Clean Water Action v. EPA ( 2019 )

Case: 18-60079 Document: 00515094677 Page: 1 Date Filed: 08/28/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 28, 2019
No. 18-60079
Lyle W. Cayce
Clerk
CLEAN WATER ACTION; ENVIRONMENTAL INTEGRITY PROJECT;
SIERRA CLUB; WATERKEEPER ALLIANCE, INCORPORATED;
PENNENVIRONMENT, INCORPORATED; CHESAPEAKE CLIMATE
ACTION NETWORK; PHYSICIANS FOR SOCIAL RESPONSIBILITY,
CHESAPEAKE, INCORPORATED; PRAIRIE RIVERS NETWORK,
Petitioners
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;
ANDREW WHEELER, Acting Administrator,
United States Environmental Protection Agency,
Respondents
Petition for Review of an Order of the
Environmental Protection Agency
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Through notice-and-comment rulemaking, the Environmental
Protection Agency (“EPA”) reviewed and decided to revise 1 the earliest
1The original rule was titled: “Effluent Limitations Guidelines and Standards for the
Steam Electric Power Generating Point Source Category,” 80 Fed. Reg. 67838 (Nov. 3, 2015)
(the “2015 Rule”). The revision, which is the subject of this case, is titled: Postponement of
Certain Compliance Dates for the Effluent Limitations Guidelines and Standards for the
Steam Electric Power Generating Point Source Category, 82 Fed. Reg. 43,494 (Sept. 18, 2017)
(the “Postponement Rule”).
Case: 18-60079 Document: 00515094677 Page: 2 Date Filed: 08/28/2019
No. 18-60079
compliance dates for new, stringent BAT (“best available technology
economically achievable”) effluent limitations and PSES (“pretreatment
standards for existing source”) concerning two waste streams from steam
electric power generating point sources that had previously been promulgated
in a 2015 Rule.
More specifically, the agency postponed for two years only the earliest
compliance dates mandated by the 2015 Rule for flue gas desulfurization
(FGD) wastewater and bottom ash transport water, while (a) retaining the
2015 Rule’s BAT limitations and pretreatment standards for other waste
streams from such power plants, and (b) not altering either the last date for
compliance (December 2023) or, pending reconsideration, the substantive
limits required by the 2015 Rule for the two postponed stream modifications.
A consortium of environmental groups has challenged the postponement, while
EPA and the intervenor, Utility Water Act Group (“UWAG”), 2 defend the
Postponement Rule. We conclude that the EPA had statutory authority to pass
this tailored rule, the agency explained its decision adequately, its decision was
reasonable, and it was thus neither arbitrary nor capricious. The petition for
review is DENIED.
BACKGROUND
The 2015 Rule represented the culmination of ten years’ work by EPA to
update steam electric power generating plant standards for compliance with
the Clean Water Act, 33 U.S.C. § 1251 et seq., that had been in place since
1982. In that Rule, the agency, among other things, defined much more
stringent BAT limits and pretreatment standards for seven defined
wastestreams. Recognizing that power plants would need substantial lead
UWAG is an ad hoc voluntary group of 145 individual energy companies and three
2
national energy trade associations.
2
Case: 18-60079 Document: 00515094677 Page: 3 Date Filed: 08/28/2019
No. 18-60079
time to plan, fund, and build necessary new facilities, the agency mandated in
the 2015 Rule an earliest compliance date of November 2018 and delegated to
permitting authorities the flexibility to approve individual point source
compliance as feasible over a period extending until the end of 2023.
Four lawsuits challenging the 2015 Rule were soon filed in the federal
courts. 3 The petitions were consolidated by the Judicial Panel on Multidistrict
Litigation and transferred to this court. 4 During these preliminaries, UWAG,
later supplemented by the Small Business Administration’s Office of Advocacy,
submitted petitions asking EPA to reconsider the entire 2015 Rule and
suspend its approaching deadlines. 5 Among other things, these petitions
raised substantial questions, based on newly discovered information, about the
extraordinary costs of implementing the 2015 Rule and the infeasibility of
EPA’s proposed technology as applied to certain power plants. Taking these
petitions seriously, EPA’s Administrator determined that it was appropriate
and in the public interest to reconsider the 2015 Rule.
