WISDOM, Circuit Judge:
This case is part of a dispute over whether it is lawful for the United States Environmental Protection Agency ("EPA") to regulate internal waters which are an integral part of the waste treatment system of the Texas Municipal Power Agency ("TMPA"). The EPA has been doing so for almost nine years. We hold that it may continue for at least two more years.
TMPA, an electric utility, operates a lignite-fired steam generating plant next to the Gibbons Creek Reservoir in Grimes County, Texas. As part of the waste treatment system for the plant, waste water flows through a series of settling ponds and, at the end of this series, discharges into the Gibbons Creek Reservoir. The purpose of the ponds is to allow suspended solids to settle out of the water before it flows into the reservoir. Most of the flow into the settling ponds consists of ash-laden water from TMPA's generating plant. But in addition, at a point known as outfall 301, treated wastewater flows into the ponds from a sewage treatment facility serving the 300 employees at the plant.
Under the Clean Water Act ("CWA"), the EPA regulates TMPA's waste treatment through the terms it includes in the National Pollution Discharge and Elimination System ("NPDES") permit TMPA requires for discharging waste into the Gibbons Creek Reservoir.
Since November 1977, several NPDES permits have regulated TMPA's discharges into the Gibbons Creek Reservoir as well as its discharges into the settling ponds at outfall 301. The EPA last revised its regulations on outfall 301 in March 1984, issuing the current permit, set to expire in April 1989. All this passed without objection from TMPA.
In July 1985, however, over a year after the EPA renewed the relevant permit, TMPA petitioned this court for review of
TMPA then applied to the EPA under CWA section 402,
In TMPA I, we held that TMPA has lost the right to a full review of the permit. In this case, unlike TMPA I, we reach the merits of TMPA's complaint against the EPA. But because this petition is for review of a modification denied by the EPA, our review is more restricted than review of EPA renewal or issuance of an NPDES permit.
Section 701 of the Administrative Procedure Act provides that the action of "authority of the Government of the United States" is subject to judicial review except where there is a statutory prohibition on review or where "agency action is committed to agency discretion by law".
We held that Congress intended that anyone wishing to challenge the terms of an NPDES permit must do so within the period prescribed by section 509(b)(1) or "`lose forever the right to do so, even though that action might eventually result in the imposition of severe civil or criminal penalties'".
It follows from this scheme that Congress did not intend petitions for modification to provide a second chance for full review of an NPDES permit after the statute of limitation has run from the issue or renewal of the permit. This conclusion is buttressed by the laws and legislative history concerning petitions for modification. CWA section 402 gives the EPA discretion to modify permits "for cause".
Thus, our review here is narrow in scope. In particular, TMPA petitioned the EPA for modification on the basis of 40 C.F.R. § 122.62(a)(16): "[t]o correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions". Accordingly, we review the permit regulating outfall 301 for "technical mistakes" or "mistaken interpretations of law".
Further, our review of a denial of a modification is more deferential to EPA than review of an issuance of an NPDES permit. Although the denial of modification
We now address whether the NPDES permit regulating outfall 301 is based upon "mistaken interpretations of law". The EPA is charged with regulating pollution of the "waters of the United States".
This rule is the legal basis for EPA regulation of outfall 301.
TMPA's principal contention is that the internal waste stream rule exceeds EPA authority. TMPA argues that internal waste streams are not "waters of the United States" and that therefore the EPA has no right to regulate discharges into them. Thus, TMPA concludes, the regulation of outfall 301 is rooted in a mistaken interpretation of law and must be modified.
Even if modification to correct mistakes of law were mandatory, we find no such limit on EPA powers. The CWA does not define "waters of the United States". Rather, the EPA promulgated 40 C.F.R. § 122.2 to define the term:
This definition is expansive and, in keeping with the intent of Congress, the courts construe it liberally to give the broadest possible reach to EPA regulation.
But this definition also contains one, very relevant exception:
This treatment pond exception appears to conflict with the internal waste stream rule.
As it must to present grounds for modification, TMPA contends that the language of the treatment pond exception renders ultra vires the internal waste stream rule. TMPA seems to argue that the EPA promulgated the treatment pond exception to
Notwithstanding the apparent conflict between the two regulations, there is no support for TMPA's position. We are required to defer to any reasonable EPA construction of its enabling statutes.
