Appendix — Our Children's Earth Foundation Foundation v. Environmental Protection Agency (No. 08-225)

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OUR CHILDREN’S EARTH

FOUNDATION, and ECOLOGICAL

RIGHTS FOUNDATION; ECOLOGICAL

RIGHTS FOUNDATION,

Plaintiffs-Appellants,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL O.

LEAVITT, Administrator of EPA;

STEVEN L. JOHNSON,

Defendants-Appellees,

ASSOCIATION OF METROPOLITAN OPINION

SEWERAGE AGNENCIES; EFFLUENT

GUIDELINES INDUSTRY COALITION;

THE UTILITY WATER ACT GROUP

(UWAG); NATIONAL

ASSOCIATION OF CLEAN WATER

AGENCIES (NACWA),

Defendants-Intervenors-

Appellees.

No. 05-16214

D.C. No. CV-04-02132-PJH

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted

February 13, 2007—San Francisco, California

Filed May 23, 2008

Before: J. Clifford Wallace, Dorothy W. Nelson, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

COUNSEL

Christopher Sproul, Environmental Advocates, San

Francisco, California, for the appellant.

Sue Ellen Wooldridge, Assistant Attorney General,

Washington, DC, for the appellees.

Fredric P. Andes, Carolyn S. Hesse, and David T.

Ballard, Barnes & Thornburg, L.L.P., Chicago,

Illinois, for intervenorappellee Effluent Guidelines

Industry Coalition.

David W. Burchmore and Jill A. Grinham, Squire,

Sanders, & Dempsey L.L.P., Cleveland, Ohio, for

intervenorsappellees Association of Metropolitan

Sewerage Agencies, now known as National

Association of Clean Water Agencies.

Melanie Shepherdson, National Resources Defense

Counsel, Washington, DC, amicus in support of the

appellants.

Jeffrey Odefey, Waterkeeper Alliance, Tarrytown,

New York, amicus in support of the appellants.

ORDER

The petition for panel rehearing is granted.

The petition for rehearing en banc is denied as moot.

The opinion filed October 29, 2007, slip op.

14215, and appearing at 506 F.3d 781, is withdrawn.

It may not be cited as precedent by or to this court or

any district court of the Ninth Circuit. It is replaced

by the concurrently filed opinion.

OPINION

McKEOWN, Circuit Judge:

In 1972 Congress passed the Clean Water Act

(“CWA” or “the Act”) “to restore and maintain the

chemical, physical, and biological integrity of the

Nation’s waters.” See Federal Water Pollution

Control] Act Amendments of 1972 (Clean Water Act

of 1972), Pub. L. No. 92-500, 86 Stat. 816 (1972)

(codified at 33 U.S.C. § 1251(a)). Central to that

legislation and later amendments is the notion that

pollution discharges would be controlled through

technology-based effluent limitations.

Environmental advocates, Our Children’s Earth

Foundation and Ecological Rights Foundation

(collectively “OCE”), filed this citizen suit under the

Clean Water Act, 33 U.S.C. § 1251 et seg., alleging

that the Environmental Protection Agency

(“EPA” or “the Agency”) has failed to fulfill its

mandate to review effluent guidelines and

limitations in a timely manner and in accord with

technology-based standards. Specifically,

OCE claims that EPA violated its statutorily-

mandated duties by abandoning technology-based

review in favor of hazard based review; neglecting to

identify new polluting sources; and failing to publish

timely plans for future reviews. See CWA § 301(b),

33 U.S.C. § 1311(b); CWA § 301(d), 33 U.S.C. §

1311(d); CWA § 304(b), 33 U.S.C. § 1314(b); CWA

§ 304(m), 33 U.S.C. § 1314(m).'

A technology-based approach to water quality

focuses on the achievable level of pollutant reduction

given current technology, whereas a hazard-based’

approach seeks to identify known hazards or

contaminants in the water and to reduce the

prevalence of those hazards. See, e.g.,S. Rep. No. 92-

414, at 8 (1971), 1972 U.S.C.C.A.N. 3668, 3674-78.

Although these approaches are not mutually

exclusive, OCE claims that EPA jettisoned a

technology-based approach altogether, thus

abdicating its statutory duties.

' Sections of the Clean Water Act, 33 U.S.C. § 1251 et segq.,

are conventionally cited using the sections of the origina! Act,

rather than the section numbers assigned after codification in the

U.S. Code. We follow that convention here. The first time we cite

to a provision of the Act, we include a preliminary parallel citation

to the U.S. Code. All citations are to.the CWA unless indicated

otherwise.

* Hazard-based regulation is also referred to in the record as

waterquality-based and harm-based regulation.

The district court granted judgment in favor

of EPA, holding that the challenged acts or

omissions were discretionary. We agree that the

decisions whether to revise the effluent guidelines

and whether to incorporate technology-based criteria

in its periodic review of the guidelines fall within

EPA’s discretion. Consequently, we affirm.

BACKGROUND

OCE’s amended complaint contains four

claims alleging non-compliance with what OCE

characterizes as EPA’s mandatory duties under the

Act:

(1) EPA failed to review effluent guidelines based on

the “best conventional pollutant technology” (“BCT”)

and “best available technology” (“BAT”), as

mandated by §§ 304(b), (m);

(2) EPA failed to review existing effluent limitations

as required by §§ 301(b), (d);

(3) EPA failed to issue timely final effluent

guidelines plans as required by § 304(m)(1); and

(4) EPA failed to identify new polluting sources as

required by § 304(m)(1)(B).

In sum, OCE argues that the CWA requires,

as a nondiscretionary matter, that the Agency take a

particular approach to water safety regulation:

technology-based review, published in a sufficiently

timely fashion to afford a meaningful opportunity for

notice and comment. EPA and Intervenors Effluent

Guidelines Industry Coalition and Association of

Metropolitan Sewerage Agencies (now known as the

National Association of Clean Water Agencies)

(together, “Intervenors”) counter that EPA’s non-

discretionary duties do not extend to a particular

manner of performing reviews and revisions.

We first address the argument by EPA and

the Intervenors that this suit was not properly

brought under the citizen suit provision of the Act, §

505(a), 33 U.S.C. § 1365(a)(2), but rather should

have been brought under § 509(b)(1), 33 U.S.C.

§ 1369(b)(1). Then, we consider whether the district

court has jurisdiction over each of OCE’s four claims

under § 505(a)(2). Because § 505(a)(2) jurisdiction is

predicated on citizen enforcement of a non-

discretionary duty, our analysis focuses on whether

the claims relate to discretionary or

nondiscretionary duties under the Act.

ANALYSIS

1, JURISDICTION TO REVIEW AGENCY

ACTION®

[1] The CWA contains two separate

% The Agency's position on jurisdiction is not entitled to

deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984). See, e.g., Fox Television Stations, Inc. v.

FCC, 280 F.3d 1027, 1038-39 (D.C. Cir. 2002) (“Nor is an agency’s

interpretation of a statutory provision defining the jurisdiction of

the court entitled to our deference under Chevron.”) (citing Adams

Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990)).

jurisdictional sections: § 505(a), known as the citizen

suit provision, and § 509(b)(1), which relates

primarily to challenges to promulgation of certain

standards and determinations. OCE brought suit

under § 505(a)(2), which permits “any citizen [to]

commence a civil action on his own behalf...

against the Administrator where there is alleged a

failure of the Administrator to perform any act or

duty under this chapter which is not discretionary

with the Administrator.”* CWA § 505(a)(2).

[2] Alternatively, § 509(b)(1) permits suits

against the EPA Administrator for review of action

(A) in promulgating any standard of

performance under section 1316 of this title,

(B) in making any determination pursuant to

section 1316(b)(1)(C) of this title, (C) in

promulgating any effluent standard,

prohibition, or pretreatment standard under

section 1317 of this title, (D) in making any

determination as to a State permit program

submitted under section 1342(b) of this title,

(E) in approving or promulgating any effluent

lhmitation or other limitation under section

1311, 1312, 1316, or 1345 of this title, (F) in

issuing or denying any permit under section

1342 of this title, and (G) in promulgating any

* OCE’s amended complaint also cites the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 702, 706, as an alternative

basis for jurisdiction, but does not allege any claims under the

APA.

individual control strategy under section

1314()....

Suits brought pursuant to § 509(b)(1) must be

filed directly

in the Circuit Court of Appeals of the United

States for the Federal judicial district in

which [petitioner] resides or transacts

business. ... Any such application shall be

made within 120 days from the date of such

determination, approval, promulgation,

issuance or denial, or after such date only if

such application is based solely on grounds

which arose after such 120th day.

CWA § 509(b)(1). Section 509(b)(1) actions, as

opposed to suits brought under § 505(a)(2), challenge

the exercise of the Administrator’s discretion in

promulgating standards and issuing determinations.

[3] So long as EPA’s challenged acts and

omissions relate to non-discretionary duties under

the Act, OCE’s action was properly brought in the

district court under § 505(a)(2). To the extent OCE

challenges actions within the discretion of the

Administrator, the district court properly refused to

exercise jurisdiction under § 505(a)(2). Nonetheless,

a jurisdictional defect under § 505(a)(2) does not

mean that jurisdiction is proper under § 509(b)(1).

“(T]his Court has counseled against expansive

application of section [509(b)].” League of Wilderness

Defenders v. Forsgren, 309 F.3d 1181, 1190 n.8 (9th

Cir. 2002). Section 509(b)(1) covers only challenges

to “promulgation” or “approval” or “determinations”

on permits, not failure to comply with allegedly

mandated procedures, which is the thrust of

OCE’s suit.

Additionally, § 509(b)(1) lists a number of

sections for which review obtains in the court of

appeals: §§ 301, 1312, 304(4, 1316, 1317, 1342, and

1345. Neither §§ 304(b) or 304(m) is referenced in §

509(b)(1). Because the challenge here does not stem

from the promulgation or approval of an

effluent limitation or permit, we need not decide

whether § 509(b) encompasses a challenge under §

304. Compare E_I. du Pont de Nemours & Co. v.

Train, 430 U.S. 112, 186-37 (1977) (suggesting that

the EPA could collapse the limitations to be

promulgated under §§ 301 and 304 into a single

review), with Longview Fibre Co. v. Rasmussen, 980

F.2d 1307, 1310 (9th Cir. 1992) (holding that the

sections listed in § 509 are sufficiently specific that

unlisted sections should not be interpreted

to be covered by § 509).

[4] We thus agree with the district court that

the circuit court’s exclusive jurisdiction “extends

only to a substantive review of the appropriateness

of the guidelines actually promulgated, and not to

the threshold question of whether the statutory

requirements of the CWA have been met.” No such

promulgated guidelines or limitations are at issue

here. The district court had jurisdiction under §

505(a)(2) to determine whether EPA discharged its

non-discretionary duties under the CWA.

Il. TECHNOLOGY-BASED REVIEW AND

REVISION

In determining whether OCE’s four claims

cnallenge nondiscretionary obligations under the

Act, our point of reference is the statute itself.

Although the line between a congressional mandate

and an area of agency discretion is not difficult to

state, ascertaining that line is not always as easy.

When Congress specifies an obligation and uses the

word “shall,” this denomination usually connotes a

mandatory command. See A/Jabama v. Bozeman, 533

U.S. 146, 153 (2001). On the other hand, “[a]bsent

some provision requiring EPA to adopt one course of

action over the other, we can only conclude that

EPA’s choice represented an exercise of discretion.”

Farmers Union Cent. Exch. v. Thomas, 881 F.2d

757, 761 (9th Cir. 1989).

However, not every decision is so easily

categorized. As the Supreme Court teaches, the

decision-making process does not necessarily

collapse into a single final decision. “It is

rudimentary administrative law that discretion as to

the substance of the ultimate decision does not

confer discretion to ignore the required procedures of

decisionmaking.” Bennett v. Spear, 520 U.S. 154,

172 (1997). In Bennett, considering a citizen suit

provision parallel to that in the CWA, the Supreme

Court held, “[s]ince it is the omission of these

required procedures that petitioners complain of,

their .. . claim is reviewable.” /d. at 172 (emphasis

added).

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With these general principles in mind, we

consider the CWA provisions relevant to each of

OCE’s claims to determine whether the particular

claim relates to a mandatory obligation

or discretionary agency function under the Act.

A. HISTORY OF THE CWA AND

TECHNOLOGY

By way of brief overview, when the CWA wa:

enacted in 1972, its stated goal was the elimination

of all discharges of pollutants into the nation’s

waters by 1985. See CWA § 101(a)(1); 33 U.S.C. §

1251(a)(1). This goal was to be accomplished through

ambitious technological improvements, because the

previous water-quality based approach to pollutant

control had been “limited in its success.” S. Rep. No.

92- 414, at 8 (1971), 1972 U.S.C.C.A.N. at 3675. In

the CWA’s Declaration of Goals and Policy, Congress

wrote, “it is the national policy that a major research

and demonstration effort be made to develop

technology necessary to eliminate the discharge

of pollutants into the navigable waters, waters of the

contiguous zone, and the oceans.” CWA § 101(a)(6).