After an initial stay, a formal rulemaking procedure ensued, the notice
of which generated thousands of written comments, and the agency conducted
a public hearing on July 31, 2017. In the end, EPA decided to adhere to most
aspects of the 2015 Rule. EPA left in place the legacy wastewater limitations,
which are BAT limitations that apply to each of the regulated wastestreams
3The cases were originally captioned as: Waterkeeper Alliance, Inc. et al v. EPA, et al.
(2nd Cir. No. 15-3773); Sw. Elec. Power Co., et al. v. EPA, et al. (5th Cir. No. 15-60821); Union
Elec. Co., et al. v. EPA, et al. (8th Cir. No. 15-3658), and Sierra Club v. EPA (9th Cir. No. 15-
73578).
See United States Judicial Panel on Multidistrict Litigation, Order MCP No. 136
4
(December 8, 2015).
5UWAG Petition for Reconsideration, Index.12844, JA836; SBA Petition for
Reconsideration, Index.12848, JA1064.
3
Case: 18-60079 Document: 00515094677 Page: 4 Date Filed: 08/28/2019
No. 18-60079
beginning on the effective dates set out in the 2015 Rule; the new and more
stringent limitations and quantitative standards (i.e., the permissible amount
of discharges); and the latest compliance date for NPDES permitting
authorities to impose those limitations. 6 See generally, Postponement Rule,
82 Fed. Reg. at 43,494. But the agency also decided it must reconsider the
2015 Rule’s regulations governing two wastestreams (FGD wastewater and
bottom ash transport water) in light of “new information not contained in the
record for the 2015 Rule.” Id. at 43,496. As support for reconsideration, EPA
cited “the inherent discretion the Agency has to reconsider past policy decisions
consistent with the CWA and other applicable law.” Id. EPA’s expressed
purpose for postponing the earliest effective compliance dates for these
wastestreams during reconsideration was to “prevent the potentially needless
expenditure of resources during a rulemaking that may ultimately change the
2015 Rule . . . .” Id. The agency, however, specifically declined to forecast
whether, after reconsideration, it will substantially revise the 2015 Rule. 7
STANDARD OF REVIEW
The standard of review here is deferential, focusing on whether the
agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). “If the agency’s reasons and
policy choices conform to minimal standards of rationality, then its actions are
reasonable and must be upheld.” Tex. Oil & Gas Ass’n v. EPA, 161 F.3d 923,
6 The Postponement Rule extended the “as soon as possible” date for these two effluent
limitations by two years, from November 1, 2018 until November 1, 2020. Postponement
Rule, 82 Fed. Reg. at 43,496. The Postponement Rule did not modify the “no later than” date
of December 31, 2023, since EPA had no reason to believe that date was driving compliance
costs. Id. at 43,496.
7At oral argument, the court was informed that, in response to the uncertainty
pending reconsideration, permitting authorities may continue to require compliance with the
2015 Rule as to these wastestreams while extending the deadlines.
4
Case: 18-60079 Document: 00515094677 Page: 5 Date Filed: 08/28/2019
No. 18-60079
934 (5th Cir. 1998). The reviewing court may not “substitute its judgment for
that of the agency.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,
416, 91 S. Ct. 814, 824 (1971).
EPA must provide a reasoned explanation for its revisions and follow the
same process to revise a rule as it used to promulgate it. See Perez v. Mortg.
Bankers Ass’n, 135 S. Ct. 1199, 1206 (2015). Even “a decision based on an
administrative record of less than ideal clarity will be upheld if the agency’s
path may reasonably be discerned.” United States v. Garner, 767 F.2d 104, 118
(5th Cir. 1985). This court, however, “‘may not supply a reasoned basis for the
agency’s action that the agency itself has not given.’” Motor Vehicle Mfrs. Ass'n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2867
(quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).
