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

Stark Ritchie, David Lindgren, James K. Jackson, Washington, D.C., Arnold S. Block, Philadelphia, Pa., Richard H. Caldwell, Houston, Tex., and Richard E. Powers, Jr., Washington, D.C., entered appearances for American Petroleum Institute, et al., petitioners in 80-1660, 80-1875, 80-1881, 81-1577, 81-1709 and 85-1010.

Thomas M. Lemberg and Leonard A. Miller, Washington, D.C., entered appearances for The Ferroalloys Ass'n, petitioner in 80-1723.

Roger S. Greene, Irvine, Cal., entered an appearance for Citizens for a Better Environment, etc., et al., in 80-1740, 80-2114 and 82-1563.

Leonard A. Miller and Kenneth A. Strassner, Washington, D.C., entered appearances for Kimberly-Clark Corp., petitioner in No. 80-1809.

Joseph H. Price, Washington, D.C., and Roger Sterlow entered appearances for Avtex Fibers, Inc., petitioner in 80-1837.

William R. Weissman, Washington, D.C., entered an appearance for Edison Elec. Institute, et al., petitioners in 80-1889.

John R. Quarles, Jr. and Kenneth A. Rubin, Washington, D.C., entered appearances for Stablex Corp., petitioner in 80-1909.

Peter J. Nickles, Charles H. Montange and Kenneth E. Carroll, Washington, D.C., entered appearances for Kerr-McGee Nuclear Corp., et al., petitioners in 80-1914.

Walter G. Talarek and Seth Goldberg, Washington, D.C., entered appearances for American Wood Preservers Institute, petitioner in 80-1923, 85-1025 and 85-1128 and intervenor in 80-1607.

John N. Hanson, Washington, D.C., entered an appearance for American Mining Congress, et al., petitioners in 80-1927.

Lisa Anderson, Washington, D.C., entered an appearance for Texas Oil & Gas Corp., petitioner in 80-1929.

John W. Behringer, Jonathan Z. Cannon and Karl S. Bourdeau, Washington, D.C., entered appearances for The Dow Chemical Co., petitioner in 80-1933.

John B. Fahey, East Hartford, Conn., entered an appearance for United Technologies Corp., et al., petitioners in 80-1966.

Louis E. Tosi, Julius J. Hollis, Douglas G. Haynam and Leonard F. Charla, Detroit, Mich., entered appearances for General Motors Corp., petitioner in 80-1970, 81-1757 and intervenor in 80-1607.

John T. Smith, II and Clare Dalton, Washington, D.C., entered appearances for Chemical Mfrs. Ass'n, et al., petitioners in 80-1975 and intervenors in 80-1978.

Khristine L. Hall and Robert V. Percival, Washington, D.C., entered appearances for Environmental Defense Fund, Inc., petitioner in 80-1978 and intervenor in 80-1607.

John D. Fognani, Denver, Colo., and John D. Austin, Jr., Washington, D.C., entered appearances for American Min. Congress, et al., petitioners in 80-1987.

Norton F. Tennille, Jr. and Lester Sotsky, Washington, D.C., entered appearances for Amax, Inc., petitioner in 80-2002.

Blake A. Biles, Washington, D.C., entered an appearance for The Lubrizal Corp., petitioner in 80-2007.

Alfred V.J. Prather, Carl B. Nelson, Jr. and Edwin H. Seeger, Washington, D.C., entered appearances for Kennecott Corp., petitioner in 80-2279 and 81-1574 and intervenor in 85-1019.

Robert E. Payne and David E. Evans, Richmond, Va., entered appearances for American Paper Institute, et al., petitioners in 81-1573 and intervenors in 80-1978.

John McN. Cramer and Daniel A. Masur, Washington, D.C., entered appearances for The American Iron & Steel Institute, et al., petitioners in 81-1576 and 85-1009 and intervenor in 80-1607.

Larry B. Feldcamp, Houston, Tex., Charles M. Darling, IV, J. Patrick Berry and Stephen Teichler, Washington, D.C., entered appearances for Pennzoil Corp., petitioner in 81-1708.

