40 F.3d 392 (D.C. Cir. 1994), 93-1187, Leather Industries of America, Inc. v. E.P.A.

Docket Nº:93-1187, 93-1376, 93-1404 and 93-1555.
Citation:40 F.3d 392
Party Name:Envtl. LEATHER INDUSTRIES OF AMERICA, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner, Administrator, United States Environmental Protection Agency, Respondents, ASSOCIATION OF METROPOLITAN SEWERAGE AGENCIES, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner, Administrator, United States Environmental Protectio
Case Date:November 15, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 392

40 F.3d 392 (D.C. Cir. 1994)

Envtl.

LEATHER INDUSTRIES OF AMERICA, INC., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner,

Administrator, United States Environmental

Protection Agency, Respondents,

ASSOCIATION OF METROPOLITAN SEWERAGE AGENCIES, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner,

Administrator, United States Environmental

Protection Agency, Respondents,

MILWAUKEE METROPOLITAN SEWERAGE DISTRICT, A Special Purpose

Wisconsin Municipal Corporation, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner,

Administrator, United States Environmental

Protection Agency, Respondents.

CITY OF PUEBLO, COLORADO, Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 93-1187, 93-1376, 93-1404 and 93-1555.

United States Court of Appeals, District of Columbia Circuit

November 15, 1994

Argued Oct. 3, 1994.

Page 393

Appeal from an Order of the Environmental Protection Agency.

Thomas J. Crawford, Milwaukee, WI, argued the cause for petitioners Association of Metropolitan Sewerage Agencies and Milwaukee Metropolitan Sewerage Dist. With him on the briefs were Lee C. White and Michael J. McCabe, Milwaukee, WI.

Ronald L. Raider, Washington, DC, argued the cause for petitioner City of Pueblo, Colorado. With him on the briefs were Thomas K. Bick and Thomas J. Florczak, Washington, DC.

John L. Wittenborn, Washington, DC, argued the cause and filed the briefs for petitioner Leather Industries of America, Inc.

Page 394

William M. Guerry, Jr., Washington, DC, entered an appearance.

Daniel S. Goodman and Mark A. Nitczynski, Attorneys, U.S. Dept. of Justice, Washington, DC, argued the cause for respondents. With them on the briefs were Lois J. Schiffer, Acting Asst. Atty. Gen., U.S. Dept. of Justice, Caroline H. Wehling, Asst. Gen. Counsel, and Richard T. Witt, Atty., U.S. E.P.A., Washington, DC.

Before WALD, WILLIAMS and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

In these consolidated cases, petitioners seek review of several aspects of the Standards for the Use or Disposal of Sewage Sludge, 58 Fed.Reg. 9387 (1993) (to be codified at 40 C.F.R. parts 257 and 403) ("Regulations"), issued on February 10, 1992 by the Environmental Protection Agency ("EPA" or "agency"). Because petitioners have raised valid challenges to (1) the use of the 99th percentile figures from the National Sewage Sludge Survey ("NSSS") for the Table 3 "clean sludge" caps, (2) the assumed rate and duration of application underlying the risk-based data in Table 3 as applied to heat-dried sludge, (3) the assumed exposure possibilities underlying the risk-based cap on selenium as applied to public contact sites with low potential for occupancy, and (4) the lack of data to support the risk-based cap on chromium, we remand those parts of the regulations to the EPA for modification or additional justification. We reject the challenges to the classification of "dedicated uses" as "land disposal" and to the EPA's refusal to provide for site-specific variances from the pollutant limitations for land-applied sewage sludge.

I. BACKGROUND

  1. Statutory Framework

    The Clean Water Act of 1972 ("CWA" or "Act") was enacted to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251(a). The Act prohibits "the discharge of any pollutant by any person" into the navigable waters of the United States, except in compliance with various provisions of the Act, 33 U.S.C. Sec. 1311(a), and directs the EPA to regulate the discharge of wastewater into the navigable waters by various industrial, commercial, and public sources. See 33 U.S.C. Sec. 1311(b). As amended by the Federal Water Pollution Control Act of 1977, Pub.L. No. 95-217, 91 Stat. 1566 (codified at 33 U.S.C. Sec. 1251 et seq.), and the Water Quality Act of 1987, Pub.L. No. 100-4, 101 Stat. 7 (1987), the CWA also requires the EPA to promulgate comprehensive regulations for the management of sewage sludge--the by-product of pre-discharge sewage and wastewater treatment by publicly and privately owned treatment works ("POTWs").

