Petition for Writ of Certiorari — Maier v. Environmental Protection Agency

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Supreme Court. U.S.

FILED

97-378 AUG 2 6 1997

OFFICE OF THE CLERK

No.

In The

Supreme Court of the United States

October Term, 1997

PETER MAIER, P.E.; INTERMOUNTAIN WATER

ALLIANCE; ATLANTIC STATES

LEGAL FOUNDATION; and KAY HENRY,

Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; and CAROL BROWNER, Administrator,

United States Environmental Protection Agency,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

CHARLES M. TEBBUTT

Counsel of Record

Western Environmental Law Center

1216 Lincoln St.

Eugene, OR 97401

(541) 485-2471

QUESTIONS PRESENTED

1. May a Court supply its own interpretation of an

ambiguous statutory provision, which interpretation was not

advanced by the agency charged with administering the

statute, and which is actually contrary to the agency’s prior

interpretation of that statutory provision?

2. May the Environmental Protection Agency refuse

to consider amending its nation-wide "technology-based"

regulations under the Clean Water Act governing pollution

discharges from sewage treatment plants, where the agency

acknowledges that new technology exists to support

adoption of more protective regulations that can be

implemented at no greater cost than existing regulations?

LIST OF PARTIES

The names of all parties to the proceedings in the

court whose judgment is sought to be reviewed here appear

in the capuon of the case. There is no parent or subsidiary

company of any party.

PPO AOE RIE SREP gent Ante

TABLE OF CONTENTS

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Reasons for Granting the Writ.................cceeeeereeeeeeeee 7

I. The Court of Appeals’ Decision Directly

Conflicts with Supreme Court Precedent

Disallowing a Court from Supplying its Own

Statutory Interpretation of an Ambiguous Statute

Not Advanced by the Administering Agency........ 7

Il. The Court of Appeals’ Decision Directly

Conflicts with Supreme Court Precedent

Requiring Technology-based Water Pollution

Regulations under the Clean Water Act............. 10

SV eddba tek beasderenbbas 14

Appendix

Appendix A: Opinion of the United States Court of

Appeals for the Tenth Circuit, Dated

May 28, 1997

Appendix B: Petition for Rulemaking Before the

Environmental Protection Agency,

Dated August 6, 1993

Appendix C: EPA Response to Petition for

Rulemaking, Dated August 6, 1993

TABLE OF AUTHORITIES

Cases

Chevron U.S.A. v. Natural Resources Defense

Council, 467: 35.5. BST CAFE): sicvecvccsncensitess. 7-10

Colorado Environmental Coalition v. Lujan,

803 F.Supp. 364 (D. Colo. 1992).............. 12 n.5

Environmental Protection Agency v. California

ex rel. State Water Resources Control Board,

ae 57 as Le ig inkkckc kik eae 10-13

Franklin Savings Ass'n. v. Director, Office of Thrift

Supervision, 934 F.2d 1127, 1137 (10th Cir.),

cert. denied, 503 U.S. 937 (1992).............. 12 n.5

Statutes

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oe Re S OPA oe. ss se 2-4, ‘3

OP ERAS hii. a gs pe 2, 5,382.3

Pe MOA, GIS inci 2

USL. 4 OO ia a 5

Other Authorities

PR Pe FO Pine EOE Oe 3, 8n.3

GE POG. Reg. FF 728 Ci es 8 n.3

8 Pod, Reg: $2,273: GNov. 16, 1983)... 4

S. Rep. 92-414, at 43, reprinted in 1972

CSC AN. SOGB, 8710 oie 11 n.4

2 ca eee OMS LEE

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iil

PETITION FOR WRIT OF CERTIORARI

Petitioners Peter Maier, P.E., Intermountain Water

Alliance, Atlantic States Legal Foundation, and Kay Henry

(herein collectively "Maier") respectfully petition for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Tenth Circuit, entered May 28,

1997 .

OPINIONS BELOW

The opinion of the Court of Appeals is published at

114 F.3d 1032 (10th Cir. 1997) and is reproduced in the

Appendix to this petition at Appendix A. This was an

original action in the Court of Appeals. The underlying

administrative petition by Maier to the respondents United

States Environmental Protection Agency and Carol

Browner, Administrator, United States Environmental

Protection Agency (herein collectively "EPA"), is

reproduced at Appendix B. The response by the EPA to

the administrative petition is reproduced at Appendix C.

JURISDICTION

The Court of Appeals entered its judgment on May

28, 1997. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

STATUTE INVOLVED

This case concerns the Clean Water Act, 33 U.S.C.

§ 1251 et seg., of which the pertinent sections are set out

helow:

§ 1251(a)(1): It is the national goal that the

discharge of pollutants into the navigable waters be

eliminated by 1985.

§ 1311(b): In order to carry out the objective of this

chapter there shall be achieved-

* * *

(1)(B) for publicly owned treatment works .

. . effluent limitations based upon secondary

treatment as defined by the Administrator

pursuant to section 1314(d)(1) of this title.

§ 1314(d)(1): The Administrator . . . shall publish

within sixty days after October 18, 1972 (and from

time to time thereafter) information, in terms of

amounts of constituents and chemical, physical, and

biological characteristics of pollutants, on the degree

of effluent reduction attainable through the

application of secondary treatment.

ab LT nih anal AcE DEI final

Se ee

STATEMENT OF THE CASE

Petitioner Peter Maier, P.E. and other parties

submitted a petition for rulemaking before the EPA on

August 6, 1993, to amend the "secondary treatment"

regulations for publicly owned treatment works

("POTWs"), 40 C.F.R. Part 133. App. B. POTWs are the

sewage treatment plants in operation in every community

across the United States, and they are designed primarily to

meet the permit limitations written to conform with the

regulations at issue here. "Secondary treatment" "refers to

a process of physical and biological treatment of

wastewater to remove pollutants which deplete the water’s

oxygen content and increase its acidity." App. A at 4 n.2,

see also id. at 25-27.

Specifically, Maier petitioned the EPA to initiate a

rulemaking to consider including controls on nitrogenous

biochemical oxygen demand ("NOD" or "NBOD") and

nutrients (phosphorous, nitrates, ammonia) in its secondary

treatment regulations, which currently only control

carbonaceous BOD ("CBOD"), suspended solids, and pH.

See App. A at 5-9; App. B. NOD and nutrients result

from urine and protein wastes, and often comprise the

largest components of raw sewage flowing into POTWs.

App. B at 9, 12. The petition, based largely on EPA

reports issued since the last time the secondary treatment

regulations were amended in 1983-84, showed that newly-

proven technologies exist such that these regulations could

be adopted without imposing any additional treatment costs

on municipalities. App. A at 8; App. B at 16-18.

The Clean Water Act ("CWA") was passed by

Congress in 1972 with the "national goal that the discharge

of pollutants into the navigable waters be eliminated by

1985." 33 U.S.C. § 1251(a)(1). Although this goal has

not yet been achieved, it remains the goal of the CWA.

Congress sought to achieve this goal by a new means

compared with previous water pollution statutes: rather

than only require pollution controls proven to abate

identified water-quality problems, Congress instead

required pollution controls that were shown to be

technologically and economically feasible, to work towards

the goal of the eventual elimination of water pollution.

App. A at 46-47.

In 1983, the date of the last proposed rule to amend

the secondary treatment regulations, it was not proven that

NOD and nutrients could be removed cost-effectively by

POTWs, and so were not included in the secondary

treatment regulations. App. A at 27: 48 Fed. Reg. 52,273

(Nov. 16, 1983). However, new information has

developed since 1983, as documented in published EPA

reports, showing that technologies now exist for POTWs

that can control NOD and nutrients at no mo:e cost than

treating CBOD alone. App. B at 16-18. Maier’s petition

for rulemaking was based on these new reports.’

The EPA responded to the petition, denying it, on

February 6, 1995. App. C. In that denial the EPA refused

to commence a rulemaking to determine whether NOD and

nutrients should be regulated, and if so, in what amounts.

'_ The rulemaking petition also suggested that the

five-day values for BOD be changed to a formula that

represents the ultimate value of BOD, a formula earlier

acknowledged by the EPA to be appropriate. App. B at

15.

nT en eee

Id. The EPA did not seriously’ deny that controls on NOD

and nutrients were technologically and economically

feasible, but asserted that as a legal matter, it need not

consider such controls, because: 1) Congress did not intend

NOD and nutrients to be controlled as secondary treatment;

and 2) it was allowed to address them solely on a case-by-

case basis, based on local water quality standards,

anywhere NOD and nutrients were deemed a water quality

problem, rather than by the nation-wide, technology-based,

secondary treatment regulations.

Pursuant to the judicial review provision of the

CWA, 33 U.S.C. § 1369, Maier filed a petition for review

of the EPA’s denial of the petition for rulemaking on June

2, 1995 in the United States Court of Appeals for the

Tenth Circuit. On May 28, 1997, by a 2 to 1 vote, the

Court of Appeals affirmed the EPA’s denial. App. A.

The Court rejected the EPA’s argument that Congress did

not intend the secondary treatment regulations to include

NOD and nutrients. App. A at 26-27. Instead, the Court’s

decision rested on a different two-part, inter-dependent

holding. The first part was based on a statutory

interpretation of 33 U.S.C. § 1311(b)(1)(B) not advanced

by the EPA, which was that even if "secondary treatment"

is defined by the EPA to include NOD and nutrients, the

> The EPA had one sentence in its response to the

rulemaking petition asserting that the technologies

presented were only applicable to "relatively small

municipal treatment facilities due to greater land

requirements.” App. B at 25. However, this single-

sentence assertion was “unsubstantiated,” and the EPA did

not otherwise disavow the accuracy of its own reports. See

App. A at 51-52 n.6.

EPA need not promulgate regulations requiring POTWs to

meet this level of secondary treatment. but could rely on

“other factors” in promulgating its secondary treatment

regulations. App. A at 27-31.

The second part of the Court’s holding, having

found that the EPA could rely on "other factors," was that

it agreed with the EPA’s argument that it could choose to

address NOD and nutrients on a permit-by-permit basis,

rather than including them in the nation-wide secondary

treatment regulations, ignoring technological capability and

instead relying only upon water quality standards for these

pollutants. App. A at 31-34.

The dissent disagreed with both parts of the

majority's decision. App. A at 38-52. It took issue with

the first part because: a) the majority imposed a statutory

construction not advanced by the EPA; and b) that

statutory construction was actually contrary to the EPA’s

own construction, as evidenced by past rulemakings. App.

A at 38-43. The dissent also disagreed with the second

part of the majority’s decision, that the EPA could rely

solely on water quality-based permit-by-permit limitations

for NOD and nutrients, where Maier’s petition showed,

without any contrary evidence by the EPA, that cost-

effective technologies now exists to support secondary

treatment regulations for those pollutants. App A. at 45-52.

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS’ DECISION

DIRECTLY CONFLICTS WITH SUPREME

COURT PRECEDENT DISALLOWING A

COURT FROM SUPPLYING ITS OWN

STATUTORY INTERPRETATION OF AN

AMBIGUOUS STATUTE NOT ADVANCED

BY THE ADMINISTERING AGENCY

The Court of Appeals’ decision is in direct conflict

with Chevron U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) ("Chevron"), and so this

petition should be granted.

In Chevron, the Court stated the scope of review in

a case such as this:

When a court reviews an agency's

construction of the statute it administers, it is

confronted with two questions. First, always, is the

question whether Congress has directly spoken to

the precise question at issue. If the intent of

Congress is clear, that is the end of the matter; for

the court, as well as the agency, must give effect to

the unambiguously expressed intent of Congress.

If, however, the court determines Congress has not

directly addressed the precise question at issue, the

court does not simply impose its own construction of

the statute, as would be necessary in the absence of

an administrative inzerpretation. Rather, if the

statute is silent or ambiguous with respect to the

specific issue, the question for the court is whether

the agency's answer is based on a permissible

construction of the statute.

467 U.S. at 842-43 (footnotes omitted) (emphasis added).

The Court of Appeals, however, did not follow this

principle: it supplied an interpretation of the CWA not

advanced by the EPA,’ asserting that it must do so under

Chevron because "we may not avoid construing the statute

to the extent necessary to determine that the agency’s

regulations are not ‘manifestly contrary to statute.’" App.

A at 30 n.17, citing Chevron, 467 U.S. at 844. However,

this is not the rule pronounced in Chevron. Chevron states

that a court must defer to agency interpretations of

ambiguous statutes “unless they are arbitrary. capricious,

or manifestly contrary to statute”; it does not say, as the

Court of Appeals did, that a court must supply its own

interpretation of a statute, not advanced by an agency,

which it Teeis is necessary tc >revent the Court from

>. The interpretation of the CWA which the majority

announced was that the term "based upon” in 33 U.S.C. §

1311(b)(1)(B) meant that even if "secondary treatment”

were now properly defined to include NOD and nutrients

(which it believed was true- see App. A at 26-27), "the

Statute does not on its face require that the generally-

applicable effluent limitations address ail pollutants that

might be reduced by secondary treatment." App. A at 29

(emphasis in original).

As the dissent points out. not only was this statutory

interpretation not advanced by the EPA in this case, it is

contrary to how the EPA itself has interpreted it over the

years. App. A at 41-43 (citing. inter alia, 41 Fed. Reg.

37,222 (1976): "Secondary treatment (as defined in 40

C.F.R. 133) is the minimum level of treatment required for

all publicly-owned treatment works.”).

oe odode i

finding the agency’s interpretation as embodied in its

regulations "manifestly contrary to statute." See 467 U.S.

at 844 (emphasis added).