T.S. Ellis III, Richmond, Va., entered an appearance for Ford Motor Co., petitioner in 81-1748.

Lewis T. Smoak, Greenville, S.C., entered an appearance for American Textile Mfrs. Institute, Inc., petitioner in 85-1017.

Charles D. Ossola, Washington, D.C., entered an appearance for National Coal Ass'n, petitioner in 85-1024.

Charles S. Mullen, Seattle, Wash., entered an appearance for Wyckoff Co., petitioner in 85-1067.

William C. Brashares, Washington, D.C., entered an appearance for National Solid Wastes Management Assoc., intervenor in 80-1607.

Charles M. Darling, IV, J. Patrick Berry and Stephen L. Teichler, Washington, D.C., entered appearances for Tenneco Oil Co., et al., intervenors in 80-1607, 81-1575 and 81-1577.

George L. Edgar and Thomas A. Schmutz, Washington, D.C., entered appearances for Project Management Corp., intervenor in 80-1607.

William R. Weissman, Thomas H. Truitt and Charles C. Abeles, Washington, D.C., entered appearances for Cincinnati Gas & Elec. Co., et al., intervenors in 80-1607.

George C. Freeman, Jr., Richmond, Va., and William E. Anderson, II, Danville, Va., entered appearances for Virginia Elec. & Power Co., et al., intervenors in 81-1575 and 81-1577.

Kathleen M. Falk, Madison, Wis., entered an appearance for Wisconsin's Environmental Decade, Inc., amicus curiae, in 80-1740.

Before ROBINSON, STARR and WILLIAMS,* Circuit Judges.

Opinion for the Court filed PER CURIAM.

                                                                     Page
   I.  Ripeness                                                       165
  II.  The NEPARelated Regulations                                    167
       A.  Permit Conditions Unrelated to Effluents--Ripeness         168
       B.  Permit Conditions Unrelated to Effluents--Merits           168
       C.  EffluentRelated Permit Conditions                          170
       D.  Admissibility of Evidence in Permit Proceedings            171
 III.  State Program Requirements                                     172
       A.  Penalties and Participation--Ripeness                      173
       B.  Penalties and Participation--Merits                        173
            1.         Regulatory uniformity and state autonomy ..... 174
            2.         Public participation ......................... 175
            3.         Maximum penalties ............................ 178
       C.  EPA Veto Authority--Ripeness                               181
       D.  EPA Veto Authority--Merits                                 182
  IV.  Toxicity Limitations                                           189
       A.  Statutory Authority                                        189
       B.  Technical Feasibility                                      189
       C.  Intrusion on State Authority                               190
       D.  Procedural Claims                                          190
   V.  NonAdversary Panel Procedures                                  191
       A.  The Merits of the Procedures                               192
            1.         Oral testimony and cross examination ......... 192
            2.         The panels' composition ...................... 193
       B.  Defects in the Mode of Adoption                            194
  VI.  The Antibacksliding Controversy                                195
       A.  The NSPS Issue                                             196
       B.  Attack on the BPJ Regulation--Ripeness                     196
       C.  Attack on the BPJ Regulation--Merits                       197
       D.  Application of the New WQA Rules                           204
 VII.  Net/Gross Limits                                               204
VIII.  Upset Defense                                                  205
       A.  Ripeness                                                   205
       B.  Merits                                                     206
  IX.  APA Continuance                                                211
       A.  Ripeness                                                   211
       B.  Merits                                                     212
            1.         Consistency with Clean Water Act scheme ...... 213
            2.         Consistency with section 558(c) .............. 214

These consolidated cases arise out of the Environmental Protection Agency's issuance of regulations implementing the National Pollution Discharge Elimination System (NPDES) permit program, established under the Clean Water Act, 33 U.S.C. Secs. 1251 et seq. (1982). The events leading up to these challenges are set forth fully in our prior opinion, which disposed of several issues. See NRDC v. EPA, 822 F.2d 104 (D.C.Cir.1987). This opinion addresses the remaining challenges, mounted by both environmental and industry petitioners.1