DISCUSSION
In this instance, EPA went out of its way to issue a narrow
reconsideration decision, leaving intact the bulk of the 2015 Rule, and to
substantiate its course of action legally through notice-and-comment
rulemaking. 8 According to the Petitioners, that was not enough. Petitioners
fault the EPA for issuing the Postponement Rule without legal authority
because they argue it is an unauthorized stay or the “functional equivalent” of
a stay of the 2015 Rule; for failing to consider mandatory statutory factors
before promulgating a revision; and for failing to comply with what they take
to be a three-year ELG compliance deadline in the CWA. We address each of
8 EPA’s earlier stay applied to five wastestreams, since the EPA was considering
revising compliance dates for the limitations and standards for all of them. See EPA,
Postponement of Certain Compliance Dates for Effluent Limitations Guidelines and
Standards for the Steam Electric Power Generating Point Source Category, 82 Fed. Reg.
19,005 (Apr. 25, 2017). Reflecting EPA’s thoughtful and narrow decision, the Postponement
Rule challenged here applies only to the FGD and ash transport water ELGs since the EPA
ceased reconsidering the limitations and standards applicable to the other wastestreams.
5
Case: 18-60079 Document: 00515094677 Page: 6 Date Filed: 08/28/2019
No. 18-60079
these arguments in turn.
A. Whether the Postponement Rule effects a “stay” or its
“functional equivalent” concerning the 2015 Rule.
Petitioners do not challenge EPA’s statutory authority to revise the 2015
Rule’s ELGs because the CWA explicitly authorizes EPA to revise previously-
promulgated rules. See 33 U.S.C. §§ 1311(d), 1314(b), (g)(1), (m)(1)(A),
1317(b)(2). Instead, they contend that the Postponement Rule was not a
revision, but either a stay or the functional equivalent of a stay of the earlier
Rule.
The Postponement Rule is not a stay. In so characterizing it, Petitioners
misstate the agency’s position and rely on inapposite legal authority. 9 EPA
has consistently justified the Postponement Rule as a revision under both its
inherent authority to reconsider past decisions and as an action authorized
under the Clean Water Act. See Postponement Rule, 82 Fed. Reg. at 43,496
(“Agencies have inherent authority to reconsider past decisions and to revise,
replace or repeal a decision to the extent permitted by law and supported by a
reasoned explanation . . . Particularly relevant here, the CWA expressly
authorizes EPA to revise effluent limitations and standards.”) (citations
omitted). Petitioners chiefly cite cases discussing administrative stays under
the APA. But, as they admit, although EPA’s earlier stay relied on Section 705
Of course, EPA may not offer post-hoc rationales justifying its decision, and so careful
9
attention must be paid to the express rationale offered in the rulemaking. Motor Vehicle
Mfrs. Ass'n, 463 U.S. at 50, 103 S. Ct. at 2870. But Petitioners offer only snippets of EPA
language taken out of context to imply that EPA did not consider the Postponement Rule to
be a revision of the 2015 Rule. See, e.g., Postponement Rule, 82 Fed. Reg. at 43,496 (“EPA
has decided to undertake a new rulemaking, which may result in substantive changes to the
2015 Rule”); see also id. at 43,497 (stating that in “the next rulemaking,” EPA would consider
issues raised by petitions for reconsideration of the ELG Rule, “in conjunction with the
statutory factors for determining BAT for these waste streams”); id. at 43,498 (EPA
indicating that it “anticipates that [its] next rulemaking will necessarily address compliance
dates in some fashion.”).
6
Case: 18-60079 Document: 00515094677 Page: 7 Date Filed: 08/28/2019
No. 18-60079
of the APA, EPA did not cite the APA as authorizing this Postponement Rule.
