires the in Phase the mandate levels, the so-called test. BOD See BOD5 treatment____”). In practicable best But EPA rec. at 121-22. became con- however, general Congress repealed this re- produced test cerned that erro- BOD5 quirement and limited stricter standard quality. of neous indications effluent Sec- federally-funded Municipal to POTWs. ondary existing technology5 treatment with Grant Treatment Construction Wastewater operating under some conditions could lead No. of Pub.L. Amendments (NOD), to nitrification and inflat- increased 1623,1632 21(b), 95 Stat. values, producing despite ed effluent BODb quality than with lower

of better facilities Id.; Secondary Treatment Informa- BOD5. B. 52,275-6. tion, 52,272, Fed.Reg. In 48 a treatment, rulemaking, EPA Secondary which is the basic 1984 addressed the POTWs, revising regulations to principally problem by its allow requirement for all is organisms oxygen generally use to to a when die and other 2. treatment refers they Secondary pro- biological consume them. treatment cess physical to wastewater remove pollutants deplete goal Controlling main 4. CBOD has been the oxygen increase its acidi- water's content and wastewater treatment both EPA, secondary municipal generally City Sarasota See ty. greater is a much because CBOD prob- usually Cir.1987); (11th Natural 1108 n. F.2d than NOD and because lem development Council, EPA, Inc. v. F.2d Resources Defense high technology address levels of to effectively (3d Cir.1986). 2n. 289, 293 lagged that used to reduce NOD has behind Information, CBOD. Treatment Secondary oxygen demand Carbonaceous biochemical (1983) Fed.Reg. (proposed 52,275 Nov. 52,272, (CBOD) oxygen "the con- amount quantifies 1983). microorganisms in metaboliz- sumed various ago, a decade scientific commenta- More than (carbon) ing organic wastewater,” matter in the was meant to tors as to whether NOD speculated nitrogenous oxygen demand while biochemical of BOD. See rec. at be as controlled component (NOD) oxygen other measures “the consumed by significant (“Although can occur nitrification converting ... ammonia of bacteria types effluents, test for much in the BOD5 as nitrate, known nitrite and then to process 30-mg/L debate centers on whether BOD5 Treatment Informa- nitrification.” Secondary EPA, was intended standard, as defined by (1983) (pro- Fed.Reg. 52,272, 52,274 tion, oxidation, or also include carbonaceous any 1983). NOD can also be referred Nov. posed might nitrogenous exerted in oxidation that NBOD, as Maier does. Mr. test.”). the BOD5 NOD, and refer “Nutrients" are related did not include feed. Ox- materials which certain bacteria 5. Standard upon ygen controls on NOD. consumed when these bacteria respire, authority require BOD5, permitting inadequate facilities were because new second- ary specific a more employ measure made feasible and cost-effective to control both CBOD general than the CBOD rather test NOD. did not controvert that con- Secondary Regulation, Treatment BOD. See trolling NOD now feasible cost- 36,986, 36,988-90, 36,998-99 Fed.Reg. (but all) POTWs, effective for some (to 133). (1984) pt. C.F.R. codified emphasized that impact highly NOD effect, recognized can NOD dependent upon variable and such factors as significant component constitute of BOD temperature and rate flow of receiving levels, measuring but concluded that view, body. water In the EPA’s this varia- might some cases distort rather than en- bility justify regulatory continues to deci- quali- hance accurate assessment of effluent generally-appli- sion control CBOD with a ty- regulation, eable but to control NOD on a During par- rulemaking, commenting ease-by-case through basis the permitting ties, Maier, including suggested that sec- process. Consequently, the EPA denied Mr. ondary ought directly petition. treatment standards Maier’s Mr. Maier filed the instant petition for review in pursuant address NOD or ultimate BOD.6 id. this Court See 1369(b)(1). § 36,999; concluded, 33 U.S.C. 297. rec. at The EPA however, that quite NOD levels were varia- inappropriate

ble were therefore as a II. generally-applicable criterion for standards. The maintained that NOD be would juris We first determine whether have ease-by-ease better with on a in dealt basis Although parties agree diction. both that we permitting. Secondary NPDES Treatment jurisdiction, have parties “no action of the 36,999; Regulation, Fed.Reg. at at rec. subject-matter jurisdiction can confer upon a The EPA 297-98. therefore characterized Ireland, Corp. federal court.” Insurance of a form as of treat- controls “advance Compagnie Guinee, v. Ltd. des Bauxites de by imposed permit 2099, ment” to be 2104, where neces- 456 U.S. 102 S.Ct. (1982). sary. The EPA impact also noted that total L.Ed.2d 492 indepen have an We (ultimate BOD) duty oxygen jurisdiction. dent to examine our own dissolved level is Behles, (10th Lopez 1497, v. 14 F.3d permitting be considered in the NPDES Cir.), denied, 818, 115 cert. 513 U.S. process. Secondary Regulation, Treatment 130 L.Ed.2d 31 36,999. Fed.Reg. at The EPA’s 1984rule- making appealed was not to the federal Thus, The CWA establishes a regulations