The CWA formally prohibits the “discharge of

any pollutant” from any source into navigable waters

except when authorized by a permit issued under the

National! Pollutant Discharge Elimination System

(“NPDES”). See CWA § 301(a). NPDES permits,

issued either by the EPA, or by the

states in a federally-approved permitting system, are

statutorily required to set forth, at the very least,

“effluent limitations”’—that is, certain “restriction|s]

... on [the] quantities, rates, and concentrations of

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chemical, physical, biological, and other constituents

which are discharged .. . into navigable waters.”

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 491

(2d Cir. 2005) (citing S. Fla. Water Mgmt. Dist. v.

Miccosukee Tribe of Indians, 541 U.S. 95 (2004)).

The specific effluent hmitations contained in each

NPDES permit are determined by the terms of more

general “effluent limitation guidelines,” which are

separately promulgated by the EPA. The effluent

limitations and the guidelines have long been

understood to be determined according to the best

available or practicable technology. See EJ. du Pont

de Nemours & Co., 430 U.S. at 121 (explaining the

technology-based character of effluent limitations

and guidelines); see also Waterkeeper Alliance, 399

F.3d at 491 (“[Effluent Limitation Guidelines], and

the effluent limitations established in accordance

with them, are technology-based restrictions on

water pollution. They are technology-based, because

they are established in accordance with various

technological standards that the Act statutorily

provides... .”).

Since 1972 Congress has amended the CWA

on a number of occasions. In the 1985 amendments,

Congress reaffirmed its commitment to a technology-

based approach to water quality regulation:

The technology-based approach to water

pollution control was adopted in 1972 because

of the historical ineffectiveness of the previous

water-quality-based approach. This approach

failed because of uncertainties about the

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relationship between pollutant loadings

and water quality and the association between

water quality and health and environmental!

effects. There are still significant gaps in

knowledge of these relationships.

Consequently the reported bill reaffirms

the technologically-based approach

established in 1972 as an immediate and

effective method of achieving the goals of the

Act.

S. Comm. on Env’t & Pub. Works, 99th Cong.,

Report to Accompany S. 1128 (1985 Clean Water Act

Amendments) 3- 4 (Comm. Print 1985).

B. THE STATUTORY FRAMEWORK

[5] Three key statutory provisions of the CWA

are at issue here: §§ 301(d), 304(b) and 304(m).

Section 301(d) requires EPA to review, every five

years, the effluent limitations established under §

301(b)(2) and to revise such regulations “if

appropriate.” These processes are undergirded by a

series of mandated criteria stating what the

regulations “shall” contain. The mandated criteria

include technology-based requirements. See CWA §

304. Sections 304(b) and (m) require an annual

review of “guidelines for effluent limitations”

applicable to direct dischargers and revision “if

appropriate.” As in § 301, § 304(b) includes

mandated criteria that reference technology-based

requirements, without differentiating between

application of these criteria to promulgation, review

or revision. Section 304(m) specifically provides for a

schedule for review of the guidelines in accordance

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with § 304(b).

According to EPA, rather than conducting

separate reviews, it consolidates effluent hmitations

required under § 301(d) into effluent limitation

guidelines under § 304(b). As EPA puts it: “through

its annual review of its consolidated ‘effluent

limitation guidelines’ EPA also reviews the effluent

limitations they contain, thus meeting its review

requirements under § 301(d) and § 304(b)

simultaneously.”

C. CRITERIA FOR REVIEW AND REVISION

It is undisputed that EPA has an obligation to

review effluent guidelines and limitations for

possible revision, and that such a review is

mandatory. It is also undisputed that EPA’s

ultimate decision whether to revise the guidelines

and limitations is discretionary, as “appropriate.”

And, it is undisputed that any revision must be in

accord with detailed statutory criteria that

incorporate variants of the best-technology standard.

What remains in dispute is whether, as part of its

mandated review process, EPA must consider the

technology-based criteria. To address this question,

we consider the statute itself.

[6] The Act imposes on EPA non-discretionary

duties to review its current effluent limitations

guidelines regulating the pollutants discharged into

the nation’s waters, and, “where appropriate,” to

revise them, according to the criteria in the statute.

See CWA §§ 301(d); 304(b), (m). Under § 304(b),

“the Administrator shall, after consultation with

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appropriate Federal and State agencies and other °

interested persons, publish within one year of

October 18, 1972, regulations, providing

guidelines for effluent limitations, and, at least

annually thereafter, revise, if appropriate, such

regulations.” The statute goes on to provide that

“[s]uch regulations shall” conform to specific criteria.

The requirement of a technology-based approach to

promulgation and revision of regulations runs

throughout the statutory text of § 304(b).

Section 304(b)(1)(A) : cates:

Such regulations shall—identify . . . the

degree of effluent reduction attainable

through the application of the best

practicable control technology currently

available for classes and categories of

point sources ....

CWA § 304(b)(1)(A).

Section 304(b)(1)(B) relates that the

regulations “shall”:

specify factors to be taken into account .

. . relating to the assessment of best

practicable control technology

currently available .. . includ[ing]

consideration of the total cost of

application of technology in relation

to the effluent reduction benefits to be

achieved from such application, and

shall also take into account the age of

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equipment and facilities involved,

the process employed, the engineering

aspects of the application of various

types of control techniques... . and

such other factors as the Administrator

deems appropriate’.

CWA § 304(b)(1)(B).

Section 304(b)(2)(A) continues to mandate a

technologybased approach, without differentiating

between promulgation and revision:

regulations shall . . . identify, ... the

degree of effluent reduction attainable

through the application of the best

control measures and practices

achievable including treatment

techniques, process and procedure

innovations ....

CWA § 304(b)(1)(A).

Section 304(b)(4)(A) yet again requires an

analysis in terms of “application of the best

®* This last phrase, “and such other factors as the

Administrator deems appropriate,” indicates, as OCE

acknowledges, that the EPA could adopt additional factors for

consideration, including harm or risk-based factors. The discretion

to consider additional factors does not, however, render the

mandatory factors optional.

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conventional pollutant control technology .. . .” Each

of the subsections of § 304(b) includes a mandatory

requirement related to technology.

[7] Under § 304(m), EPA also has an

obligation to publish a biennial plan announcing a

schedule for performing the annual review and for

establishing rules regarding any existing effluent

guideline selected for possible revision as a

consequence of the annual review. Section 304(m)(1)

states in full:

(m) Schedule for review of Guidelines

(1) Publication

Within 12 months after February 4,

1987, and biennially thereafter, the

Administrator shall publish

in the Federal Register a plan which

shall—

(A) establish a schedule for the annual

review and revision of promulgated

effluent guidelines, in accordance with

subsection (b) of this section [specifying

technology-based factors];

(B) identify categories of sources

discharging toxic or nonconventional

pollutants for which guidelines

under subsection (b)(2) of this section

and section 1316 of this title have not

previously been published; and

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promulgation of effluent guidelines for

categories identified in subparagraph

(B), under which promulgation of such

guidelines shall be no later than 4 years

after February 4, 1987, for categories

identified in the first published

plan or 3 years after the publication of

the plan for categories identified in

later published plans.

CWA § 304(m)(1).

In § 301, which deals with the five year review

and revision of effluent limitations, Congress wrote:

“Any effluent limitation required by paragraph (2) of

subsection (b) of this section shall be reviewed at

least every five years and, ifappropriate, revised

pursuant to the procedure established under such

paragraph.” CWA § 301(d) (emphasis added). The

crossreferenced subsection (b)(2) mandates the

application of technology-based criteria in

determining the applicable effluent limitations.

For example, § 301(b)(2)(A) states that

effluent limitations for categories other than

publicly-owned treatment works “shall require

application of the best available technology

economically achievable . .. .” The mandated

technology based criteria run throughout the text of

§ 301(b). See, e.g., CWA § 301(b)(1)(A) (“[E] ffluent

limitations . .. shall require the application of the

best practicable control technology currently

available .. . .”); § 301(b)(2)(E) (“[PJollutants

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identified

... Shall require application of the best conventional

pollutant control technology ... .”).

The plain language of these provisions reflects

that the CWA repeatedly mandates a technology-

based approach as a non-discretionary matter in the

promulgation of the regulations, at least as one

methodology among others. Further, the statute

makes clear that the regulations must comport with

technological criteria that change over time. The

statutory language is unambiguous that revision

decisions, although discretionary as indicated by the

‘if appropriate” language, are constrained by the

statute’s mandate as to what “such regulations”

“shall” accomplish. The statute states that the

regulations “shall” account for the technological

factors without distinguishing between promulgation

and revision.

[8] Nonetheless, while the overall structure of

the Act strongly suggests that any review to

determine whether revision is appropriate should

contemplate the mandatory technology-based

factors, the statute does not expressly and

unequivocally state as much. Nothing in the CWA

specifically obligates the EPA to review the effluent

guidelines and limitations using a technology-based

approach. At most, the statutory provisions and

legislative history are ambiguous.

{9] To compel agency action under § 505(a)(2),

a citizen suit must point to a nondiscretionary duty

that is “readily ascertainable” and not “only | ] the

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product of a set of inferences based on the overall

statutory scheme.” Syerra Club v. Thomas, 828 F.2d

783, 791 (D.C. Cir. 1987). The legislative and

regulatory maze presented here do not meet that

standard. Nor would it be appropriate for us to

divine a “specific, unequivocal command,” see Norton

v. S. Utah Wilderness Alliance, 542 U.S. 55, 63

(2004), from an amalgamation of disputed statutory

provisions and legislative history coupled with the

EPA’s own earlier interpretation. See Preliminary

Effluent Guidelines Plan for 2004-2005, 68 Fed. Reg.

250, 75515 (EPA Dec. 31, 2003). Finally, we do not

invoke the Chevron analysis here because we are not

trying to determine whether we should defer to the

EPA’s interpretation of the statute, but are trying to

determine whether, objectively, the statute creates a

mandatory duty. In sum, the statute falls short

of imposing a mandatory duty and thus the review

criteria are not properly before the court under §

505(a)(2).

Ill. PUBLICATION SCHEDULE PROPOSED BY

OCE

[10] Section 304(m) requires biennial

publication of a plan for scheduling annual review

and revision of the guidelines. The plan must

provide for public review and comment prior

to final publication. See CWA § 304(m)(2). OCE

argues that the plan should be synchronized with

the annual review, but as the district court correctly

held, the Act does not require this degree of

harmonization.

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{11] The statute requires only that the EPA

abide by the time limitations requiring biennial

publication. Nowhere does the statute require that

the EPA synchronize its publication with the

calendar year. OCE objects that use of the word

“plan” implies that it be published before the

described events take place. Although this argument

has logical appeal, it is insufficient to trump the text

of the statute.

[12] As long as the EPA meets the statutorily-

prescribed deadlines, and affords opportunity for

notice and comment, it has satisfied its mandatory

duties under § 304(m). The publication schedule

preferred by OCE is not mandated by the statute,

and thus is not amenable to challenge under §

505(a)(2).

IV. IDENTIFICATION OF NEW POLLUTING

SOURCES

OCE also argues that EPA has failed to

identify new categories of industry discharging toxic

and nonconventional pollutants not covered by

existing effluent guidelines. The district court found

that in 2005 EPA identified only two new sources for

which no guidelines then existed. According to

OCE, following EPA’s 2003 review, EPA proposed

not to schedule promulgation of any new effluent

guidelines.

[13] Under § 304(m)(1)(B), the Administrator

“shall” devise a plan which “shall—identify

categories of sources discharging toxic or

nonconventional pollutants for which guidelines

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under subsection (b)(2) of this section and section

1316 of this title have not previously been

published.” The Administrator is also required to

schedule publication of effluent guidelines for the

categories identified under § 304 (m)(1)(B). See CWA

§ 304(m)(1)(C).

[14] The statute does not require that the

Administrator identify a//or any existing categories

of sources, only that the Administrator identify

currently unregulated categories. The Senate

Committee Report on the 1985 Amendments states:

“Guidelines are required for any category of sources

discharging significant amounts of toxic pollutants.

In this use, ‘significant amounts’ does not require

the Administrator to make any determination of

environmental harm; any non-trivial discharges

from sources in a category must lead to effluent

guidelines.” S. Comm. on Env’t & Pub. Works, 99th

Cong., Report to Accompany S. 1128 (1985 Clean

Water Act Amendments) 25 (Comm. Print 1985).

The Senate Committee Report suggests that it is at

least within the discretion of the Administrator to

determine whether particular discharges are

non-trivial, and hence require new effluent

guidelines.

[15] While the identification of new categories

is a nondiscretionary duty, the precise number and

kind of such categories identified is discretionary

with the Administrator. The statutory language does

not command otherwise. Since EPA did identify two

new categories of sources during the period in

question here, OCE’s challenge to the sufficiency of

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new source identification is not properly brought

under § 505(a)(2).

V. MOTION TO TRANSFER

After filing a notice of appeal to this court,

OCE filed a motion to transfer its claims to this

court as if they were originally filed here under §

509(b)(1). The district court did not abuse its

discretion in refusing to transfer claims to this court

after the notice of appeal had been filed. See Griggs

v. Provident Consumer Discount Co., 459 U.S. 56, 58

(1982) (per curiam) (holding that once a notice of

appeal is filed, the district court is divested of

jurisdiction over the matter being appealed); see also

Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir.