EPA at all times claimed to be revising the prior rule. Consequently, cases like
Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir. 2017) and Air Alliance
Houston v. EPA, 906 F.3d 1049 (D.C. Cir. 2018) (per curiam), cited by
Petitioners, are inapposite because they interpreted the stay provision in the
Clean Air Act and the APA, neither of which is germane to this case. 10
EPA correctly surmised that, in addition to its statutory authority to
revise rules under the CWA, administrative agencies possess the inherent
authority to revise previously-promulgated rules, so long as they follow the
proper administrative requirements and provide a reasoned basis for the
agency decision. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515,
129 S. Ct., 1800, 1811 (2009) (recognizing that the Administrative Procedure
Act “makes no distinction . . . between initial agency action and subsequent
agency action undoing or revising that action”); Motor Vehicle Mfrs. Ass’n,
463 U.S. at 42, 103 S Ct. at 2866 (“[W]e fully recognize that ‘regulatory
agencies do not establish rules of conduct to last forever,’ and that an agency
must be given ample latitude to ‘adapt their rules and policies to the demands
of changing circumstances.’”) (citation omitted); Perez, 135 S. Ct. at 1206
(agencies may amend rules provided that they “use the same procedures when
they amend . . . a rule as they used to issue the rule in the first instance”). In
10 Petitioners also argue that the CWA, unlike the Clean Air Act (“CAA”), contains no
provision for a stay pending reconsideration and this court should interpret the silence of the
CWA in light of the CAA. To be sure, agencies, as mere creatures of statute, must point to
explicit Congressional authority justifying their decisions. Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204, 208, 109 S. Ct. 468, 471 (1988) (“It is axiomatic that an administrative agency’s
power to promulgate legislative regulations is limited to the authority delegated by
Congress.”). But EPA implemented the Postponement Rule through the rulemaking process,
not as a discretionary stay. Petitioners cite no authority suggesting that statutory grants of
power must be read as narrowly as possible, nor do they cite any authority suggesting that
the EPA’s power to revise under the CWA does not extend to effective dates and compliance
dates.
7
Case: 18-60079 Document: 00515094677 Page: 8 Date Filed: 08/28/2019
No. 18-60079
accord with these authorities, EPA issued the Postponement Rule following
notice-and-comment rulemaking after evaluating legitimate concerns about
compliance costs and achievability.
Petitioners alternatively contend that even if the Postponement Rule is
not actually a stay of the 2015 Rule, then its relaxation of certain compliance
dates is the “functional equivalent” of a stay, which the Clean Water Act does
not authorize. But courts have rejected EPA delay actions undertaken without
notice and comment rulemaking precisely because they recognize that the
modification of effective dates is itself a rulemaking. See, e.g., Envtl. Def. Fund
v. Gorsuch, 713 F.2d 802, 815–17 (D.C. Cir. 1983) (stating general rule that
changes to effective dates constitute rulemaking and rejecting agency's
argument that its decision not to call for hazardous waste permits from a whole
class of facilities was a policy statement); Council of S. Mountains, Inc. v.
Donovan, 653 F.2d 573, 580 n.28 (D.C. Cir. 1981); Envt’l Def. Fund, Inc. v. EPA,
716 F.2d 915, 920 (D.C. Cir. 1983) (“[S]uspension or delayed implementation
of a final regulation normally constitutes substantive rulemaking under APA
§ 553.”). As the Second Circuit explained, “altering the effective date of a duly
promulgated standard could be, in substance, tantamount to an amendment or
rescission of the standards.” Nat. Res. Def. Council v. Abraham, 355 F.3d 179,
194 (2d Cir. 2004). 11 Courts have rebuked EPA delays as illegitimate where
11Intentionally delaying implementation of a duly promulgated rule may be analogous
to an agency’s issuing a rule that is inconsistent with a prior rule. In the latter situation, the
D.C. Circuit, quoting Judge Easterbrook, holds that such a rule is necessarily a revision of
the prior rule, which is permissible as long as pursued through the appropriate
administrative processes:
It is a maxim of administrative law that: “If a second rule repudiates or is
irreconcilable with [a prior legislative rule], the second rule must be an
amendment of the first; and, of course, an amendment to a legislative rule must
itself be legislative.” Michael Asimow, Nonlegislative Rulemaking and
Regulatory Reform, 1985 Duke L.J. 381, 396. Judge Easterbrook has lucidly
explained why in such circumstances notice and comment rulemaking must be
followed: A volte face . . . may be an attempt to avoid the notice and opportunity
8
Case: 18-60079 Document: 00515094677 Page: 9 Date Filed: 08/28/2019
No. 18-60079
the agency did not go through notice and comment procedures. See, e.g., Nat.