courts. current sec- bifurcated for system judicial of review. Section “con ondary treatment do not establish standards jurisdiction courts, fers on the federal district NOD, for although facility’s an individual appeal, any not courts of to review action permit may impose require- NPDES well alleged ‘where is there failure of the Ad ments for NOD. perform any ministrator duty act or Mr. petition request- Maier filed a Act discretionary this which is not with the ing rulemaking to initiate to set Administrator.’’’ Trustees Alaska v. for parameters for NOD and ultimate BOD EPA, (9th Cir.1984) 749 F.2d (quot part of its regulations. 1365(a)(2)). ing 33 U.S.C. 1369 of Section argued existing regula- “[rjeview Maier that the provides the CWA of the Ad tions, (E) setting parameters only CBOD action ... in approving ministrator’s or 6. sharply levels CBOD tend rise then tured of measurement ultimate BOD. This plateau, disparity while NOD levels apparently recognized increase at a slower been for sev- result, early testing decades, (e.g., rate. As a for BOD eral see rec. at but Mr. Maier days) accurately suggests ignored after five will assess promulgated CBOD it was when EPA CWA, 8; will fail to measure levels to which NOD will under the see id. at see also eventually cap- rise. This rise in NOD would id. review]; premised late that this action is or other any effluent limitation promulgating 1311,1812, upon of the Administrator’s refusal to revise or 1316 section limitation under jurisdictional import. is of no by any standard interested ... be had this title Appeals of in the Court person Circuit Oljato Chapter Id. 659-60. relied both 1369(b)(1).7 33 U.S.C. United States.” legislative history, and on the fact the CAA’s grant in section 1369 jurisdictional v. Petroleum Inst. American exclusive. revision [s]ince a the Administrator is (10th Cir.1975). Train, 1343, 1344 526 F.2d goal the ultimate of a new information EPA’s deni- must determine whether the We appeal, suggest it makes little sense petition to institute al of Maier’s jurisdiction stripped ... court in approving ... an “action constitutes litiga- party attempts to whenever a avoid any effluent limitation other promulgating asking the vol- tion first Administrator limitation,” within the ambit and thus falls untarily a suc- to make same revision 1369(b)(1). section petition require. cessful ... would dealt with District of Columbia Circuit Id. at 660. problem Oljato Chapter Nava a similar (D.C.Cir. Train, F.2d jo Tribe Oljato Chapter, As case 1975), jurisdictional interpreted provi history speaks legislative direct- CWA (CAA) in the Air Act Clean sions ly case hand: previ revise EPA’s refusal to context recognizes that it would Committee pow ously for certain promulgated standards public interest measure CWA, CAA con plants. er As adequacy promulgation all time the permitting citizen suits tained one section regulation any requirement or standard court, id. at brought in federal district be time of information available § (citing n. CAA U.S.C.A. 657-58 promulgation. protec- area of such 1857h-2(a) (b) (1970)), § and another & public tion and environmental of health jurisdiction appeal granting to the courts quality, it is clear that information will new in to of action of the Administrator “review that developed be such information performance, promulgating” id. standards a dictate revision or modification 307(b), § (quoting n. CAA at 657 standard, any promulgated requirement, 1857h-5(b) (1975 pocket part)). § U.S.C.A. regulation under the or established act. Oljato Chapter argued in petitioners section, therefore, judicial pro- review had that an EPA standard been rendered any may challenge any person vides that by changes technology, in and that obsolete promulgation requirement after the date of to rule failure revise the the Administrator’s significant alleged it is new whenever perform failure to a nondiscre “constituted a has become available. information duty, conferring tionary thereby District (1972), S.Rep. jurisdiction.” reprinted The court in Court Id. 658. at 85 No. rejected attempts distinguish Congress petitioners’ to 3751. 1972 U.S.C.C.A.N. judicial original of an rule that the Administrator’s re- plainly “between review intended in modify to the face of subsequent of a refusal fusal to institute review rule,” directly in noting that new information could reviewed or reverse that circuit a court. [wjhile difficulty making the we have no in distinction, suggested language we conclude that an Adminis- Section 1369’s about approving promul- in Congress all review related to the “action ... intended trator’s validity perfor- arguably continuing gating any ... limitation” does of standards pro- apply to Administrator’s refusal within the exclusive mance be included in the instance. We appel- mulgate a rule first scope providing of [the section of 1972. 7. 1369 codifies Section 509 Feder- Section (Clean Act) al Water Control Act Water Pollution Oljato Chapter, Moreover, in

agree with the court how responded if EPA had ever, challenge to the refusal to revise a petition by promulgating Maier’s a in face new a rule information is more rule, jurisdiction revised exclusive for review challenge existing akin to a rule than a Appeals. in would lie the Court of The fact promulgate challenge the refusal to a new that the EPA declined act does not de essentially rule.8 Mr. Maier is chal Because jurisdiction, prive us of for we have exclusive sufficiency lenging the EPA’s second jurisdiction “petitions over to compel final ary regulation, we have no difficul agency only action which would be reviewa ty construing a challenge this as to an “action Appeal.” ble the United States Courts of approving promulgating” under section NRC, See Environmental Fund v. Defense petitioners’ challenge 1369. Where is to the Cir.1990).9 (10th 902 F.2d This rule regulation a substance of already jurisdiction appellate ensures that an promulgated, court will review exclusive appeals may the court not be evaded the Administrator’s decision whether the ulti merely by styling claim as one for failure challenge mate is to a failure revise or to a P. to revise. Currie, David Air Pollu Cf. juris decision to revise.10 Because exclusive Analysis 9.10, tion-. Federal Law and regulations diction to review the substance of (“In (1981) short, allegations 9-31 that the finally promulgated lies Administrator has failed to take action re jurisdiction Appeals, Courts of we have quired by permitted statute should not be compel revisory rulemaking agen unless the plain statutory circumvent the command cy’s failure falls within that class of nondis judicial respecting imple review of decisions cretionary jurisdiction duties for which plans mentation other is to granted to been the district court. appeals____”). the courts “Absent expression intent, congressional far clearer This not a ease which could have been unwilling we are to read the CWA as creat brought in district court aas citizen’s suit ing such seemingly irrational bifurcated under section 1365. Such a suit lie system.” Simpson Costle, Pulp Crown Co. v. perform nondiscretionary for failure 193, 196-97, 100 445 U.S. duty. U.S.C. The instant case is (1980) (rejecting attempt L.Ed.2d 312 to dis unlike others in which circuit have courts tinguish challenge to EPA veto of a state jurisdiction declined to find section in permit challenge a 1369 from to EPA of issuance a permit). promulgate the face of the to EPA’s refusal 8.We Natural Resources filed the entire administrative reviewable under plete promulgated.” We also note that review was fense compilation of a new administrative court."). administrative substance is listed no 519 omission of certain substances” and ”[u]nless a fy” as a result of new the face of new information. 782 F.2d at 655-56 (D.C.Cir.1975), der review.” ceeding ... distinct from that case involved the diction under section Corp. v. "to remedy sought conduct a possible F.2d Council, note EPA, at 291 that because neither case had a com- Likewise, 782 F.2d Inc. v. new, two courts have review was ("[T]he continuing validity Defense section was "not to rescind or modi- follow-on record. Bethlehem (review Train, standard in Natural 1369; however, 645, information, Administrator had not Council, ^[1369] 519 F.2d 656 In Bethlehem Steel sought "will record with the rulemaking eschewed (7th Cir.1986), Resources will Inc. v. require of a prohibition but rather [was] record”); 287, ever neither rule Train, juris- Steel, "the pro- 291 De- un- be in 10. Prudential 2 submit functions and there is no Federal ing complete for “[u]nlike other actions in which the district peals actions, ed. non-discretionaiy duty court serves the irrelevant. The CWA confers district courts furcated tal Although Steven Defense 1992) (citation omitted). issues,' have the issues to two-tiered Standards discretionary, system Alan jurisdiction. Fund v. NRC did in concerns record and many Childress important of Review duties. Where the judicial for the failure to already appeals scheme in Environmen- here, ‘defining functions of & practical review, has fulfilled those 14.03, jurisdiction Martha not contain of administrative judicial to courts and at 14-19 reason to S. contrary, review.” focusing develop- perform alleged fact on the Davis, (2d ap- bi- is