1990) (a challenge to the district court’s refusal to

transfer claims under 28 U.S.C. § 1631 is reviewed

for an abuse of discretion).

CONCLUSION

The district court properly dismissed OCE’s

claims regarding the manner and timing of review of

the guidelines, the scheduling of plan publication

and identification of new polluting sources, and did

not abuse its discretion in refusing to transfer OCE’s

claims to this court.

AFFIRMED. Each party shall bear its own costs on

appeal.

23a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OUR CHILDREN’S EARTH

FOUNDATION, and ECOLOGICAL

RIGHTS FOUNDATION; ECOLOGICAL

RIGHTS FOUNDATION,

Plaintiffs-Appellants,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; MICHAEL O.

LEAVITT, Administrator of EPA;

STEVEN L. JOHNSON,

Defendants-Appellees,

ASSOCIATION OF METROPOLITAN OPINION

SEWERAGE AGNENCIES; EFFLUENT

GUIDELINES INDUSTRY COALITION;

THE UTILITY WATER ACT GROUP

(UWAG); NATIONAL

ASSOCIATION OF CLEAN WATER

AGENCIES (NACWA),

Defendants-Intervenors-

Appellees.

No. 05-16214

D.C. No. CV-04-02132-PJH

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted

24a

February 13, 2007—San Francisco, California

Filed October 29, 2007

Before: J. Clifford Wallace, Dorothy W. Nelson, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown; Partial Concurrence

and Partial Dissent by Judge Wallace

COUNSEL

Christopher Sproul, Environmental] Advocates, San

Francisco, California, for the appellant.

Sue Ellen Wooldridge, Assistant Attorney General,

Washington, DC, for the appellees.

Fredric P. Andes, Carolyn S. Hesse, and David T.

Ballard, Barnes & Thornburg, L.L.P., Chicago,

Illinois, for intervenorappellee Effluent Guidelines

Industry Coalition.

David W. Burchmore and Jill A. Grinham, Squire,

Sanders, & Dempsey L.L.P., Cleveland, Ohio, for

intervenorsappellees Association of Metropolitan

Sewerage Agencies, now known as National

Association of Clean Water Agencies.

Melanie Shepherdson, National Resources Defense

Counsel, Washington, DC, amicus in support of the

appellants.

Jeffrey Odefey, Waterkeeper Alliance, Tarrytown,

New York, amicus in support of the appellants.

25a

OPINION

McKEOWN, Circuit Judge:

In 1972 Congress passed the Clean Water Act

(“CWA” or “the Act”) “to restore and maintain the

chemical, physical, and biological integrity of the

Nation’s waters.” See Federal Water Pollution

Control Act Amendments of 1972 (Clean Water Act

of 1972), Pub. L. No. 92-500, 86 Stat. 816 (1972),

codified at 33 U.S.C. § 1251(a). Central to that

legislation and later amendments is the notion that

pollution discharges would be controlled through

technology-based effluent limitations.

Environmental advocates, Our Children’s

Earth Foundation and Ecological Rights Foundation

(collectively “OCE”), filed this citizen suit under the

Clean Water Act, 33 U.S.C. § 1251 et seq., alleging

that the Environmental Protection Agency (“EPA” or

“the Agency”) has failed to fulfill its mandate to

review effluent guidelines and limitations in a timely

manner and in accord with technology-based

standards. Specifically, OCE claims that EPA

violated its statutorily-mandated duties by

abandoning technology-based review in favor of

hazardbased review; neglecting to identify new

polluting sources; and failing to publish timely plans

for future reviews. See CWA § 301(b), 33 U.S.C. §

1311(b); CWA § 301(d), 33 U.S.C. § 1311(d); CWA §

304(b), 33 U.S.C. § 1314(b); CWA

26a

§ 304(m), 33 U.S.C. § 1314(m).'

A technology-based approach to water quality

focuses on the achievable level of pollutant reduction

given current technology, whereas a hazard-based*

approach seeks to identify known hazards or

contaminants in the water and to reduce the

prevalence of those hazards. See, e.g., S. Rep. No. 92-

414, at 8 (1971), 1972 U.S.C.C.A.N. 3668, 3674-78.

Although these approaches are not mutually

exclusive, OCE claims that EPA jettisoned a

technology-based approach altogether, thus

abdicating its statutory duties.

The district court granted judgment in favor

of EPA, holding that the challenged acts or

omissions were discretionary. We agree that the

decision whether to revise the effluent guidelines

falls within EPA’s discretion. We do not agree,

however, that in its periodic review of the guidelines,

EPA has discretion to ignore the technology-based

criteria. Consequently, we affirm in part, reverse in

part, and remand for further proceedings.

' Sections of the Clean Water Act, 33 U.S.C. § 1251 et seq.

are conventionally cited using the sections of the origina] Act,

rather than the section numbers assigned after codification in the

U.S. Code. We follow that convention here. The first time we cite

to a provision of the Act, we include

a preliminary parallel citation to the U.S. Code. All citations are

to the CWA unless indicated otherwise.

* Hazard-based regulation is also referred to in the record as

waterquality-based and harm-based regulation.

27a

BACKGROUND

OCE’s amended complaint contains four

claims alleging non-compliance with what OCE

characterizes as EPA’s mandatory duties under the

Act:

(1) EPA failed to review effluent guidelines based on

the “best conventional pollutant technology” (“BCT”)

and “best available technology” (“BAT”), as

mandated by § 304(b), (m);

(2) EPA failed to review existing effluent limitations

as required by § 301(b), (d);

(3) EPA failed to issue timely final effluent

guidelines plans as required by § 304(m)(1); and

(4) EPA failed to identify new polluting sources as

required by § 304(m)(1)(B).

In sum, OCE argues that the CWA requires,

as a nondiscretionary matter, that the Agency take a

particular approach to water safety regulation:

technology-based review, published in a sufficiently

timely fashion to afford a meaningful opportunity for

notice and comment. EPA and Intervenors Effluent

Guidelines Industry Coalition and Association of

Metropolitan Sewerage Agencies (now known as the

National Association of Clean Water Agencies)

(together, “Intervenors”) counter that EPA’s non-

discretionary duties do not extend to a particular

manner of performing reviews and revisions.

We first address the argument by EPA and

28a

the Intervenors that this suit was not properly

brought under the citizen suit provision of the Act, §

505(a), 33 U.S.C. § 1365(a)(2), but rather should

have been brought under § 509(b)(1), 33 U.S.C.

§ 1369(b)(1). Then, we consider whether the district

court has jurisdiction over each of OCE’s four claims

under § 505(a)(2). Because § 505(a)(2) jurisdiction is

predicated on citizen enforcement of a non-

discretionary duty, our analysis focuses on whether

the claims relate to discretionary or

nondiscretionary duties under the Act.

ANALYSIS

I. JURISDICTION TO REVIEW AGENCY

ACTION®

[1] The CWA contains two separate

jurisdictional sections: § 505(a), known as the citizen

suit provision, and § 509(b)(1), which relates

primarily to challenges to promulgation of certain

standards and determinations. OCE brought suit

under § 505(a)(2), which permits “any citizen [to]

commence a civilaction on his own behalf... against

the Administrator where there is alleged a failure of

the Administrator to perform any act or duty under

* The Agency’s position on jurisdiction is not entitled to

deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984). See, e.g., Fox Television Stations, Inc. v.

FCC, 280 F.3d 1027, 1038-39 (D.C. Cir. 2002) (“Nor is an agency’s

interpretation of a statutory provision defining the jurisdiction of

the court entitled to our deference under Chevron.”) (citing Adams

Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990)).

29a

this chapter which is not discretionary with

the Administrator.”* CWA § 505(a)(2).

[2] Alternatively, § 509(b)(1) permits suits

against the EPA Administrator for review of action

(A) in promulgating any standard of

performance under section 1316 of this title,

(B) in making anydetermination pursuant to

section 1316(b)(1)(C) of this title, (C) in

promulgating any effluent standard,

prohibition, or pretreatment standard under

section1317 of this title, (D) in making any

determinationas to a State permit program

submitted under section 1342(b) of this title,

(E) in approving or promulgating any effluent

limitation or other limitation under section

1311, 1312, 1316, or 1345 of this title, (F) in

issuing or denying any permit under section

1342 of this title, and (G) in promulgating any

individual control strategy under section

1314()....

Suits brought pursuant to § 509(b)(1) must be filed

directly

in the Circuit Court of Appeals of the United

States for the Federal judicial district in

* OCE’s amended complaint also cites the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 702, 706, as an alternative

basis for jurisdiction, but does not allege any claims under the

APA.

30a

which [petitioner] resides or transacts

business. Any such application shall be made

within 120 days from the date of such

determination, approval, promulgation,

issuance or denial, or after such date only if

such application is based solely on grounds

which arose after such 120th day.

CWA § 509(b)(1). Section 509(b)(1) actions, as

opposed to suits brought under § 505(a)(2), challenge

the exercise of the Administrator’s discretion in

promulgating standards and issuing determinations.

[3] So long as EPA’s challenged acts and

omissions relate to non-discretionary duties under

the Act, OCE’s action was properly brought in the

district court under § 505(a)(2). To the extent OCE

challenges actions within the discretion of the

Administrator, the district court properly refused to

exercise jurisdiction under § 505(a)(2). Nonetheless,

a jurisdictional defect under § 505(a)(2) does not

mean that jurisdiction is proper under § 509(b)(1).

“(T]his Court has counseled against expansive

application of section [509(b)].” League of Wilderness

Defenders v. Forsgren, 309 F.3d 1181, 1190 n.8 (9th

Cir. 2002). Section 509(b)(1) covers only challenges

to “promulgation” or “approval” or “determinations”

on permits, not failure to comply with allegedly

mandated procedures, which is the thrust of OCE’s

suit.

Additionally, § 509(b)(1) lists a number of

sections for which review obtains in the court of

gla

appeals: §§ 301, 1312, 304(), 1316, 1317, 1342, and

1345. Neither §§ 304(b) or 304(m) are referenced in §

509(b)(1). Because the challenge here does not stem

from the promulgation or approval of an

effluent limitation or permit, we need not decide

whether § 509(b) encompasses a challenge under §

304. Compare EI. du Pont de Nemours & Co. v.

Train, 430 U.S. 112 (1977) (suggesting that the EPA

could collapse the limitations to be promulgated

under §§ 301 and 304 into a single review), with

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307,

1310 (9th Cir. 1992) (holding that the sections listed

in § 509 are sufficiently specific that unlisted

sections should not be interpreted to be covered by §

509).

[4] We thus agree with the district court that

the circuit court’s exclusive jurisdiction “extends

only to a substantive review of the appropriateness

of the guidelines actually promulgated, and not to

the threshold question of whether the statutory

requirements of the CWA have been met.” No such

promulgated guidelines or limitations are at issue

here. The district court had jurisdiction under §

505(a)(2) to determine whether EPA discharged its

non-discretionary duties under the CWA.

Il. THE CHEVRON FRAMEWORK

In determining whether OCE’s four claims

challenge nondiscretionary obligations under the

Act, our first point of reference is the statute itself.

We must first address whether Congress resolved

the contested issues in the statute. If so,“the court,

as weil as the agency, must give effect to the

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unambiguously expressed intent of Congress.” See

Chevron, 467 U.S. at 842-43. Chevron deference is

not due where the clear dictates of the statute

counsel an interpretation different from the

Agency’s. See Bonneville Power Admin. v. FERC,

422 F.3d 908, 920 (9th Cir. 2005). We “must reject

administrative constructions which are contrary to

clear congressional intent.” Chevron, 467 U.S. at 843

n.9.

In the event that congressional intent cannot

be determined or is ambiguous, the second step of

the Chevron analysis considers whether the agency’s

interpretation of the statute is a reasonable one. /d.

at 843. Even if an opposing construction of the

statute is better supported by policy considerations,

we do “not sit to judge the relative wisdom of

competing statutory interpretations.” Chem. Mfrs.

Ass'n v. Natural Res. Def. Council, Inc., 470 U.S.

116, 134 (1985). As long as the agency’s construction

“is not inconsistent with the language, goals, or

operation of the Act,” the agency should prevail. Jd.

However, the agency “may not ignore factors

Congress required be taken into account.” Karth

Island Inst. v. Hogarth, 484 F.3d 1123, 1131 (9th

Cir. 2007).

Although the line between a congressional

mandate and an area of agency discretion is not

difficult to state, ascertaining that line is not always

as easy. When Congress specifies an obligation and

uses the word “shall,” this denomination usually

connotes a mandatory command. See Alabama v.

Bozeman, 533 U.S. 146, 153 (2001). On the other

33a

hand, “[a]bsent some provision requiring EPA to

adopt one course of action over the other, we can

only conclude that EPA’s choice represented

an exercise of discretion.” Farmers Union Cent.

Exch. v. Thomas, 881 F.2d 757, 761 (9th Cir. 1989).