The dissent pointed out this legal error, finding that

nowhere in the EPA’s denial of the rulemaking petition. its

brief, or in any material in the record did the EPA make

the argument or interpret the statutory provision as the

majority did. App. A at 41. The majority responded to

this objection, not by answering that the EPA did in fact

make the argument (which it could not because the EPA

did not), but by supporting its decision to supply its own

Statutory interpretation by attempting to distinguish between

the “source of agency discretion" and the "basis for the

agency's exercise of its discretion." App. A at 30 n.17

(emphasis in original). Through this cryptic explanation,

the Court appeared to state that once it feels the agency’s

decision was ultimately reasonable, it could supply its own

Statutory interpretation to support that ultimate decision,

even though it was not advanced by the agency. However,

this standard violates the Chevron standard.

The danger of such a departure is shown by this

very case: not only has the EPA not advanced the statutory

interpretation announced by the majority opinion, but as

the dissent points out, the record shows that the EPA

actually disagrees with the interpretation announced by the

Court. See App. A at 41-43. Thus, rather than the result

intended by Chevron whereby an agency entrusted with

implementing a Statute is allowed to provide the necessary

interpretation of an ambiguous provision, the Court of

Appeals’ decision allows the courts to usurp this power,

and actually announce interpretations with which the

entrusted agencies themselves do not agree. This violates

the core principle of Chevron.

Thus, the Court of Appeals announced a legal

Standard that directly conflicts with the standard announced

by this Court in Chevron, and so the Court should grant

the writ.

II. THE COURT OF APPEALS’ DECISION

DIRECTLY CONFLICTS WITH SUPREME

COURT PRECEDENT REQUIRING

TECHNOLOGY-BASED WATER POLLUTION

REGULATIONS UNDER THE CLEAN

WATER ACT

The decision below is in direct conflict with this

Court’s decision in Environmental Protection Agency v.

California ex rel. State Water Resources Control Board,

426 U.S. 2G0 (1976) ("EPA v. California”).

In EPA v. California, the Court held that the CWA

requires the EPA to issue nation-wide effluent limitations

such as those at issue here on the basis of what is

technologically and economically feasible, without regard

to water quality-based considerations:

[A] discharger’s performance is now measured

against strict technology-based effluent limitations-

specified levels of treatment- to which it must

conform, rather than against limitations derived

from water quality standards to which it and other

polluters must collectively conform.

426 U.S. at 204-205 (footmotes omitted).‘

*. Footnote 11 noted the technological standards that

apply to discharging sources other than POTWs. As

| In contrast, the majority opinion of the Court of

Appeals in this case held that the EPA could ignore

technologically and economically feasible effluent

limitations, based on its assertion that water quality

concerns did not warrant adopting such limitations:

The agency’s decision to control NOD and nutrients

by permit [on a case-by-case basis rather than by

the nation-wide secondary treatment standards] is

supported by two other factual predicates that lie

within its expertise in administering the statute:

first, the impact of NOD and nutrients on water

quality is highly variable with the characteristics of

the receiving body of water; second, control of

NOD by permit adequately protects water quality

where necessary.

App. A at 32-33.’

already explained, the standard for

publicly owned sewage treatment works is based

upon secondary treatment. It is not based upon

ambient water quality considerations.

S. Rep. 92-414, at 43, reprinted in 1972 U.S.C.C.A.N.

3668, 3710.

*. The Court refused to consider Maier’s appended

“material” showing that in fact, NOD and nutrient

pollution from POTWs is a major water pollution problem.

App. A at 33 n.18. The material was an "EPA Fact

Sheet" summarizing its "National Water Quality Inventory

1992 Report to Congress," showing that POTWs are a

primary source of existing pollution, and further that NOD

and nutrients were a primary component of that existing

This is a direct conflict with EPA v. California. and

wartrants granting the writ. As the dissenting opinion

Stated:

In allowing the substitution of quality-based controls

for generally-applicable, technology-based effluent

limitations. the majority allows the EPA to return

clean water regulation to the pre-1972 era.

App. A at 38. As this Court has explained, such pre-CWA

regulations premised on water-quality standards were the

very methods deemed ineffectual in addressing water

pollution, and which were rejected as the primary vehicle

for regulating water pollution under the CWA. EPA y.

California at 203-204.

pollution. It was not submitted with Maier’s petition for

rulemaking because such considerations are irrelevant to

setting a technology-based standard; it was submitted with

Maier’s reply brief "for background information {and} for

determining whether the agency considered all relevant

factors including evidence contrary to the agency’s

position." Colorado Environmental Coalition v. Lujan. 803

F.Supp. 364, 370 (D. Colo. 1992), ciang Franklin Savings

Ass'n. v. Director, Office of Thrift Supervision, 934 F.2d

1127, 1137 (10th Cir.), cert. denied, 503 U.S. 937 (1992)

(allowing party to supplement the administrative record).

The Court of Appeals’ reliance on the EPA’s assertion that

there is no water quality problem caused by NOD and

nutrient pollution from POTWs is misplaced. since the

EPA’s own report proves otherwise.

Further, the rejection by the majority opinion of the

technology-based approach flatly contradicts the goal of the

CWA, as quoted in EPA v. California, that "’the discharge

of poilutants into the navigable waters be eliminated by

1985.°" 426 U.S. at 203, quoting 33 U.S.C. § 1251(a)(1)

(emphasis was Court’s). As EPA v. California explained,

the technology-based approach was intended to effectuate

this goal by eliminating water pollution whenever

technologically and economically feasible, without regard

to water quality concerns, in contrast to the failed

approaches of the past that relied primarily on the water

quality approach. 426 U.S. at 203-08. Without the

technology-based approach of the CWA, the discharge of

water pollution from sewage treatment plants will never be

eliminated. Rather, pollution will continue to be

discharged if it can not be scientifically proven to cause an

identified water quality problem. While such a result

might appear logical in theory, it was an approach rejected

by the CWA as being unworkable in practice, and does not

result in the eventual elimination of water pollution. /d. at

204.

SR Sse oe She ae Saat ea ee

Maier presented evidence in his petition for

rulemaking, uncontroverted by the EPA, that NOD and

nutrients can be controlled at no greater cost than not

controlling these pollutants. See App. A at 8, 51-52 n.6.

The Court of Appeals’ decision holding that the EPA may

refuse to consider controlling these pollutants through its

secondary treatment regulations, on the basis of water-

quality considerations, is in direct conflict with EPA v.

California, and so the Court should grant the writ.

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

ae LE

CHARLES M. TEBBUTT

Counsel of Record

Western Environmental Law Center

1216 Lincoln St.

Eugene, OR 97401

(541) 485-2471

MATT KENNA

Kenna & Associates, P.C.

1300 Meadow Road

Durango, CO 81301

(970) 385-6941

Attomeys for Petitioners

APPENDIX A - OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

DATED MAY 28, 1997

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PETER MAIER, P.E.; INTERMOUNTAIN WATER

ALLIANCE; ATLANTIC STATES LEGAL

FOUNDATION; and KAY HENRY,

Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; CAROL BROWNER, Administrator,

United States Environmental Protection

Agency,

Respondents.

No. 95-9525.

APPEAL FROM THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

(D.J. No. 90-5-1-7-1299)

Filed May 28, 1997.

Before SEYMOUR, Chief Judge,

ALARCON, and LUCERO, Circuit Judges. The

Honorable Arthur L. Alarcon, Senior

United States Circuit Judge for the Ninth

Circuit, sitting by designation.

App. A Page 2

SEYMOUR, Chief Judge.

Appellants Peter Maier, the

Intermountain Water Alliance, the

Atlantic States Legal Foundation, the

Utah Wilderness Association, and Kay

Henry* petitioned the Environmental

Protection Agency (EPA) to initiate

rulemaking under the Clean Water Act

(CWA), 33 U.S.C... §§ 1251-1387. Me.. Maier

contended that recent developments in

municipal wastewater technology have

rendered the EPA’s regulations for

secondary treatment inadequate, and

therefore the EPA must promulgate new

standards. The EPA denied the petition,

and Mr. Maier appealed to this court. We

affirm.

We start with an overview of the

relevant statutory scheme. The CWA aims

"to restore and maintain the chemical,

physical, and biological integrity of the

Nation’s waters" by reducing and

eventually eliminating the discharge of

pollutants. 33 U.S.C. § i2Sifa), (a)(1).

"(T]he basic structure of the [CWA] ...

translates Congress’ broad goal of

eliminating ‘the discharge of pollutants

into the navigable waters’ into specific

requirements that must be met by

* The Utah Wilderness Association

was dismissed from this appeal. For

Simplicity’s sake, we shall refer only to

M~. Maier as petitioner.

App. A Page 3

individual point sources." EPA v.

National Crushed Stone Ass’n, 449 U.S.

64, 69 (1980) (quoting 33 U.S.C. §

1251(a)(1)) (citations omitted). A

"point source" is defined as "any

discernible, confined and discrete

conveyance ... from which pollutants are

or may be discharged." 33 U.S.C. §

1362(14). The CWA prohibits the

discharge of any pollutant from a point

source unless that discharge complies

with the CWA’s requirements. 33 U.S.C. §

1311(a). Compliance can be achieved by

obtaining a National Pollutant Discharge

Elimination System (NPDES) permit,

pursuant to 33 U.S.C. § 1342, which

establishes technology-based controls and

ensures compliance with state or federal

water quality standards. 33 U.S.C. §

1311(b)(1)(C). These permits generally

contein quantitative limits on the

amounts of specified pollutants that may

be discharged. See generally Oklahoma v.

EPA, 908 F.2d 595, 597-98 (10th Cir.

1990), rev’d on other grounds sub nom.,

Arkansas v. Oklahoma, 503 U.S. 91 (1992).

The CWA mandates varying standards

of technology-based treatment as the

minimum requirement for different

categories of point sources. 33 U.S.C.

§§ 1311, 1314. Under section 1311,

"effluent limitations for point sources,

other than publicly owned treatment works

{[POTWs] ... require the application of

the best practicable control technology

currently available as defined by the

Administrator." Id. § 1311(b)(1)(A). By

contrast, the same section requires "for

publicly owned treatment works ...

effluent limitations based upon secondary

App. A Page 4

treatment."* Id. § 1311(b)(1)(B). The

EPA may supplement the ninimum

requirements by using individual permits

to impose "any more stringent limitation

-..- necessary to meet water quality

standards." Id. § 1311(b)(1)(C). When

Congress first enacted these provisions,

it intended to phase in a requirement

that publicly owned treatment works

utilize “best practicable waste treatment

technology," a stricter standard than

secondary treatment. 33 U.S.C. §

1311(b)(2)(B) (1973); see also S.REP.

NO. 92-414, at 43 (1972), reprinted in

1972 U.S.C.C.A.N. 3668, 3709 ("Publicly-

owned treatment systems must meet the

secondary treatment requirement of Phase

I and, in Phase II, the mandate requires

the best practicable treatment...."). In

1981, however, Congress repealed this

general requirement and limited the

stricter standard to federally-funded

POTWs. Municipal Wastewater Treatment

Construction Grant Amendments of 1981,

Pub.L. No. 97-117, § 21D), 95 Stat.

1623, 1632 (1981).

* Secondary treatment generally

refers to a process of physical and

biological treatment of wastewater to

remove pollutants which deplete the

water’s oxygen content and increase its

acidity. See generally City of Sarasota

v. EPA, 813 F.2d 1106, 1108 n. 7 (11th

Cir. 1987); Natural Resources Defense

Council, Inc. v. EPA, 790 F.2d 289, 293

nm. 2.434 Ciz. 2906):

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App. A Page 5

Secondary treatment, which is the

basic requirement for all POTWs, is

principally concerned with removing

biological pollutants which affect the

oxygen content of wastewater. Healthy

waters contain dissolved oxygen upon

which flora and fauna rely, but

biological pollutants "demand" and

consume this oxygen. The rate at which

dissolved oxygen is consumed is measured

by a parameter called "biochemical oxygen

demand" (BOD). BOD actually measures the

effect of two components of oxygen

depletion which, with proper testing, can

be disaggregated: CBOD and NOD.*® The

EPA’s regulations for standard secondary

treatment have always focused on BOD, and

> Carbonaceous biochemical oxygen

demand (CBOD) quantifies “the amount of

oxygen consumed by various microorganisms

in metabolizing organic (carbon) matter

in the wastewater," while nitrogenous

biochemical oxygen demand (NOD) measures

"the oxygen consumed by other types of

bacteria ... in converting ammonia to

nitrite and then to nitrate, a process

known as nitrification." Secondary

Treatment Information, 48 Fed.Reg.

52,272, 52,274 (1983) (proposed Nov. 16,

1983). NOD can also be referred to as

NBOD, as Mr. Maier does.

"Nutrients" are related to NOD, and

refer to materials upon which certain

bacteria feed. Oxygen is consumed when

these bacteria respire, or when they die

and other organisms use oxygen to consume

them.

App. A Page 6

in particular on control of CBOD.*

Initially, the EPA required testing

for BOD by a standard five-day test of

overall BOD ievels, the so-called BOD5

test. See rec. at 121-22. But the EPA

became concerned that the BOD5 test

produced erroneous indications of

effluent quality. Secondary treatment

with existing technology” under some

operating conditions could lead to

increased nitrification (NOD), and

inflated BOD5 values, despite producing

effluent of better quality than

* Controlling CBOD has been the main

goal of secondary municipal wastewater

treatment both because CBOD is usually a

much greater problem than NOD and because

the development of technology to

effectively address high levels of NOD

has lagged behind that used to reduce

CBOD. Secondary Treatment Information, 48

Fed.Reg. 52,272, 52,275 (1983) (proposed

Nov. 16, 1983).