1039 have all, by a 1365.12 We therefore hold to do so tion or its failure jurisdiction case sec over the instant example, in by law. For set date certain tion 1369. consid Alaska the Ninth Circuit Trustees for totally failed the EPA had a claim that

ered regulations for the specific III. promulgate notwithstanding a re placer mining industry A. so, Congress to do and quirement from individ setting effluent instead ini agency’s review an We refusal Alaska, permits. ual Trustees NPDES rulemaking revisory if the tiate to determine “arbitrary, capricious, court determined 749 F.2d 558. The refusal was discretion, or not in an abuse of otherwise of the EPA’s this claim was “framed terms 706(2)(A); 5 accordance with law.” U.S.C. nondiscretionary comply with a failure to EPA, 595, v. F.2d 598 see Oklahoma 908 rules,” id, industry-wide duty promulgate (10th Cir.1990), grounds sub rev’d other brought required and was therefore Oklahoma, 91, v. 503 nom. Arkansas U.S. 1365, id. at 558- court under section district (1992). Al 117 239 112 S.Ct. L.Ed.2d Armco, EPA, v. 869 F.2d Inc. 59. See also though inquiry into our the basis of the Cir.1989) (6th (disclaiming juris 975, 981-82 careful, searching will agency’s action perform EPA had refused diction where ultimately a narrow our review is one. See nondiscretionary propose responsibility Park, to Preserve Overton Inc. v. Citizens sludge management regula comprehensive 814, 823-24, Volpe, 401 U.S. tions); Dep’t Re Pennsylvania Envtl. L.Ed.2d 136 Review under the (3d EPA, Cir. v. 618 F.2d sources “arbitrary capricious” standard “encom 1980) jurisdiction over (declining section range passes levels deference compel perform EPA to nondiscre suits to agency.” Ass’n American Horse Protection duty per tionary promulgate (D.C.Cir.1987) new source Lyng, 812 F.2d v. (AHPA) WWHT, FCC, post-mining (citing v. applicable formance standards Inc. (D.C.Cir.1981)); cases, Brown F.2d accord EPA had discharges). In these Servs., Secretary Health Human all. disputed regulations failed issue (1st Cir.1995). determining In F.3d case, EPA has both issued the instant deference, we heed appropriate level regulations, Mr. Maier revised its challenged the nature and context of by de it has abused its discretion contends agency action inaction.13 light clining again to initiate agree parties new information. Both prudential concerns Substantial discretionary.11 timing any revision in the particularly broad deference counsel not the EPA has Mr. Maier does contend agency an to review of refusal context of nondiscretionary comply with a failed to rulemaking. The D.C. Circuit has initiate that, range duty, and a district court could thus within the repeatedly observed “arbitrary jurisdiction embodied his claim under sec- of deference exercise over 831, 821, Chaney, Oljato duly v. U.S. 105 Chapter Heckler 470 dicta that a 13.In 11. We note the 1649, 1655-56, (1985), the 84 L.Ed.2d 714 S.Ct. regulations to “from time under the CAA revise agency Supreme Court decided that refusals discretionary is was rendered obsolete time” specific presump- are take actions enforcement mandatory duty imposing revision a However, tively APA. unreviewable every years. five See Envi- to review expressly the level of defer- Court did not address Thomas, v. 870 F.2d Fund ronmental Defense agency to initiate when the refuses ence due 892, (2d Cir.1989). 896-97 2, rulemaking. 1652 n. Id. at 825 n. 105 S.Ct. at Chaney has 2. The D.C. Circuit held noted, Oljato Chapter the limit- 12. As court apply presumption to initiate does not to refusals jurisdiction granted court would to the district AHPA, ed rulemaking. at 4-5. See also 812 F.2d Sunstein, an of discretion be rendered boundless if abuse Agency Reviewing Inaction Cass R. Af- 653, perform a a "failure to 680- Chaney, were considered v. 52 U.ChiL.Rev. ter Heckler (1985). nondiscretionary (empha- agrees act.” at 662 its refusal 515 F.2d 83 The EPA added). rulemaking is reviewable. initiate sis 1040 standard,