However, not every decision is so easily

categorized. As the Supreme Court teaches, the

decision-making process does not necessarily

collapse into a single final decision. “It is

rudimentary administrative law that discretion as to

the substance of the ultimate decision does not

confer discretion to ignore the required procedures of

decisionmaking.” Bennett v. Spear, 520 U.S. 154,

172 (1997). In Bennett, considering a citizen suit

provision parallel to that in the CWA, the Supreme

Court held, “[s]ince it is the omission of these

required procedures that petitioners complain of,

their . . . claim is reviewable.” Jd. at 172 (emphasis

added).

With these general principles in mind, we

consider the CWA provisions relevant to each of

OCE’s claims to determine whether the particular

claim relates to a mandatory obligation or

discretionary agency function under the Act.

Il. TECHNOLOGY-BASED REVIEW AND

REVISION

A. HISTORY OF THE CWA AND TECHNOLOGY

By way of brief overview, when the CWA was

enacted in 1972, its stated goal was the elimination

of all discharges of pollutants into the Nation’s

34a

waters by 1985. See CWA § 101(a)(1); 33 U.S.C. §

1251(a)(1). This goal was to be accomplished through

ambitious technological improvements, because the

previous water-quality based approach to pollutant

control had been “limited in its success.” S. Rep. No.

92- 414, at 8 (1971), 1972 U.S.C.C.A.N. at 3675. In

the CWA’s Declaration of Goals and Policy, Congress

wrote, “it is the national policy that a major research

and demonstration effort be made to develop

technology necessary to eliminate the discharge

of pollutants into the navigable waters, waters of the

contiguous zone, and the oceans.” CWA § 101(a)(6).

The CWA formally prohibits the “discharge of

a pollutant” from any source into navigable waters

except when authorized by a permit issued under the

National Pollutant Discharge Elimination System

(“NPDES”). See CWA § 301(a). NPDES permits,

issued either by the EPA, or by the states in

a federally-approved permitting system, are

statutorily required to set forth, at the very least,

“effluent limitations”—that is, certain “restriction[s]

... on [the] quantities, rates, and concentrations of

chemical, physical, biological, and other constituents

which are discharged . . . into navigable waters.”

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 491

(2d Cir. 2005) (citing S. Fla. Water Mgmt. Dist. v.

Miccosukee Tribe of Indians, 541 U.S. 95 (2004)).

The specific effluent limitations contained in

each NPDES permit are determined by the terms of

more general “effluent limitation guidelines,” which

are separately promulgated by the EPA. The effluent

limitations and the guidelines have long

35a

been understood to be determined according to the

best available or practicable technology. See EJ. du

Pont de Nemours & Co., 430 U.S. at 121 (explaining

the technology-based character of effluent

limitations and guidelines); see also Waterkeeper

Alliance, 399 F.3d at 491 (“ELGs, [Effluent

Limitation Guidclines] and the effluent limitations

established in accordance with them, are technology-

based restrictions on water pollution. They are

technology-based, because they are established in

accordance with various technological standards

that the Act statutorily provides... .”).

Since 1972 Congress has amended the CWA

on a number of occasions. In the 1985 amendments,

Congress reaffirmed its commitment to a technology-

based approach to water quality regulation:

The technology-based approach to water

pollution control was adopted in 1972 because

of the historical ineffectiveness of the previous

water-quality-based approach. This approach

failed because of uncertainties about the

relationship between pollutant loadings

and water quality and the association between

water quality and health and environmental

effects. There are still significant gaps in

knowledge of these relationships.

Consequently the reported bill reaffirms

the technologically-based approach

established in 1972 as an immediate and

effective method of achieving the goals of the

Act.

S. Comm. on Env’t & Pub. Works, 99th Cong.,

36a

Report to Accompany S. 1128 (1985 Clean Water Act

Amendments) 3- 4 (Comm. Print 1985).

B. THE STATUTORY FRAMEWORK

[5] Three key statutory provisions of the CWA

are at issue here: §§ 301(d), 304(b) and 304(m).

Section 301(d) requires EPA to review, every five

years, the effluent limitations established under §

301(b)(2) and to revise such regulations “if

appropriate.” These processes are undergirded by a

- series of mandated criteria stating what the

regulations “shall” contain. The mandated criteria

include technology-based requirements. Sections

304(b) and (m) require an annual review of

“guidelines for effluent limitations” applicable to

direct dischargers and revision “if appropriate.” As

in § 301, § 304(b) includes mandated criteria that

reference technology-based requirements, without

differentiating between application of these criteria

to promulgation, review or revision. Section 304(m)

specifically provides for a schedule for review of

the guidelines in accordance with § 304(b).

According to EPA, rather than conducting

separate reviews, it consolidates effluent limitations

required under § 301(d) into effluent limitation

guidelines under § 304(b). As EPA puts it: “through

its annual review of its consolidated ‘effluent

limitation guidelines’ EPA also reviews the effluent

limitations they contain, thus meeting its review

requirements under § 301(d) and § 304(b)

simultaneously.”

C. CRITERIA FOR REVIEW AND REVISION

37a

It is undisputed that EPA has an obligation to

review effluent guidelines and limitations for

possible revision, and that such a review is

mandatory. It is also undisputed that EPA’s

ultimate decision whether to revise the guidelines

and limitations is discretionary, as “appropriate.”

And, it is undisputed that any revision must be in

accord with detailed statutor criteria that

incorporate variants of the best-technology standard.

What remains in dispute is whether, as part of its

mandated review process, EPA must consider the

technology based criteria. To address this question,

we begin with the statute itself.

[6] The Act imposes on EPA non-discretionary

duties to review its current effluent limitations

guidelines regulating the pollutants discharged into

the nation’s waters, and, “where appropriate,” to

revise them, according to the criteria in the

statute. See CWA §§ 301(d); 304(b), (m). Under §

304(b), “the Administrator shall, after consultation

with appropriate Federal and State agencies and

other interested persons, publish within one year of

October 18, 1972, regulations, providing guidelines

for effluent limitations, and, at least annually

thereafter, revise, if appropriate, such regulations.”

The statute goes on to provide that “[s]uch

regulations shall” conform to specific criteria. The

requirement of a technology-based approach to

promulgation and revision of regulations runs

throughout the statutory text of § 304(b).

Section 304(b)(1)(A) states:

Such regulations shall—identify . . . the

38a

degree of effluent reduction attainable

through the application of the best practicable

control technology currently available for

classes and categories of point sources

CWA § 304(b)(1)(A).

Section 304(b)(1)(B) relates that the

regulations “shall”:

specify factors to be taken into account....

relating to the assessment of best practicable

control technology currently available . . .

includ[ing] consideration of the total cost of

application of technology in relation

to the effluent reduction benefits to be

achieved from such application, and shall also

take into account the age of equipment and

facilities involved, the process employed, the

engineering aspects of the application of

various types of control techniques

....and such other factors as the

Administrator deems appropriate.°

CWA § 304(b)(1)(B).

* This last phrase, “and such other factors as the

Administrator deems

appropriate,” indicates, as OCE

acknowledges, that the EPA could adopt additional factors for

consideration, including harm or risk-based factors. The discretion

to consider additional factors does not, however, render the

mandatory factors optional.

39a

Section 304(b)(2)(A) continues to mandate a

technology based approach, without differentiating

between promulgation and revision:

regulations shall . . . identify, . . . the degree of

effluent reduction attainable through the

application of the best control measures and

practices achievable including treatment

techniques, process and procedure

innovations... .

CWA § 304(b)(1)(A).

Section 304(b)(4)(A) yet again requires an

analysis in terms of “application of the best

conventional pollutant control technology... .” Each

of the subsections of § 304(b) includes a mandatory

requirement related to technology.

[7] Under § 304(m), EPA also has an

obligation to publish a biennial plan announcing a

schedule for performing the annual review and for

establishing rules regarding any existing effluent

guideline selected for possible revision as a

consequence of the annual review. Section 304(m)(1)

states in full:

(m) Schedule for review of Guidelines

(1) Publication

Within 12 months after February

4, 1987, and biennially thereafter, the

40a

Administrator shall publish in the

Federal Register a plan which shall—

(A) establish a schedule for the annual

review and revision of promulgated

effluent guidelines, in accordance with

subsection (b) of this section [specifying

technology-based factors];

(B) identify categories of sources

discharging toxic or nonconventional

pollutants for which guidelines under

subsection (b)(2) of this section and

section 1316 of this title have not

previously been published; and

promulgation of effluent guidelines for

categories identified in subparagraph

(B), under which promulgation of such

guidelines shall be no later than 4 years

after February 4, 1987, for categories

identified in the first published

plan or 3 years after the publication of

the plan for categories identified in

later published plans.

CWA § 304(m)(1).

In § 301, which deals with the five year review

and revision of effluent limitations, Congress wrote:

“Any effluent limitation required by paragraph (2) of

subsection (b) of this section shall be reviewed at

least every five years and, if appropriate, revised

pursuant to the procedure established under such

4la

paragraph.” CWA § 301(d). The cross-referenced

subsection (b)(2) mandates the application of

technology-based criteria in determining the

applicable effluent limitations.

For example, § 301(b)(2)(A) states that

effluent limitations for categories other than

publicly-owned treatment works “shall require

application of the best available technology

economically achievable .. . .” The mandated -

technologybased criteria run throughout the text of §

301(b). See, e.g., CWA § 301(b)(1)(A) (“[E] ffluent

limitations .. . shall require the application of the

best practicable control technology currently

available... .”); § 301(b)(2)(E) (“(Pjollutants identi-

fied . . . shall require application of the best

conventional pollutant control technology . . . .”).

Under the first step of the Chevron analysis,

the plain language of these provisions reflects that

the CWA repeatedly mandates a technology-based

approach as a non-discretionary matter in the

promulgation of the regulations, at least as one

methodology among others. Further, the statute

makes clear that the regulations must comport with

technological criteria that change over time,

supgesting logically that review and revision must

attend to such criteria as well in order for the

regulations and limitations to remain in compliance

with the mandatory and temporally changing

criteria. The statutory language is unambiguous

that revision decisions, although discretionary as

indicated by the “if appropriate” language,

are constrained by the statute’s mandate as to what

42a

“such regulations” “shall” accomplish. The statute

states that the regulations “shall” account for the

technological factors without distinguishing between

promulgation and revision.

[8] While the overall structure of the Act

strongly counsels that any review to determine

whether revision is appropriate must contemplate

the mandatory technology-based factors,

the statute does not expressly and unequivocally

state as much. Therefore, we move to the second step

of the Chevron analysis to consider whether EPA’s

position that the review need not abide by the same

factors governing revision and promulgation is

reasonable. Our review of the statute, its purpose,

and its logical construction lead us to conclude that

to the extent EPA argues that it may totally ignore

technology as part of its annual review, EPA’s

position is unreasonable. To adopt EPA’s position

would require us to “ignore factors Congress

required to be taken into account.” EHarth Island,

484 F.3d at 1131.

Although the dissent questions the invocation ~~

of the Chevron framework, we note that this

approach gives the EPA the benefit of any ambiguity

or doubt in analyzing these inter-locking statutory

provisions. Our charge, in any event, is to interpret

the statute and determine whether there is a

mandatory duty. As explained below, under

traditional principles of statutory construction, the

result is the same.

The statute all but explicitly states that the

43a

review is governed by the revision standards. Section

304(1)(A)—pertaining to the schedule for the annual

review of the guidelines—cross-references § 304(b),

which extensively delineates the technology-based

criteria. Under § 304(m)(1)(A) the Administrator

“shall” “establish a schedule for the annual review

and revision of promulgated effluent guidelines, in

accordance with subsection (b) of this section.”

Since § 304(m) itself references the timing of the

reviews, the cross-reference to § 304(b) cannot relate

solely to timing, unless the cross-reference is mere

surplusage. Similarly, § 301(d), pertaining to review

and revision of effluent limitations, cross-references

§ 301(b)(2), which in turn mandates various

technological considerations. The rule against

surplusage requires that we not regard

Congressional acts as meaningless and the

amendment of acts as “mere surplusage.”

Natural Res. Def. Council, Inc. v. Train, 545 F.2d

320, 325 (2d Cir. 1976); see also Reiter v. Sonotone

Corp., 442 U.S. 330, 339 (1978) (stating that “[in]

construing a statute we are obliged to give effect, if

possible, to every word Congress used”). The only

reasonable interpretation of the cross referenced

provisions is that they tie the review and revision

to § 304(b) and § 301(b), respectively, both of which

mandate a technology-based approach.

We next look at the common sense reading of

the statute. The clear purpose of review and revision

is to provide for continuing regulatory compliance

with the statutorily mandated and temporally

changing criteria reflecting what the regulations and

limitations “shall’ accomplish. If the regulations

44a

and any revision must incorporate technology-based

factors, how could EPA conduct a review to assess

continuing compliance with the statutorily-

mandated technology-based requirements, while

ignoring technology considerations altogether?

For review to meaningfully determine whether

revision is appropriate, such review must attend to

the statutorilymandated technology factors that

provide for what the regulations are to accomplish.