More than a decade ago, scientific

commentators speculated as to whether NOD

was meant to be controlled as a component

of BOD. See rec. at 43 ("Although

significant nitrification can occur in

the BOD sub5 test for secondary

effluents, much debate centers on whether

the 30-mg/L BOD sub5 standard, as defined

by EPA, was intended to include only

carbonaceous oxidation, or also any

nitrogenous oxidation that might be

exerted in the BOD sub5 test.").

> Standard secondary treatment did

not include controls on NOD.

App. A Page 7

facilities with lower BOD5. Id.;

Secondary Treatment Information, 48

Fed.Reg. 52,272, 52,275-6. Ina 1984

rulemaking, the EPA addressed the problem

by revising its regulations to allow the

permitting authority to require

facilities to employ a more specific

measure of CBOD rather than the general

test for BOD. See Secondary Treatment

Regulation, 49 Fed.Reg. 36,986,

36,988-90, 36,998-99 (1984) (to be

codified at 40 C.F.R. pt. 133). In

effect, EPA recognized that NOD can

constitute a significant component of BOD

levels, but concluded that measuring NOD

in some cases might distort rather than

enhance accurate assessment of effluent

quality.

During this rulemaking, commenting

parties, including Mr. Maier, suggested

that secondary treatment standards ought

to directly address NOD or ultimate BOD.°

See id. at 36,999; rec. at 297. The EPA

concluded, however, that NOD levels were

* CBOD levels tend to rise sharply

and then plateau, while NOD levels

increase at a slower rate. As a result,

early testing for BOD (e.g., after five

days) will accurately assess CBOD but

will fail to measure the levels to which

NOD will eventually rise. This rise in

NOD would be captured by the measurement

of ultimate BOD. This disparity has

apparently been recognized for several

decades, see rec. at 21, 51, but Mr.

Maier suggests it was ignored when EPA

promulgated regulations under the CWA,

see id. at 8; see also id. at 244.

App. A Page 8

quite variable and were therefore

inappropriate as a criterion for

generally-applicable standards. The EPA

maintained that NOD would be better dealt

with on a case-by-case basis in NPDES

permitting. Secondary Treatment

Regulation, 49 Fed.Reg. at 36,999; rec.

at 297-98. The EPA therefore

characterized NOD controls as a form of

"advance treatment" to be imposed by

permit where necessary. The EPA also

noted that total impact on dissolved

oxygen level (ultimate BOD) is to be

considered in the NPDES permitting

process. Secondary Treatment Regulation,

49 Fed.Reg. at 36,999. The EPA’s 1984

rulemaking was not appealed to the

federal courts. Thus, current

regulations for secondary treatment do

not establish standards for NOD, although

an individual facility’s NPDES permit may

well impose requirements for NOD.

In 1993, Mr. Maier filed a petition

requesting the EPA to initiate rulemaking

to set parameters for NOD and ultimate

BOD as part of its secondary treatment

regulations. Mr. Maier argued that the

existing regulations, setting parameters

only for CBOD and BOD5, were inadequate

because new secondary treatment

technology made it feasible and

cost-effective to control both CBOD and

NOD. The EPA did not controvert that

controlling NOD was now feasible and

cost-effective for some (but not all)

POTWs, but emphasized that the impact of

NOD is highly variable and dependent upon

such factors as temperature and rate of

flow of the receiving water body. In the

EPA’s view, this variability continues to

App. A Page 9

justify its regulatory decision to

control CBOD with a generally- applicable

regulation, but to control NOD on a

case-by-case basis through the permitting

process. Consequently, the EPA denied

Mr. Maier’s petition. Mr. Maier filed

the instant petition for review in this

Court pursuant to 33 U.S.C. § 1369(b)(1).

Il.

We first determine whether we have

jurisdiction. Although both parties

agree that we have jurisdiction, "no

action of the parties can confer subject-

matter jurisdiction upon a federal

court." Insurance Corp. of Ireland, Ltd.

v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702 (1982). We have an

independent duty to examine our own

jurisdiction. Lopez v. Behles, 14 F.3d

1497, 1499 (10th Cir.), cert. denied, 513

U.S. 818 (1994).

The CWA establishes a bifurcated

system of judicial review. Section 1365

"confers jurisdiction on the federal

district courts, not courts of appeal, to

review any action ‘where there is alleged

a failure of the Administrator to perform

any act or duty under this Act which is

not discretionary with the

Administrator.’ " Trustees for Alaska v.

EPA, 749 F.2d 549, 558 (9th Cir. 1984)

(quoting 33 U.S.C. § 1365(a)(2)).

Section 1369 of the CWA provides that

"Trjeview of the Administrator’s action

... (E) in approving or promulgating any

effluent limitation or other limitation

under section 1311, 1312, or 1316 of this

title ... may be had by any interested

App. A Page 10

person in the Circuit Court of Appeals of

the United States." 33 U.S.C. §

1369(b)(1).° The jurisdictional grant in

section 1369 is exclusive. American

Petroleum Inst. v. Train, 526 F.2d 1343,

1344 (10th Cir. 1975). We must determine

whether the EPA’s denial of Maier’s

petition to institute rulemaking

constitutes an "action ... in approving

or promulgating any effluent limitation

or other limitation," and thus falls

within the ambit of section 1369(b)(1).

The District of Columbia Circuit

dealt with a similar problem in QOljato

Chapter of Navajo Tribe v. Train, 515

F.2d 654 (D.C.Cir. 1975), which

interpreted jurisdictional provisions of

the Clean Air Act (CAA) in the context of

the EPA’s refusal to revise previously

promulgated standards for certain power

plants. As in the CWA, the CAA contained

one section permitting citizen suits to

be brought in federal district court, id.

at 657-58 n. 4 (citing CAA § 304, 42

U.S.C.A. § 1857h-2(a) & (b) (1970)), and

another granting jurisdiction to the

courts of appeal to "review of action of

the Administrator in promulgating"

standards of performance, id. at 657 n. 3

(quoting CAA § 307(b), 42 U.S.C.A. §

1857n-5(b) (1975 pocket part)). The

petitioners in Oljato Chapter argued that

an EPA standard had been rendered

obsolete by changes in technology, and

that the Administrator’s failure to

Section 1369 codifies Section 509

of the Federal Water Pollution Contrcl

Act (Clean Water Act) of 1972.

App. A Page 11

revise the rule "constituted a failure to

perform a nondiscretionary duty, thereby

conferring District Court jurisdiction."

Id. at 658. The court rejected

petitioners’ attempts to distinguish

"between judicial review of an original

rule and review of a subsequent refusal

to modify or reverse that rule," noting

that

[wjhile we have no difficulty in

making the suggested distinction, we

conclude that Congress intended all

review related to the continuing

validity of standards of performance

to be included within the exclusive

scope of [the section providing for

appellate review]; that this action

is premised upon the Administrator’s

refusal to revise the standard is of

no jurisdictional import.

id. at 659-60. OQOlijato Chapter relied

both on the CAA’s legislative history,

and on the fact that

[sJince a revision by the

Administrator is the ultimate goal

of a new information appeal, it

makes little sense to suggest that

this court is stripped of its ...

jurisdiction whenever a party

attempts to avoid litigation by

first asking the Administrator

voluntarily to make the same

revision a successful ... petition

would require.

Id. at 660.

App. A Page 12

As was the case in Oljato Chapter,

the legislative history of the CWA speaks

directly to the case at hand:

The Committee recognizes that

it would not be in the public

interest to measure for all time the

adequacy of a promulgation of any

standard requirement or regulation

by the information available at the

time of such promulgation. In the

area of protection of public health

and environmental quality, it is

clear that new information will be

developed and that such information

. 4y dictate a revision or

modification of any promulgated

standard, requirement, or regulation

establisned under tne act. The

judicial review section, therefore,

provides that any person may

challenge any requirement after the

date of promulgation whenever it is

alleged that significant new

information has become available.

S.REP. NO. 92-414, at 85 (1972),

reprinted in 1972 U.S.C.C.A.N. 3668,

3751. Congress plainly intended that the

Administrator’s refusal to institute

rulemaking in the face of new information

could be reviewed directly in a circuit

court.

Section 1369’s language about an

Administrator’s “action ... in approving

or promulgating any ... limitation"

arguably does not apply to the

Administrator’s refusal to promulgate a

rule in the first instance. We agree

with the court in Oljato Chapter,

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App. A Page 13

however, that a challenge to the refusal

to revise a rule in the face of new

information is more akin to a challenge

to the existing rule than a challenge to

the refusal to promulgate a new rule.*®

Because Mr. Maier is essentially

challenging the sufficiency of the EPA’s

secondary treatment regulation, we have

no difficulty construing this as a

challenge to an “action in approving or

* We note that two courts have

eschewed jurisdiction under section 1369;

however, neither case involved the

continuing validity of a rule in the face

of new information. In Bethlehem Steel

Corp. v. EPA, 782 F.2d 645, 656 (7th Cir.

1986), the remedy sought was "not to

rescind or modify" as a result of new

information, but rather "to conduct a

new, follow-on rulemaking proceeding ...

distinct from that which [was] under

review." Likewise, in Natural Resources

Defense Council, Inc. v. Train, 519 F.2d

287, 291 (D.C.Cir. 1975), review was

sought for "the omission of certain

substances" and "[u]nless a substance is

listed no standard or prohibition

reviewable under section [1369] will ever

be promulgated." We also note that

review was not possible because neither

case had a complete administrative

record. Bethlehem Steel, 782 F.2d at

655-56 (review "will require the

compilation of a new administrative

record"); Natural Resources Defense

Council, Inc. v. Train, 519 F.2d at 291

("[Tjhe Administrator had not filed the

entire administrative record with the

COULT . 7).

App. A Page 14

promulgating" under section 1369. Where

petitioners’ challenge is to the

substance of a regulation that the agency

has already promulgated, exclusive

jurisdiction in the court of appeals may

not be evaded merely by styling the clain

as one for failure to revise. Cf. DAVID

P. CURRIE, AIR POLLUTION: FEDERAL LAW

AND ANALYSIS § 9.10, at 9-31 (1981) ("In

short, allegations that the Administrator

has failed to take action required by

statute should not be permitted to

circumvent the plain statutory command

that judicial review of decisions

respecting implementation plans and other

regulations is to be in the courts of

appeals...."). “Absent a far clearer

expression of congressional intent, we

are unwilling to read the CWA as creating

such a seemingly irrational bifurcated

system." Crown Simpson Pulp Co. v.

Costle, 445 U.S. 193, 196-97 (1980)

(rejecting attempt to distinguish

challenge to EPA veto of a state permit

from a challenge to EPA issuance of a

permit).

Moreover, if the EPA had responded

to Mr. Maier’s petition by promulgating a

revised rule, exclusive jurisdiction for

review would lie in the Court of Appeals.

The fact that the EPA declined to act

does not deprive us of jurisdiction, for

we have exclusive jurisciction over

"petitions to compel final agency action

which would only be reviewable in the

United States Courts of Appeal." See

Environmental Defense Fund v. NRC, 902

i Nile ei BET NE ew

Sete ita

App. A Page 15

F.2d 785, 786 (10th Cir. 1990).® This

rule ensures that an appellate court will

review the Administrator’s decision

whether the ultimate challenge is to a

failure to revise or to a decision to

revise.*° Because exclusive jurisdiction

to review the substance of regulations

finally promulgated by the EPA lies with

the Courts of Appeals, we have

jurisdiction to compel revisory

rulemaking unless the agency’s failure

falls within that class of

nondiscretionary duties for which

jurisdiction has been granted to the

district court.

° Although the statutory scheme in

Environmental Defense Fund v. NRC did not

contain a bifurcated system of judicial

review, that fact is irrelevant. The CWA

confers jurisdiction on the district

courts only for the failure to perform

non-discretionary duties. Where the

alleged duty is discretionary, as here,

the courts of appeals have jurisdiction.

*° Prudential concerns are not to the

contrary, for "{u]jnlike other actions in

which the district court serves the

important functions of developing a

complete record and ‘defining and

focusing the issues,’ in many appeals of

administrative actions, the agency

already has fulfilled those functions and

there is no practical reason to submit

the issues to two-tiered judicial

review." 2 STEVEN ALAN CHILDRESS &

MARTHA S. DAVIS, FEDERAL STANDARDS OF

REVIEW § 14.03, at 14-19 (2d ed. 1992)

(citation omitted).

App. A Page 16

This is not a case which could have

been brought in district court as a

citizen’s suit under section 1365. Such

a suit may lie only for failure to

perform a nondiscretionary duty. 33

U.S.C. § 1365. The instant case is

unlike others in which circuit courts

have declined to find section 1369

jurisdiction in the face of the EPA’s

refusal to promulgate regulations at all,

or its failure to do so by a date certain

set by law. For example, in Trustees for

Alaska the Ninth Circuit considered a

claim that the EPA had totally failed to

promulgate specific regulations for the

placer mining industry notwithstanding a

requirement from Congress to do so, and

was instead setting effluent limitations

in individual NPDES permits. Trustees for

Alaska, 749 F.2d at 558. The court

determined that this claim was "framed in

terms of the EPA’s failure to comply with

a nondiscretionary duty to promulgate

industry-wide rules," id., and was

therefore required to be brought in

district court under section 1365, id. at

558-59. See also Armco, Inc. v. EPA, 869

F.2d 975, 981-82 (6th Cir. 1989)

(disclaiming jurisdiction where EPA had

refused to perform nondiscretionary

responsibility to propose comprehensive

Sludge management regulations) ;

ih Vv.