capricious” agency refusals to initiate An determination also See, rulemaking challenge high e.g., are at the end. vulnerable if it rests on an FCC, legal predicate. agen insufficient Capital Sys., v. Where the Network Inc. 3 F.3d cy’s (D.C.Cir.1993) rulemaking refusal 1526, implicates to initiate (quoting 1530 AHPA questions statutory interpretation, we use 4-5; citing at 812 F.2d Cellnet Communica- the familiar Chevron test. When we tion, FCC, 1106, review v. Inc. 965 F.2d 1111 agency’s interpretation an of a (D.C.Cir.1992)). statute ill-equipped are Courts administers, “First, questions. we ask two poorly important situated to address question always, is Congress whether has inaction, agency reasons for such as de- directly spoken precise question to the at “problem sufficiently cision that is not im- If Congress clear, issue. the intent of is portant justify signifi- the allocation of matter; court, end of the for the given cant scarce resources the nature of agency, give well as the must effect to the many problems agency other is at- unambiguously expressed intent of Con tempting to 1 C. address.” Kenneth Davis Chevron, U.S.A, gress.” Inc. Natural Pierce, J. & Richard Administrative Law Council, Inc., Resources 467 U.S. (3d 1994). Defense 6.9, at 280 ed. Treatise “A 837, 842-43, 104 S.Ct. 81 L.Ed.2d rarely enough court has information to sec- (1984). But “if the statute is silent or guess agency premised ond decisions issue, ambiguous respect specific to the Id.; type reasoning.” see also Nat- question for the court is whether Council, ural Resources Inc. v. Defense permissible answer is based on a SEC, 1031, (D.C.Cir.1979) 606 F.2d 843, construction of the statute.” Id. at (“An agency’s discretionary decision not Congress S.Ct. If explicitly or regulate given activity inevitably based, implicitly delegated authority an agency, measure, large inherently factors not “legislative regulations given controlling are susceptible resolution____”); judicial weight they arbitrary, capricious, unless (according height- 812 F.2d 4-5 AHPA manifestly contrary to the statute.” Id. at ened refusal deference to initiate rule- 844, 104 S.Ct. 2782. “This deference is a making). product practical both of an awareness of the Nonetheless, will blindly uphold expertise agency normally which an develops, agency refusals to initiate in the a willingness and of to accord some measure “[Cjhanges face of new information. in fac flexibility agency to such an as it encoun legal may impose tual and circumstances ters new problems and unforeseen over upon agency obligation an to reconsider a time.” International Bhd. Teamsters v. explain policy settled its failure to do so.” n. U.S. Daniel (D.C.Cir. FCC, Bechtel v. F.2d 800 n. 58 L.Ed.2d 808 1992). example, For “a refusal to initiate a B. rulemaking naturally special sets off a alert petition sought when a radical modifi Mr. Maier asserts here that the existence cation of a rule on the basis of a radical of new mandates revision of the change premises.” in its factual regulations governing publicly AHPA owned treat- Thus, F.2d at 5. the D.C. Circuit has held ment works. The EPA does not controvert “that an be forced a review effectively. that NOD can now be controlled ing court to institute proceedings question The central appeal is whether a significant predicate if prior factual aof such control must accomplished through (either subject decision on the promulgate the EPA’s generally-applicable standards for rules) promulgate specific or not to secondary treatment, been or whether the EPA WWHT, (describ removed.” 656 F.2d at 819 may continue to the problem address on a ing FCC, (D.C.Cir. Getter 610 F.2d 973 case-by-case through permit pro- basis the 1979)). cess.14 brief, appellate testing 14. In his initial replace oxygen Mr. Maier depletion also for after five argued regulations the days (BOD5) testing EPA must amend oxygen its for ultimate promulgating generally-applieable the effluent argues that EPA’s refusal Maier Mr. for arbitrary capri- POTWs. rulemaking is and initiate new development of the the cious because Congress directly spoken has not to the legal and both the technology has removed precise question of EPA has whether the EPA’s not to predicate of the decision factual discretion to conclude that in reductions Mr. asserts parameters for NOD. Maier set required are not to be achieved NOD “technology-forc- ais that because the CWA limitations, generally-applieable effluent statute, development cost-effec- ing” the imposed permit. The instead be incorporated technology must be new tive plainly delegates to the EPA authori- statute second- generally-applieable the EPA’s into secondary treatment, ty to define and to Alternatively, regulations. he ary treatment generally-applieable regulations promulgate gives if statute the EPA argues that even the We therefore based on definition. must by permit, NOD levels secondary discretion address whether the EPA’s determine in this is not to do so instance regulations “permissible its decision con- supported evidence before the posits the Maier struction” CWA Mr. impermis- consideration of “secondary or is based treat- definition Athough technology there is substantial sible factors. ment” must include to reduce arguments, overlap these we consid- if such between NOD nutrients He argues available and cost-effective. er them turn. by permit EPA’s NOD decision to control step, first we ask Under Chevron’s legitimate policy is not a choice because the spoken to Congress directly “whether requires promulgate gen- EPA to CWA precise question at issue.” 467 U.S. every erally-applicable effluent limitations for 1311 of 104 S.Ct. at 2781. Section pollutant that can be controlled with “second- specifies: CWA disagree ary treatment.” We and conclude regula- that the EPA’s (a) compliance Except [and with this permissible tions are a exercise of its author- any discharge ... other] sections ity under sections 1311 and by any pollutant person shall be unlawful. matter, (b) reject carry objective of an initial we must In out the As order to 1314(d)(1) requires § Maier’s claim that chapter there shall be achieved— secondary treat publish Administrator to can any pollutant that ment (1)(B) publicly works owned treatment That controlled via ..., upon effluent limitations based sec- plainly only that provision mandates ondary by the Ad- treatment as defined time scientific information “from EPA issue 1314(d)(1) pursuant to section ministrator 1314(d)(1) § Compare time.” 33 U.S.C. title____ of this (“The ... publish ... shall Administrator added). turn, § time to ... information ... on (emphasis from time 33 U.S.C. 1314(d) degree reduction attainable provides that Adminis- effluent “[t]he section days treat sixty through application ... publish shall within trator (“the (and 1314(b) ment.”), § with id. Administra from time after October thereafter) information, regulations.”). ... ... publish tor shall time terms chemical, where physi- it is true that reductions amounts of constituents While through cal, application biological pollu- are “attainable characteristics 1314(d)(1), treatment,” § tants, id. degree of on the effluent reduction present duty under through application of second- EPA have attainable 1314(d)(1) 1314(d)(1). pertain publish information ary Aside treatment.” Id. reductions, Oljato, F.2d at ing to those sections the CWA does from cf. treatment,” required “secondary further delimit regulations limiting provision in to issue the Administrator same specifically constrain brief, argument to set his about the need depletion. reply Mr. Maier concedes founded In his parameters argument general for NOD. and is that this cannot stand alone discharges publicly from in POTWs. Maier considered the context of a owned duty-to-publish claim in generally has not advanced treatment works is with concerned case, suspended degradable, and we therefore do not biologically instant solids and question (BOD).” demanding this further. oxygen consider H. materials Rep. appears at 101 It No. delegation statutory As a matter enacted, likely more that when the CWA was practical necessity, the EPA exercises its simply treatment for NOD not techno- given expertise if to determine See, logically e.g., Secondary feasible. Treat- ought to the basis of the standard form “sec- 36,986, 36,988 Regulation, Fed.Reg. ment ondary treatment” defined under section (1984) (to 133) pt. be codified at 40 C.F.R. 1314(d)(1). phrase “secondary The treat- (“Secondary requirements treatment independent an meaning apart ment” has controlling oxygen based on demand due statutory from its context. “Conventional or component organ- to the carbonaceous secondary municipal treatment of waste in- secondary ic material the effluent because biological processes, primarily cludes decom- effectively treatment facilities can remove position, or without with chemical disinfec- organic carbonaceous ... but material tants, organic City to remove wastes.” ammonia.”); consistently not remove Second- Sarasota, phrase F.2d at n. 7. ary Information, 52,- Fed.Reg. Treatment distinguishes stage variegated one in a treat- (1983) (“‘[NJutrients 272, 52,273 ... were system: ment inclusion, specified secondary because There are three levels of wastewater treat- treatment, conditions, normal does not Primary ment. treatment refers to a them.’”) effectively consistently remove physical process sedimentation for remov- (citation omitted). Congress speak did ing Secondary settleable solids. treatment problem confronting prac- us because for physical/biological process refers to purposes yet tical it did not exist. removing pollutants solids and character- biological oxygen ized demand pH. category Given the broad of treat Tertiary processes treatment involves processes ment and technology encompassed pollutants which remove other such as non- by treatment,” “secondary statutory del biodegradable toxics. egation to the Administrator to define sec Council, Natural Resources Inc. v. treatment, Defense ondary imper we do not find it 2; 790 F.2d 293 n. see also EPA Califor- missible for EPA to refuse to extend its (D.C.Cir.1982) nia v. 689 F.2d secondary definition of standard treatment to treatment, (distinguishing secondary advance include controls NOD. EPA has con treatment, secondary and advance waste sistently classified NOD reduction as a form treatment). Although descriptions these required “advanced that treatment” will suggest that NOD and fall nutrients within a by permit necessary protect quali if water general understanding treat- See, ty. e.g., Secondary Treatment Informa ment, they also “secondary demonstrate (1983) tion, 52,272, Fed.Reg. 52,275 (pro has a treatment” broad connotation. 