Public Service Company of Colorado, Fort St. Vrain Station v. United States Environmental Protection Agency, and William K. Reilly, Administrator, 949 F.2d 1063, 10th Cir. (1991)
Public Service Company of Colorado, Fort St. Vrain Station v. United States Environmental Protection Agency, and William K. Reilly, Administrator, 949 F.2d 1063, 10th Cir. (1991)
2d 1063
34 ERC 1273, 60 USLW 2386, 22 Envtl.
L. Rep. 20,441
We have only one issue before us: whether the Federal Water Pollution Control
Act of 1972 (Clean Water Act), codified at 33 U.S.C. 1251-1387, authorizes
the Environmental Protection Agency (EPA) to impose effluent limitations on
the internal waste streams of a National Pollutant Discharge Elimination
EPA placed the internal piping system effluent limits in the Fort St. Vrain
NPDES permit pursuant to the EPA internal waste stream regulation. 40 C.F.R.
122.45(h) (1990). The regulation provides for effluent limitations on internal
waste streams when it would be "impractical or infeasible" to monitor the
effluent at the point of discharge into the waters of the United States. Id.1
Petitioner brought a facial challenge to the regulation before the EPA Regional
Administrator, contending that the regulation was ultra vires.2 The Regional
Administrator refused to grant a hearing on the matter, and the EPA
Administrator affirmed the denial on appeal. Petitioner seeks review of the
EPA Administrator's final order. We have jurisdiction pursuant to 33 U.S.C.
1369(b).
Petitioner contends that the plain language, structure and legislative history of
the Clean Water Act indicate a clear Congressional intent to restrict EPA's
authority to impose effluent limitations to the physical point of discharge into
the waters of the United States. Given the clarity of Congressional intent,
petitioner urges us to exercise plenary review and declare the internal waste
stream regulation ultra vires.
and impose limitations on pollutants that eventually will be discharged into the
waters of the United States. Texas Municipal Power Agency v. Administrator,
836 F.2d 1482, 1486-90 (5th Cir.1988). We agree with the Fifth Circuit's
analysis of the pertinent Clean Water Act provisions and its conclusion that the
internal waste stream regulation is a valid exercise of EPA authority.
6
REVIEW DENIED.
40
The original NPDES permit in this case was issued by the Colorado Water
Quality Control Division (CWQCD), an EPA approved State agency. EPA,
exercising its oversight authority, objected to the permit. See 33 U.S.C.
1342(d)(2); 40 C.F.R. 123.44. Neither CWQCD nor any interested party
responded to EPA objections within the statutorily prescribed period; therefore,
exclusive permitting authority transferred to EPA. See 33 U.S.C. 1342(d)(4);
40 C.F.R. 123.44(h)(1). Petitioner challenged the resulting EPA draft permit,
requesting an "evidentiary hearing" before the Regional Administrator. See 40
C.F.R. 124.74(a). Because the request involved only legal issues (whether the
regulation was ultra vires), the Regional Administrator denied review pursuant
to EPA regulations. See id. 124.74(b)(1)