It makes no sense that Congress would require

promulgation and revision tethered to technology-

based requirements, but would somehow silently

render discretionary the choice as to whether to

review in light of the statutorily-required

technological criteria. If the review is not also

technology-based, the review could hardly

inform the discretionary decision of whether revision

is in fact appropriate, thus ignoring Congress’

mandate as to what the regulations and limitations

“shall” accomplish. To be sure, the ultimate decisions

in the review process are discretionary “as

appropriate, but the foundational standard for

review—the technology approach—is not optional.

In Bennett v. Spear, 520 U.S. 154 (1997), the

Supreme Court highlighted the important

distinction between a mandatory review process and

an ultimately discretionary decision to take action

following the review. 502 U.S. at 172. The Court

considered a claim brought under the citizen suit

provision of the Endangered Species Act (ESA),

which, similar to CWA § 505(a), authorizes suits

against the Secretary of Commerce or of the Interior

“where there is alleged a failure of the

45a

Secretary to perform any act or duty under section

1533 of this title which is not discretionary with the

Secretary.” 16 U.S.C. § 1540(g)(1)(C). Petitioners

alleged that the Secretary failed to abide by the

statutory mandate to “tak/e} into consideration

the economic impact, and any other relevant impact,

of specifying any particular area as critical habitat.”

520 U.S. at 172. The mandatory criteria to be

considered by the Secretary under the ESA are

followed by the statement that, except where the

extinction of the species is at issue, “|t]he Secretary

may exclude any area from critical habitat if he

determines that the benefits of such exclusion

outweigh the benefits of specifying such area as part

of the critical habitat.” /d. (quotation marks and

citation omitted).

In Bennett, as here, the agency argued that

judicial review was not available because the

Secretary had “not failed to perform any

nondiscretionary duty.” in light of the discretionary

nature of the ultimate decision at issue. See 520 U.S.

at 171. Rejecting that analysis, the Supreme Court

concluded that “the fact that the Secretary’s

ultimate decision is reviewable only for abuse of

discretion does not alter the categorical requirement

that, in arriving at his decision, he ‘tak[e] into

consideration the economic impact, and any other

relevant impact,’ and use ‘the best scientific data

available.’ ” 520 U.S. at 172 (citation omitted).

The challenge here mirrors that in Bennet v.

Spear, in that OCE alleges a failure by EPA to

consider particular statutorily-prescribed factors in

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making discretionary determinations. As the Court

msde plain in Bennett, “discretion as to the

substance of the ultimate decision does not confer

discretion to ignore the required procedures of

decisionmaking.” Jd.

Significantly, our reading of the statute

comports with EPA’s own earlier interpretation of its

review obligations. EPA stated in its 2003 Notice in

the Federal Register that “[b]lecause CWA §

304(m)(1){A) requires EPA to review promulgated

guidelines in accordance with CWA section 304(b),

EPA interprets the statute to authorize EPA to

employ the same factors for its annual review that it

would consider in selecting BAT in a rulemaking

context. EPA believes that this is a reasonable

approach because the outcome of EPA’s annual

review is a decision . . . identifying those effluent

guidelines for possible revision.” See Preliminary

Effluent Guidelines Plan for 2004-2005, 68 Fed. Reg.

250, 75515 (EPA Dec. 31, 2003). Now, EPA disavows

that § 304(m) links review procedures to revision

and promulgation procedures. This inconsistency in

EPA’s position entitles its current interpretation to

less deference. See, e.g., Mt. Graham Red

Squirrel v. Madigan, 954 F.2d 1441, 1457 (9th Cir.

1992) (“Given this fluctuation . . . we decline to rely

on the Forest Service’s ‘expertise.’ ”’).

[9] Finally, the legislative history supports

reading thecreview provisions as mandating

consideration of technology. In adopting the

legislation, the Senate Committee on Public

Works Conference Report recognized that the

4ia

preexisting harm-based or water-quality approach

was “limited in its success.” S. Rep. No. 92-414, at 8

(1971), 1972 U.S.C.C.A.N. at 3675.

Officials are still working to establish

relationships between pollutants and water

uses. ... The Committee adopted this

substantial change because of the great

difficulty associated with establishing reliable

and enforceable . . . limitations on the basis of

a given stream quality .... The Committee

recommends the change to effluent limits as

the best available mechanism to control water

pollution. With effluent limits, the

Administrator can require the best

control technology; he need not search for a

precise link between pollution and water

quality ....In order to carry out... this

legislation, a two phase program... is

created: the first based on best practicable

technology, the second based on best available

technology. In Phase 1.. . all industrial

pollution sources must apply the best

practicable technology ....In Phase Il...

communities and industries will be required

to apply, where the goal of no-discharge

cannot be attained, the best available

technology.

[10] The Committee report states that

Congress intended the CWA to adopt a technology-

based approach, not just with the initial regulations,

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but over time in multiple phases as technology

continuously improved. Although we have not

previously considered the particular question of

EPA’s review, in Crown Simpson Pulp Co. v. Costle,

642 F.2d 323, 327 (9th Cir. 1981), we acknowledged

the technology-based requirements of the CWA: “We

need not repeat here the exhaustive discussions of

the legislative history of the Act. . . . These

discussions demonstrate that a fundamental purpose

of the Act was to shift pollution control from a focus

on receiving water quality to a focus on the

technological control of effluent.” If EPA dispenses

with technology-based considerations altogether in

deciding whether to revise the effluent limitations

and guidelines, it will be unable to fulfill Congress’

mandate to tie effluent regulation to technological

improvements.

Despite the structure of the statute, EPA’s

earlier statement that its reviews under § 304 are

governed by the revision criteria, and the Act’s

legislative history, EPA and the Intervenors

argue that the technology-based approach provided

for in § 304(b) applied only to the initia/

promulgation of regulations in 1972 and not to any

subsequent review of those regulations or

limitations. EPA seizes on the language at the

beginning of § 304(b)——“the Administrator shall...

publish within one year of October 18, 1972,

regulations, providing guidelines for effluent

hmitations, and, at least annually thereafter,

revise, if appropriate, such regulations’—and claims

that the mandatory language modifies only the

promulgation provision, not ongoing review for

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possible revision. Since the mandate about what the

regulations “shall” achieve does not distinguish

between promulgation, review and revision, the

plain language of the statute does not support EPA’s

position. This argument is not only strained, but it

makes no sense. In short, this position is

unreasonable.

As we noted earlier, many of the particular

technological criteria the regulations and limitations

“shall” incorporate under § 301(b) and § 304(b) are

temporally changing rather than fixed in time. For

instance, the statute mandates that the regulations

“shall” “identify” “the degree of effluent reduction

attainable through the application of the best

practicable control technology currently available”

and “the degree of effluent reduction attainable

through the application of the best control measure

and practices achievable including treatment

techniques” and “process and procedure

innovations.” CWA § 304(b)(1)(A)-(4)(B). How can

the regulations continue over time to identify the

level of effluent reduction attainable through the

best technology and procedure innovations

currently available if EPA’s review does not consider

post-1972 technological advances at all? It strains

credulity to the breaking point that Congress would

provide in such great detail relevant temporally

changing technological factors, and would then

permit EPA to adopt regulations and limitations

that would freeze in time the technology available in

1972 or even in the 1980s.

Finally, in support of its position that a

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technology-based approach is discretionary, EPA

also points to Norton v. S. Utah Wilderness Alliance,

542 U.S. 55, 65-72 (2004), which held that a citizen

suit under the APA cannot “seek wholesale

improvement” of an agency “program by court

decree.” Jd. at 64. We first note that OCE does not

seek to “improve” EPA’s review but simply to ensure

compliance with objective criteria. The claim in

Norton is also distinguishable from our case in a

number of other respects. First, the statutory

language in Norton was cast in discretionary and far

broader terms than the language in the CWA.

Whereas Norton concerned whether the Bureau of

Land Management was managing wilderness areas

in a manner “suitable” for preservation, OCE

challenges the omission of specific statutorily

prescribed factors in EPA’s reviews. Notably, in

Norton, plaintiffs cited, in part, a p/an rather than

the statute itself as a source of the duty in question.

Finally, the language in the plan took the form of

“will” rather than “shall,” which the Supreme Court

found to lack the force of a binding commitment.

Jd. at 69. Here, as in Bennett, the statute mandates

certain criteria that are to inform discretionary

determinations as to the precise form of the

regulations and effluent limitations. The overlying

discretion does not render the mandated criteria

discretionary.

[11] To the extent the EPA has completely

abandoned a technology-based review in favor of a

hazard-based review, the Agency has breached its

mandatory duties under §§ 301(d) and 304(b), (m).

Although the EPA may determine in its exercise of

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discretion that no revision is appropriate, in

conducting its review to reach that decision, the

Agency must attend to the technology-based factors

specifically prescribed by the CWA.

[12] Because the district court determined

that EPA had no mandatory duty with respect to

review requirements, the court did not consider

whether EPA breached that duty. At this stage of

the proceedings and on this record, however, it is not

clear whether the EPA has in fact abandoned the

mandatorytechnology-based approach altogether.

While OCE claims that EPA has abandoned this

duty, EPA counters that in fact it adopted a

technology-based approach in addition to a

harmbased approach.° Because this central dispute

is unresolved, we remand to the district court for

further proceedings.

IV. PUBLICATION SCHEDULE PROPOSED BY

OCE

[13] Section 304(m) requires biennial

publication of a plan for scheduling annual review

and revision of the guidelines. The plan must

® For example, OCE claims that EPA has abandoned a

technology-based review, citing EPA’s own description of its

annual review, which states, “EPA did not ... conduct a

comprehensive screening-leve! review of the availability of

treatment or process technologies.” EPA now disputes this

characterization, claiming in its brief that “[i]n addition to

conducting a hazard-based review, EPA also directly reviewed the

availability of pollutant-reducing technologies for various

industrial ca:egories.”

52a

provide for public review and comment prior

to final publication. See CWA § 304(m)(2). OCE

argues that the plan should be synchronized with

the annual review, but as the district court correctly

held, the Act does not require this degree of

harmonization.

[14] The statute requires only that the EPA

abide by the time limitations requiring biennial

publication. Nowhere does the statute require that

the EPA synchronize its publication with the

calendar year. OCE objects that use of the word

“plan” implies that it be published before the

described events take place. Although this argument

has logical appeal, it is insufficient to trump the text

of the statute, and the deference owed to the EPA

under Chevron.

[15] As long as the EPA meets the statutorily-

prescribed deadlines, and affords opportunity for

notice and comment, it has satisfied its mandatory

duties under § 304(m). The publication schedule

preferred by OCE is not mandated by the statute,

and thus is not amenable to challenge under §

505(a)(2). ?

V. IDENTIFICATION OF NEW POLLUTING

SOURCES

OCE also argues that EPA has failed to

identify new categories of industry discharging toxic

and nonconventional pollutants not covered by

existing effluent guidelines. The district court found

that in 2005 EPA identified only two new sources for

which no guidelines then existed. According to

53a

OCE, following EPA’s 2003 review, EPA proposed

not to schedule promulgation of any new effluent

guidelines.

[16] Under § 304(m)(1)(B), the Administrator

“shall” devise a plan which “shall—identify

categories of sources discharging toxic or

nonconventional pollutants for which guidelines

under subsection (b)(2) of this section and section

1316 of this title have not previously been

published.” /@. The Administrator is also required to

schedule publication of effluent guidelines for the

categories identified under § 304(m)(1)(B). See CWA

§ 304(m)(1)(C).

[17] The statute does not require that the

Administrator identify a//or any existing categories

of sources, only that the Administrator identify

currently unregulated categories. The Senate

Committee Report on the 1985 Amendments states:

“Guidelines are required for any category of sources

discharging significant amounts of toxic pollutants.

In this use, ‘significant amounts’ does not require

the Administrator to make any determination of

environmental harm; any non-trivial discharges

from sources in a category must lead to effluent

guidelines.” S. Comm. on Env’t & Pub. Works, 99th

Cong., Report to Accompany S. 1128 (1985 Clean

Water Act Amendments) 25 (Comm. Print 1985).

The Senate Committee Report suggests that it is at

least within the discretion of the Administrator to

determine whether particular discharges are

non-trivial, and hence require new effluent

guidelines.

54a

[18] Applying Chevron deference, we hold that

the identification of new categories is a non-

discretionary duty, but that the precise number and

kind of such categories identified is discretionary

with the Administrator. The statutory language

and the legislative history do not command

otherwise. Since EPA did identify two new categories

of sources during the period in question here, OCE’s

challenge to the sufficiency of new source

identification is not properly brought under

§ 505(a)(2).

VI. MOTION TO TRANSFER

After filing a notice of appeal to this court,

OCE filed a motion to transfer its claims to this

court as if they were originally filed here under §

509(b)(1). The district court did not abuse its

discretion in refusing to transfer claims to this court

after the notice of appeal had been filed. See Griggs

v. Provident Consumer Discount Co., 459 U.S. 56, 58

(1982) (per curiam) (holding that once a notice of

appeal is filed, the district court is divested of

jurisdiction over the matter being appealed); see a/so

Miller v. Hambrick, 905 F.2d 259, 262

(9th Cir. 1990) (a challenge to the district court’s

refusal to transfer claims under 28 U.S.C. § 1631 is

reviewed for an abuse of discretion).