EPA, 618 F.2c 991, 995 (3d Cir. 1980)

(declining section 1369 jurisdiction over

suits to compel EPA to perform

nondiscretionary duty to promulgate new

source performance standards applicable

to post-mining discharges). In these

cases, the EPA had failed to issue the

disputed regulations at all. In the

PI CT oS ee eT a

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App. A Page 17

instant case, the EPA has both issued and

revised its regulations, but Mr. Maier

contends it has abused its discretion by

declining to initiate rulemaking again in

light of new information. Both parties

agree that the timing of any revision is

discretionary.** Mr. Maier does not

contend the EPA has failed to comply with

a nondiscretionary duty, and thus a

district court could not exercise

jurisdiction over his claim under section

1365.*? We therefore hold that we have

jurisdiction over the instant case under

section 1369.

*4 We note the dicta in Qlijato

Chapter that a duty under the CAA to

revise regulations "from time to time" is

discretionary was rendered obsolete by

statutory revision imposing a mandatory

duty to review regulaticns every five

years. See Environmental Defense Fund v.

Thomas, 870 F.2d 892, 896-97 (2d Cir.

1989).

‘2 As the court in Oljato Chapter

noted, the limited jurisdiction granted

to the district court would be rendered

boundless if an abuse of discretion were

considered to be a "failure to perform a

nondiscretionary act." 515 F.2d at 662

(emphasis added).

App. A Page 18

Iifl.

We review an agency’s refusal to

initiate revisory rulemaking to determine

if the agency’s refusal was "arbitrary,

capricious, an abuse of discretion, or

otherwise not in accordance with law." 5

U.S.C. § 706(2)(A); see Oklahoma v. EPA,

908 F.2d 595, 598 (10th Cir. 1990), rev’d

on other grounds sub nom. Arkansas _v.

Oklahoma, 503 U.S. 91 (1992). Although

our inquiry into the basis of the

agency’s action will be searching and

careful, our review is ultimately a

narrow one. See Citizens to Preserve

Overt ee ae , 401 U.S.

402, 416 (1971). Review under the

"arbitrary and capricious" standard

"encompasses a range of levels of

deference to the agency." American Horse

Protection Ass’n v. Lyng, 812 F.2d 1, 4

(D.C.Cir. 1987) (AHPA) (citing WWHT, Inc.

v. FCC, 656 F.2d 807, 817 (D.C.Cir.

1981)); accord Brown v. Secretary of

Health and Human Servs., 46 F.3d 102, 110

(lst Cir. 1995). In determining the

appropriate level of deference, we heed

the nature and context of the challenged

agency action or inaction.”

** In Heckler v. Chaney, 470 U.S.

821, 831 (1985), the Supreme Court

decided that agency refusals to take

specific enforcement actions are

presumptively unreviewable under the APA.

However, the Court expressly did not

address the level of deference due when

the agency refuses to initiate

App. A Page 19

Substantial prudential concerns

counsel particularly broad deference in

the context of review of an agency

refusal to initiate rulemaking. The D.C.

Circuit has repeatedly observed that,

within the range of deference embodied in

the "arbitrary and capricious" standard,

refusals to initiate rulemaking are at

the high end. See, €.g.-,

Svs... Inc. Vv. FCC, 3 F.3d 1526, 1530

(D.C.Cir. 1993) (quoting AHPA, 812 F.2d

at 4-5; citing Cellnet Communication,

Inc. v. FCC, 965 F.2d 1106, 1111

(D.C.Cir. 1992)). Courts are

ill-equipped and poorly situated to

address important reasons for agency

inaction, such as the decision that a

"problem is not sufficiently important to

justify the allocation of significant

scarce resources given the nature of the

many other problems the agency is

attempting to address." 1 KENNETH C.

DAVIS & RICHARD J. PIERCE, ADMINISTRATIVE

LAW TREATISE § 6.9, at 280 (3d ed. 1994).

"A court rarely has enough information to

second guess agency decisions premised on

this type of reasoning." Id.; see also

Natural Resources Defense Council, Inc.

v. SEC, 606 F.2d 1031, 1046 (D.C.Cir.

1979) ("An agency’s discretionary

rulemaking. Id. at 825 n. 2. The D.C.

Circuit has held that the Chaney

presumption does not apply to refusals to

initiate rulemaking. AHPA, 812 F.2d at

4-5. See also Cass R. Sunstein,

Reviewing Agency Inaction After Heckler

v. Chaney, 52 U.Chi.L.Rev. 653, 680-83

(1985). The EPA agrees that its refusal

to initiate rulemaking is reviewable.

App. A Page 20

decision not to regulate a given activity

is inevitably based, in large measure, on

factors not inherently susceptible to

judicial resolution...."); AHPA, 812

F.2d at 4-5 (according heightened

deference to refusal to initiate

rulemaking).

Nonetheless, we will not blindly

uphold agency refusals to initiate

rulemaking in the face of new

information. "[{C]Jhanges in factual and

legal circumstances may impose upon the

agency an obligation to reconsider a

settled policy or explain its failure to

do so." Bechtel v. FCC, 957 F.2d 873,

881 (D.C.Cir. 1992). For example, "a

refusal to initiate a rulemaking

naturally sets off a special alert when a

petition has sought a radical

modification of a rule on the basis of a

radical change in its factual premises."

AHPA, 812 F.2d at 5. Thus, the D.C.

Circuit has held "that an agency may be

forced by a reviewing court to institute

rulemaking proceedings if a significant

factual predicate of a prior decision on

the subject (either to promulgate or not

to promulgate specific rules) has been

removed." WWHT, 656 F.2d at 819

(describing Geller v. FCC, 610 F.2d 973

(p.C.Cae. IS7Sht<

An agency determination may also be

vulnerable to challenge if it rests on an

insufficient legal predicate. Where the

agency’s refusal to initiate rulemaking

implicates questions of statutory

interpretation, we use the familiar

Chevron test. When we review an agency’s

interpretation of a statute it

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App. A Page 21

administers, we ask two questions.

"First, always, is the question whether

Congress has directly spoken to the

precise question at issue. If the intent

of Congress is clear, that is the end of

the matter; for the court, as well as

the agency, must give effect to the

unambiguously expressed intent of

Congress." Chevron, U.S.A., Inc. Vv.

467 U.S. 837, 842-43 (1984). But "if the

statute is silent or ambiguous with

respect to the specific issue, the

question for the court is whether the

agency’s answer is based on a permissible

construction of the statute." Id. at

843, 104 S.Ct. at 2782. If Congress has

explicitly or implicitly delegated

authority to an agency, "legislative

regulations are given controlling weight

unless they are arbitrary, capricious, or

manifestly contrary to the statute." Id.

at 844, 104 S.Ct. at 2782. "This

deference is a product both of an

awareness of the practical expertise

which an agency normally develops, and of

a willingness to accord some measure of

flexibility to such an agency as it

encounters new and unforeseen problems

over time." International Bhd. of

Teamsters v. Daniel, 439 U.S. 551, 566 n.

20 (1979).

App. A Page 22

Mr. Maier asserts here that the

existence of new technology mandates

revision of the regulations governing

publicly owned treatment works. The EPA

does not controvert that NOD can now be

controlled effectively. The central

question on appeal is whether such

control must be accomplished through the

EPA’s generally-applicable standards for

secondary treatment, or whether the EPA

may continue to address the problem on a

case-by-case basis through the permit

process.*‘

Mr. Maier argues that the EPA’s

refusal to initiate rulemaking is

arbitrary and capricious because the

development of the new technology has

removed both the legal and factual

predicate of the EPA’s decision not to

set parameters for NOD. Mr. Maier asserts

that because the CWA is a "technology-

forcing" statute, the development of

cost-effective new technology must be

incorporated into the EPA’s

generally-applicable secondary treatment

regulations. Alternatively, he argues

*“* In his initial appellate brief,

Mr. Maier also- argued that the EPA must

amend its regulations to replace testing

for oxygen depletion after five days

(BOD5) with testing for ultimate oxygen

depletion. In his reply brief, Mr. Maier

concedes that this argument cannot stand

alone and is founded on his argument

about the need to set general parameters

for NOD.

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App. A Page 23

that even if the statute gives the EPA

discretion to address NOD levels by

permit, its decision to do so in this

instance is not supported by the evidence

before the agency or is based on the

consideration of impermissible factors.

Although there is substantial overlap

between these arguments, we consider them

in turn.

Under Chevron’s first step, we ask

"whether Congress has directly spoken to

the precise question at issue." 467 U.S.

at 842, 104 S.Ct. at 2781. Section 1311

of the CWA specifies:

(a) Except as in compliance with

this [and other] sections ... the

discharge of any pollutant by any

person shall be unlawful. (b) In

order to carry out the objective of

this chapter there shall be

achieved--

(1)(B) for publicly owned treatment

works ..., effluent limitations

based upon secondary treatment as

pursuant to section 1314(d)(1) of

chis title: ...

33 U.S.C. § 1311 (emphasis added). In

turn, section 1314(d) provides that

"(tjhe Administrator ... shall publish

within sixty days after October 18, 1972

(and from time to time thereafter)

information, in terms of amounts of

constituents and chemical, physical, and

biological characteristics of pollutants,

App. A Page 24

on the degree of effluent reduction

attainable through the application of

secondary treatment." Id. § 1314(d)(1).

Aside from sections 1311 and 1314, the

CWA does not further delimit "secondary

treatment," or specifically constrain the

Administrator in promulgating

generally-applicable effluent limitations

for POTWs.

Congress has not directly spoken to

the precise question of whether the EPA

has discretion to conclude that

reductions in NOD are not required to be

achieved by generally-applicable effluent

limitations, but may instead be imposed

by permit. The statute plainly delegates

to the EPA authority to define secondary

treatment, and to promulgate

generally-applicable regulations based on

its definition. We must therefore

determine whether the EPA’s secondary

treatment regulations are a "permissible

construction" of the CWA. Mr. Maier

posits that the statutory definition of

"secondary treatment" must include

technology to reduce NOD and nutrients if

such technology is available and

cost-effective. He argues that the EPA’s

decision to control NOD by permit is not

a legitimate policy choice because the

CWA requires the EPA to promulgate

generally-applicable effluent limitations

for every pollutant that can Le

controlled with "secondary treatment."

We disagree and conclude that the EPA‘’s

secondary treatment regulations are a

permissible exercise of its authority

under sections 1311 and 1314.

hic ca i ACS ETRE SEN AIS a

App. A Page <5

As an initial matter, we must reject

Mr. Maier’s claim that § 1314(d)(1)

requires the Administrator to publish

secondary treatment regulations for any

pollutant that can be controlled via

secondary treatment. That provision

plainly mandates only that the EPA issue

scientific information "from time to

time." Compare 33 U.S.C. § 1314(d)(1)

("The Administrator ... shall publish ...

from time to time ... information ... on

the degree of effluent reduction

attainable through the application of

secondary treatment."), with id. §

1314(b) ("the Administrator shall ...

publish ... regulations."). While it is

true that where reductions in NOD are

"attainable through the application of

secondary treatment," id. § 1314(d)(1),

the EPA may have a present duty under §

1314(d)(1) to publish information

pertaining to those reductions, cf.

Oljato, 515 F.2d at 662, the EPA is not

required under that same provision to

issue regulations limiting NOD discharges

from POTWs. Mr. Maier has not advanced a

duty-to-publish claim in the instant

case, and we therefore do not consider

this question further.

As a matter of statutory delegation

and practical necessity, the EPA

exercises its expertise to determine if a

given technology ought to form the basis

of the standard "secondary treatment"

defined under section 1314(d)(1). The

phrase “secondary treatment" has an

independent meaning apart from its

statutory context. "Conventional or

secondary treatment of municipal waste

includes biological processes, primarily

App. A Page 26

decomposition, with or without chemical

disinfectants, to remove organic wastes."

City of Sarasota, 813 F.2d at 1108 n. 7.

The phrase distinguishes one stage in a

variegated treatment system:

There are three levels of wastewater

treatment. Primary treatment refers

to a physical sedimentation process

for removing settleable solids.

Secondary treatment refers to a

physical/biological process for

removing solids and pollutants

characterized by biological oxygen

demand and pH. Tertiary treatment

involves processes which remove

other pollutants such as

non-biodegradable toxics.

Natural Resources Defense Council, Inc.

v. EPA, 790 F.2d at 293 n. 2; see also

California v. EPA, 689 F.2d 217, 218

(D.C.Cir.1982) (distinguishing secondary

treatment, advance secondary treatment,

and advance waste treatment). Although

these descriptions suggest that NOD and

nutrients fall within a general

understanding of secondary treatment,

they also demonstrate "secondary

treatment" has a broad connotation.

The legislative history of the CWA

also offers little guidance to the

statutory definition of "secondary

treatment" with respect to NOD. The EPA

argues Congress intended that “secondary

treatment" concern “organic" oxygen

depletion, i.e., CBOD, but not NOD and

nutrients. However, it is far from clear

from the legislative history that this

distinction was ever considered. As noted

App. A Page 27

in the House Report, "{s]jecondary

treatment as considered in the context of

a publicly owned treatment works is

generally concerned with suspended solids

and biologically degradable, oxygen

demanding materials (BOD)." H. REP. NO.

