# Appendix — Our Children's Earth Foundation Foundation v. Environmental Protection Agency (No. 08-225) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0193%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2008 ## Text UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OUR CHILDREN’S EARTH FOUNDATION, and ECOLOGICAL RIGHTS FOUNDATION; ECOLOGICAL RIGHTS FOUNDATION, Plaintiffs-Appellants, v. 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 la 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. 2a 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 The opinion filed October 29, 2007, slip op. 14215, and appearing at 506 F.3d 781, is withdrawn.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 3a 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. 4a 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)). 6a 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. 7a 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 8a 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. 9a 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). 10a 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 lla 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 12a 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 13a 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 l4a 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 15a 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. 16a 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 17a (C) establish a schedule for 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 18a 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 19a 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. 20a {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 2la 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 22a 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, v. 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 32a 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 (C) establish a schedule for 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 46a 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, 48a 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 49a 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 50a 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 5la 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 4% 4 9 4 - 3 a a a . : aa 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 69a 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 70a 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 72a 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 73a 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— kk (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 (C) establish a schedule for 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* (C) with respect to all toxic pollutants referred 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 ke 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 sy [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0193%3A2. Public record. Not legal advice.