1983) posed (describing Nov. nitrification treatment). legislative history processes “beyond of the CWA also secondary” as guidance offers little agree defini- do not with We Mr. Maier or the “secondary respect tion of technological feasibility treatment” dissent is the argues Congress NOD. The intended criterion the EPA use to determine “secondary “organ- concern treatment” which of the universe of treatment CBOD, depletion, i.e., ic” oxygen ought technologies but not to be stan considered However, Here, NOD and nutrients. supported is far from dard. choice is legislative history clear from the its reasoned consideration of other factors ever expertise distinction was As administering considered. noted lie within its Report, “[secondary the House statute.15 15. The dissent claims the EPA is foreclosed from has used BOD, exercising component. its discretion to exclude NOD from its to control of which NOD is a clear, part definition As treatment because the our discussion I.B how- makes 1311(b)(1)(B), contrary to the The EPA made conjunction statute. has Section 1314(d)(1), promul- provides for the claim that the uncontroverted the effect section limita- generally-applicable effluent gation highly site-specific, and and NOD variable 1311(b)(1)(B) Section appropriate general tions for POTWs. a regulation thus not authority the to determine gives Here, the EPA applicable every POTW. the EPA generally-applicable stringency scope of and approved the States to administer the and on second- that based effluent limitations permit program routinely impose NPDES Thus, ary even if reductions treatment. and nutrient limitations on on POTWs the potentially fall within NOD and nutrients case-by-case by permit. not a basis We are treatment,” “secondary the definition a faced with situation which the EPA gen- promulgate if it should must determine ignore pollutant category chosen to a for these erally-applicable limitations effluent pollutants for which effluent reductions are pollutants. requires The specific statute by secondary attainable limitations for generally-applicable effluent by permit EPA has not substituted control upon secondary treat- be “based POTWs by generally-applicable control effluent for 1311(b)(1)(B) (emphasis ment.” U.S.C. explanation limitation without a reasoned for added). assertion, Contrary to Mr. Maier’s Contrary its choice of method. to the dis- require that not on its face the statute does sought, suggestion, the EPA not sent’s limitations generally-applicable effluent the approve, “general nor do we discretion to might reduced pollutants all address secondary treatment cover define apply we by secondary treatment.16 When the the pollutants those that are —in view of agency an administrative the deference due appropriately regulat- Administrator —more mandates, permissive “[t]he which Chevron regulations generally-applicable via rather ed implies agency statute broad nature ease-by-case quality-based limits.” Dis- than man- selecting appropriate discretion at 1049. The EPA’s discretion is not sent regulation.” Drivers ner of Professional unbridled. Safety, Motor Council Bureau Carrier (D.C.Cir.1983). 1216, 1221 EPA’s 706 F.2d brings us Mr. This to Maier’s second agency position that the statute allows refusal to argument, which is that EPA’s case-by-case on impose limits for NOD parameters for NOD ultimate include through permitting process is basis regulations in its BOD permissible reading of reasonable and arbitrary this instance was nonetheless statute, to we must defer.17 which capricious the refusal was not because supported the evidence was based its under exercise of discretion EPA’s impermissible factors. not circum- a consideration 1311 and 1314 is in these sections manifestly Supreme Court has stated arbitrary, capricious, stances 1311(b)(2)(A) ever, (stating historically that for certain identified parameters have been set BOD rough proxy pollutants At the ... ef- agency for CBOD. “there shall be achieved toxic promul- require limitations were first time the BOD shall fluent limitations ... which gated, component was not of the NOD control application of available eco- the best technologically As the constant- achievable.”). feasible. dissent nomically us, secondary ly technolo- reminds parameter targeted gy-based. The BOD was thus suggests analysis dissent that our of sec- 17. The CBOD, technologi- were for which reductions substitutes our own construction tion 1311 attainable, NOD, cally which re- and not agency. so statute for advanced By technologically ductions attainable. were distinguish doing, the dissent fails to between rulemaking, time a nitrifi- of the EPA’s discretion, must de- we source of developed which al- cation-inhibited test Chevron, termine in the first instance component. lowed for the isolation of CBOD agency’s discre- the basis exercise regulations promulgated approving the The EPA tion, correctly we observes for which the dissent general BOD use of the CBOD test in lieu of the Moreover, supply rationale. our own test. The has never set discrete limitations construing the statute to not avoid component. on the NOD necessary determine that the extent "manifestly contrary face, are not gives less dis- 16. On its the CWA the EPA Chevron, 467 U.S. at 104 S.Ct. point statute.” setting cretion in effluent POTWs. 33 U.S.C. sources other than See Board, arbitrary rule be agency an would Control 426 U.S. S.Ct. (1976). capricious agency 2022, 2024-25, if on fac- the relied 48 L.Ed.2d 578 How- Congress has not intended to ever, tors which effluent limitations for must POTWs be consider, entirely failed to an im- consider secondary upon” “based technolo- portant aspect problem, an of the offered gy, not eo-extensive with it. do not We coun- explanation for its that runs decision agree impermissible with Mr. Maier that it is agency, ter the evidence or is to before EPA for the to consider effects water could not implausible so that it be ascribed quality determining in whether reductions product to a difference in view the attainable new tech- agency expertise. ought nology uniformly imposed on all be Farm, Motor Ass’n v. Vehicle State purpose POTWs. The of the is to CWA Mfrs. Co., Mutual Auto. Ins. 463 U.S. chemical, physical, “restore and maintain the 77 L.Ed.2d 443 The biological integrity wa- the Nation’s equally applicable to an Court’s statement is 1251(a). ters....” The EPA U.S.C. agency’s declining basis for to make rule. statutory language authorizing relies dispute The EPA does not that factual one permitting process impose EPA to use existing predicate regulations of the stringent “more on POTWs limitation[s]” changed feasibility and cost-effective- necessary protect quality. where water —the n technology ness of to control See NOD. 1311(b)(1)(C). U.S.C. We need not deter- (“[A]n WWHT, agency may 656 F.2d at 819 1311(b)(1)(C) directly if mine section autho- reviewing be court to forced institute permitting rizes use of as an alternative rulemaking proceedings significant if a factu- to, for, opposed supplement generally- to a predicate prior subject al of a decision on the applicable effluent limitations.19 fact removed.”). argues ... has been Mr. Maier Congress has, closely related technological feasibility only is crite- section, provided quality-based may rion use determine permitting gap-filling gives as a measure ought treatment controls to be strong support to the EPA’s exercise dele- applicable, generally and which im- be gated authority fill gap where it has posed case-by-case disagree. aon basis. We part concluded that should not NOD agency’s decision control NOD standard treatment. The fact that by permit supported by nutrients is oth- two technology- treatment controls are predicates exper- er factual that lie within its preclude based does not the EPA from decid- first, administering tise in the statute: ing technologically-attainable that certain impact quali- of NOD and nutrients on water necessary appropriate standards ty highly is variable with the characteristics only for some POTWs. We should order water; second, receiving body of the con- develop generally-applicable by permit adequately trol of protects NOD parameters based on the use of technol- new quality necessary. water where Mr. Maier cost-effective, ogy, if even the face dispute premises. does not these factual In- agency’s judgment reasoned that the use of stead, argues legally he the first is a such irrelevant attain- to the consideration, impermissible explicitly and he quality many ment of water standards challenge eschews a second.18 circumstances. Congress Mr. Maier observes intended the Contrary suggestion dissent, effluent limitations in to the the CWA to be technol- ogy-based, approve not based we do not on assessments wa- EPA’s quality. general, agree. ter In “policy prefer- on the naked See based ex rel. quality-based State Water Resources ence for controls rather than California Brief, Reply appends stringent” 18. Maier his materi- dissent that the asserts "more pertaining 1311(b)(1)(C) permit- permits al to the effectiveness of the described in section ting process protecting quality play generally-applicable water from come into where feasible, regulation technologically NOD. We decline to consider this as it material is not or as a presented petition supplement generally-applicable regu- was not in to the EPA for when the agency. inadequate protect quality. consideration lation is water that, argues Mr. Maier even if EPA is applicable limitations.” Dissent generally right retrofitting existing about the uncontro- costs EPA has articulated its 1048. The POTWs, can designed new facilities highly variable verted view greater expense treat NOD no and the receiving body of of water. conditions the the true, EPA should so require. Even if this is particularly is unsuited Consequently, NOD persuaded we are not the failure to so EPA’s regulation, and is generally applicable for a arbitrary capricious. is EPA act or The being dealt appropriately dealt with —and is adequately maintains that is addressed by permit. agree with the dissent We with — plant-by-plant a on basis. Mr. Maier Act amendments creat- that the Clean Water failed to demonstrate that standards stricter statutory technology- in regime which ed a permits pro- in are not in individual effective primary are the mechanism based standards newer, moting building the of these more controlling pollutants. It is a discharge of of Moreover, designs. argument effective this from to the con- presumption far stretch this ignores administering the real envi- costs the its that EPA exercise clusion regu- Promulgating ronmental laws. revised authority filling gaps in the conclude lations necessitates a substantial commitment peculiar pollutants, to their char- certain due agency of limited resources. have “little We acteristics, by across- need not be controlled ability to the available determine resources Contrary dis- standards. to the the-board agency to the or to determine the whether inference, EPA not hold that the sent’s we do problems agency has cho- other to which approach a permit-based a over choose sen to devote its scarce resources are more on technology-based merely standard based important problem or less than the raised in “policy agency’s preference.” petition.” 1 Pierce, & Davis Administra- 6.9, gives lip notion tive Law Treatise The dissent service to the agency, but of deference the deference ease, in hold On the record this we cannot give cramped it is indeed. The dissent would interpretation EPA’s is that the of the CWA Chevron, satisfy imple- “the asserts arbitrary rejection capricious, or that its agency point language menting must some arbitrary in instance is justify policy its conclu- in the statute to capricious. promulgated Since the first here, regulatory the POTW re- sion— it has never under Section gime legitimately depart core can from the required oxygen-depleting pollutants that all public policy of Water Act.” Dis- the Clean by generally-applicable removed means turns the test sent at 1048-49. This Chevron regula- treatment controls. These dissent, rather than defer- on its head: alone; rather, they a do not stand set tions “mani- ring agency’s gap-filling unless performance floor of second- national for the statute,” contrary festly imposes to the Primary terti- ary systems. treatment agency proving its burden function, ary complement treatments their manifestly gap-filling authorized facilities permits and individual statute —in which case it would be unneces- a EPA makes can have stricter standards. sary to invoke the framework Chevron argument a that where NOD is reasoned paradig- are faced with a first instance. We problem, may it addressed in the terms calling for to the matic situation deference permit, points 53% of out that POTWs agency agency: where the statute allows the across major secondary treatment facilities discretion, we should to the to exercise defer country requirements. such now have striking expertise use of pro- at 123. Maier would have Ree. careful balance between broad EPA has impressive evidence that the vide unique problems posed purposes and the irrationally. done so. acted He specific pollutants technologies. convincing showing that the Without more for its has offered a reasoned basis system is municipal nation’s water treatment apply that this balance is to a technolo- belief broken, fix it. the EPA to we will not order some, all, gy-based standard to rather than AFFIRMED. POTWs.

