Last week, the United States Environmental Protection Agency (EPA) responded to the allegations made by 10 conservation and environmental groups in a Fourth Circuit petition for review. The petitioners’ filing supposedly challenged the outcome of the EPA’s administrative process with regard to setting Clean Water Act (CWA) pollution discharge limits for meat and poultry slaughterhouses. The agency’s response brief contended that the court lacks jurisdiction over the matter because the purportedly objectionable statement it made was within the agency’s preliminary effluent guidelines program plan, and is therefore not a “final” decision ripe for review.
Specifically, the environmental organizations’ petition protested the EPA and its administrator’s determination not to revise the effluent limitation guidelines, associated effluent limitations, and to not publish pretreatment standards for the meat and poultry production facilities industrial point source category. The petitioners’ opening brief contended that the foregoing decisions are “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.”
The EPA responded that it is “in the midst of a public notice-and-comment process in which the Agency has proposed not to revise certain regulations under the Clean Water Act.” It claims that the challenged statement, that “‘no additional categories warrant new or revised effluent guidelines at this time,’” was preliminary, and was made while the agency “simultaneously solicited public comment respecting it.” Further, the EPA clarified that at the time the petition for review was filed, “its most recent review of effluent guidelines was ‘not yet complete,’ and that it would share results in the near future.”
The EPA, therefore, argued that the challenged statement is not reviewable under the finality requirement set forth by 33 U.S.C. § 1369(b)(1) because the “record shows that, when EPA made the statement, it had not yet completed its 2019 review of effluent guidelines and pretreatment standards under the CWA.” The agency asserted that the court, therefore, lacks authority to hear the suit.
In addition, the EPA contended that the challenged statement “is not an EPA ‘promulgation’ or ‘approval’ of a relevant standard, prohibition, or limitation within the meaning of 33 U.S.C. § 1369(b)(1)(C) and (E).” For both the foregoing reasons, the agency claimed, the court should dismiss the petition for review. The EPA also noted that because the “jurisdictional issues in this case are straightforward,” it does not request oral argument.
The environmental groups are represented by Earthjustice and the Environmental Integrity Project. The EPA is represented by the U.S. Department of Justice.