Although numerous issues are raised, they fall into eight general areas or categories. The first set of challenges involves regulations promulgated by EPA in furtherance of its obligations under the National Environmental Policy Act ("NEPA"), 42 U.S.C. Secs. 4321 et seq. (1982).2 Also challenged are regulations that (2) establish the rules for transfer of authority over the NPDES permitting program to the states and supervision of the state programs;3 (3) permit the establishment of permit limits in terms of "toxicity"; (4) permit the use of non-adversary panel procedures ("NAPP" or "NAP procedures") for the issuance of initial permits and variances; (5) prohibit "backsliding" from permit limits when subsequent guidelines have become more lax;4 and (6) define permit limits in "gross" terms, giving credit for pollutants in intake waters only in certain limited circumstances. Industry challenges EPA's refusal to provide an "upset defense" for noncompliance with water-quality-based permit limits; that is, a defense based on a showing that noncompliance was due to factors beyond the permittee's control. Finally, NRDC challenges on several fronts EPA's regulation providing for continuances of out-of-date permits pending renewal by the agency.

For the reasons that follow, we deny the petitions for review on all issues, save for those pertaining to the permit conditions unrelated to effluent limits and the upset defense.

In its initial brief and argument before this court, the agency questioned the ripeness of several of the challenges to its NPDES regulations. Because of doubt as to the ripeness of other issues as well, and in the interests of consistency, we asked for briefing on ripeness with respect to all. We note that we may find a want of ripeness even where the agency raises no such defense. This is clearly so where the issue is so unripe that the petitioner is in substance asking for an advisory opinion, in violation of the case-or-controversy requirement of Article III. See Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 (1911); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); see also Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974) (noting Article III component of ripeness); cf. Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U.Chi.L.Rev. 153 (1987) (generally arguing against constitutionalization of ripeness law but noting the advisory opinion element). Even in the absence of any impingement on Article III, the fact that ripeness rests in part on concerns of judicial economy suggests a need for independent judicial scrutiny, as occurs under the doctrine of exhaustion. See ASARCO, Inc. v. EPA, 578 F.2d 319, 320-21 n. 1 (D.C.Cir.1978) (weighing "the interests of judicial efficiency" as a factor in exhaustion analysis).

Ripeness of course goes to when an issue may be raised. The Supreme Court has succinctly identified the functions of the doctrine in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), stating that

its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

Id. at 148-49, 87 S.Ct. at 1515. From those two purposes the Court derived a two-part test (its parts nowadays usually referred to as "prongs," making it one of the many pronghorned creatures in the modern legal bestiary), consisting of " the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149, 87 S.Ct. at 1515. As this court has put it, for a claim to be ripe, "the interests of the court and agency in postponing review until the question arises in some more concrete and final form [must be] outweighed by the interests of those who seek relief from the challenged action's 'immediate and practical impact' upon them." Continental Air Lines, Inc. v. CAB, 522 F.2d 107, 125 (D.C.Cir.1974).

The hardship element has considerably evolved in this circuit. As formulated in Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), decided the same day as Abbott Laboratories, the test was satisfied only if the challenged administrative action would have a "direct and immediate effect" on the "primary conduct" of the petitioner. Id. at 164, 87 S.Ct. at 1524-25; accord Office of Communication of United Church of Christ, 826 F.2d 101, 109 (D.C.Cir.1987). The paradigmatic hardship situation is where a petitioner is put to the choice between incurring substantial costs to comply with allegedly unlawful agency regulations and risking serious penalties for non-compliance. Abbott Laboratories, 387 U.S. at 152, 87 S.Ct. at 1517. A petitioner cannot show hardship by positing a speculative or hypothetical future harm. Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747, 750 (D.C.Cir.1984). Further, neither the possibility that the petitioner may have to make capital budgeting decisions under a cloud of uncertainty, Diamond Shamrock Corp. v. Costle, 580 F.2d 670, 673 n. 1 (D.C.Cir.1978), nor the fact that it may incur future expense in challenging the regulations in a later permit or enforcement proceeding, Arkansas Power & Light v. ICC, 725 F.2d 716, 726 (D.C.Cir.1984), will qualify as hardship.

In Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905, (D.C.Cir.1985), this court adjusted the hardship analysis to reflect the possibility that institutional concerns might militate in favor of early review despite the absence of conventional hardship. In that case the court was asked to rule upon the legality of the "Hazardous Ranking System" adopted by the EPA pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Secs. 9601 et seq. Apart from the issues raised being pure ones of law and the agency's position being final and fully crystalized, we noted special circumstances favoring early review. First, CERCLA's statutory review provision, 42 U.S.C. Sec. 9613(a), required parties to challenge newly promulgated regulations within 90 days and barred such challenges at the enforcement stage. We read the review provision to bespeak a congressional desire that the courts "provide prompt, uniform 'preenforcement' review of CERCLA regulations ... in order to avoid needless delays in the implementation of an important national program." 759 F.2d at 916. Second, the agency urged the court not to postpone review. It sought an early and final resolution of legal attacks on decisions that formed the keystone of a complex regulatory program. Id. at 916-17. Third, there was no "compelling" judicial interest in deferring review. Id. at 917. Accordingly the court concluded that "mechanical application" of the hardship element of Abbott Laboratories "could work mischief in such a situation," causing postponement of review even where all the institutional interests sought to be served by the doctrine, and an express congressional determination, militated in favor of early review.

Here as in Eagle-Picher the congressional provision for judicial review, 33 U.S.C. Sec. 1369(b), evinces a strong will that it occur at the time of promulgation. It provides a 90-day deadline and bars a party from making at the time of enforcement claims that it could have brought at the time of promulgation.5 We cannot, however, apply Eagle-Picher across the board to the welter of claims raised here. They are not by any means all so purely legal as to be clearly fit for review; the agency in some instances asserts that its institutional interests favor deferred review; and in some cases there is real doubt whether the issue will ever have material significance. Accordingly, where there are institutional benefits for court or agency in deferring review, we must consider the hardship to the challenging parties from delay, and proceed to the merits only when the latter outweighs the former.

As is well known, the National Environmental Policy Act ("NEPA"), 42 U.S.C. Secs. 4321 et seq., requires environmental impact statements ("EISs") for "major Federal actions" affecting the environment, and normally authorizes the relevant agency to make some adjustment in its conduct as a result of what it learns from the necessary inquiry. 42 U.S.C. Sec. 4332; NRDC v. Berklund, 609 F.2d 553, 558 (D.C.Cir.1979). In the area of water quality regulation, Sec. 511(c) of the CWA, 33 U.S.C. Sec. 1371(c), structures and limits the role of NEPA.6 It makes clear that the provision of federal financial assistance for the construction of publicly owned treatment works and the issuance of discharge permits to new sources are the only actions taken by the Administrator under the CWA that will trigger a NEPA duty.

Section 511(c)(2) of the Act further limits NEPA's effect. Subsection (B) states that NEPA does not authorize any federal permitting authority "to impose, as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation established pursuant to [the Act]." 33 U.S.C. Sec. 1371(c)(2)(B).

The interaction of the CWA and NEPA has led EPA to adopt regulations in three separate areas, all challenged by parties to this suit. First, it took the view that it could, on the basis of NEPA, subject permits to conditions not related to water quality. Industry asserts that it may never do so, and we find this pure legal issue ripe. To the extent, however, that industry attacks the agency's general predictions of when it may do so, we find the challenge unripe.

Second, the agency's regulations abjure any authority under NEPA to impose conditions relating to water quality. Because the impact of this position depends entirely on nuances of the agency's interpretation of the CWA, we find it unripe.

Finally, the regulations set up a general framework for limiting evidence in permit proceedings on the basis of prior EPA proceedings relating to the same source. Environmentalists object to the restriction. Because the significance of these rules turns on their application, we find the claim unripe.

We address the matters in that order.