LUCERO, concurring Judge, application Circuit dissenting part. resolution, part and majority’s to the finds extent discretion the EPA’s decision from the I, II, majori- join parts and IIIA of the I upon,” Maj. Op. term “based see 1043 is opinion, respectfully must dissent ty’s premised its own stat construction of the part majority IIIB. concludes that from ute, not the EPA’s. That runs to the counter interpretation EPA’s logic consequently deference and Chevron provisions “permissible” U.S.A, Chevron, judicial agen principle to a core valid under Inc. v. review therefore Council, Inc., cy “If the Resources action. basis stated Natural Defense insufficient, 104 L.Ed.2d 694 may 467 S.Ct. 81 U.S. for its decision agree I cannot for two reasons. supply agency another that the has not itself First, “permissible” interpretation one identi- rely chosen to on.” American Inst. v. Meat majority the in fact fied is not advanced Cir.1975) (7th (citing 526 F.2d EPA EPA. the We cannot defer under Chevron Chenery Corp., SEC v. U.S. agency agency construction the to an when (1947) (“[T]he 1575, 1577,91 L.Ed. 1995 S.Ct. at language not construed the issue. has powerless court is to affirm the administra Second, record, on this the EPA’s construc- by substituting tive action what it considers “secondary tion the term treatment” is not of adequate proper be a more basis. To permissible. While Water Act the Clean propel do so the court domain would into the (“CWA”) gives the Administrator discretion Congress exclusively which set aside for secondary pursuant treatment define agency.”)). Congress the administrative If statute, be the discretion cannot exer- implicitly explicitly gaps left in a in a manner with the cised inconsistent both scheme, statutory requires Chevron us to legislative history and of the stat- structure part defer to reasonable efforts on the of the prior with the own ute and Administrator’s agency gaps through policy to fill those interpretation allowing of the term. In the rule-making, 843^44, see 467 U.S. at quality-based gen- substitution of controls for explicitly and is concerned erally-applicable, technology-based effluent agency’s congres with the construction of limitations, majority allows the language to fill gaps, sional those id. Such regulation pre-1972 clean water return can gap-filling upheld agency’s if the era. including for own rationale its its actions — argue does not itself proper.1 of the construction statute —is 1311(b)(1)(B) language § of 33 U.S.C. —that Reviewing Agency’s denial of Maier’s shall be ... “there achieved effluent limita- briefs, petition, upon secondary its as well as material tions based treatment”— gives accompanying promulgation it discretion to its earlier set effluent limitations through than regula- lower those deemed attainable of amendment treatment majority argues distinguish 1. The that I fail fluent on the basis own of the court's discretion, "the source between Quite ambiguous construction of that term. determine we must in the first instance under implicitly the fact that aside from the EPA has Chevron, agency’s and the basis exercise particular for disavowed construction of the discretion, sup- of its for which ... we statute, absolutely Chevron contains no authori- ply Maj. Op. own rationale.” our 1043 n. 17. approving zation for administrative construc- majority’s untenably distinction is semantic majority manner. The tions in this most that the an because exercise of discretion conceivably upon” can make of the "based lan- Chevron must be based on its claimed 1311(b)(1)(B) guage § is that the administra- former, reviewing of discretion. source In "secondary tive construction of does treatment” majority is bound to court review the latter. particular statutory provision. not violate reviewing independently have would court probably light This view unsustainable in through cognizance root looking statute on its own previous interpretation EPA's gaps agency’s policymaking that the 1311(b)(1)(B). assuming validity, § But even permissibly might majority back-fill. What the majority’s view fails to show that the admin- identify portion ambiguous is to has done an statute, "secondary istrative construction of treatment” language upon” i.e. the the § "based 1311(b)(1)(B), provision agency's does afoul of some other of the not fall defended the fail- promulgate generally-applicable ure to NOD ef- CWA. tions, regulation promulgated pursuant mation suggestion I find from the can no 304(d)(1) FWPCA.”). find reduc- that were she to section Administrator particular pollutant attainable of a tions fact, Agency appears regard In treatment, she would not means Secondary regulation Treatment Information generally-applicable ef- promulgate a need to simultaneously defining secondary treat- Indeed, pollutant. limitation fluent establishing ment and the effluent limitations contrary view of its Agency hold a applicable Fed.Reg. POTWs. See 1311(b)(1)(B) responding discretion. (1976) (as (“Secondary de- treatment petition, Administrator states Maier’s 133) fined in is the 40 C.F.R. minimum level technologies to control NOD con- that were required for all publicly-owned treatment treatment, “[a]ny to be sidered works.”); 49 Fed.Reg. treatment require- revised such (1984) (“The secondary regulation universally applicable to all ments would ‘secondary attaining defines treatment’ as an 301(b)(1)(B) pursuant to section [33 POTWs average quality effluent for both biochemical 1311(b)(1)(B)].” 123-24; A.R. at U.S.C. (BOD 5) demand, oxygen five-day SS (‘Were EPA Br. NOD limita- see also mg/1 days, period 30 in a of 30 an consecutive ‘secondary part made treat- tions to be average quality mg/1 for the effluent 45 ment,’ they apply to all re- would POTWs pollutants period same in a of 7 consecutive conditions.”). gardless of local days, percent and 85 removal of the same Moreover, regulatory history the relevant pollutants period in a of 30 consecutive strongly suggests Agency would not that the days.”). Agency practice has rec- thus never interpret upon” language the “based ognized disjunction obligation a between its 1311(b)(1)(B) depart to to give § it discretion publish attainable under reductions from reductions attainable 1314(d)(1) § promulgate limi- and effluent 1314(d)(1). § in 33 Ef- described U.S.C. 1311(b)(1)(B). § ma- tations under Yet the pursuant limitations are set fluent on POTWs jority’s upon” analysis “based would create regulation, § 40 C.F.R. 133.102. This disjunction effectively and attribute it to Agency Secondary as the which the refers to Agency’s discretion. regulation, consis- Treatment Information Agency claims discre- “considerable 1311(b)(1)(B) tently § cites both ” ‘secondary ... tion define treatment.’ 1314(d)(1) see, statutory authority, § as its Exercising EPA Br. at 27. this definitional (1976), e.g., Fed.Reg. 41 never 37222 discretion, Agency asserts that controls suggested that reductions deemed attainable “simply be on NOD and nutrients should not secondary via treatment need be trans- ” required ‘secondary part of treatment.’ as directly applicable into effluent limita- lated respond- at 25. Id. Were the Administrator Rather, Agency implicitly tions. ing petition regulatory in a vacu- Maier’s Secondary Treatment Informa- viewed um, required might to defer to this simultaneously regulation satisfying tion treatment. definition publication obligations its information both But that not the case. The 1314(d)(1) promul- § limitation under and its always have con- regulations treatment set 1311(b)(1)(B). obligations § gation (BOD), biological oxygen see (1977) (“The trols on demand See, e.g., Fed.Reg. 42 54664 (1973) (defining minimum Fed.Reg. Secondary regulation Treatment Information through level of reduction attainable BOD in terms contains effluent limitations of bio- treatment), application and such demand, logical oxygen suspended solids and entirely “gap-filling” appears consistent with pH municipal which must achieved Moreover, applicable legislative history.2 plants ... in accor- wastewater treatment above, controls, 301(b)(1)(B) conjunction as noted BOD ... dance with section pollu- imposed Secondary Treatment Infor- with on certain other FWPCA. those 92-911, (BOD)." Cong., “Secondary H.Rep. terials No. 92d as considered in the Rule, (1971), publicly-owned Sess., quoted Proposed of a treatment works is context 2d at 101 suspended generally (1983). concerned with solids and Fed.Reg. biologically degradable, oxygen