92-911, at 101 (1972). It appears more

likely that when the CWA was enacted,

treatment for NOD simply was not

technologically feasible. See, e.g.,

Secondary Treatment Regulation, 49

Fed.Reg. 36,986, 36,988 (1984) (to be

codified at 40 C.F.R. pt. 133)

("Secondary treatment requirements are

based on controlling the oxygen demand

due to the carbonaceous component of the

organic material in the effluent because

secondary treatment facilities can

effectively remove carbonaceous organic

material ... but may not consistently

remove ammonia."); Secondary Treatment

Information, 48 Fed.Reg. 52,272, 52,273

(1983) (" ‘’[N]Jutrients ... were not

specified for inclusion, because

secondary treatment, under normal

conditions, does not effectively or

consistently remove them.’ ") (citation

omitted). Congress did not speak to the

problem confronting us because for

practical purposes it did not yet exist.

Given the broad category of

treatment processes and technology

encompassed by “secondary treatment," and

statutory delegation to the Administrator

to define secondary treatment, we do not

find it impermissible for the EPA to

refuse to extend its definition of

standard secondary treatment to include

controls on NOD. The EPA has consistently

classified NOD reduction as a form of

App. A Page 28

"advanced treatment" that will be

required by permit if necessary to

protect water quality. See, e.g.,

Secondary Treatment Information, 48

Fed.Reg. 52,272, 52,275 (1983) (proposed.

Nov. 16, 1983) (describing nitrification

processes as "beyond secondary"

treatment). We do not agree with Mr.

Maier or the dissent that technological

feasibility is the only criterion the EPA

may use to determine which of the

universe of secondary treatment

technologies ought to be considered

standard. Here, the agency’s choice is

Supported by its reasoned consideration

of other factors that lie within its’

expertise in administering the statute.**

*° The dissent claims the EPA is |

foreclosed from exercising its discretion

to exclude NOD from its definition of

secondary treatment because the agency

has used secondary treatment regulations

to control BOD, of which NOD is a

component. As our discussion in part I.B

makes clear, however, BOD parameters have

historically been set by the agency as a

rough proxy for CBOD. At the time that

the BOD limitations were first

promulgated, control of the NOD component

was not technologically feasible. As the

dissent constantly reminds us, secondary

treatment is technology-based. The BOD

parameter was thus targeted at CBOD, for

which reductions were technologically

attainable, and not at NOD, for which

reductions were not technologically

attainable. By the time of the EPA’s

1984 rulemaking, a nitrification-

inhibited test was developed which

App. A Page 29

Section 1311(b)(1)(B), in

conjunction with section 1314(d)(1),

provides for the promulgation of

generally-applicable effluent limitations

for POTWs. Section 1311(b)(1)(B) gives

the EPA authority to determine the

stringency and scope of

generally-applicable effluent limitations

that are based on secondary treatment.

Thus, even if reductions of NOD and

nutrients potentially fall within the

definition of "secondary treatment," the

EPA must determine if it should

promulgate generally-applicable effluent

limitations for these specific

pollutants. The statute requires that

generally-applicable effluent limitations

for POTWs be "based upon secondary

treatment." 33 U.S.C. § 1311(b)(1)(B)

(emphasis added). Contrary to Mr.

Maier’s assertion, the statute does not

on its face require that the

generally-applicable effluent limitations

address all pollutants that might be

reduced by secondary treatment.’** When we

allowed for the isolation of the CBOD

component. The EPA promulgated

regulations approving the use of the CBOD

test in lieu of the general BOD test.

The EPA has never set discrete

limitations on the NOD component.

** On its face, the CWA gives the EPA

less discretion in setting effluent

limitations on point sources other than

POTWs. See 33 U.S.C. § 1311(b)(2)(A)

(stating that for certain identified

toxic pollutants "there shall be achieved

effluent limitations ... which shall

App. A Page 30

apply the deference due an administrative

agency which Chevron mandates, "[t]he

permissive nature of the statute implies

broad agency discretion in selecting the

appropriate manner of regulation."

Vv.

, 706 F.2a 1216, 1221

(D.C.Cir. 1983). EPA’s position that the

statute allows the agency to impose

limits for NOD on a case-by-case basis

through the permitting process is a

reasonable and permissible reading of the

statute, to which we must defer.*’

The EPA’s exercise of its discretion

under sections 1311 and 1314 is not in

these circumstances arbitrary,

Capricious, or manifestly contrary to the

Statute. The cPA has made the

require the application of the best

available technology economically

achievable."),

*’ The dissent suggests that our

analysis of section 1311 substitutes our

Own construction of the statute for that

advanced by the agency. In so doing, the

dissent fails to distinguish between the

source of agency discretion, which we

must determine in the first instance

under Chevron, and the basis for the

agency’s exercise of its discretion, for

which the dissent correctly observes we

may not supply our own rationale.

Moreover, we may not avoid construing the

Statute to the extent necessary to

determine that the agency’s regulations

are not "manifestly contrary to the

statute." Chevron, 467 U.S. at 844.

App. A Page 31

uncontroverted claim that the effect of

NOD is highly variable and site-specific,

and thus not appropriate to a general

regulation applicable to every POTW.

Here, the EPA and the States approved to

administer the NPDES permit program

routinely impose NOD and nutrient

limitations on POTWs on a case-by-case

basis by permit. We are not faced with a

situation in which the EPA has chosen to

ignore a pollutant or category of

pollutants for which effluent reductions

are attainable by secondary treatment.

The EPA has not substituted control by

permit for control by

generally-applicable effluent limitation

without a reasoned explanation for its

choice of method. Contrary to the

dissent’s suggestion, the EPA has not

sought, nor do we approve, "general

discretion to define secondary treatment

to cover only those pollutants that

are--in the view of the

Administrator--more appropriately

regulated via generally-applicable

regulations rather than case- by-case

quality-based limits." Dissent at 1049.

The EPA’s discretion is not unbridled.

This brings us to Mr. Maier’s second

argument, which is that the EPA’s refusal

to include parameters for NOD and

ultimate BOD in its secondary treatment

regulations in this instance was

nonetheless arbitrary and capricious

because the refusal was not supported by

the evidence and was based on a

consideration of impermissible factors.

The Supreme Court has stated

App. A Page 32

an agency rule would be arbitrary

and capricious if the agency has

relied on factors which Congress has

not intended it to consider,

entirely failed to consider an

important aspect of the problen,

offered an explanation for its

decision that runs counter to the

evidence before the agency, or is so

implausible that it could not be

ascribed to a difference in view or

the product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm

Mutual Auto. Ins. Co., 463 U.S. 29, 43

(1983). The Court’s statement is equally

applicable to an agency’s basis for

declining to make a rule.

The EPA does not dispute that one

factual predicate of the existing

regulations has changed--the feasibility

and cost-effectiveness of technology to

control NOD. See WWHT, 656 F.2d at 819

("[A]n agency may be forced by a

reviewing court to institute rulemaking

proceedings if a significant factual

predicate of a prior decision on the

subject ... has been removed."). Mr.

Maier argues that technological

feasibility is the only criterion the EPA

may use to determine which secondary

treatment controls ought to be generally

applicable, and which may be imposed on a

case-by-case basis. We disagree. The

agency’s decision to control NOD and

nutrients by permit is supported by two

other factual predicates that lie within

its expertise in administering the

statute: first, the impact of NOD and

nutrients on water quality is highly

App. A Page 33

variable with the characteristics of the

receiving body of water; second, control

of NOD by permit adequately protects

water quality where necessary. Mr. Maier

does not dispute these factual premises.

Instead, he argues that the first is a

legally impermissible consideration, and

he explicitly eschews a challenge to the

second.*®

Mr. Maier observes Congress intended

the effluent limitations in the CWA to be

technology-based, not based on

assessments of water quality. In

general, we agree. See EPA v. California

ex rel. State Water Resources Control

Board, 426 U.S. 200, 204-05, 96 S.Ct.

2022, 2024-25, 48 L.Ed.2d 578 (1976).

However, effluent limitations for POTWs

must be "based upon" secondary treatment

technology, not co-extensive with it. We

do not agree with Mr. Maier that it is

impermissible for the EPA to consider

effects on water quality in determining

whether reductions attainable by new

secondary treatment technology ought to

be uniformly imposed on all POTWs. The

purpose of the CWA is to "restore and

maintain the chemical, physical, and

biological integrity of the Nation’s

waters...." 33 U.S.C. § 1251(a). The

EPA relies on statutory language

‘® In his Reply Brief, Mr. Maier

appends material pertaining to the

effectiveness of the permitting process

in protecting water quality from NOD. We

decline to consider this material as it

was not presented in the petition to the

EPA for consideration by the agency.

App. A Page 34

authorizing the EPA to use the permitting

process to impose “more stringent

limitation[{s]" on POTWs where necessary

to protect water quality. 33 U.S.C. §

1311(b)(1)(C). We need not determine if

section 1311(b)(1)(C) directly authorizes

the use of permitting as an alternative

tc, aS opposed to a supplement for,

generally-applicable effluent

limitations.’*® The fact that Congress

has, in this closely related statutory

section, provided for quality~-based

permitting as a gap-filling measure gives

strong support to the EPA’s exercise of

delegated authority to fill the gap where

it has concluded that NOD should not be

part of standard secondary treatment.

The fact that secondary treatment

controls are technoiogy-based does not

preclude the EPA from deciding that

certain technologically-attainable

standards are necessary and appropriate

only for some PCTWs. We should not order

the agency to develop

generally-applicable parameters based on

the use of new techno’ogy, even if

cost-effective, in the face of the

agency’s reasoned judgment that the use

of such technology is irrelevant to the

attainment of water quality standards in

many circumstances.

*° The dissent asserts that the "more

stringent" permits described in section

1311(b)(1)(C) may only come into play

where a generally- applicable regulation

is not technologically feasible, or as a

supplement when the generally-applicable

regulation is inadequate to protect water

quality.

App. A Page 35

Contrary to the suggestion of the

dissent, we do not approve the EPA’s

regulations based on the agency’s naked

"policy preference for quality-based

controls rather than generally applicable

limitations." Dissent at 1048. The EPA

has articulated its uncontroverted view

that NOD is highly variable with the

conditions of the receiving body of

water. Consequently, NOD is particularly

unsuited for a generally applicable

regulation, and is appropriately dealt

with--and is being dealt with--by permit.

We agree with the dissent that the Clean

Water Act amendments created a statutory

regime in which technology-based

standards are the primary mechanism of

controlling discharge of pollutants. It

is a far stretch from this presumption to

the conclusion that the EPA may not

exercise its authority in filling the

gaps to conclude that certain pollutants,

due to their peculiar characteristics,

need not be controlled by

across-the-board standards. Contrary to

the dissent’s inference, we do not hold

that the EPA may choose a permit-based

approach over a technology-based standard

merely based on the agency’s "policy

preference."

The dissent gives lip service to the

notion of deference to the agency, but

the deference it would give is cramped

indeed. The dissent asserts that to

satisfy Chevron, "the implementing agency

must point to some language in the

statute to justify its policy

conclusion--here, that the POTW

regulatory regime can legitimately depart

from the core public policy of the Clean

App. A Page 36

Water Act." Dissent at 1048-49. This

turns the Chevron test on its head: the

dissent, rather than deferring to the

agency’s gap-filling unless "manifestly

contrary to the statute," imposes on the

agency the burden of proving that its

gap-filling is manifestly authorized by

the statute--in which case it would be

unnecessary to invoke the Chevron

framework in the first instance. We are

faced with a paradigmatic situation

calling for deference to the agency:

where the statute allows the agency to

exercise discretion, we should defer to

the agency’s use of its expertise in

striking a careful balance between the

broad statutory purposes and the unique

problems posed by specific pollutants and

technologies. The EPA has offered a

reasoned basis for its belief that this

balance is to apply a technology-based

standard to some, rather than all, POTWs.

Mr. Maier argues that, even if the

EPA is right about the costs of

retrofitting existing POTWs, new

facilities can be designed to treat NOD

at no greater expense and the EPA should

so require. Even if this is true, we are

not persuaded the EPA’s failure to so act

is arbitrary or capricious. The EPA

maintains that NOD is adequately

addressed on a plant-by-plant basis. Mr.

Maier has failed to demonstrate that

stricter standards in individual permits

are not effective in promoting the

building of these newer, more effective

designs. Moreover, this argument ignores

the real costs of administering

environmental laws. Promulgating revised

regulations necessitates a substantial

App. A Page 37

commitment of limited agency resources.

We have "little ability to determine the

resources available to the agency or to

determine whether the other problems to

which the agency has chosen to devote its

scarce resources are more or less

important than the problem raised in the

petition." 1 DAVIS & PIERCE,

ADMINISTRATIVE LAW TREATISE § 6.9, at

280.

On the record in this case, we

cannot hold that the EPA’s interpretation

of the CWA is arbitrary or capricious, or

that its rejection of rulemaking in this

instance is arbitrary or capricious.

Since the EPA first promulgated

regulations under Section 1311, it has

never required that all oxygen-depleting

pollutants be removed by means of

generally-applicable secondary treatment

controls. These regulations do not stand

alone; rather, they set a national floor

for the performance of secondary

treatment systems. Primary and tertiary

treatments complement their function, and

individual permits for treatment

facilities can have stricter standards.

EPA makes a reasoned argument that where

NOD is a problem, it may be addressed in

the terms of a POTW’s permit, and points

out that 53% of major secondary treatment

facilities across the country now have

such requirements. Rec. at 123. Mr.

Maier would have to provide impressive

evidence that the EPA has acted

irrationally. He has not done so.

