On Petitions for Review of Final Action of the Environmental Protection Agency.
Gibbons, Hunter, and Becker, Circuit Judges.
JAMES HUNTER, III, Circuit Judge:
This case involves the June 30, 1984 deadline for compliance with the pretreatment standards governing integrated electroplating facilities. See 40 C.F.R. Part 413 (1983). Petitioners Ford Motor Company ("Ford") and General Motors Corporation ("GM") have urged the Environmental Protection Agency ("EPA") to initiate rulemaking to extend the June 30, 1984 compliance date. Those requests were denied. See 48 Fed. Reg. 24,933, 24,939 (1983). GM and Ford now petition this court to review the final decision of the Administrator of EPA denying their requests for rulemaking. For the reasons stated below, we will deny the petitions of Ford and GM.
I. PRIOR AGENCY AND COURT ACTION
This appeal involves only the date by which compliance with the integrated electroplating pretreatment standards is mandated. This court has previously upheld the standards against substantive challenges by these petitioners and others. National Association of Metal Finishers v. EPA, 719 F.2d 624 (3d Cir. 1983), cert. granted, 466 U.S. 957, 104 S. Ct. 2167, 80 L. Ed. 2d 551, 52 U.S.L.W. 3787 (May 1, 1984) [hereinafter referred to as "Metal Finishers" ] Ford Motor Co. v. EPA, 718 F.2d 55 (3d Cir. 1983) [hereinafter referred to as "Ford" ].
The present challenge to the June 30, 1984 compliance deadline is directly related to the history of the pretreatment regulations in the agency and courts. EPA first published electroplating pretreatment standards on September 7, 1979, anticipating an October 7, 1979 effective date and an October 12, 1982 compliance deadline. 44 Fed. Reg. 52,590 (1979). The anticipated deadline was designed to afford all electroplaters the maximum three year compliance time permitted by section 307(b) of the Clean Water Act, 33 U.S.C. § 1317(b) (1982).*fn1 See 44 Fed. Reg. 52,595 (1979). The standards published on September 7, however, were not made effective as to "integrated" electroplating facilities.*fn2 EPA acknowledged that the obligation of integrated facilities should not begin to run until the effective date of the proposed "combined wastestream formula." 45 Fed. Reg. 19,246 (1980); see 40 C.F.R. 403.6(e) (1983) (combined wastestream formula); id. § 413.04. This court discussed the operation of the combined wastestream formula at length in our Metal Finishers decision. See 719 F.2d at 650-56.
The concept of a combined wastestream formula, first proposed in conjunction with the "National Pretreatment Strategy" policy statement, 43 Fed. Reg. 27,758 (1978), was the subject of many creitical comments by affected parties. On January 28, 1981, EPA published a revised combined wastestream formula, with an effective date of March 13, 1981. See 46 Fed. Reg. 9404, 9442 (1981). The agency reaffirmed that integrated electroplating facilities would be given three years from the effective date of the combined wastestream formula to comply with applicable categorical pretreatment standards. Id. at 9464.
This court's decision in National Resources Defense Council, Inc. v. EPA, 683 F.2d 752 (3d Cir. 1982) [hereinafter referred to as "NRDC" ], chronicles the fate of the pretreatment standards following the January 28, 1981 publication of the combined wastestream formula. On January 29, 1981, President Reagan issued an order postponing for sixty days the effective date of all final but not as yet effective regulations. Thus, the effective date for the combined wastestream formula became March 30, 1981. The President subsequently issued Executive Order 12291, which directed agencies to postpone the effective dates of certain regulations and to reevaluate those regulations in accordance with specified criteria. See NRDC, 683 F.2d at 755-56. On March 27, 1981, the Administrator ordered the indefinite suspension of the combined wastestream formula, citing as authority only Executive Order 12291.
The Administrator subsequently proposed a new effective date for the combined wastestream formula, January 21, 1982, but simultaneiously initiated a rulemaking in support of his proposal to extend the indefinite suspension commenced in connection with Executive Order 12291. See NRDC, 683 F.2d at 756-58. After notice and comment, the Administrator adopted that course and suspended the effective date of the formula. NRDC petitioned this court to set aside the indefinite suspension of the combined wastestream formula as being contrary to law. On July 8, 1982, we issued the NRDC opinion granting NRDC's petition and ordering the Administrator to reinstate the combined wastestream formula as of March 30, 1981.*fn3 The result of the retroactive reinstatement was to reestablish March 30, 1984 as the compliance deadline. We explained that such a remedy was necessary in order to return all parties to the status quo prior to the agency's unlawful actions. See NRDC, 683 F.2d at 768. Thus, petitioners had approximately twenty-four months from the date of our mandate in which to comply with the electroplating standards.
Following our decision in NRDC, petitioners Ford and GM returned to the agency to request a new rulemaking to amend the combined wastestream formula. [App. at 293, 309]. Petitioners urged the agency to adopt major substantive changes in the proposed regulations and, in any event, to extend the compliance deadline in order to afford integrated facilities a full three years to comply. The Administrator denied petitioners' request to initiate rulemaking on May 18, 1983. 48 Fed. Reg. 24,933, 24,939 (1983); see Metal Finishers, 719 F.2d at 667. That denial is the subject of this appeal.
Petitioners' substantive challenges to the combined wastestream formula were raised before this court and resolved in the Metal Finishers and Ford decisions. In connection with those appeals, this court entered an order setting June 30, 1981 as the new retroactive effective date of the combined wastestream formula in order to facilitate orderly appellate review. June 30, 1984 was thereby established as the new compliance deadline. See Metal Finishers, 719 F.2d at 635, 636 & n.8. That compliance date is presently in effect. As noted previously, this appeal deals only with the ...