CONCLUSION

On remand, the district court has jurisdiction

to consider whether EPA is undertaking the

mandated technology-based review provided for

under the Act. The district court properly

55a

dismissed OCE’s claims regarding the scheduling of

plan publication and identification of new polluting

sources, and did not abuse its discretion in refusing

to transfer OCE’s claims to this court. The case is

remanded for further proceedings to determine

whether EPA has in fact breached its

nondiscretionary duties under §§ 301 and 304.

REVERSED and REMANDED for further

proceedings as to the claims challenging EPA’s

alleged abandonment of a technology-based

approach; AFFIRMED as to the plan publication

claim, new sources claim, and refusal to transfer

under 28 U.S.C. § 1631. Each party shall bear its

own costs on appeal.

WALLACE, Senior Circuit Judge, concurring in part

and dissenting in part:

I agree with the majority that the CWA does

not unambiguously state that the EPA must conduct

a technology-based review of its effluent guidelines.

Because the CWA does not clearly mandate a

particular method of review, I would hold that the

district court properly refused to exercise

jurisdiction.

Environmental advocates OCE brought suit

under sectionc505(a)(2) of the CWA. This section

provides jurisdiction in the district court for any

claims allegimg “a failwre of the Administrator to

perform any act or duty under this chapter which is

56a

not diseretionary with sre Administrato>.” CWA

§ 505ea)(2) We thawe recognized that only “clear-cut”

nendhscretionery dutees give rise to jurisdiction

wnder this sectiom. See Farmers Union Cent. Exch.,

Imc., 881 F.2d 757. 760 (9th Cir. 1989). We have

further emphasized that section 505(a)(2) was

“intemded te provade relief only in a narrowly-defined

class of sitmasioms on which the Administrator failed

to perform a mameéatory function,” and was not

mtended to “permit the court to direct the manner in

wimch any discretion given the Administrator in the

performance of those functions should be exercised.”

Kenmecett Copper Corp. v. Costle, 572 F.2d 1349,

1356 th Cir. 1978) (quoting Wisconsin’s Envtl

Dewade, Inc. v. Wiscomsin Power & Light Co., 395 F.

Supp. 313, 221 (W.D. Wis. 1975).

1 am not cenvinced that Chevron analysis is

appropriate for this case. We are not trying to

determine whether we should defer to the EPA’s

interpretation of the statute. We are merely

trying to determine whether, objectively, the statute

creates a mandatory duty, and whether plaintiffs

could therefore challenge the EPA’s failure to

perform that duty in the district court. In other

words, it is not a question of whether the HPA

thinks the statute is mandatory, it is a question of

whether we do. With the Chevron confusion

elimmated, this becomes a relatively straightforward

case.

It is undisputed that under the CWA, the EPA

has an obligation to review periodically its effluent

' guidelines and hmitations. It is further undisputed

57a

- 3

that the EPA has an obligation to utilize technology-

based criteria when it exercises its discretion

to revise the guidelimes and limitations. Nothing in

the CWA, however, specifically obligates the EPA to

review the effluemt guidelines and limitations using

a technology-based appreach. At most, the statutory

provisions and legislative history are ambiguous.

Beeause the CWA does not create a clear-cut,

mandatory duty on the part of the EPA, I would

affirm the district court’s determination that it

lacked jurisdiction under 505(a)(2).

I join the majority in holdimg that the district

court properly dismissed OCE’s remaining claims. I

alse join in holding that the district court did not

abuse its discretion in refusing to transfer OCE’s

claims to this court.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OUR CHILDREN’S EARTH

FOUNDATION, et al.,

Plaintiffs,

Vv.

U.S. ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Defendants.

No. C 04-2132 PJH

ORDER

The U.S. Environmental Protection Agency

(“EPA”)’s motion for judgment on the pleadings and

the parties’ various motions for summary judgment

came on for hearing on May 11, 2005 before this

cowet. Plaintiffs Our Children’s Earth Foundation

and Ecological Rights Foundation appeared through

their counsel Christopher Sproul and Michael Graf.

Defendant EPA appeared through its counsel Eileen

McDonough and Pooja Parikh. Intervenor

Association of Metropolitan Sewerage Agencies

(“AMSA”) appeared through its counsel David

Burchmore, and intervenor Effluent Guidelines

Industry Coalition (“EGIC”) appeared through its

counsel Fredric Andes.

Having read the papers, including the brief of

amicus curiae Waterkeeper Alliance, Inc., and

carefully considered the relevant legal authority, the

court GRANTS IN PART and DENIES IN PART

59a

EPA’s motion for judgment on the pleadings,

DENIES plaintiffs’ motion for summary judgment,

and GRANTS defendants’ and intervenors’ motions

for summary judgment, for the reasons that follow. '

BACKGROUND

This is an action brought under the Clean

Water Act (“CWA”), 33 U.S.C. § 1251(a) et seq., and

the Administrative Procedures Act (“APA”), 5-U.S.C.

§ 704. Plaintiffs assert that the EPA has failed to

comply with provisions of the CWA and the APA

concerning its regulation of effluent emissions (the

discharge of pollutants into water).

The CWA requires the EPA to review its

effluent guidelines annually, and to revise them “if

appropriate.” 33 U.S.C. § 1314(b). The CWA also

mandates that the EPA publish a plan every two

years that announces its schedule for performing

this annual review and the schedule for rulemaking

concerning any guidelines that are to be revised. 33

U.S.C. § 1314(m)(1)(A). This biennial plan must also

identify categories of sources that discharge toxic or

other non-conventional pollutants for which no

guidelines currently exist, and provide a schedule for

guidelines to be issued for those sources, with final

action required within three years. 33 U.S.C. §

1314(m)(1)(B).

’ Pursuant to Civ. L.R. 7-13, this order may not be cited

except as provided by Civ. L.. R. 3-4(e).

60a

Finally, the CWA requires the EPA to conduct

a review every five years of the current effluerit

limitations and to ensure that they reflect

appropriate levels of pollution based on the

best available technology economically achievable

and the best conventional pollutant control

technology. 33 U.S.C. § 1311(d). If they do not, the

EPA must revise the effluent limitations in

accordance with the guidelines set forth at 33 U.S.C.

§ 1311(b)(2).

In September 2004, the EPA published the

results of its 2004 review of the effluent guidelines

and limitations, along with a schedule for the 2005

review and proposed changes to the effluent

limitation guidelines. Graf Decl. Exh. 1 (“2004 EGP,”

at 69 Fed. Reg. 53705 (Sept. 2, 2004)). These reviews

combine the effluent limitations imposed along with

the guidelines suggested, and are known as “effluent

limitations guidelines,” which are promulgated in

the effluent guidelines plan. The EPA also included

revisions to two guidelines, added two new

categories for which guidelines may be promulgated,

and proposed a rulemaking schedule for the

promulgation of guidelines for the new categories.

Plaintiffs filed suit, claiming: 1) that the EPA

has failed to perform its mandatory duty to conduct

an annual review of all effluent guideline

limitations; 2) that the EPA has failed to conduct its

five-year review of the effluent limitations in

relation to the best available technology for reducing

pollution; 3) that the EPA has failed to issue timely

final effluent guideline plans; and 4) that the EPA

6la

has failed to publish a proper final biennial plan.

Specifically, plaintiffs claim that the 2004

EGP sets forth a plan that identifies those industries

with the highest risk of water pollution in the

categories that are already established, and provides

effluent guidelines only for those categories.

Plaintiffs claim that the 2004 EGP does not identify

other sources of water pollution among existing

categories or identify new industries that are not yet

regulated, and also fails to set national standards for

any industry determined to be a “subcategory” of an

already-regulated industry. Finally, plaintiffs claim

that the 2004 EGP does not set a schedule for

completing effluent guidelines for new industries,

and has instead only set a schedule for commencing

guideline promulgation.

On August 11, 2004, the court granted

summary judgment in favor of the EPA on the

third cause of action, finding that the EPA timely

issued its biennial plan and was not required

to issue that plan in conjunction with the calendar

year or the annual report. The EPA brings a

motion for judgment on the pleadings, and in

addition, all parties have filed cross-motions for

summary judgment on the remaining causes of

action.

DISCUSSION

As discussed at the hearing, the procedures by

which these motions were filed was somewhat

disorganized, with parties responding to arguments

62a

raised in the 12(c) motion in their summary

judgment motions, and parties filing numerous

motions and cross-motions in subsequent responsive

briefs. To streamline matters, this order is organized

instead by the legal issues raised as outlined by the

court at the hearing.

A. Legal Standards

Judgment on the pleadings under Fed. R. Civ.

P. 12(c) is appropriate after an answer has been filed

and the complaint fails to state a cause of action

upon which relief can be granted. See, e.g., Smith v.

Nat'l] Steel & Shipbuilding Co., 125 F.3d 751, 753

(9th Cir. 1997). Summary judgment is appropriate

when the evidence shows there is no genuine issue of

materia! fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P.

56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986).

B. Jurisdiction

i. Mootness

The EPA argues that this dispute is moot

because it has already issued the 2004 EGP. The

cyclical nature of the EPA’s obligations under the

CWA, however, render them “capable of repetition,

yet evading review.” This exception to the mootness

doctrine applies when “1) the duration of the

challenged action is too short to allow full litigation

before it ceases; and 2) there is a reasonable

expectation that the plaintiffs will be subject to it

63a

again.” Biodiversity Legal Foundation v. Badgley,

309 F.3d 1166, 1173-74 (9th Cir. 2002) (Dept. of

Interior’s failure to comply with requirements to list

endangered species on annual listings). Here, the

short duration of time permitted for the EPA’s

annual and biennial reports, coupled with the EPA’s

ongoing obligation to review and revise regulations

and issue reports, warrants the application of this

exception to the mootness doctrine.

2. Ripeness

The EPA argues that the dispute is not ripe

for review under the APA, because the 2004 effluent

guidelines review and plan cannot be considered

“final agency action” as required by the APA and

Norton v. Southern Utah Wilderness Alliance, 124 S.

Ct. 2373 (2004).

At the hearing, the parties’ arguments

whether plaintiffs had in fact asserted an APA

claim in this action were unclear. Plaintiffs claimed

that they were primarily proceeding under the CWA

claims, but in the alternative, if the court did not

find jurisdiction under the CWA to review the EPA's

non-discretionary actions, the court could also

proceed under the APA. However, the court here

finds that it has jurisdiction to review the EPA’s

non-discretionary actions, and furthermore, notes

that the amended complaint in this action does not

in fact allege any claims under the APA. The court

thus declines to reach any questions concerning the

applicability of the APA in this case.

64a

3. Standing

EGIC challenges plaintiffs’ standing to

proceed in this lawsuit. For the organizational

plaintiffs here to show standing, each organization

must show that 1) its members would otherwise

have standing to sue in their own right; 2) the

interests in the lawsuit are germane to its mission;

and 3) neither the claim nor the relief requires the

participation of individual members themselves.

Ecological Rights Foundation v. Pacific Lumber Co.,

230 F.3d 1141, 1147 (9th Cir. 2000) (citations

omitted). For the organizations’ members to show

standing, they must show 1) that they have suffered

an injury in fact, 2) that there is a causal connection

between the injury and the conduct at issue, and 3)

that it is likely that the injury will be redressed by a

verdict in their favor in this lawsuit. Friends of the

Earth, Inc. v. Laidlaw Environmental Serv., 528

U.S. 167, 180-81 (2000).

Plaintiffs are correct that they are alleging

“procedural injury” based on the EPA’s alleged

failure to promulgate an EGP that complies with the

CWA. To show standing to assert a procedural

injury, plaintiffs must demonstrate that “the

procedures in question are designed to protect some

threatened concrete interest of [theirs] that is the

ultimate basis of [their] standing.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 573 n. 8 (1992).

Plaintiffs provide declarations from their

members that show that many of them enjoy

engaging in water-related activities, and their

65a

enjoyment has been hampered by pollution from

industries that should have been regulated by the

EPA. Other members are hampered in their

ability to teach their children about marine life, are

hampered in their enjoyment of the coastline and

coastal marine life, and are unable to eat seafood

because of the EPA’s actions. See generally Evenson

Decl., Harty Decl., Parrott Decl.

EGIC claims that these allegations do not set

forth interests sufficiently concrete to warrant a

finding that the plaintiffs’ members have suffered an

injury in fact. However, plaintiffs’ members can

demonstrate the existence of an injury in fact by

showing that they have “an aesthetic or recreational

interest in a particular place ... and that that

interest is impaired by a defendant’s conduct.”

Ecological Rights Foundation, 230 F.3d at 1147

(citations omitted). Here, plaintiffs’ members have

provided specific facts showing their aesthetic and

recreational interest in clean water and clean water

habitats. See, e.g., Evenson Decl. §] 3 (member of

plaintiff organization Environmental Rights

Foundation); Harty Decl. 94] 3-7, 13, 17, 18 (member

of plaintiff organization Our Children’s Earth

Foundation); Parrott Decl. 4] 2-5, 15, 16, 18, 19

(member of Our Children’s Earth). This is sufficient

to demonstrate an injury in fact for both plaintiffs.