A. Permit Conditions Unrelated to Effluents--Ripeness

Industry challenges 40 C.F.R. Secs. 122.29(c)(3), 122.44(d)(9) and 122.49(g), on the grounds that they unlawfully assert a power to impose such conditions. One may question whether they literally do so. Their assertions of power are oddly qualified. 40 C.F.R. Sec. 122.29(c)(3) provides that:

[t]he Regional Administrator, to the extent allowed by law, shall issue, condition ... or deny the new source NPDES permit following a complete evaluation of any significant beneficial and adverse effects of the proposed action and a review of the recommendations contained in the EIS or finding of no significant impact.

(emphasis added). See also 40 C.F.R. Sec. 122.44(d)(9) (providing that new source NPDES permits shall "[i]ncorporate ... appropriate requirements, conditions, or limitations ... to the extent allowed by [NEPA] and section 511 of the CWA ") (emphasis added); 40 C.F.R. Sec. 122.49(g) (calling for consideration of EIS-related permit conditions as provided in Sec. 122.29(c)).

It would be sheer casuistry, however, to read the qualification as completely undoing the assertion of power. First, it would make the regulation meaningless or self-contradictory. Second, the agency in its preamble alludes to its prior imposition of such conditions and flatly asserts its intention to do so again. 49 Fed.Reg. 38,034/2. Third, the agency's supplemental brief, while denying ripeness, explains that the regulations "reflect[ ] EPA's definitive position that it possesses authority to impose [such] conditions...." Supplemental Submission of EPA on Ripeness at 12. Given the purely legal character of the claim and the apparent certainty that it will arise in the future, we think the institutional concerns underlying ripeness militate in favor of immediate resolution. To the extent, however, that industry merely attacks the agency's hints in the preamble as to when it may impose such conditions, see, e.g., Joint Industry Petitioners' Brief on Ripeness at 12, the challenge is completely fact-dependent and therefore unripe.

B. Permit Conditions Unrelated to Effluents--Merits

We thus proceed to the merits of Industry's challenge. As the issue is one of statutory interpretations, our analytical framework is provided by Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and its progeny. To restate briefly these now-familiar principles: On a pure question of statutory construction, we attempt to discern congressional intent, using "traditional tools of statutory construction." INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). If Congress' intent is clear, "then that interpretation must be given effect, and the regulations at issue must be fully consistent with it." NLRB v. United Food & Commercial Workers Union, --- U.S. ----, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987). But where "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. See generally Continental Airlines, Inc. v. Dep't of Transportation, 843 F.2d 1444 (D.C.Cir.1988); Rettig v. Pension Benefit Guaranty Corp., 744 F.2d 133 (D.C.Cir.1984).

For the reasons that follow, we conclude that neither the Clean Water Act nor NEPA authorizes EPA's imposition of non-water quality permit conditions. Accordingly, the challenged regulations, 40 C.F.R. Secs. 122.29(c)(3), 122.44(d)(9), 122.49(g), cannot stand.

In arguing that it is empowered to impose permit conditions unrelated to effluents, EPA relies primarily on NEPA itself. As noted above, section 511(c)(1) of the CWA provides that EPA's issuance of new source permits shall be considered a "major Federal action" for NEPA purposes and therefore subjects to NEPA review. 33 U.S.C. Sec. 1371(c)(1). EPA contends that as part of this review, NEPA authorizes the agency to make decisions based on environmental factors not expressly identified in the agency's underlying statute. With this general proposition, we fully agree.

