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CRONIN v. BROWNER

July 24, 1995

JOHN J. CRONIN, a/k/a The Hudson Riverkeeper; CYNTHIA E. POTEN, a/k/a The Delaware Riverkeeper; THE HUDSON RIVERKEEPER FUND, INC.; THE NEW YORK COASTAL FISHERMEN'S ASSOCIATION, INC.; THE AMERICAN LITTORAL SOCIETY, INC.; MICHAEL HERZ, a/k/a The San Francisco Baykeeper; KENNETH MOSER a/k/a The Puget Soundkeeper; TERRANCE E. BACKER, a/k/a The Soundkeeper; THE LONG ISLAND SOUNDKEEPER FUND, INC.; and ANDREW WILLNER, a/k/a The Baykeeper for the New York and New Jersey Harbor Estuary, Plaintiffs, against CAROL M. BROWNER, as Administrator of the United States Environmental Protection Agency, Defendant.


The opinion of the court was delivered by: ALLEN G. SCHWARTZ

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 INTRODUCTION

 Plaintiffs, various environmental organizations, initiated this action pursuant to the "citizen suit" provision, § 505 of the Clean Water Act *fn1" ("CWA" or "the Act"), 33 U.S.C. § 1365, to compel the United States Environmental Protection Agency ("EPA"), through its Administrator, to perform an allegedly non-discretionary duty under section 316(b) of the Act. 33 U.S.C. § 1326(b). Section 316(b) governs the location, design, construction, and capacity of existing and new cooling water intake structures, particularly those utilized in the utilities industry. Amended Complaint P 31. Plaintiffs seek a declaratory judgment and an order directing EPA to issue regulations under § 316(b), and request that this Court retain jurisdiction over the matter until the Administrator issues those regulations. Plaintiffs also allege that, absent the issuance of such regulations, utility companies are ignoring the requirement under § 316(b) that any standards established under §§ 301 or 306 of the Act, 33 U.S.C. § 1311 or § 1316, reflect the "best technology available" for minimizing adverse environmental impacts from cooling water intake structures. Amended Complaint P 28.

 Plaintiffs and EPA stand on the verge of settlement of the matter, having submitted to the Court a proposed Consent Decree which inter alia, sets forth a timetable by which EPA will either issue regulations regarding cooling water intake structures or determine that no such regulations are necessary. Consent Decree P 2. *fn2" Currently pending before the Court is the motion by 56 individual electric utility companies, the Edison Electric Institute, the National Rural Electric Cooperative Association, and the American Public Power Association to intervene in this action pursuant to Rule 24 of the Federal Rules of Civil Procedure. The individual utilities and the three associations (collectively "Proposed Intervenors") all are members of the Utility Water Act Group, a group formed for collective participation by the electric utility industry in rulemakings of EPA under the Act.

 For the reasons set forth below, the motion to intervene is denied.

 BACKGROUND

 Purpose and Overview of the Act

 The objective of Congress in passing the Act was "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101(a), 33 U.S.C. § 1251(a). To effectuate this purpose, Congress declared a series of national goals, including elimination of the discharge of pollutants into this country's waters. CWA § 101(a)(1), 33 U.S.C. § 1251 (a)(1). The means of achieving these purposes is broad--a complete prohibition on discharges of all pollutants into navigable waters, except where authorized under a specific provision of the Act. CWA § 301(a), 33 U.S.C. § 1311(a). *fn3"

 Congress intended the Act to be implemented with respect to existing sources in two stages. First, discharges of pollutants would be limited based on the "best practicable control technology currently available" by July 21, 1977. CWA § 301(b)(1), 33 U.S.C. § 1311(b)(1). This represents the initial stage of pollutant-discharge reduction, designed to bring all sources in an industrial category up to the level of the average of the best source in that category. See EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 75-76, 101 S. Ct. 295, 66 L. Ed. 2d 268 (1980).

 Second, by March 31, 1989, all point sources nationwide would be required to meet more stringent effluent limitations based on either the "best conventional pollutant control technology," CWA § 301(b)(2)(E), 33 U.S.C. § 1311(b)(2)(E), or the "best available technology economically achievable," CWA § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A), depending on the types of pollutants discharged.

 In addition, CWA § 306 subjects new sources to a separate set of standards referred to as New Source Performance Standards. 33 U.S.C. § 1316. These standards are based on the "best available demonstrated control technology" for conventional, nonconventional and toxic pollutants. CWA § 306, 33 U.S.C. § 1316.

 Section 316(b)

 Section 316(b) of the Act, 33 U.S.C. § 1326(b), provides that standards promulgated under CWA §§ 301 and 306, 33 U.S.C. §§ 1311 and 1316, must require cooling water intake structures to reflect the best technology available for minimizing environmental impacts. Section 3126(b) provides as follows:

 
Any standard established pursuant to [CWA §§ 301 or 306] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing environmental impact.

 33 U.S.C. § 1326(b). Sections 301 and 306 require that EPA set effluent limitations guidelines and standards applicable to existing point sources and new point sources, respectively, on specific dates that are set out in those provisions. 33 U.S.C. §§ 1311(b), 1316(b).

 In the mid-1970's EPA decided that it would promulgate a single regulation under section 316(b) that was applicable to all categories of point sources, rather than include a section 316(b) provision within all individual effluent limitations guidelines and new source performance standards under sections 301 and 306. This regulation was issued in 1976 and codified at 40 C.F.R. Part 402.

 In 1977, however, the Fourth Circuit remanded the regulation to EPA because of a procedural deficiency in the promulgation of the regulation. Appalachian Power Co. v. Train, 566 F.2d 451, 457 (4th Cir. 1977). The court did not reach the substantive validity of the regulation.

 Since the decision in Appalachian Power in 1977, EPA has withdrawn the section 316(b) regulation, 44 Fed. Reg. 32956 (June 7, 1979) and has not promulgated a new cooling water intake structure regulation. EPA has, however, continued to reserve space in the Code of Federal Regulations for such a regulation. 40 C.F.R. Part 125, Subpt. I. As noted, in this action, plaintiffs seek to require EPA to promulgate a new regulation.

 DISCUSSION

 Standard for Mandatory Intervention Under ...


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