Without a more convincing showing that

the nation’s municipal water treatment

system is broken, we will not order the

EPA to fix it. AFFIRMED.

App. A Page 38

LUCERO, Circuit Judge, concurring in

part and dissenting in part.

I join parts I, II, and IIIA of the

majority’s opinion, but must respectfully

dissent from part IIIB. The majority

concludes that the EPA’s interpretation

of the secondary treatment provisions is

"permissible" and therefore valid under

Resources Defense Council, Inc., 467 U.S.

837 (1984). I cannot agree for two

reasons. First, one "permissible"

interpretation identified by the majority

is not in fact advanced by the EPA. We

cannot defer under Chevron to an agency

construction when the agency has not

construed the language at issue. Second,

on tnis record, the EPA’s construction of

the term “secondary treatment" is not

permissible. While the Clean Water Act

("CWA") gives the Administrator

discretion to define secondary treatment

pursuant to the statute, that discretion

cannot be exercised in a manner

inconsistent both with the structure and

legislative history of the statute and

with the Administrator’s own prior

interpretation of the term. In allowing

the substitution of quality-based

controls for generally-applicable,

technology-based effluent limitations,

the majority allows the EPA to return

clean water regulation to the pre-1972

era.

The EPA does not itself argue that

the language of 33 U.S.C. §

1311(b)(1)(B)--that “there shall be

achieved ... effluent limitations based

upon secondary treatment"--gives it

App. A Page 39

discretion to set effluent limitations

lower than those deemed attainable

through the application of secondary

treatment. The majority’s resolution, to

the extent it finds discretion for the

EPA’s decision from the term "based

upon," see Maj. Op. at [29-30], is

premised on its own construction of the

statute, not the EPA’s. That runs counter

to the logic of Chevron deference and

consequently to a core principle of

judicial review of agency action. "If

the basis stated by the agency for its

decision is insufficient, we may not

supply another that the agency itself has

not chosen to rely on." American Meat

Inst. v. EPA, 526 F.2d 442, 453 (7th Cir.

1975) (citing SEC v. Chenery Corp., 332

U.S. 194, 196 (1947) ("[{T]he court is

powerless to affirm the administrative

action by substituting what it considers

to be a more adequate or proper basis.

To do so would propel the court into the

domain which Congress has set aside

exclusively for the administrative

agency.")). If Congress has implicitly

or explicitly left gaps in a statutory

scheme, Chevron requires us to defer to

reasonable efforts on the part of the

agency to fill those gaps through policy

and rule-making, see 467 U.S. at 843-44,

104 S.Ct. at 2781-83, and is explicitly

concerned with the agency’s construction

of congressional language to fill those

gaps, id. Such gap- filling can only be

upheld if the agency’s own rationale for

its actions-- including its construction

App. A Page 40

of the statute-- is proper.’

* The majority argues that I fail to

distinguish between "the source of agency

discretion, which we must determine in

the first instance under Chevron, and the

basis for the agency’s exercise of its

discretion, for which ... we may not

Supply our own rationale." Maj. Op. at

[30] n. 17. The majority’s distinction is

untenably semantic because an agency’s

exercise of discretion under Chevron must

be based on its claimed statutory source

of discretion. In reviewing the former,

a court is bound to review the latter.

The majority would have the reviewing

court independently root through the

statute on its own cognizance looking for

gaps that the agency’s policymaking might

permissibly back-fill. What the majority

has done is to identify an ambiguous

portion of the statute, i.e. the "based

upon" language of § 1311(b)(1)(B), and

defended the agency’s failure to

promulgate yererally-applicable NOD

effluent limitations on the basis of the

court’s own construction of that

ambiguous term. Quite aside from the

fact that the EPA has implicitly

disavowed this particular construction of

the statute, Chevron contains absolutely

no authorization for approving

administrative constructions in this

manner. The most that the majority can

conceivably make of the "based upon"

language of § 1311(b)(1)(B) is that the

administrative construction of "secondary

treatment" does not violate that

particular statutory provision. This

view is probably unsustainable in light

App. A Page 41

Reviewing the Agency’s denial of

Maier’s petition, its briefs, as well as

the material accompanying its earlier

promulgation and amendment of secondary

treatment regulations, I can find no

suggestion from the Administrator that

were she to find reductions of a

particular pollutant attainable by means

of secondary treatment, she would not

need to promulgate a generally-applicable

effluent limitation for that pollutant.

Indeed, the Agency may hold a contrary

view of its § 1311(b)(1)(B) discretion.

In responding to Maier’s petition, the

Administrator states that were

technologies to control NOD considered to

be secondary treatment, "[a]ny such

revised secondary treatment requirements

would be universally applicable to all

POTWs pursuant to section 301(b)(1)(B)

(33 U.S.C. § 1311(B) (1)(B) 1.* A.R.~ at

123-24; see also EPA Br. at 26 ("Were

NOD limitations to be made part of

‘secondary treatment,’ they would apply

to all POTWs regardless of local

conditions.").

Moreover, the relevant regulatory

history strongly suggests that the Agency

would not interpret the "based upon"

language in § 1311(b)(1)(B) to give it

discretion to depart from reductions

attainable by the technology described in

of the EPA’s previous interpretation of §

1311(b)(1)(B). But even assuming its

validity, the majority’s view fails to

show that the administrative construction

of “secondary treatment" does not fall

afoul of some other provision of the CWA.

App. A Page 42

33 U.S.C. § 1314(4){1). Effluent

limitations on POTWs are set pursuant to

40 C.F.R. § 133.102. This regulation,

which the Agency refers to as the

Secondary Treatment Information

regulation, consistently cites both §

1311(b)(1)(B) and § 1314(d)(1) as its

statutory authority, see, e.g., 41

Fed.Reg. 37222 (1976), and has never

suggested that reductions deemed

attainable via secondary treatment need

not be translated directly into

applicable effluent limitations. Rather,

the Agency has implicitly viewed the

Secondary Treatment Information

regulation as simultaneously satisfying

both its information publication

obligations under § 1314(d)(1) and its

limitation promulgation obligations under

§ 1311(b)(1)(B). See, e.g., 42 Fed.Reg.

54664 (1977) ("The Secondary Treatment

Information regulation contains effluent

limitations in terms of biological oxygen

demand, suspended solids and pH which

must be achieved by municipal wastewater

treatnent plants ....in accordance with

section 301(b)(1)(B) of the ... FWPCA.

The Secondary Treatment Information

regulation was promulgated pursuant to

section 304(d)(1) of the FWPCA.").

In fact, the Agency appears to

regard the Secondary Treatment

Information regulation as simultaneously

defining secondary treatment and

establishing the effluent limitations

applicable to POTWs. See 41 Fed.Reg.

37222 (1976) ( “Secondary treatment (as

defined in 40 C.F.R. 133) is the minimum

level of treatment required for all

publicly-owned treatment works."); 49

App. A Page 43

Fed.Reg. 36987 (1984) ("The secondary

treatment regulation defines ‘secondary

treatment’ as attaining an average

effluent quality for both biochemical

oxygen demand, five-day (BOD 5) and SS of

30 mg/l in a period of 30 consecutive

days, an average effluent quality of 45

mg/l for the same pollutants in a period

of 7 consecutive days, and 85 percent

removal of the same pollutants in a

period of 30 consecutive days."). Agency

practice has thus never recognized a

disjunction between its obligation to

publish attainable reductions under §

1314(dad)(1) and to promulgate effluent

limitations under § 1311(b)(1)(B). Yet

the majority’s "based upon" analysis

would create this disjunction and

effectively attribute it to the Agency’s

discretion.

The Agency claims "considerable

discretion ... to define ‘secondary

treatment.’ " EPA Br. at 27. Exercising

this definitional discretion, the Agency

asserts that controls on NOD and

nutrients “simply should not be required

as part of ‘secondary treatment.’ " Id.

at 25. Were the Administrator responding

to Maier’s petition in a regulatory

vacuum, we might be required to defer to

this agency definition of secondary

treatment. But that is not the case.

The secondary treatment regulations have

always set controls on biological oxygen

demand (BOD), see 38 Fed.Reg. 10642

(1973) (defining minimum level of BOD

reduction attainable through application

of secondary treatment), and such

"gap-filling" appears entirely consistent

App. A Page 44

with the applicable legislative history.’

Moreover, as noted above, BOD controls,

in conjunction with those imposed on

certain other pollutants such as

suspended solids, have been

administratively regarded as defining

secondary treatment.

The Agency recognizes that NOD is

one of two components of BOD, the other

being carbonaceous BOD (or "CBOD"). See,

e.g., 48 Fed.Reg. 52272, 52274 (1983).

Maier’s petition therefore requests the

Agency to apply specific controls to a

pollutant whose restriction falls broadly

within the administrative and legislative

understanding of secondary treatment. Of

course, given the EPA’s

statutorily-conferred discretion to

achieve "effluent limitations based upon

secondary treatment," § 1311(b)(1)(B),

the EPA may not be obliged to impose

secondary treatment-based controls on

NOD. But having included the control of

oxygen-depleting compounds within the

general definition of secondary

treatment, it is incumbent upon the EPA

to explain its refusal to promulgate NOD

and nutrient limitations.

* "Secondary treatment as considered

in the context of a publicly-owned

treatment works is generally concerned

with suspended solids and biologically

degradable, oxygen demanding materials

(BOD)." H.Rep. No. 92= 911, 92d Cong.,

2d Sess., at 101 (1971), quoted in

Proposed Rule, 48 Fed.Reg. 52272, 52273

(1933).

’

LR ee em

App. A Page 45

In the past, the Administrator has

principally explained the refusal to

treat NOD controls as part of secondary

treatment as proceeding from the

impracticality of such controls. See,

e.g., 49 Fed.Reg. 36986, 36988 (1984);

48 Fed.Reg. 52272, 52273 (1983) (citing

supporting documentation for 1973

regulations). Such a decision, if

adequately supported by the record, is

well within the Administrator’s

rulemaking discretion. In denying

Maier’s petition, the EPA now points to

two factors. First, the Agency

reiterates that secondary treatment is

concerned with the removal of

carbonaceous organic material. This

argument begs the question. If Maier’s

petition questions the EPA’s earlier

conclusion as to non-attainability, the

Agency should explain its continued

reliance on its previous explanation.

The EPA has not done so, instead

insisting that any new information on

attainability submitted by Maier "does

not establish (or even suggest) why

control of nitrogen or phosphorus should

be considered secondary treatment." A.R.

at 125.

That error alone would not require

us to remand to the Agency were the

second factor relied on by the

Administrator to deny Maier’s petition

more persuasive. It is not. The

Agency’s second defense of its secondary

treatment regulations is to point to its

policy preference for quality-based

controls rather than generally applicable

limitations, at least for pollutants that

do not have a uniform impact on receiving

App. A Page 46

bodies of water. See A.R. at 113-14,

123; see also EPA Br. at 19-20. The EPA

may yet have good reasons for refusing to

regulate NOD via generally-applicable

effluent limitations on POTWs, but a

policy preference for quality-based

measures over generally- applicable

technology-based measures is not one of

them. Such a preference improperly

construes the CWA.

Before 1972, the stated purpose of

the Federal Water Pollution Control Act

("FWPCA") was "to enhance the quality and

value of our water resources and to

establish a national policy for the

prevention, control, and abatement of

water pollution." 33 U.S.C. § 1151(a)

(1970) (superseded by Pub.L. 92- 500, §

2, 88 Stat. 816 (1972)). To this end,

the pre-1972 legislation employed ambient

water quality standards as the primary

mechanism for water pollution control.

See EPA v. California ex rel. State Water

Resources Control Bd., 426 U.S. 200, 202

(1976). The 1972 Amendments to the FWPCA,

popularly known as the Clean Water Act,

deliberately ended this approach.

Prompted by the Senate Committee on

Public Works’ review of the FWPCA

program, and its conclusion that "the

national effort to abate and control

water pollution has been inadequate in

every vital respect," S.Rep. 92-414, at

7, reprinted in 1972 U.S.C.C.A.N. 3668,

3674, Congress declared as the new

national goal of the program that "the

discharge of pollutants into the

navigable waters be eliminated," 33

U.S.C. § 125l1(a)(1). Consistent with

this end, the CWA substituted

App. A Page 47

technology-based, generally-applicable

effluent limitations for water

quality-based regulatory approaches. See

State Water Resources Control Bd., 426

U.S. at 204, 96 S.Ct. at 2024 ("Such

direct restrictions on discharges

facilitate enforcement by making it

unnecessary to work backward from an

overpolluted body of water to determine

which point sources are responsible and

which must be abated."). The legislative

history of the Act is replete with

references to the need for this

substitution.’

The EPA’s denial of Maier’s petition

effects an entirely opposite

substitution. In order for an

administrative construction that runs

counter to basic policies underlying the

relevant statutory scheme to be

reasonable under the second step of

Chevron, the implementing agency must

point to some language in the statute to

justify its policy conclusion--here, that

the POTW regulatory regime can

legitimately depart from the core public

> The Senate Report accompanying the

CWA notes: "The application of Phase I

technology to industrial point sources is

based upon the control technologies for

those sources and to publicly owned

sewage treatment works is based upon

secondary treatment. It is not based

upon ambient water quality

considerations." S.Rep. 92-414, at 43,

j in 1972 U.S.C.C.A.N. 3668, 3710

(emphasis added).