Res. Def. Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 98, 113–14
(2d Cir. 2018); Air Alliance Houston, 906 F.3d at 1065 (“EPA may not employ
delay tactics to effectively repeal a final rule while sidestepping the statutorily
mandated process for revising or repealing that rule on the merits”) (citation
omitted); Clean Air Council, 862 F.3d at 9 (agency “issuing a legislative rule is
itself bound by the rule until that rule is amended or revoked” and “may not
alter [that rule] without notice and comment”). EPA obviated the Petitioners’
complaint because the way in which it modified the 2015 Rule is a rulemaking
that may properly issue after notice and comment.
B. Whether the Postponement Rule complied with the APA.
Petitioners do not prevail by describing the Postponement Rule as a stay
or something other than a notice-and-comment rulemaking. They next assert
that “[d]espite citing the Clean Water Act provisions for issuing or revising
effluent limitations as the authority for the [Postponement] Rule, EPA failed
to consider all of the factors that the statute requires to be considered when
promulgating effluent limits.” They point to the various statutory factors that
for comment that the Administrative Procedure Act requires for the alteration
of a rule. When an agency gets out the Dictionary of Newspeak and pronounces
that for purposes of its regulation war is peace, it has made a substantive
change for which the APA may require procedures. If in the air bags case,
Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile
Insurance Co., 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983), instead of
repealing the rule the agency had proclaimed that an ordinary seat belt is a
“passive restraint”, the Court would have treated this the same as it treated
revocation of the rule. Both require notice, an opportunity for comment, and
an adequate record. Homemakers North Shore, Inc. v. Bowen, 832 F.2d 408,
412 (7th Cir.1987).
Nat’l Fam. Planning and Reprod. Health Ass’n., Inc. v. Sullivan, 979 F.2d 227, 235 (D.C. Cir.
1992).
9
Case: 18-60079 Document: 00515094677 Page: 10 Date Filed: 08/28/2019
No. 18-60079
must govern BAT findings that undergirded the ELGs in the 2015 Rule. 12 They
contend that because EPA failed to repeat, restate, re-evaluate and re-explain
each of those “mandatory” factors, its Postponement Rule was invalid as “in
excess of statutory authority” pursuant to the APA, 5 U.S.C. § 706(2). We
disagree.
In this rulemaking proceeding, EPA revised only a subset of the 2015
Rule in response to serious issues raised about the availability and
achievability of those particular regulations. The agency sought to avoid
imposing potentially needless compliance costs, carefully considered which
portions of the Rule to revise, and ultimately chose to modify only the earliest
compliance dates for only two of the wastestreams. As EPA emphasizes, all of
the relevant statutory factors were considered in the 2015 Rule. See, e.g., EPA,
Technical Development Document for the Effluent Limitations Guidelines and
Standards for the Steam Electric Power Generating Point Source Category,
Index. 12840, at 8-6 to 8-25 (discussing evidence in the record on each of the
statutory factors for BAT) (Sept. 2015); 80 Fed. Reg. at 67,846–47, 67,854–56,
67,863–69 (same). All of the findings were incorporated in the administrative
record for the Postponement Rule. See Administrative Record Index, Mar. 19,
2018, ECF No. 00514391502. Finally, EPA expressly identified the
Postponement Rule as a follow-on rulemaking to the 2015 Rule. In large part,
the Postponement Rule repeats the substance of the 2015 Rule.