Here, we find the EPA's reading of the internal waste stream rule and the treatment pond exception regulations not erroneous and consistent with the regulations.
The holding TMPA urges upon us would unreasonably restrict the EPA's power to regulate pollution in important circumstances and, in so doing, frustrate Congress's purpose in the CWA. As the EPA points out, it is sometimes necessary to regulate discharges within the treatment process to control discharges at the end. Regardless of whether internal waste streams are "waters of the United States", the internal waste stream rule falls within EPA power to promulgate regulations necessary to control discharges into "waters of the United States".
The CWA is strong medicine. Section 301(a) prohibits the discharge by any person of any pollutant into the nation's waters except that which the EPA expressly allows in an NPDES permit.
That the CWA's ambitious goal has not been achieved even in 1987 does not vitiate Congress's intent that it be achieved as soon as possible.
In this light, we see two broad justifications for the internal waste stream rule. The first is EPA responsibility to measure and control the discharge of particular effluents.
In sum, we find ourselves in agreement with the opinion of the Seventh Circuit Court of Appeals in Mobil Oil Corp. v. EPA:
We hold that there is no mistake of law in EPA regulation of outfall 301 or any other internal waste stream.
We now turn to whether the EPA's decision to apply the internal waste stream
The restrictions the EPA imposed on outfall 301 apply to two measures of pollution, Biological Oxygen Demand ["BOD"] and Total Suspended Solids ["TSS"]. CWA section 304(a)(4) specifically requires that the EPA formulate limits on BOD and TSS,
The EPA decided to regulate outfall 301 because it determined that it was impractical to assure that TMPA's sewage treatment plant complies with EPA effluent and technology standards by monitoring only the discharges into Gibbons Creek Reservoir.
TMPA attacks this by contending that BOD and TSS are effectively treated by dilution. TMPA argues that, therefore, the EPA has reason to be concerned with BOD and TSS concentration at the discharges into the Gibbons Creek Reservoir, but not the concentrations at outfall 301. At bottom, TMPA challenges the EPA's finding that it is "impractical" to enforce CWA compliance by measuring TSS and BOD only at the final discharges.
Although TMPA may call into question EPA's fact-findings regarding BOD and TSS, its arguments have nothing to do with the term "technical mistake" in 40 C.F.R. § 122.62(a)(16). Apparently, TMPA believes that "technical mistake" refers to mistakes in findings of "technical" — as opposed to unsophisticated — fact. This is simply wrong.
40 C.F.R. § 122.62(a)(16) does not refer to "technical" fact-findings; rather, it says "technical mistakes, such as errors in calculation".
Thus, we have no jurisdiction in this case to review the findings of fact behind the application of the internal waste stream rule to outfall 301; they are not relevant to TMPA's petition for modification.
TMPA also challenges the EPA's refusal to modify the permit in response to alleged procedural flaws. TMPA notes that the internal waste stream rule requires
Even if we saw merit in these allegations, procedural deficiencies are not a basis for permit modification under 40 C.F.R. § 122.62(a)(16). The failings TMPA allege are neither "technical mistakes" nor "mistaken interpretations of law". Moreover, they were not "made in determining permit conditions".
TMPA has failed to show any reason to modify the permit under 40 C.F.R. § 122.62. There is no mistake of law in the EPA's regulation of any internal waste stream. While TMPA may be able to show that the EPA applied the internal waste stream rule to outfall 301 inappropriately, it is irrelevant here. The place for judicial review of findings of fact behind the application of the internal waste stream rule in TMPA's permit is in a timely challenge after the permit is issued, not in a petition to modify the permit. Similarly, the place for judicial review of procedural failings in the issuance of TMPA's permit is in a timely challenge after the permit is issued, not in a petition to modify the permit.
We see no reason to allow TMPA to evade the time limit on review of EPA action by expanding the scope of the petition for modification. At some point, agency decisions must become final; at some point, challenges to those decisions must be foreclosed. In this instance, CWA section 509(b)(1) sets the time limit for review of the terms of TMPA's permit. As we ruled in TMPA I, TMPA lost its right to challenge this permit because it failed to make the challenge timely. TMPA's failure may be regretable, but that is entirely its own fault. Moreover, the NPDES permit governing outfall 301 will be up for renewal only two years from now and, at that time, will be open to a full challenge by TMPA.