App. A Page 48

policy of the CWA.‘ The Administrator has

not done so. Her passing reliance on §

1311(b)(1)(C), which allows the

Administrator to set "more stringent

limitation{s]" to meet water quality

standards, is misplaced. At most, that

provision allows the Administrator to set

quality-based limits for pollutants that

cannot be attainably reduced by secondary

treatment, or to set

guality-based limits for pollutants

already regulated by a floor of

generally-applicable limitations based on

secondary treatment. It cannot

reasonably be read as general discretion

* Contrary to the majority’s

assertion, placing this obligation on the

Administrator does not "turn[{ ] the

Chevron test on its head." Maj. Op. at

[35-36]. Chevron authorizes the

Administrator to fill legislative gaps,

but only when done in compliance with her

statutory policymaking discretion.

Chevron, 467 U.S. at 343-44. Here, the

EPA has without justification chosen to

fill a gap by means of a policy that

contravenes the most fundamental tenet of

the CWA. See Maislin Indus., U.5. Vv.

Primary Stee], 497 U.S. 116, 134-35

(1990) (agency "does not have the power

to adopt a policy that directly conflicts

with its governing statute"). Without

some language suggesting that POTWs are

exempt from the force of this basic

statutory imperative, the EPA‘s

regulatory inaction must be regarded as

"manifestly contrary to the statute," and

accordingly invalid under Chevron. 467

U.S. at 844.

App. A Page 49

to redefine secondary treatment to cover

only those pollutants that are--in the

view of the Administrator--more

appropriately regulated via generally-

applicable regulations rather than case-

by-case quality-based limits. That

interpretation makes a mockery of the

primacy accorded technology-based

regulation by the plain language and

legislative history of the CWA.

In fact, Congress has itself

confirmed that POTWs are not exempted

from this core policy. In 1977, Congress

enacted 33 U.S.C. § 1311(h), which

permits the Administrator, on a

case-by-case basis, to relax secondary

treatment requirements for POTWs

releasing pollutants into marine waters.

See 33 U.S.C. § 1311(h). If the EPA has

the discretion relied on by the

Administrator in the present case, this

provision was (and is) entirely

unnecessary. The Administrator could

simply declare that the biological

treatment of pollutants by POTWs that

release into marine waters is not

"secondary treatment" because she has

made the policy choice to address such

discharges solely through individual

NPDES permit requirements. In passing §

1311(h), Congress effectively stated that

such discretion was not open to the

Administrator. Cf. Bridger Coal Co. v.

Programs, 927 F.2d 1150, 1153 (10th Cir.

1991) (statute should be interpreted to

give meaning and effect to each

provision). It is not our place to offer

discretion to the Agency where Congress

App. A Page 50

has not.”

* The majority states that it is not

authorizing the EPA’s exercise of general

policy discretion to substitute

quality-based restrictions for

generally-applicable, technology-based

effluent limitations, but is instead

restricting the EPA’s discretion to cases

in which it advances a "reasoned

explanation" for this substitution. See

Maj. Op. at [35]. I am not so sure.

Nowhere does the CWA suggest that its

clear technology-first imperative is

subject to cancellation by the agency’s

"reasoned explanations." Nor does the

majority explain why in the absence of

statutory authorization, the EPA 1s free

to ignore that imperative on the basis of

its own “reasoned explanations." see

. : ;

Director, Office of Workers” Comp. Vv.

Newport News, 514 U.S. 122, 136 (1995)

("Every statute proposes, not only to

achieve certain ends, but also to achieve

them by particular means....- The

withholding of agency authority is as

significant as the granting of it, and we

have no right to play favorites between

the two."). Finally, the majority fails

to explain why the qualitative

variability of pollutant discharges

constitutes such a "reasoned

explanation," or what other types of

agency explanation would or would not

allow for a similar departure from the

basic public policy of the CWA. Without

some limiting principle, it is hard not

to conclude that the majority is

essentially deferring to the EPA’s policy

preference for quality-based standards.

App. A Page 51

On a number of occasions, the Agency

has itself confirmed that "effluent

limitations based upon secondary

treatment" cannot be fixed by reference

to quality-based considerations. See,

e.g., 38 Fed.Reg. 22298 (1973) (POTW

effluent limitation regulation "is to be

based on the capabilities of secondary

treatment technology and not ambient

water quality"); 41 Fed.Reg. 30786,

30788 (1976) (same). In denying Maier’s

petition, the Administrator alludes to

this constraint, see A.R. at 117 ("[{T]jhe

definition of secondary treatment is to

be technology-based rather than water

quality based"), then ignores it without

explanation.

The denial of Maier’s petition must

be "based on a consideration of the

relevant factors." Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S.

402, 416 (1971). Here, the EPA’s denial

is based on one factor that is

illegitimate--its "reasoned" policy

preference for quality-based over

generally-applicable, technology-based

restrictions--and another that is

legitimate but unsubstantiated--the

nonattainability of NOD reductions.*® I

* The majority states that I view

technological feasibility as the "only

criterion" that the EPA can use to define

secondary treatment. Maj. Op. at [28].

That is incorrect. Our review is

appropriately confined to the reasons

given by the EPA for its denial of

Maier’s petition. In my view, the only

argument the EPA offers that is not

App. A Page 52

would remand the petition to the Agency

for reconsideration in light of the

correct legal principles. See American

Horse Protection Ass’n v. Lyng, 812 F.2d

1, 7-8 (D.C.Cir. 1987).

"manifestly contrary to the statute," is

one based on unsubstantiated claims of

technological feasibility. This should

not be contorted to mean that the EPA’s

only possible basis for defining

secondary treatment is technological

feasibility.

APPENDIX B - PETITION FOR RULEMAKING

BEFORE THE ENVIRONMENTAL PROTECTION

AGENCY, DATED AUGUST 6, 1993

PETITION FOR RULEMAKING BEFORE THE

ENVIRONMENTAL PROTECTION AGENCY

To Amend the Secondary Treatment Regulations

For Biochemical Oxygen Demand for Publicly-

Owned Treatment Works, 40 C.F.R. Part 133

Petitioners: Peter Maier, P.E.; Sierra Club, Utah Chapter;

Intermountain Water Alliance; Southern Utah

Wilderness Alliance; Western Colorado

Congress; Stone Fly Society Chapter of Trout

Unlimited and the Federation of Fly Fishers;

and the Utah Wilderness Association.

Submitted August 6, 1993.

App. B Page 2

TABLE OF CONTENTS

LORS PMMA EMRIED cs eo Be ss Oe ss Re ae 3

|. LEGAL GASIS FOR PETITION =... ss ee ee 3

A. Authority for This Petition and Availability

Ot SUG RAVE es a ek. 3

B. Legal Inadequacy of the Present

Regulations and Need for Revision ... 7

li. FACTUAL BASIS FOR.PETITION .. 6.55. baw 9

A. Historical Background of Secondary

BONNE ohn eS ee ree eo ees 1]

POURME Sas kk ee 4 ee ee 1]

re Current BOD Testing Only Represents

the 5-Day Value, Not the Ultimate

WC SS ce es 15

= Required Formula for Accurate

testime Of BOD Vanes ......... 15

D. Best Practicable Waste

Treatment Technology .......... 16

E. Proposed Testing and Effluent

Limitation Amendments ......... 19

CI iii ath piney -oy widie dete xteiek 20

LIST OF PETITIONERS AND THEIR ADDRESSES. . .21

APPENDICES [Excluded from Appendix to Petition for Writ

of Certiorari|

PETITION FOR RULEMAKING

INTRODUCTION:

Peter Maier, P.E.; Intermountain Water Alliance;

Sierra Club, Utah Chapter; Southern Utah Wilderness

Alliance; Western Colorado Congress; Stone Fly Society

Chapter of Trout Unlimited and the Federation of Fly

Fishers; and the Utah Wilderness Association ("petitioners")

hereby petition the Environmental Protection Agency (EPA)

to amend its Secondary Treatment Regulations for Publicly

Owned Treatment Works (POTWs), 40 C.F.R. Part 133.

Specifically, the purpose of this petition is to amend the

regulations governing Biochemical Oxygen Demand (BOD).

These amendments are necessary to implement the Clean

Water Act’s (CWA) requirements for the application of best

practicable waste treatment technology for POTWs.

I. LEGAL BASIS FOR PETITION

i of Judicial Review

The authority for this petition arises under both the

CWA and the Administrative Procedures Act , 5 U.S.C. §

App. B Page 4

551 et. seg. (APA). Section 553(e) of the APA provides that

"leJach agency shall give an interested person the right to

petition for the issuance, amendment, or repeal of a rule."

The petitioners are "interested persons," being individuals and

groups that have had a long-standing interest in the quality of

this nation’s navigable waters, and who are affected in the

use of those waters for drinking, agriculture, fish

consumption and recreation by the quality mandated by the

EPA.

Authority for this petition also arises under CWA

section 509(b), 33 U.S.C. § 1369(b). Under this section, an

interested person may apply to review a CWA regulation in

a federal Circuit Court of Appeals following the 120-day

limitations period, provided that the petition is based on "new

information." This petition is based on new information

since the last revision of the regulations, which began in 1982

and which ended with the promulgation of final rules in

1984.' However, judicial precedent indicates that before such

a review can be had, a petition for rulemaking must first be

presented to the EPA. Notwithstanding this judicial

' 49 Fed. Reg. 37,006, Sept. 20, 1984;

49 Fed. Reg. 40,405, Oct. 16, 1984.

The new information upon which this

petition is based includes information

contained in appendices I, III, IV, V, VI,

VIII, IX & XI.

2 O3 } = ee

Train, 515 F.2d 654 (D.C. Cir. 1975). The

court in Olijato was hearing a challenge to

a standard of performance under the Clean

Air Act (CAA), pursuant to section 307 of

that act. Like this petition, that case

involved

App. B Page 5

precedent, the petitioners also believe that a petition before

the EPA to amend the regulation is a more appropriate forum

than federal court. However, in the event that this petition

is denied, the petitioners intend to seek review of the denial

in federal court under CWA section 509(b).’

As the Oljato court stated, "EPA should respond to

the petition and, if it denies the petition, set forth its

a challenge arising after the limitations

period for challenging a rule, based upon

new information. The court determined

that the challenge could be heard, but

only after a petition for rulemaking was

first made to the EPA.

Although that case dealt with the

CAA, the judicial review section of the

CWA is the same in all applicable

respects, and indeed CWA section 509 was

based on section 307 of the CAA. Further,

this petition provision was applied to the

CWA (although not in the context of a

petition based upon "new information") in

ini , 556

F.2d 1282 (5th Cir. 1977).

Pa The court in Qlijato, supra,

specifically stated that MELE the

petition is denied, the petitioner may

seek review of the denial in this court

pursuant to [CAA] section 307." Likewise,

review would be available here under CWA

section 509(b).

Review in federal court would also be

available under section 704 of the APA

which provides that "final agency action

for which there is no adequate remedy ina

court [is] subject to judicial review."

App. B Page 6

reasons." Likewise, section 553 of the APA requires the

EPA to at least provide "a brief statement of the grounds for

denial," if in fact the petition is denied. The adequacy of this

statement of reasons can also be reviewed in federal court.‘

The petitioners request the EPA to respond within 60 days,

which we believe to be a reasonable time.’ If the EPA

cannot make a decision on the merits of the petition within 60

days, we request that the EPA notify the petitioners of its

schedule of action within this time.

Petitioners also request public hearings on this matter,

and full notice and comment opportunities. We believe that

this is in the best interests of all involved, including those

who might be opposed to the new regulations requested by

the petitioners. We request that a least one hearing be held

in Denver, as it is a central location in the West, where the

petitioners reside.

‘. See NRDC v. SEC, 389 F.Supp.

689, 702 (D.D.C. 1974) (remanding for lack

of section 553(e) statement), 432 F.Supp.

1190, 1208 (D.D.C. 1977) (holding

explanation in subsequent section 553(e)

statement to be arbitrary and capricious),

1979) (reversing district court on merits,

but holding that review was available).

s See Environmental Defense Fund

v. Hardin, 428 F.2d 1093, 1099 (D.C. Cir.

1970), where the court required the EPA to

respond to the petitioners within 30 days

on an action relating to the registration

of DDT.

App. B Page 7

Regulations and Need for

Revisi

The CWA has a general mandate that the discharge of

pollutants into the navigable waters of the United States be

eliminated by 1985, and made swimmable and fishable by

1983. CWA § 101. Although this has clearly not occurred,

it is still the duty of the EPA to work towards these goals.

Further, the CWA contains specific provisions that require

the EPA to amend its regulations governing secondary

treatment of sewage from POTWs whenever it appears that

better technology exists to treat waste better than that which

is being utilized to meet current regulations. This is

especially true when implementation of new regulations can

be achieved at an equal or lesser cost than the ones now in

place, as is the case with the petitioners’ proposed amended

regulations for BOD.

Specifically, CWA section 304(d)(2) requires that

from time to time EPA shall promulgate information and

guidelines to implement section 201. Section 201(b) requires

waste treatment management plans and practices which shal!

apply the "best practicable waste treatment technology before

any discharge into receiving waters." This means that the

nd This includes the "confined

disposal of pollutants so they will not

migrate to cause water or other

environmental pollution and shall provide

for consideration of advanced waste

treatment techniques." Section 201(d)(1)

further requires "the recycling of

potential sewage pollutants through the

Production of agriculture, Silviculture,

Or aquaculture products."

App. B Page 8

EPA must set the most stringent effluent standards which are

achievable at a reasonable cost- not just to set standards that

existing POTWs can automatically meet. CWA requirements

are intended to be technology-forcing, not technology-

accommodating. This petition shows that the current

regulations do not reflect the best practicable treatment

technologies, and that the proposed regulations would go a

long way towards achieving the best practicable technologies

available.