demanding ma- solids, suspended point policy have been to its tants such as defining regarded as sec- administratively quality-based preference for controls rather ondary treatment. limitations, generally applicable than at least pollutants that for do have uniform recognizes that is one of Agency NOD receiving on BOD, impact bodies of water. See being the other components two (or “CBOD”). See, 113-14,123; e.g., also EPA A.R. at see Br. at 19- carbonaceous BOD Fed.Reg. Maier’s may yet good 20. The EPA have for reasons requests Agency petition therefore refusing regulate generally-appli- via apply pollutant to a whose specific controls POTWs, cable effluent limitations broadly within the adminis- restriction falls policy preference quality-based measures understanding of legislative sec- trative and generally-applicable technology-based over course, ondary given Of is not prefer- measures one of them. Such a statutorily-conferred EPA’s discretion to improperly ence construes the CWA. upon sec- achieve “effluent based treatment,” 1311(b)(1)(B), § ondary purpose the EPA Before the stated obliged impose secondary not be Federal Water Pollution Control Act But hav- treatment-based controls NOD. (“FWPCA”) quality was “to enhance the ing oxygen-depleting control of included the our water value of resources to establish compounds general within the definition of control, prevention, policy national treatment, upon it is incumbent pollution.” and abatement of water promulgate EPA explain its refusal to 1151(a) (1970) (superseded U.S.C. NOD and limitations. nutrient (1972)). To Pub.L. 88 Stat. past, princi- In Administrator the the end, pre-1972 legislation employed this the pally explained the refusal to treat NOD quality water pri- ambient standards as the part secondary of controls as treatment as mary pollution mechanism for water control. proceeding impracticality from the such v. ex See EPA rel. State Water California See, 36986, e.g., 49 Fed.Reg. controls. Bd., 200, 202, Resources Control 426 U.S. (1984); Fed.Reg. 48 L.Ed.2d 578 The (1983) (citing supporting documentation for FWPCA, popularly 1972 Amendments to the decision, regulations). Such a if ade- Act, deliberately as the known Clean Water quately by record, supported the is well approach. Prompted by this ended the Sen- within dis- the Administrator’s ate on Committee Public Works’ review denying petition, cretion. In Maier’s program, its FWPCA conclusion that First, points now two factors. effort “the national to abate and control wa- Agency secondary that reiterates treatment every pollution inadequate ter has been carbona- concerned with removal of respect,” S.Rep. reprinted vital organic argument ceous material. This 3668, 3674, Congress in 1972 U.S.C.C.A.N. begs ques- If question. petition Maier’s goal declared the new national of the tions the to non- EPA’s earlier conclusion as discharge program pollutants that “the attainability, Agency explain its should eliminated,” navigable into waters explana- previous continued on its reliance 1251(a)(1). § U.S.C. Consistent with this so, tion. The EPA has not instead done end, technology-based, the CWA substituted insisting any that new information on attain- ability generally-applicable by effluent limitations for submitted Maier “does not estab- (or why quality-based lish suggest) regulatory approaches. even control nitro- water gen phosphorus should be considered Bd., Water See State Resources Control secondary A.R. at 125. treatment.” (“Such U.S. at 96 S.Ct. at 2024 direct discharges restrictions facilitate enforce- require That error would not us alone by making unnecessary ment to work Agency remand to factor were second body overpolluted backward from an of water by deny relied on the Administrator to Mai- petition point respon- which sources persuasive. er’s to determine more It is not. The abated.”). Agency’s secondary which leg- second defense its sible and must be replete interpretation mockery Act is with That makes a history of the islative primacy technology-based regula- for this accorded to the need substitution.3 references language legislative tion plain petition Maier’s ef- denial of EPA’s history of the CWA. In entirely opposite substitution. fects an fact, Congress In construction has itself confirmed that order for an administrative policies underlying exempted the POTWs are not from runs to basic this core counter policy. Congress In to be enacted 33 relevant scheme reasonable U.S.C. Chevron, 1311(h), Administrator, imple- permits § step second basis, case-by-ease menting point language to some on a to relax agency must justify treatment policy requirements in the conclu- for POTWs statute releas- here, ing pollutants regulatory re- into marine waters. the POTW See 33 sion— 1311(h). § If gime legitimately depart can from the core U.S.C. has the discre- tion relied on public policy of the CWA.4 Administrator the Administrator in the (and is) case, passing present provision done so. Her reliance en- 1311(b)(1)(C), tirely unnecessary. which allows Administra- The Administrator could simply biological stringent that the limitation[s]” tor set “more declare standards, pollutants by quality misplaced. meet POTWs that into water release most, “secondary provision allows the marine At Adminis- waters is treatment” policy quality-based pollu- trator limits for because she has made the set choice attainably discharges solely through address such tants cannot be reduced indi- treatment, requirements. supplementa- permit to set vidual NPDES 1311(h), quality-based pollutants already passing Congress effectively ry limits for stat- open regulated by generally-applicable floor ed that such discretion was not to the Bridger It Administrator. Coal Co. Di- based on Cf. rector, general Compensation reasonably cannot be read as discre- Workers’ Pro- Office of (10th Cir.1991) grams, 927 tion to to cover F.2d redefine (statute give interpreted pollutants that are —in the view should be mean- those It appropriately regu- ing provision). to each is not the Administrator —more effect place to to the generally-applicable regulations Agency our offer discretion lated via Congress case-by-case quality-based rather limits. where has not.5 than statute,” traiy accordingly Report accompanying 3. the CWA the invalid Senate 844, technology 104 application I 467 U.S. at S.Ct. at notes: "The of Phase Chevron. upon point is based control 2782. industrial sources technologies publicly for those sources sewage upon owned treatment works is based majority authorizing 5. The that it is not states upon It is not based am- general policy EPA's discretion to exercise quality S.Rep. bient water considerations." 92- generally- quality-based substitute restrictions 414, 3668, 43, limitations, reprinted in 1972 U.S.C.C.A.N. applicable, technology-based effluent added). (emphasis 3710 restricting EPA's but is instead discretion explana a "reasoned cases which it advances assertion, Op. Maj. majority’s placing Contrary tion” for this substitution. See at 1045. to the 4. sug I am not so Nowhere does the CWA obligation on the does not sure. Administrator imperative technology-first Maj. Op. gest that is on its head.” its clear “tum[] Chevron test subject "reasoned to cancellation at 1045. Chevron authorizes Administrator majority explain only explanations." legislative gaps, Nor does to fill when done authorization, why compliance statutory policymaking in the her dis absence of with Here, Chevron, imperative ignore free basis cretion. 467 U.S. at EPA is 843-44. explanations.” gap Di justification chosen of its own See without to fill a "reasoned News, rector, Comp. Newport v. policy Workers' means of a that contravenes the most Office of 1278, 136, 1288, 122, See 514 U.S. 115 S.Ct. 131 fundamental tenet of the CWA. Maislin In dus., Steel, (1995) 116, proposes, ("Every Primary U.S. L.Ed.2d 160 statute v. U.S. ends, 2759, 2770, (1990) but also achieve 111 L.Ed.2d achieve certain means____ by particular withholding power adopt (agency them not have the "does significant grant policy directly governing authority as as the conflicts it, statute”). play language ing right suggesting we have no favorites some Without two."). Finally, majority exempt fails to from the of this between that POTWs are force variability why pollu explain qualitative statutory imperative, regulatory basic the EPA's "manifestly discharges such a ex- regarded tant constitutes “reasoned inaction con must occasions, Agency On a number of