Id. (finding standing for individual members

who use the affected areas and would find the

aesthetic and recreational value of those areas

impaired by defendants’ actions), citing Laidlaw, 528

U.S. at 181-82; Cantrell v. City of Long Beach, 241

F.3d 674, 681 (9th Cir. 2001) (“To allege a legally

66a

protected, concrete aesthetic interest, a plaintiff

must show merely that the challenged action affects

his aesthetic or ecological surroundings’).

Similarly, because plaintiffs have properly

produced evidence supporting their claims of

aesthetic injury, they have shown the necessary

causal link between their injuries and the EPA’s

procedural actions. “The person who has been

accorded a procedural right to protect his concrete

interests can assert that right without meeting all

the normal! standards for redressability and

immediacy.” Lujan, 504 U.S. at 572 n. 7. Therefore,

plaintiffs’ members have standing to proceed on this

claim, even if changing the procedural rules might

not directly affect pollution levels in the waterways

they use and enjoy. Cantrell, 241 F.3d at 682.

Thus, because plaintiffs’ members have

adequately demonstrated standing, and because

EGIC does not dispute that this litigation is

important to the organizational plaintiffs’ mission or

that individual plaintiffs are not needed to

participate in this action, the organizations have

standing to proceed in this case.

C. Appellate Court Jurisdiction

Next, the EPA argues that this court does not

have jurisdiction over this dispute under the CWA.

This case arises under a claimed violation of 33

U.S.C. § 1314.and 1311. The CWA vests exclusive

jurisdiction over any claim arising under §§ 1311,

1312, 1315, and 1345 in the appellate courts. 33

67a

U.S.C. § 1369(b)(1)(E). See, e.g., Environmental

Protection Information Ctr. v. Pacific Lumber Co.,

266 F.Supp.2d 1101, 1109 (N.D. Cal. 2003)

(explaining regulatory structure of CWA). The

appellate court, however, cautions that its

jurisdiction under § 509 should be interpreted

narrowly. League of Wilderness Defenders v.

Forsgren, 309 F.3d 1181, 1190 n. 8 (9th Cir. 2002).

Plaintiffs argue that the Ninth Circuit has

ruled that its original jurisdiction is limited only

to the CWA sections specifically listed in § 1369, of

which § 1314 is not. Longview Fibre Co. v.

Rasmussen, 980 F.2d 1307, 1310 (9th Cir. 1992).

However, for claims arising under § 1314, even

though that section is not specifically listed in §

1369, jurisdiction vests in the appellate courts as

well, due-to the intertwined nature of sections 1311

and 1314. EJ. du Pont de Nemours and Co. v. Train,

430 U.S. 112, 127-128, 137 (1977) (approving of

EPA’s combined ef: .ent guideline limitations

reports, and finding that because § 1311 was drafted

specifically to be enacted through regulations set

forth in § 1314, the exclusive remedy for

violations of § 1314 is before the appellate courts as

well; it would be “truly perverse” to give the

appellate courts power to review specific permit

applications without also giving them the

“power of direct review of the basic regulations

governing those individual actions.”). See

also Waterkeeper Alliance, Inc. v. U.S. EPA, 399

F.3d 486, 511-524 (2d Cir. 2005) (appellate court

conducting review of effluent guideline limitations

under § 1314 in the first instance); P.L. 95-217 § 73

68a

91 Stat. 1609 (legislative history of CWA § 1314,

indicating that appellate courts were to review

EPA’s compliance with the administrative

requirements of the effluent guidelines and

limitation requirements). Cf Longview Fibre, 980

F.2d at 1310 (finding that § 1369 did not cover 33

U.S.C. § 1313, a separate section of the statute,

which is not at issue here).

The appellate court’s jurisdiction, though,

extends only to a substantive review of the

appropriateness of the guidelines actually

promulgated, and not to the threshold question of

whether the statutory requirements of the CWA

have been met. Under the CWA, while the appellate

court has jurisdiction over the substance of the

decisions made, the district court continues to

determine whether the agency has discharged its

non-discretionary duties under the statute. 33

U.S.C. § 1365(a)(2) (gives citizens right to file suit

“where there is alleged a failure of the Administrator

to perform any act or duty under this chapter which

is not discretionary with the Administrator”); see

also Alaska Center for the Environment v. Browner,

20 F.3d 981, 983 (9th Cir. 1994).

Therefore, to the extent that plaintiffs seek a

ruling on the question whether the EPA has

complied with its non-discretionary duties under the

CWA, those questions are properly before this court.

However, pursuant to section 1369 and Du Pont, this

court is unable to reach any questions that plaintiffs

raise concerning the substance of the regulations

that the EPA has issued. The court thus GRANTS

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IN PART and DENIES IN PART the motion for

judgment on the pleadings, and limits its review

solely to the question of whether the EPA discharged

its mandatory duties under the CWA. Plaintiffs wiil

not be permitted to bootstrap a review of the

substantive elements of the EPA’s decision in

violation of 33 U.S.C. § 1365(a)(2) and §-

1369(b)(1)(E).

D. Mandatory Duties

With questions about the scope of the court’s

jurisdiction now resolved, the court turns to the

central question at issue in this case — whether the

EPA properly discharged its duty under the CWA in

promulgating the 2004 EGP.

Under the CWA, the EPA is required to 1)

“revise, if appropriate” the effluent limitations

guidelines currently in place at least once a year, 33

U.S.C. § 1314(b); 2) publish every two years a plan

that establishs a schedule for the annual reviews,

identify categories of sources for which no guidelines

currently exist, and establish a schedule for the

promulgation of new guidelines for those new

categories of sources, 33 U.S.C. § 1314(m); and 3)

review at least every five years the limitations

promulgated under § 1314(b) and “if appropriate,”

revise them pursuant to standard procedures in

subsection(b), 33 U.S.C. § 1311(d).

The 2004 EGP is intended to serve as the

annual review under § 1314(b), the biennial

plan under § 1314(m), and the five-year review

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under § 1311(d) as well. 69 Fed. Reg. at 53705,

53707. The parties agree that the 2004 EGP moves

away from the technology-based plans previously

promulgated under a prior consent decree and this

year, is based instead on a risk/hazard assessment

methodology. This year, the EPA performed a first-

level screening of all the previous effluent guideline

categories, selected the categories it determined

posed the most significant risk for water pollution,

and promulgated guidelines only in those selected

categories. See, e.g., 69 Fed. Reg. at 53710-12. The

EPA also identified only two categories for which no

guidelines currently existed, and two categories for

which the guidelines might be modified. The EPA

did not examine any other categories. The EPA also

admits that it did not conduct a technology review of

the 450 categories and subcategories at issue.

Plaintiffs argue that the EPA has, accordingly, failed

to discharge the EPA’s mandatory duties under the

CWA.

The EPA is correct, however, that under §

1314(b) and § 1311(d), they need only review the

guidelines previously promulgated, and revise them

only if revisions are deemed “appropriate.” This

language thus grants broad discretion to the EPA to

determine how it wishes to conduct the annual

review. See, e.g., Norton, 124 S. Ct. 2373, 2380

(2004) (statute can require agency to act but when

act is left to agency’s discretion, the court cannot

specify what particular type of action must be

taken). Furthermore, in doing so, the EPA is not

constrained by the factors listed in § 1314(b)(2). The

plain language of the statute indicates that the

Fla

factors applied only to the regulations to be

promulgated back in 1972, and not to the review or

revisions subsequently made. Similarly, the EPA

need only conduct a “review” of the effluent

limitations every five years, and need only comply

with the standards set forth in § 1311(b) if revision

is found to be appropriate.

The plain language of § 1314(m) also makes

clear that the EPA is not required to perform a

technological review for all 450 categories and

subcategories of effluent guideline limitations in the

biennial report. The statute only requires that the

EPA establish a schedule for the annual review, that

new categories be identified, and that a schedule for

promulgating rules for the newly-identified

categories be proposed.

EPA has met all the requirements for the

annual guideline review, biennial report, and five-

year limitations review. Therefore, the EPA’s

mandatory duties under § 1314(m) have been fully

discharged.

At the hearing, it became evident that

plaintiffs recognize that the EPA has complied at

some basic level with these requirements, and they

object to the method by which the EPA did so,

arguing that it is contrary to the purpose of the CWA

to replace a technology-based review with a hazard-

based review, and that the rules promulgated have

the effect of exempting certain categories of water

pollution entirely from review. Those questions,

would be answered by a substantive review of the

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2004 EGP, which this court has no jurisdiction to

conduct.

E. Conclusion

Summary judgment on the question of

whether the EPA has discharged its mandatory

duties under the CWA is GRANTED in favor of the

EPA and intervenors, and DENIED as to plaintiffs.

The motion for judgment on the pleadings is

GRANTED IN PART and DENIED IN PART, in that

the court finds that its jurisdiction is limited to a

review of the discharge of the EPA’s statutory duties

and does not reach questions that would amount to a

substantive review of the 2004 EGP.

This order fully adjudicates the matters listed

at nos. 63, 74, 87, 104, 105, and 113 on the clerk’s

docket, and all other pending matters for this case.

The clerk is ordered to close the file.

IT IS SO ORDERED.

Dated: May 20, 2005

PHYLLIS J. HAMILTON

United States District Judge

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STATUTORY PROVISIONS

28 U.S.C. § 1254(1)

Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree

Clean Water Act

Section 505(a)(2) [33 U.S.C. § 1365(a)(2)]

(a) Authorization; jurisdiction

Except as provided in subsection (b) of this section

and section 1319(g)(6) of this title, any citizen may

commence a civil action on his own behalf—

(2) against the Administrator where there is alleged

a failure of the Administrator to perform any act or

duty under this chapter which is not discretionary

with the Administrator.

Section 304(b) [33 U.S.C. § 1314(b)]

(b) Effluent limitation guidelines

For the purpose of adopting or revising effluent

limitations under this chapter the Administrator

74a

shall, after consultation with appropriate Federal

and State agencies and other interested persons,

publish within one year of October 18, 1972,

regulations, providing guidelines for effluent

limitations, and, at least annually thereafter, revise,

if appropriate, such regulations. Such regulations

shal]—

(1)

(A) identify, in terms of amounts of

constituents and chemical, physical, and

biological characteristics of pollutants, the

degree of effluent reduction attainable

through the application of the best practicable

control technology currently available for

classes and categories of point sources (other

than publicly owned treatment works); and

(B) specify factors to be taken into account in

determining the control measures and

practices to be applicable to point sources

(other than publicly owned treatment works)

within such categories or classes. Factors

relating to the assessment of best practicable

control technology currently available to

comply with subsection (b)(1) of section 1311

of this title shall include consideration of the

total cost of application of technology in

relation to the effluent reduction benefits to be

achieved from such application, and shall also

take into account the age of equipment and

facilities involved, the process employed, the

engineering aspects of the application of

various types of control techniques, process

changes, non-water quality environmental

impact (including energy requirements), and

75a

such other factors as the Administrator deems

appropriate;

(2)

(A) identify, in terms of amounts of

constituents and chemical, physical, and

biological characteristics of pollutants, the

degree of effluent reduction attainable

through the application of the best control

measures and practices achievable including

treatment techniques, process and procedure

innovations, operating methods, and other

alternatives for classes and categories of point

sources (other than publicly owned treatment

works); and

(B) specify factors to be taken into account in

determining the best measures and practices

available to comply with subsection (b)(2) of

section 1311 of this title to be applicable to

any point source (other than publicly owned

treatment works) within such categories or

classes. Factors relating to the assessment of

best available technology shall take into

account the age of equipment and facilities

involved, the process employed, the

engineering aspects of the application of

various types of control techniques, process

changes, the cost of achieving such effluent

reduction, non-water quality environmental

impact (including energy requirements), and

such other factors as the Administrator deems

appropriate;

(3) identify contro) measures and practices

available to eliminate the discharge of

pollutants from categories and classes of point

76a

sources, taking into account the cost of

achieving such elimination of the discharge of

pollutants; and

(4)

(A) identify, in terms of amounts of

constituents and chemical, physical, and

biological characteristics of pollutants, the

degree of effluent reduction attainable

through the application of the best

conventional pollutant control technology

(including measures and practices) for classes

and categories of point sources (other than

publicly owned treatment works); and (B)

specify factors to be taken into account in

determining the best conventional! pollutant

control technology measures and practices to

comply with section 1311 (b)(2)(E) of this title

to be applicable to any point source (other

than publicly owned treatment works) within

such categories or classes. Factors relating to

the assessment of best conventional pollutant

controi technology (including measures and

practices) shall include consideration of the

reasonableness of the relationship between

the costs of attaining a reduction in effluents

and the effluent reduction benefits derived,

and the comparison of the cost and level of

reduction of such pollutants from the

discharge from publicly owned treatment

works to the cost and level of reduction of such

pollutants from a class or category of

industrial sources, and shall take into account

the age of equipment and facilities involved,

the process employed, the enginecring aspects

77a

of the application of various types of control

techniques, process changes, non-water

quality environmental impact (including

energy requirements), and such other factors

as the Administrator deems appropriate.

