CPC Intern., Inc. v. Train
| Decision Date | 18 August 1976 |
| Docket Number | No. 74-1448,74-1448 |
| Citation | 540 F.2d 1329 |
| Parties | , 9 ERC 1301, 6 Envtl. L. Rep. 20,728 CPC INTERNATIONAL, INC., et al., Petitioners, v. Russell E. TRAIN et al., Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert C. Barnard and Charles F. Lettow, Washington, D. C., for petitioners.
Michael A. McCord, Land and Natural Resources Div., Pollution Control Sec., U. S. Dept. of Justice, Washington, D. C., for respondents.
Before MATTHES, Senior Circuit Judge, HEANEY and WEBSTER, Circuit Judges.
The petitioners, representatives of the corn wet milling industry, seek direct review of regulations promulgated by the Environmental Protection Agency setting forth standards of effluent discharges for new plants in this industry under § 306 of the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C. § 1316.
The new plant standards are before us for the second time. In CPC International Inc. v. Train, 515 F.2d 1032, 1034 (8th Cir. 1975) (CPC I ), we held that this Court had jurisdiction to directly review the standards for new plants under § 509(b) of the Act. We also held that this Court did not have such jurisdiction with respect to existing plant guidelines, a position to which we continue to adhere. Id. at 1036-1043. 1 We also held that there was not sufficient evidence in that record to support the new plant standards promulgated by the EPA and remanded the matter to it with instructions to either:
furnish support for the new source standards previously published, or establish new ones which can be achieved with the best available demonstrated control technology.
Id. at 1050 (footnote omitted).
We also instructed the EPA to update its projected cost figures.
On remand, the EPA undertook a review and reconsideration of the new plant standards. Following appropriate administrative procedures, the EPA resubmitted the standards previously promulgated.
The petitioners contend that:
(1) the EPA failed to give a fair and reasoned consideration of its new source standards and instead prematurely and arbitrarily adopted its original standards;
(2) the EPA erred in determining that the 1977 guidelines can be met by new plants utilizing proposed 1977 technology;
(3) the EPA erred in holding that the addition of deep bed filtration will enable industries to meet the proposed new source standards; and
(4) the EPA erred in determining that the suggested technology could be acquired within the cost figures projected by it and in determining that the industry could afford to build new plants incorporating the technology necessary to achieve the new source standards.
We are not entirely satisfied with the record made by the EPA on remand. Much of the data in the record is presented without careful collation, evaluation and simplification. Much of the statistical information is quantified in units of measurement other than those used in the proposed standards, pounds per thousands of bushels, thus making it difficult for us to determine whether the data supports the EPA's conclusion. Expert opinion is frequently unsupported and little, if any, effort is made to make scientific testimony understandable.
Nonetheless, we cannot say that the new source standards should be set aside in their entirety on the grounds that the EPA prematurely and arbitrarily rubber stamped the previously approved standard. It did substantially more than this. It retained expert consultants to assist in the decision-making process, it undertook a review of the experience of other municipal and industrial users in the United States and abroad, it undertook a review of the literature in the field, and it made a serious and a partially successful effort to obtain all available information from presently operated corn wet milling plants.
The petitioners, in effect, seek to relitigate issues decided in our first opinion. In CPC I, we held that:
(1) the new source standards are identical to the 1983 guidelines for existing plants;
(2) the new source standards/1983 guidelines "are predicated on the availability of the 1977 technology plus the addition of deep bed filtration;"
(3) the EPA did not err "in determining that the 1977 technology, when employed in a new plant, would enable it to comply with the 1977 guidelines;" and
(4) the EPA adequately considered contentions of the industry pertaining to "shockloads," "variability" and "excursions" in determining the 1977 existing plant standards. CPC International Inc. v. Train, supra at 1045, 1046 and 1046 n.30 (footnotes omitted).
The petitioners suggest that the data presented initially and on remand does not support the EPA's conclusion that the 1977 existing plant guidelines, upon which the final new plant standards are based, can be met. They argue that the EPA has failed to adequately consider the raw wasteload of the corn wet milling industry, the variation of the wasteloads according to the particular product produced, the temporary "shockloads" of waste created upon shifts from one product process to another or the "excursions" or high waste level concentration that occurs in this industry from time to time. 2
We have carefully reviewed the entire record and remain convinced that new plants constructed with proper in-plant controls and an adequate activated sludge or similar treatment facility can meet the 1977 existing plant guidelines of removing all but 50 pounds each of BOD 5 and TSS per MSBu. 3 The record discloses that two existing plants without all of the available technology proposed for use in a treatment facility or appropriate in-plant controls have met or nearly met the 1977 guidelines. At the American Maize plant, the monthly figures of January through March, 1975, are below the 1977 standards. At CPC-Corpus Christi during the period of December, 1974 through April, 1975, the monthly BOD 5 effluent level is just above the maximum thirty-day period 1977 guidelines. These plants have achieved this level of effluent reduction even though they have been inhibited in their efforts by space and design limitations. New plants are being designed to avoid such limitations.
We recognize that the District Court for the Southern District of Iowa in Grain Processing Corporation v. Train, 407 F.Supp. 96 (S.D.Iowa 1976), held that the 1977 guidelines cannot be met by existing plants. That decision is not before us here. We are concerned only with the standards for new plants. The District Court's decision is on appeal to this Court and will be considered in due course. We note only that a new plant can incorporate in-plant controls and surface condensers with moderate expense and inconvenience while existing plants have more difficulty in converting to this technology.
We affirm our decision in CPC I that the EPA did not act arbitrarily or capriciously in concluding that the 1977 technology employed in a new plant would enable it to meet the 1977 existing plant guidelines.
Section 306(a)(1) of the Act, 33 U.S.C. § 1316(a)(1), states that the new source standards are to reflect:
(T)he greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants.
Our task is to determine whether the EPA's decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); CPC International Inc. v. Train, supra at 1044.
The EPA has proposed that a new plant in the corn wet milling industry shall achieve an average of daily values for thirty consecutive days that shall not exceed an effluent level of 20 pounds of BOD 5 and 10 pounds of TSS per MSBu. This standard is to be reached through the use of a complete activated sludge system to reduce the wasteload to 50 pounds each of BOD 5 and TSS per MSBu, the 1977 guidelines, and a subsequent reduction of 30 pounds of BOD 5 and 40 pounds of TSS per MSBu through the addition of a deep bed filtration system. The EPA asserts that the experience of the Clinton corn plant treatment facility, which includes the use of deep bed filtration, supports the new source standards. It contends that deep bed filtration is a demonstrated technology in the treatment of wastewater in municipal and industrial plants and its use has resulted in effluent discharges containing essentially no suspended solids. It finally asserts that deep bed filtration technology can be transferred to the corn wet milling industry with approximately the same successful rate of BOD 5 and TSS effluent level reduction. The petitioners deny these assertions. 4
We consider initially whether the conclusion of the EPA that the 20-pound BOD 5 standard can be met, is arbitrary and capricious. 5
On remand, data from the Clinton Corn plant became available. Clinton Corn is a large corn wet milling plant at which a new waste treatment facility has been constructed. It utilizes much of the EPA proposed technology, including deep bed filtration. The Clinton treatment facility began operations on January 1, 1974, and data for the period from November, 1974 to September, 1975, was utilized by the EPA in setting the proposed standards.
The parties disagree as to the results achieved at Clinton. 6 The EPA concludes that a monthly average of 7.1 pounds per MSBu of BOD 5 for the eleven-month...
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