itself that “effluent confirmed America, UNITED STATES upon based treatment” cannot be Plaintiff-Appellee, quality-based fixed reference to consider- (1973) See, Fed.Reg. e.g., ations. (POTW regulation effluent limitation “is to Gwendolyn James B. SACKETT and capabilities

be based on the Sackett, Defendants-Appellants. and not ambient water No. 96-2105. (1976) quality”); Fed.Reg. (same). denying petition, Maier’s Ad- Appeals, United States Court of constraint, ministrator alludes to this see Tenth Circuit. (“[T]he A.R. at 117 definition of technology-based is to be rather May based”), quality ignores than water then explanation. without petition

The denial of Maier’s must be

“based on a consideration of the relevant Park,

factors.” Citizens Preserve Overton Volpe,

Inc. v. 401 U.S. 91 S.Ct. (1971). Here, 28 L.Ed.2d the EPA’s illegiti-

denial is based on one factor that is policy preference

mate —its “reasoned”

quality-based generally-applicable, over tech-

nology-based restrictions —and another that legitimate but unsubstantiated —the nonat-

tainability of NOD reductions.6 I would re- petition Agency

mand the to the for reconsid- light

eration in legal principles. of the correct

See American Horse Protection Ass’n v. (D.C.Cir.1987).

Lyng, 812 F.2d 7-8 planation," types agency expla- what other Maj. Op. can use to define nation would or would not allow for a similar appro- 1042. That is incorrect. Our review is departure public policy from the basic priately given by confined to the reasons the EPA limiting principle, CWA. Without some view, it is hard petition. my for its denial of Maier's majority not to essentially conclude that the only argument the EPA offers that is not "mani- deferring policy preference qual- to the EPA's statute,” festly contrary to the is one based on ity-based standards. technological unsubstantiated claims of feasibili- ty. This should not be contorted to mean that majority technological possible defining states that I view the EPA’s basis for second- feasibility "only ary as the technological feasibility. criterion” that the EPA

Case Details

Case Name: Maier v. United States Environmental Protection Agency

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 28, 1997

Citation: 114 F.3d 1032

Docket Number: 95-9525

Court Abbreviation: 10th Cir.