Moreover, EPA has significant discretion to weigh the statutory factors
and re-evaluate the policy arguments supporting the rule. See Nat’l Ass’n of
Home Builders v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2012) (stating that “a
12The CWA requires that BAT be based on a consideration of “the age of equipment
and facilities involved, the process employed, the engineering aspects of the application of
various types of control techniques, process changes, the cost of achieving such effluent
reduction, non-water quality environmental impact (including energy requirements), and
such other factors as the Administrator deems appropriate.” 33 U.S.C. § 1314(b)(2)(B).
10
Case: 18-60079 Document: 00515094677 Page: 11 Date Filed: 08/28/2019
No. 18-60079
reevaluation of which policy would be better in light of the facts” is the “kind
of reevaluation [that] is well within an agency’s discretion” even when the
agency “offered no new evidence to support its decision”); id. at 1043
(recognizing that “[a] change in administration brought about by the people
casting their votes is a perfectly reasonable basis for an executive agency’s
reappraisal of the costs and benefits of its programs and regulations” (citing
Motor Vehicle Mfrs. Ass’n, 463 U.S. at 59 (Rehnquist, J., concurring in part and
dissenting in part)). The CWA allows the Administrator discretion, in addition
to applying the other enumerated factors, to consider “other factors as the
Administrator deems appropriate.” 33 U.S.C. § 1314(b)(2)(B). The “other
factor” deemed important here had to do with the 2015 Rule’s technology:
“serious concerns about the availability and affordability of the technology
basis for the FGD wastewater and bottom ash transport water requirements
in the 2015 [ELG] Rule” were “important issues that warrant further
consideration.” Postponement Rule, 82 Fed. Reg. at 43,496–97.
Under these circumstances, EPA violated no statutory command by
revising a small portion of the 2015 Rule pursuant to transparent, careful and
targeted study. The agency supplied a reasoned basis for its decision to
postpone two earliest compliance dates for the two specific waste streams,
while retaining not only the ultimate compliance deadline specified in the 2015
Rule for those waste streams but practically the entirety of the 2015 Rule itself.
The agency supplied a reasoned basis for its action, and accomplished the
revision using “the same procedures when they amend[ed] . . . a rule as they
used to issue the rule in the first instance.” Perez, 135 S. Ct. at 1206. This
court may not substitute our judgment for that of the agency. Volpe, 401 U.S.
at 416, 91 S. Ct. at 824.
11
Case: 18-60079 Document: 00515094677 Page: 12 Date Filed: 08/28/2019
No. 18-60079
C. Whether the Postponement Rule complies with 33 U.S.C.
§ 1311(b)(2).
Petitioners’ last contention is that the Postponement Rule violates what
they assert is a mandatory maximum three-year compliance deadline for any
BAT effluent limitations promulgated under the CWA. The CWA requires that
“there shall be achieved . . . compliance with [BAT] effluent limitations . . . as
expeditiously as practicable but in no case later than three years after the date
such limitations are promulgated . . . , and in no case later than March 31,
1989.” 33 U.S.C. § 1311(b)(2)(C). 13 Petitioners argue that this provision
forbids EPA from extending compliance dates for any BAT effluent limitations
beyond three years from the date of promulgation. Since the BAT effluent
limitations in the 2015 Rule were promulgated on November 3, 2015, the
deadline by this reckoning would be November 3, 2018. In its own terms, of
course, the Postponement Rule extends the earliest compliance dates to
November 1, 2020, which would run afoul of Petitioners’ interpretation.