Section 304(m) [33 U.S.C. § 1314(m)]

(m) Schedule for review of guidelines

(1) Publication

Within 12 months after February 4, 1987, and

biennially thereafter, the Administrator shall

publish in the Federal Register a plan which

shall—

(A) establish a schedule for the annual

review and revision of promulgated

effluent guidelines, in accordance with

subsection (b) of this section;

(B) identify categories of sources

discharging toxic or nonconventional

pollutants for which guidelines under

subsection (b)(2) of this section and

section 1316 of this title have not

previously been published; and

promulgation of effluent guidelines for

categories identified in subparagraph

(B), under which promulgation of such

guidelines shall be no later than 4 years

after February 4, 1987, for categories

identified in the first published plan or

3 years after the publication of the plan

for categories identified in later

published plans.

78a

(2) Public review

The Administrator shall provide for public

review and comment on the plan prior to final

publication.

Section 301(b)(2)(A)@), (C), (D), and (F)

[33 U.S.C. § 1311(b)(2)(A)@), (C), (D), and (F)]

In order to carry out the objective of this

chapter there shall be achieved—

ek*

(2)(A) for pollutants identified in

subparagraphs (C), (D), and (F) of this

paragraph, effluent limitations for categories

and classes of point sources, other than

publicly owned treatment works, which

(i) shall require application of the best

available technology economically achievable

for such category or class, which will result in

reasonable further progress toward the

national goal of eliminating the discharge of

all pollutants, as determined in accordance

with regulations issued by the Administrator

pursuant to section 1314 (b)(2) of this title,

which such effluent limitations shall require

the elimination of discharges of all pollutants

if the Administrator finds, on the basis of

information available to him (including

information developed pursuant to section

1325 of this title), that such elimination is

technologically and economically achievable

for a category or class of point sources as

79a

determined in accordance with regulations

issued by the Administrator pursuant to

section 1314 (b)(2) of this title.

**k*

to in table 1 of Committee Print Numbered

95—30 of the Committee on Public Works and

Transportation of the House of

Representatives compliance with effluent

limitations in accordance with subparagraph

(A) of this paragraph as expeditiously as

practicable but in no case later than three

years after the date such limitations are

promulgated under section 1314 (b) of this

title, and in no case later than March 31,

1989;

(D) for all toxic pollutants listed under

paragraph (1) of subsection (a) of section 1317

of this title which are not referred to in

subparagraph (C) of this paragraph

compliance with effluent limitations in

accordance with subparagraph (A) of this

paragraph as expeditiously as practicable, but

in no case later than three years after the date

such limitations are promulgated under

section 1314 (b) of this title, and in no case

later than March 31, 1989;

eek

(F) for all pollutants (other than those subject

to subparagraphs (C), (D), or (E) of this

80a

paragraph) compliance with effluent

limitations in accordance with subparagraph

(A) of this paragraph as expeditiously as

practicable but in no case later than 3 years

after the date such limitations are

established, and in no case later than March

31, 1989.

Section 301(d) [33 U.S.C. § 1311(d)]

(d) Review and revision of effluent limitations

Any effluent limitation required by

paragraph (2) of subsection (b) of this

section shall be reviewed at least every

five years and, if appropriate, revised

pursuant to the procedure established

under such paragraph.

8la

EPA

United States Environmental! Protection Agency

Factor 2 Analysis: Technology Advances

and Process Changes

Status of Screening Level Review Phase

U.S. Environmental Protection Agency

Engineering and Analysis Division

Office of Water

1200 Pennsylvania Avenue, NW

Washington, D.C. 20460

REVISED DRAFT

30 December 2003

Executive Summary

During the current planning cycle, EPA plans to

evaluate all of these tools to determine whether

they are appropriate for use in this or future

planning cycles.

The initial screening of industrial categories

relicd primarily on information gathered under

Factor 1: Human Health and the Environment

(addressing discharge amounts, toxicity and effects)

and Factor 4: Efficiency and Implementation

(addressing efficiency of the guidelines and NPDES

permitting programs, multi-media issues, etc.).

82a

Using these two factors EPA identified twenty

industrial categories for additional data collection.

EPA also set its priorities for additional analyses

supporting the final Effluent Guidelines Program

Plan for 2004/2005. Specifically, EPA intends to

complete a detailed review of the following

industries to support the final Effluent Guidelines

Program Plan for 2004/2005: Organic Chemicals,

Plastics, and Synthetic Fibers (OCPSF); and

Petroleum Refining. After considering all available

data, EPA may decide to identify one or both of these

industries in the final Effluent Guidelines Program

Plan for 2004/2005 for effluent guidelines revisions.

To the extent possible in the limited time remaining

in this planning cycle, EPA will continue to address

data gaps and uncertainties affecting EPA's

estimates of the potertial risks and hazards posed

by the remaining industries.

EPA found that gathering the data needed to

perform a meaningful screening-level analysis for

Factor 2 was much more resource-intensive than

anticipated. Data sources in this area are widcly

scattered and often lack sufficient detail and process

specificity to be useful at a screening level. They are

better suited to in-depth analysis of specific

industries. Factor 2 was considered, to the extent

possible, during an additional screening-level step

EPA applied to a limited set of industries with

relatively high estimates of potential risk to human

health or the environment. As discussed in the draft

Strategy and in the preliminary Effluent Guidelines

Program Plan for 2004/2005 this factor will also be

considered more extensively in the forthcoming

83a

detailed investigations.

“ex

2.0 Factor 2 Information Resources

EPA reviewed several industry- or technology-

focused resources to identify additional industrial

categories likely to have technology advances or

process changes. These three resources are EPA’s

Office of Compliance Sector Notebooks, industry

journals, and industry association publications and

web sites, and are discussed in the following

sections.

2.1 Office of Compliance Sector Notebooks

The Sector Notebook series is produced by the

EPA’s Office of Enforcement and Compliance

Assurance (OECA) to provide users with a

consolidated source of compliancerelated information

for specific industry sectors. It is a set of industry

profiles containing detailed sector-specific

environmental information. Unlike many resource

materials, which are organized by air, water, and

land pollutants, the Notebooks provide a holistic,

“whole facility” approach by integrating

manufacturing process, applicable regulations, and

other relevant environmental information. Sector

Notebooks are available for a total of 23 industry

sectors. Each Notebook includes the following

information:

* Overview of the industry, including size,

84a

geographic distribution,

organizational! structure, products, economic

trends, and financial analysis;

- Description of manufacturing processes,

including inputs of raw materials

and pollution outputs;

* Summary of chemical releases to the

environment;

* Summary of applicable federal statutes and

regulations;

* Compliance and enforcement history;

* Review of major legal actions;

* Pollution prevention opportunities;

* Government and industry initiatives for

compliance assurance; and

* Resource materials and contacts.

Sector Notebooks may be useful references for

a more detailed look at specific industries identified

for second-level screening.

2.2 Office of Wastewater Management’s Clean

Water Act Recognition Awards

The Office of Wastewater Management in

EPA’s Office of Water runs a program called “Clean

85a

Water Act Recognition Awards. This program was

formerly National Wastewater Management

Excellence Awards Programs. Through this program,

EPA recognizes municipalities, wastewater

treatment programs, facilities, and individuals on a

national level as examples of an outstanding

commitment to protect and improve the quality of

the nation's waters. The national winners have

demonstrated exceptional technological

achievements of innovative processes in their waste

treatment and pollution abatement programs.

National awards are presented for prominent

accomplishments in innovative operations and

maintenance; exemplary biosolids management;

outstanding local pretreatment programs; and

creative and cost-effective storm water and combined

sewer overflow control programs and projects.

A compilation of winners for the period of

1986 through 2002 is available online at

http://www.epa.gov/owm/pdfs/prevwinn86-02. pdf.

Although these awards are plant specific, they may

provide a starting place for identifying innovative

technological advances in wastewater treatment.

EPA intends to review the supporting

documentation to determine whether this resource

can be used in the detailed investigation phase of the

current planning process.

2.3. Industry Journals

An important source of information on

technology advances and process changes is industry

journals and industry-focused literature. The scope

86a

of available information made it difficult to utilize

this resource in the screening level review phase.

However, journals and other literature will be

included in the detailed investigation phase of the

current planning cycle.

2.4 Industry Association Publications and Web

Sites

Another important source of information on

technology advances and process changes is industry

trade association publications and their web sites.

The scope of available information made it difficult

to utilize this resource in the screening level review

phase. However, trade association resources will be

included in the detailed investigation phase of the

current planning cycle.

2.5 Industrial Wastewater and Best Available

Treatment (BAT) Technologies

Conference

EPA recently co-sponsored a technical

conference with Vanderbilt University entitled

Industrial Wastewater and Best Available

Treatment (BAT) Technologies: Performance,

Reliability, and Economics. Over the last 30 years,

industries have accumulated much expertise and

experience in wastewater treatment process design

and operation to comply with effluent limitations

guidelines and standards. This meeting provided a

forum to share these experiences and lessons learned.

87a

Representatives of academia, government, and

industry shared information on water pollution

control, including improvements to traditional

wastewater treatment processes, process changes,

and best management practices that lead to

reductions in pollution.

Industries seek to meet effluent limitations

guidelines and standards (and reduce production

and treatment costs) by designing treatment

systems appropriate for specific process

wastewater characteristics and managing process

water flow (including recycle-reuse). Although

the types and quantities of pollutants generated

varies from industry to industry, their treatment

and pollution goals are similar: use waste

minimization processes and the best treatment

technologies available to minimize pollutant

discharge. This section presents a brief overview of

these technology advances, including biological

treatment, filtration and membrane technologics,

control of metals, and pollution prevention

approaches.

2.5.1. _ Biological Treatment Processes

Advances in biological treatment are a result

of regulatory initiatives to contro] nutrients

(nitrogen and phosphorous), multimedia approaches

to control volatile organic pollutant emissions, and

the need for treatment systems to handle higher

organic pollutant loadings. Although new operating

techniques and equipment have been developed to

meet these challenges, basic biological treatment

88a

principals including pretreatment and equalization

are a necessity for optimum performance.

Pretreatment of biological system influent (including

sedimentation, flotation, precipitation, stripping,

and ion exchange) lessens the amount of non-

degradable solids entering the system, removes toxic

constituents which can slow bacteria! metabolic

activity, and prevents the introduction of

constituents that impede solid-liquid separation.

Equalization dampens both flow and organic loads to

the biological treatment system, creating consistent

feed to microorganisms (F/M) ratios and preventing

solids wash-out from clarification systems.

Improvements to typical treatment

technologies may occur due to site-specific issues

such as water quality-based effluent limitations,

local water concerns, land availability, materials

recycle, and economics. For example, a chemicals

manufacturing company implements anaerobic

technologies in Europe and Asia because energy and

sludge disposal costs are more significant there than

in the US. A pulp and paper mill that does not have

large amount of level !and in proximity to the

manufacturing area cannot use the common practice

of treating wastewater in large aerated stabilization

basins. Instead, the mill has developed methods to

achieve maximum BOD and 'I'SS reduction with only

hours of detention in the biological reactor.

The remainder of this section presents a

summary of the operational or equipment changes

that have been made to full-scale biological

treatment systems to enhance nutrient removal,

89a

control air emissions, and allow for stable treatment

of high-strength organic wastewater.

Biological Nutrient Removal (BNR).

Conventional activated sludge wastewater

treatment systems can be modified to remove

ammonia, nitrate and organic nitrogen, and total

phosphorus, while continuing to remove BOD and

other organic pollutants. To remove total nitrogen,

an anoxic zone is created in the system by either

adding a new tank prior to the aeration basin or by

isolating a portion of the aeration tank using a

constructed barrier. Nitrate, formed in the aerobic

portion of the system from conversion of both free

ammonia and organically bound nitrogen, is recycled

with a portion of the system effluent to the anoxic

tank where it is converted to nitrogen gas.

Phosphorus can be removed using

conventional activated sludge systems by installing

an anaerobic tank prior to the anoxic denitrification

tank and the aerated activated sludge tank In the

anaerobic tank, in-coming raw wastewater is mixed

with biomass in the absence of oxygen, causing the

biomass to rapidly uptake BOD and release

phosphate. Phosphate from the anaerobic tank

enters the aerobic portion of the treatment system

where it is incorporated back into the biomass

during cell synthesis. Phosphate is removed from the

treatment system via sludge wasteage.

Some facilities have also implemented

sustainable development projects utilizing BNR for

90a

the control of nutrients. Organic chemicals

manufacturing operations have wastewaters with

high levels of nitrate and carbonaceous content.

Treatment operations comprised of BNR, a

constructed wetland, and land application (for

beneficial reuse of biosolids) has resulted in

removals of COD above 99 pervent, and virtually

complete removal of nitrate and nitrite.

BNR may also be applicable for treatment of

wastewater generated by hospitals and at industrial

organic chemicals manufacturing facilities. Hospital

waste contains nitrogen compounds found in

pharmaceutical and personnel care products, while

industrial organic chemicals manufacturing facilities

use a variety of raw materials including phosphoric

acid, ammonia, and nitric acid.

9la

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.