The current regulations also violate CWA section

304(d)(4), which mandates that the EPA must set secondary

treatment standards for treatment facilities by “assuring that

water quality will not be adversely affected by deeming such

facilities as the equivalent of secondary treatment." As fully

explained in part II of this petition, the EPA is violating this

mandate through its secondary treatment regulations, 40

C.F.R. Part 133, which allow up to 65% of the waste from

POTWs to be ignored by the present regulations. The

present regulations do not assure that water quality is not

adversely affected, and must be changed. As also explained

in part Il, it should be emphasized that the proposed

regulations would not increase construction costs for new

POTWs, and in fact may be cheaper to build than current

POTWs on line which are designed to meet the current

regulations.

Amending the secondary treatment regulations for

POTWs is also required to comply with section 304(d)(1),

which states that "from time to time,” the EPA shall publish

information on the degree of effluent reduction attainable

through the application of "secondary treatment." The

App. B Page 9

regulations have not changed since 1984,’ and it is about

“time” that the EPA take a hard look at technologies that

could increase the degree of effluent treatment attainable

through "secondary treatment."

Il. FACTUAL BASIS FOR PETITION

The main deficiency of the current BOD regulations

is that they only address the oxygen depleting water pollution

caused by C-BOD (carbonaceous organic waste in raw

sewage, comprised mostly of fecal waste), and they ignore

oxygen depleting water pollution caused by N-BOD

(nitrogenous water pollution sources and their end products,

nitrates, comprised mostly of urine and protein wastes).

Also, the current regulations only account for interim 5-day

BOD values, and not the ultimate values. By implementing

the proposed amendments, new and renovated POTWs can

achieve much better results for N-BOD and C-BOD

reduction, at a cost that is no more or below the cost of

designing POTWs to meet the current regulations.

A. Historical Background of Secondary Treatment

The Clean Water Act established as its main goal to

eliminate all water pollution by 1985. The Act authorized the

EPA administrator to establish a national regulatory program,

and in order to achieve the goals of the CWA this program

had to be based on best practicable treatment technology for

POTWs and should demand at least "secondary treatment."

". Taking into account when those

revisions were begun, it has been over 10

years.

App. B Page 10

Prior to this legislation, secondary treatment was

defined by treatment process types that followed primary

treatment, i.e., activated sludge, trickling filters, etc.. and

was not defined by effluent standards. To satisfy the

requirements of the act. the EPA changed the definition of

"secondary treatment" from a process type definition to an

effluent standard definition, after the EPA established that the

effluent of existing "secondary treatment" facilities could

achieve an effluent containing less than 30 mg/l of BODS

(Biochemical Oxygen Demand test after 5 days) and SS

(Suspended Solids). Since BODS test values on raw sewage

influent are generally assumed to be 200 mg/l," it was

concluded that the required effluent standard of 30 mg/!

represented 85% treatment, an acceptable first step toward the

ultimate goal of elimination of all water pollution. or 100%

treatment.

Although biological oxidation of nitrogenous materials

causes errors in the standard BODS test (often referred to as

“nitrification interference”), and has been recognized in the

technical literature for at least 50 years,” it was ignored when

EPA established effluent standards for secondary treatment in

‘|. 48 Fed. Reg. 52,275 (1983);

; ee '

anerican—Sopiety—of—Civil—Engénesrs and

Manual of Practice No.8- Wastewater

Treatment Plant Design, 1977 (WPCF

Manual), p.14.

“| See WPCF Manual at 14; see also

Appendix II, “Inhibition of Nitrogenous

BOD and Treatment Plant Performance

Evaluation," Journal of the Water

Pollution Control Federation (Journal

WPCF), Vol. 53, # 12, December 1981, p.1l.

Rs oo ee

App. B Page 11

1973." Asa result, secondary treatment facilities often could

not meet their NPDES permit requirements, so EPA amended

its secondary treatment requirements in 1984 by adding

section 133.102(a)(4)."" This section provides that at the

option of the NPDES permitting authority, the original 30

mg/! BODS effluent limit may be substituted with the lower

25 mg/l C-BODS effluent limit. Using the C-BODS alone

solves the problem of nitrification interference, but as

explained below, it allows a large portion of the BOD

pollution in the waste stream to avoiding detection.

ome |

There are two main problems caused by BODS and C-

BODS testing methods mandated by the current regulations:

|) they lead to ignoring N-BOD waste, often a substantial

portion of the waste stream; and 2) they only represent a

five-day value, and not the ultimate value.

1. Current BOD Testing Ignores N-

BOD

The main problem with the BODS test is that it does

not reveal how much of what pollutant (N-BOD or C-BOD)

is present in the waste stream. Although the BODS test was

°. See Appendix VII, “Letter to the

Editor from BOD Task Group (James Cc.

Young, Iowa State University; Gerald N.

McDermott, The Proctor & Gamble Company;

and David Jenkins, University of

California, Berkeley)," appearing in

Journal WPCF, Vol. 54, #7, 1982.

ae 48 Fed. Reg. 52,259-60 (1983).

App. B Page 12

originally used to measure C-BOD in order to avoid

interference from nitrification as well as to save time, it was

intended to be used in combination with the TKN (Total

Kjeldahl Nitrogen) test, which is used to measure N-BOD.

However, it became common engineering practice to use the

BODS test by itself.

Many professionals erroneously believed that its value

represented the whole amount of oxygen required to stabilize

organic matter in raw sewage. The attached description of

the BOD test"? explains that the BODS test value is deficient

in two respects: one, it does not indicate whether the BOD is

carbonaceous or nitrogenous; and two, it only represents the

BOD value at five days, rather than the ultimate value. By

evaluating only BODS test data, the EPA in fact addressed

only 41% of the BOD pollution in raw sewage.” The

anticipated 85% treatment consequently results in only a 35%

treatment requirement (85% of 41%), which is clearly

inadequate to meet any of the final or interim goals of the

CWA.

The 1984 regulation changes which allowed the

substitution of the C-BODS test is also faulty. It was

2 Appendix I: "BOD Test," Peter Maier,

1993.

3 See Appendix I, page 2, figure l.

Point A in that graph represents the BODS5

value assumed to be the C-BOD5 value by

current regulations (200 mg/l). Point B

represents the actual ultimate total BOD

pollution value, or 485 mg/l. Since 200

is 41% of 485, EPA only addresses 41% of

the total BOD pollution present in the

waste stream.

App. B Page 13

estimated that 60% of the facilities violating the NPDES

permit prior to 1984" got into compliance with the new C-

BODS requirement by simply adding a chemical such as

allythiourea. This process selectively kills autotrophic

organisms in the test sample, which results in a lower BODS

reading in the sample, but masks the N-BOD pollution still

present in the waste stream. Also, it is questionable if such

facilities would have met the 85% treatment requirement of

even the C-BOD, which should be based on the C-BODS test

value of the raw sewage influent entering the facility (but

which was never required to be tested).

EPA justified the regulation change based on the test

results of effluents only, and assumed that the nitrification

interference of the BODS test was caused by autotrophic

organisms growing in under-loaded sewage treatment

facilities. However, recent testing shows that this assumption

is not correct in many cases.

For instance, testing in Salt Lake City indicates that

the nitrification interference in the BODS test on raw sewage

influent, as well as on the effluent, is caused by autotrophic

organisms originating from the sewer system, and not from

the "under-loaded" treatment facility, since nitrification (TKN

reduction) does not occur in the facility itself.’ As a result,

a See Appendix VI, "Nitrification

in BOD5 Test Increases POTW Non-

Compliance," Journal WPCF, Vol. aa, Gaa,

December 1983, p.1

ral See Appendix III, "1984 Salt

Lake City Water Reclamation Facility Test

Results," especially table of test results

on last page, comparing the TKN and

App. B Page 14

the facility receives much lower amounts of C-BOD than it

was designed to treat, and instead receives N-BOD waste it

is not able to handle.

C-BODS tests on raw sewage in Chicago and San

Diego also indicate that nitrification interference should be

anticipated for all BODS testing.” Carbonaceous and

nitrogenous biochemical oxygen demands must be considered

separately. To do otherwise leads to technical data that is

both meaningless and misleading, and can lead to the

incorrect design of sewage treatment facilities.

Ammonia (NH3-N) values of influent and

effluent. Because there is no significant

change in the TKN value, and because the

ammonia values actually increased, this

indicates that no nitrification is

occurring in the plant itself.

*. See Appendix IV- "Exertion of 5-

Day Nitrogenous Oxygen Demand in

Nitrifying Wastewaters," Journal WPCF Vol.

55, #9, Sept. 1983 (Chicago Results) and

Appendix V- "San Diego Test Results on Raw

Sewage, 1992." The Chicago data, Appendix

IV, table III, shows N-BOD5 percentages of

raw influent to be 24%, 28%, and 48% in

three different plants. The San Diego

data, Appendix V, shows an average N-BOD5

component in raw influent to be 15%, 12%,

16% and 20%. The maximums on a daily

basis were as high as 57% N-BODS in raw

influent.

App. B Page 15

3 Current BOD Testing Only

Represents the 5-Day Value, Not

the Ultimate Value

Not only must N-BOD and C-BOD be measured

separately in order to accurately assess the makeup of a waste

stream, but those values must be measured and quantified to

reflect their ultimate value when the waste has fully stabilized

in the waterway. The current C-BODS and BODS tests are

faulty because they only represent the 5-day value, not the

ultimate value.

This fact was recognized by EPA during the

formulation of the 1984 revisions, although the regulations

failed to implement the formula needed to adjust for the

problem.” As explained below, there is no need to increase

the time of the test- a simple formula extrapolates the

ultimate value from the 5-day values.

C. Required Formula for Accurate Testing of

BOD Values

In order to reflect the true measure of both the N-

BOD and C-BOD components of BOD pollution, as well as |

to reflect the ultimate C-BOD and N-BOD values (not just the

5-day interim value), the following formula must be used:

BOD = 1.5 C-BODS + 4.6 TKN

In this formula, the C-BODS value is multiplied by 1.5 to

a 48 Fed. Reg. 52,274 (1983)

(section II.A.).

App. B Page 16

give the ultimate C-BOD value.'* The ultimate N-BOD value

is determined by multiplying the TKN test value by 4.6.”

Testing for these separate components and using this formula

yields the true ultimate makeup of the BOD, and eliminates

problems related to nitrification interference (without ignoring

N-BOD).

D. Best Practicable Waste Treatment Technology

It is the function of the secondary treatment

regulations to define the best practicable waste treatment

technology. This petition shows that waste treatment

technology exists to build POTWs which cost no more or less

than plants designed to meet current regulations, yet which

reduce pollution to a much greater extent than those same

plants designed to meet the current regulations.

Sewage is basically water carrying solids, and in order

to treat sewage (remove solids), it is essential to know not

only the composition of these solids, but even more

importantly the physical condition of these solids (settleable,

non-settleable, colloidal, or molecular dissolved). These

conditions change with detention time and as sewage is

transported from the source to the sewage treatment facility.

Primary treatment mainly removes the settleable solids, while

the non-settleable and dissolved solids only can be removed

after they are adsorbed to a medium that can be removed by

settling. Secondary treatment, historically defined as

biological treatment, is using biomass (a medium of living

organisms) to adsorb or directly utilize the non-settleable and

App. B Page 17

dissolved solids in sewage, which in turn can be removed by

settling processes.

This adsorption (or direct utilization) process can be

achieved in fixed medium Systems (trickling filters or bio-

disks), or in suspended grown treatment systems (activated

Sludge, oxidation ditches). They all are called "secondary

treatment," but their efficiency in removing the solids in the

sewage are quite different, and mainly depend on the biomass

that can be maintained in such systems. All biological

treatment processes (removal of C-BOD, N-BOD, TKN,

nitrates, phosphates) can be achieved as long as a suitable

biomass can be contained in a controlled environment.

Oxidation ditches can provide such an environment,

and the use of oxidation ditches results in excellent treatment

of all the conventional water pollution elements in the waste

stream.” These treatment results are contributed to the

biomass contained in the system capable of adsorbing (or

directly utilizing) all the above-mentioned water pollution

elements from sewage.

Similar excellent treatment results (TKN, nitrate and

phosphorous reduction) can be achieved in other containment

systems. Not only in expensive multi-unit systems, but also

Ti See Appendix IX, "Evaluation of

Oxidation Ditches for Nutrient Removal,"

EPA 832-R-92-003, Sept. 1992; see also

Appendix X, "A Comparison of Oxidation

Ditch Plants to Competing Processes for

Secondary and Advanced Treatment of

Municipal Wastes," EPA 600/2-78-1051,

March 1978.

App. B Page 18

in inexpensive Sequencing Batch Reactor (SBR) systems.”

Since these results are achieved in a containment

system without primary treatment and without expensive

sludge stabilization, it is not surprising that the initial

construction and annual operating costs of oxidation ditches

and SBRs are lower compared with complicated

"conventional" systems which are only capable of adsorbing

C-BOD. and which are unable of adsorbing or utilizing other

water pollution elements in sewage such as N-BOD, nitrates

and phosphates.”

m, See Appendix VIII, "Biological

Phosphorous Removal in a Fed-Batch Reactor

Without Anoxic Mixing Sequences," Research

Journal WPCF, Vol. 63, #3, May/June 1991.

This paper shows’ that the following

effluent standards can be achieved using 4

SBR: less than 10 mg/l C-BOD; 10 mg/l TSS;

0.2 mg/l ammonia nitrogen; 5 mg/l total

nitrogen; and 1 mg/l phosphorous. a