EPA argues that this statutory language dealt only with the initial
promulgation of BAT effluent limitations, and the agency retains discretion to
set compliance dates for any BAT subsequent effluent limitations. We agree
with the agency. The plain text of the statute indicates that the three-year
compliance deadline refers only to promulgation of the initial BAT effluent
limitations. 14 The “in no case later than three years” language is modified by
13 Subsections (D) and (F) include identical language.
14 Because the text is clear, there is no occasion here for deference to the
administrative agency’s reading of the statute under Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984). Under “step one” of Chevron, courts
analyze the statutory text for ambiguity. Id. at 843–44, 104 S. Ct. at 2781–82. If the text is
ambiguous, courts defer to the agency’s reasonable interpretation of the statute. Id. But if
the meaning of the law is clear – if there is no ambiguity – this court applies the law without
deference to the agency. See Luminant Generation Co. v. EPA, 714 F.3d 841, 850–52 (5th
Cir. 2013).
12
Case: 18-60079 Document: 00515094677 Page: 13 Date Filed: 08/28/2019
No. 18-60079
the deadline “and in no case later than March 31, 1989.” Petitioners’ reading
of the statute is absurd, as it is impossible to require compliance with BAT
effluent limitations both within three years of the 2015 Rule and by March 31,
1989. EPA’s reading of the text accords the language its natural meaning: the
initial BAT effluent limitations were to be complied with as expeditiously as
practicable, but in no case later than three years after promulgation, with a
final compliance date of March 31, 1989 at the latest. Regulated parties had
to comply with EPA’s initial BAT effluent limitations either within three years
of promulgation or by March 31, 1989 – whichever came first. This reading is
supported by § 1311(d), which requires EPA periodically to review BAT
limitations, including after 1989, but contains no such compliance deadline.
See 33 U.S.C. § 1311(d) (“Any effluent limitation required by paragraph (2) of
subsection (b) of this section shall be reviewed at least every five years and, if
appropriate, revised pursuant to the procedure established under such
paragraph.”). And Petitioners must concede that, contrary to their argument,
even the 2015 Rule allowed for compliance dates later than three years after it
first took effect.
Petitioners’ additional contentions are unavailing. First, Petitioners
argue that the statutory purposes and legislative history suggest that reading
a three-year compliance requirement even after 1989 would be most consistent
with the CWA’s “overall goal to eliminate all discharges of pollution into
navigable waters.” Pretermitting the propriety of this reading, courts cannot
resort to statutory purposes and legislative history and set aside the plain
meaning of the statute. Second, Petitioners cite Chem. Mfrs. Ass’n v. EPA,
870 F.2d 177, 242 (5th Cir.), clarified on reh’g, 885 F.2d 253 (5th Cir. 1989), for
the proposition that the three-year statutory deadline is mandatory, and EPA’s
discretion extends only to deciding how to enforce the deadline. But that case
13
Case: 18-60079 Document: 00515094677 Page: 14 Date Filed: 08/28/2019
No. 18-60079
concerned only a challenge to the original 1989 deadline, and did not address
whether the statute also required maximum three-year compliance deadlines
for any BAT effluent limitations promulgated thereafter. Petitioners identify
no case law in support of their atextual interpretation. Finally, Petitioners
suggest that the CWA’s system of periodic review and revision would be
meaningless without mandatory deadlines for compliance. But it was not
meaningless for Congress to require three-year compliance deadlines for the
initial promulgation of BAT effluent limitations, given the pressing need for
regulation at that time. Even without specific Congressional direction, EPA
has not been powerless in setting appropriate compliance deadlines for later
revised BAT effluent limitations.
CONCLUSION
In response to new information provided to it about the availability and
achievability of a subset of regulations contained in a previously-promulgated
rule, EPA revised its prior rule by changing only the earliest compliance dates
applicable only to that subset of the regulations which had the potential to
impose needless compliance costs. EPA engaged in incremental and targeted
rulemaking following a period of notice and comment. In the end, most
elements of the prior rule remained intact. EPA had statutory authority to
pass this tailored Postponement Rule, the agency provided a reasoned basis for
its decision, and its decision was reasonable, not arbitrary or capricious. The
petition for review is DENIED.
14