Where we part company with EPA is in the nature of the decision NEPA authorizes the agency to make. As EPA sees it, NEPA provides the agency with "supplemental authority." This authority, it is said, permits EPA not only to consider additional environmental factors, but to act on these factors by imposing any condition necessary to account for the environmental effects of the entire new facility. EPA Brief at 24, 26, 30.7 This, we believe, misapprehends the nature and import of NEPA. True enough, NEPA instructs the agency to consider all environmental effects of any "major Federal action" and to incorporate this information into its final decision. 42 U.S.C. Sec. 4332. NEPA does not, however, expand the range of final decisions an agency is authorized to make. As we reiterated in our earlier decision (in holding that EPA lacked authority to ban construction of new sources pending permit issuance), NEPA does not expand an agency's substantive powers. NRDC v. EPA, 822 F.2d 104, 129 (D.C.Cir.1987). Any action taken by a federal agency must fall within the agency's appropriate province under its organic statute(s). See, e.g., id.; Park County Resource Council, Inc. v. Dep't of Agric., 817 F.2d 609, 620 (10th Cir.1987); Winnebago Tribe v. Ray, 621 F.2d 269, 272-73 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980); Gage v. United States Atomic Energy Comm'n, 479 F.2d 1214, 1220 n. 19 (D.C.Cir.1973).

Here, the "major Federal action" subject to NEPA review is identified in section 511(c)(1): the issuance of a permit to discharge pollutants. 33 U.S.C. Sec. 1371(c)(1). In fulfillment of its NEPA-mandated duty, EPA is to consider all "direct, indirect, and cumulative" environmental effects of the discharge of pollutants by the potential permittee. See 40 C.F.R. Secs. 1508.7-. 8, 1508.18 (1987). Having done so, EPA can properly take only those actions authorized by the CWA--allowing, prohibiting, or conditioning the pollutant discharge. 33 U.S.C. Sec. 1342; see also NRDC v. EPA, 822 F.2d at 129 ("EPA's jurisdiction [under the CWA] is limited to regulating the discharge of pollutants....").8 And, contrary to EPA's assumption, the CWA does not empower the agency to regulate point sources themselves; rather, EPA's jurisdiction under the operative statute is limited to regulating the discharge of pollutants. Thus, just as EPA lacks authority to ban construction of new sources pending permit issuance, so the agency is powerless to impose permit conditions unrelated to the discharge itself. See NRDC v. EPA, 822 F.2d at 126-31.

This is not to say that EPA lacks authority to take action in the wake of its NEPA-mandated review. To the contrary, it can deny a new-source permit on NEPA-related grounds or impose NEPA-inspired conditions on discharges that the agency determines to allow. Indeed, Industry does not contest this authority. See Joint Industry Petitioners' Brief on Common Issues at 47 n. 1; Joint Industry Petitioners' Reply Brief at 32-33 & n. 1. EPA may not, however, under the guise of carrying out its responsibilities under NEPA transmogrify its obligation to regulate discharges into a mandate to regulate the plants or facilities themselves. To do so would unjustifiably expand the agency's authority beyond its proper perimeters. See e.g., Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 374, 106 S.Ct. 681, 689, 88 L.Ed.2d 69 (1986); Schwabacher v. United States, 334 U.S. 182, 209-10, 68 S.Ct. 958, 972, 92 L.Ed. 1305 (1948) (Frankfurter, J., dissenting); American Mining Congress v. EPA, 824 F.2d 1177, 1186-87 (D.C.Cir.1987).

Perhaps mindful of NEPA's procedural nature, EPA also seeks succor in the CWA itself. In particular, the agency relies on section 306(b)(1)(B), which provides: "In establishing or reviewing Federal standards of performance for new sources under this section, the Administrator shall take into consideration the cost of achieving such effluent reduction, and any non-water quality environmental impact and energy requirements." 33 U.S.C. Sec. 1316(b)(1)(B). To comply with this provision, EPA claims, the agency "routinely considers the effect of the regulations imposing effluent discharge limitations on air pollution, solid waste generation, water scarcity and energy consumption." EPA Brief at 33. EPA's authority under NEPA to consider the environmental effects of the entire facility, it is said, is fully consistent with this express mandate under CWA to consider the non-water quality impacts of the discharge. Id. at 34.

The response to EPA's argument is found in the language of section 306(b)(1)(B) itself. To be sure, the statute instructs EPA to consider non-water quality related environmental factors in connection with new sources. This consideration, however, obtains only in connection with the establishment of national new source standards, not in the issuance of individual permits. Indeed, this provision says nothing about the issuance of individual permits, much less authorizes the imposition of conditions relating to the entire facility. And even if the provision had anything