    POTWs receive sewage and liquid industrial wastes. POTW treatment of these waste streams produces a liquid effluent that meets CWA discharge standards and may be expelled into surface water and a residual material, sewage sludge, which may not be discharged into the waters. POTWs dispose of sewage sludge through incineration or landfill deposits; they also apply it to land or sell it to the public for use as a fertilizer. Implementation of the Clean Water Act of 1972's restrictions on effluent discharge has led to more pre-discharge treatment of sewage wastes and, consequently, more sewage sludge is generated as a by-product of treatment. The production of sewage sludge each year has nearly doubled since the original enactment of the Clean Water Act. See 58 Fed.Reg. 9249.

    The Federal Water Pollution Control Act of 1977, an amendment to the Clean Water Act, directed the EPA in general terms to develop a regulatory program to ensure the safe use and disposal of sewage sludge. See 33 U.S.C. Sec. 1345(d) (1982). In 1987, Congress enacted another amendment to the CWA, the Water Quality Act, to require the EPA to issue specific regulations for the use and disposal of sewage sludge. Under the amended Act, the EPA must identify and set numeric limits for toxic pollutants that "may be present in sewage sludge in concentrations which may adversely affect public

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    health or the environment," and establish management practices for the use and disposal of sludge containing these toxic pollutants. 33 U.S.C. Sec. 1345(d)(2). Its regulations are to be issued in two phases--the first round to be promulgated "on the basis of available information," the second to encompass pollutants unaddressed by the first round. Id. It is the Round One regulations that are now at issue.

  2. Regulatory Development

    At the start of the rulemaking process, the EPA made an initial assessment in the aggregate that "current use and disposal practices for sewage sludge pose little risk to public health." 58 Fed.Reg. 9320. Sewage sludge that meets safety requirements is a "valuable resource" as "fertilizer and a soil conditioner," 58 Fed.Reg. 9249, and the EPA "strongly support[s] the beneficial reuse of sewage sludge." 58 Fed.Reg. 9251. The EPA identifies "land application" as one type of beneficial reuse and defines it as "the spraying or spreading of sewage sludge onto the land surface; the injection of sewage sludge below the land surface; or the incorporation of sewage sludge into the soil so that the sewage sludge can either condition the soil or fertilize crops or vegetation grown in the soil." Sec. 503.11(h), 58 Fed.Reg. 9391. The Round One regulations--Standards for the Use or Disposal of Sewage Sludge--regulate land application of sewage sludge as well as surface disposal and incineration.

    The Round One regulations establish limits on ten pollutants in sludge destined for land application. To set these land application pollutant limits, the EPA sought first to identify "those [pollutants] most likely to pose a hazard to human health or the environment." 1 It enlisted federal, state, academic, and private sector experts to screen a list of 200 pollutants to determine which, if any, posed a potential risk to human health or the environment if contained in sewage sludge that was applied to or disposed of on land or incinerated. These experts selected forty-eight pollutants, for which the EPA compiled environmental profiles. Based on data and information from published scientific reports, the profiles assessed the pollutants' general toxicity and persistence, as well as the particular pathways by which they might cause harm to human health or the environment. See 58 Fed.Reg. 9263-64 (Table III-1). Using these profiles and preliminary data about the concentration and frequency of these pollutants in sewage sludge, the EPA exempted from regulation those pollutants that presented no risk to human health or the environment at the highest observed concentration and deferred consideration of those for which it had insufficient data to make this risk determination. See 58 Fed.Reg. 9264. It initially proposed limits for 25 pollutants in sludge to be applied to land, see 54 Fed.Reg. 5761 (Table III-4), and concluded by regulating ten heavy metals in sludge applied to land in the final Round One sewage sludge regulations, see 58 Fed.Reg. 9392. These portions of the regulations establish numeric limits on pollutants in sludge that is applied to agricultural land, forests, public contact sites, or reclamation sites.

    II. THE LAND APPLICATION REGULATIONS

    In establishing the limits for the ten regulated heavy metals pollutants--arsenic, cadmium, chromium, copper, lead, mercury, molybdenum, nickel, selenium, and zinc--the EPA generated two sets of data.

  3. The Underlying Data

    The first data set on the ten pollutants describes their current concentration in sewage sludge. The data is culled from the EPA's National Sewage Sludge Survey ("NSSS"), in which the EPA sent questionnaires to 479 POTWs--out of a national total of 11,407--and performed sampling and analysis at 208 of the 479. See 58 Fed.Reg. 9269. 2 Based on this sampling and analysis, the EPA identified the pollutant concentrations

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    in current sludge output, and calculated 99th-percentile concentration numbers: the pollutant concentration not exceeded by 99% of the sludge samples in the NSSS ("99th percentile caps").

    The second data set on the ten pollutants is risk-based. Under its risk-based analysis, the EPA modelled...

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