Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency

Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency

Opinion

 [*1423]  SCHROEDER, Circuit Judge:

INTRODUCTION

] The Clean Water Act prohibits the discharge of any pollutant, 33 U.S.C. § 1311(a) (1982), except in compliance with a National Pollutant Discharge Elimination System (NPDES) permit issued under the Act. 33 U.S.C.A. § 1342(a) (West Supp. 1988). We here consider petitions for review of the Environmental Protection Agency's general permit under the Clean Water Act (the Act)  [**2]  authorizing the discharge of pollutants from oil and gas operations in the Gulf of Mexico.

 [*1424]  In July of 1986, Regions IV and VI of the Environmental Protection Agency issued this NPDES permit establishing the compliance conditions for discharge of pollutants from oil and gas operations located in the Outer Continental Shelf of the Gulf of Mexico. See 51 Fed. Reg. 24897 (1986). The Natural Resources Defense Council and the Sierra Club (referred to collectively as "NRDC") challenge certain limitations on the discharge of pollutants, essentially arguing that these limitations are too lenient. The American Petroleum Institute and Conoco, Inc. (referred to collectively as "API") also challenge terms of the permit, essentially arguing that some of the limitations are too stringent. In addition, the State of Florida seeks review of the permit on the ground that the permit does not comply with its state water quality standards. This court has jurisdiction pursuant to 33 U.S.C.A. § 1369(b)(1)(F) (West Supp. 1988). ³ 

 [**3]  ] Permits issued under NPDES are to establish specific limitations on the discharge of pollutants based on water quality standards, see 33 U.S.C. § 1313 (1982), and on imposition of technology-based controls. See id. §§ 1311(b), 1314(b). The type of technology-based effluent limitation applicable to a discharge depends upon the type of pollutant. For existing sources, ⁴ [**4]  toxic pollutants ⁵ are subject to the "best available technology economically achievable" (BAT). See 33 U.S.C.A. §§ 1311(b)(2), 1314(b)(2) (West Supp. 1988); 33 U.S.C. § 1317(a)(2) (1982). Conventional pollutants ⁶ are subject to the "best conventional pollutant control technology" (BCT). See 33 U.S.C.A. § 1311(b)(2)(E) (West Supp. 1988); 33 U.S.C. §§ 1314(a)(4), 1314(b)(4)(1982). The Act lists the factors that EPA must take into account in establishing BAT and BCT. See 33 U.S.C. §§ 1314(b)(2)(B) (1982) (BAT); 1314(b)(4)(B) (1982) (BCT). See generally Natural Resources Defense Council v. EPA, 261 U.S. App. D.C. 372, 822 F.2d 104, 110 (D.C. Cir. 1987) ("NRDC"), American Petroleum Institute v. EPA, 787 F.2d 965, 969-70 (5th Cir. 1986) ("API"). 

] Permits for the discharge of pollutants from drilling are generally required to incorporate technology-based effluent limitations promulgated by EPA on a nationwide, industry-wide basis. See 33 U.S.C. §§ 1311(b), 1314; 40 C.F.R. § 125.3(c)(1) (1987). Such industry-wide guidelines have not yet been promulgated. The Act provides that in this situation, EPA may establish effluent limitations on a case-by-case basis according to its "Best Professional Judgment" (BPJ). See 33 U.S.C.A. § 1342(a)(1)(B) (West Supp. 1988); 40 C.F.R. § 125.3(c)(2) (1987). See also NRDC, 822 F.2d at 111; API, 787 F.2d at 971.

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