Accordingly, the petition for review of the EPA's refusal to modify the permit is DENIED.
GEE, Circuit Judge, specially concurring:
Judge Wisdom's opinion for the court is correct and I must therefore concur in it, although I do so with some reluctance. My concurrence rests upon his clear demonstration that the actions of which TMPA complains are neither "mistaken interpretations of the law" nor "technical mistakes," and hence that at this stage of proceedings our review cannot reach them. My reluctance stems from a conviction that the administrator has conducted itself in an unreasonable fashion, treating BOD and TSS "pollution" — pollution which is produced by concentration and is destroyed by dilution — as though it involved toxic substances. Even in the service of the environment, it appears that bureaucracy remains bureaucracy. We hold no general roving commission to right wrongs, however; and the majority is correct in holding that these must be endured for two more years.
Id. § 1342(b)(1)(C).
5 U.S.C. § 706(2) (1977).
By contrast, 40 C.F.R. § 122.62 lists only limited and very specific circumstances as "causes for modification". These include, for example: (1) when "[t]here are material and substantial alterations or additions to the permitted facility or activity", 40 C.F.R. § 122.62(a)(1) (1986); (2) when the EPA receives "new information ... not available at the time of permit issuance", id. § 122.62(a)(2); (3) when "[t]he standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision after the permit was issued", id. § 122.62(a)(3); and (4) when "good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control", id. § 122.62(a)(4). See also id. § 122.62(a)(5)-(18) (listing other specific grounds for modification); id. § 122.62(b) (same); id. § 122.63 (listing grounds for "minor modifications", such as correcting typographical errors). Only one of the grounds in 40 C.F.R. § 122.62 even debatably embraces TMPA's petition: "[t]o correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions". Id. § 122.62(a)(16). The other grounds are irrelevant.
40 C.F.R. § 122.62 (1986) (emphasis added).
Id. § 124.5(c)(2) (emphasis added). See also TMPA I, 799 F.2d at 175 (modification does not reopen unmodified parts of permit).
715 F.2d at 904 (citations omitted) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971)). See generally Richard J. Pierce, Jr., Sidney A. Shapiro, and Paul R. Verkuil, Administrative Law and Process § 7.3.2 at 360-63 (1985).
Id. § 122.45(a).
504 F.2d at 1326.
S.Conf.Rep. No. 1236, 92d Cong., 2d Sess. 101, reprinted in 1972 U.S.Code Cong. & Admin.News 3776, 3778. In the hearings on the 1972 amendments, William D. Ruckelshaus, then EPA Administrator, stated that "we don't believe that the solution to pollution is dilution". 2 Senate Comm. on Public Works, 93d Cong., 1st Sess., Legislative History of the Federal Water Pollution Control Act Amendments of 1972 at 281, 330 (Comm. Print 1983). See National Ass'n of Metal Finishers v. EPA, 719 F.2d 624, 651 & n. 38 (3d Cir.1983), rev'd on other grounds sub nom Chemical Manufacturers Ass'n v. NRDC, 470 U.S. 125, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985) (discussing Congress's rejection of dilution as treatment for pollution); Hercules, Inc. v. EPA, 598 F.2d 91, 108 & n. 30 (D.C.Cir.1978) (same).
48 Fed.Reg. 7056 (Feb. 17, 1983).
Section 304(b) fleshes out the EPA's duty to regulate treatment technology. Id. § 1314(b). As the Supreme Court said in E.I. du Pont de Nemours & Co. v. Train:
430 U.S. 112, 130-31, 97 S.Ct. 965, 976, 51 L.Ed.2d 204 (1977) (footnote omitted). The EPA cannot be expected to formulate and enforce these treatment standards without the authority to monitor and regulate internal waste streams.
799 F.2d at 174. See also City of Seabrook, 659 F.2d at 1370 (strictly enforcing similar statute of limitations on judicial review in Clean Air Act).