598 F.2d 637 (1st Cir. 1979), 78-1454, BASF Wyandotte Corp. v. Costle

Docket Nº:78-1454 and 78-1462.
Citation:598 F.2d 637
Party Name:BASF WYANDOTTE CORP. et al., Petitioners, v. Douglas M. COSTLE, as Administrator, Environmental Protection Agency, Respondent. E. I. du PONT de NEMOURS & CO. et al., Petitioners, v. Douglas M. COSTLE, as Administrator, Environmental Protection Agency, Respondent. MONSANTO COMPANY, Petitioner, v. Douglas M. COSTLE, as Administrator, Environmental Pr
Case Date:May 07, 1979
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 637

598 F.2d 637 (1st Cir. 1979)

BASF WYANDOTTE CORP. et al., Petitioners,

v.

Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, Respondent.

E. I. du PONT de NEMOURS & CO. et al., Petitioners,

v.

Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, Respondent.

MONSANTO COMPANY, Petitioner,

v.

Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, Respondent.

DOW CHEMICAL COMPANY, Petitioner,

v.

Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, Respondent.

MONSANTO COMPANY, Petitioner,

v.

Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, Respondent.

DOW CHEMICAL COMPANY, Petitioner,

v.

Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, Respondent.

E. I. du PONT de NEMOURS & CO. et al., Petitioners,

v.

Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, Respondent.

ELI LILLY AND COMPANY, Petitioner,

v.

Douglas M. COSTLE, as Administrator, Environmental

Protection Agency, Respondent.

National Agricultural Chemicals Association, Intervenor.

Nos. 77-1042, 77-1059, 77-1085, 77-1153, 78-1417, 78-1428,

78-1454 and 78-1462.

United States Court of Appeals, First Circuit

May 7, 1979

Argued Jan. 3, 1979.

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Douglas E. Kliever, Washington, D. C., with whom Robert C. Barnard, Charles F. Lettow, John S. Magney, and Cleary, Gottlieb, Steen & Hamilton, Washington, D. C., were on brief, for petitioners in Nos. 77-1042, 77-1059, 77-1085, 78-1417, 78-1454, and 78-1462.

J. D. Fleming, Jr., Atlanta, Ga., with whom D. Robert Cumming, Jr., John H. Fleming, and Sutherland, Asbill & Brennan, Atlanta, Ga., were on brief, for petitioner in Nos. 77-1153 and 78-1428.

Robert L. Ackerly, Washington, D. C., with whom Richard A. Flye, Sellers, Conner & Cuneo, Washington, D. C., and Paul M. Siskind, Boston, Mass., were on brief, for intervenor.

Paul M. Kaplow, Atty., Dept. of Justice, and Colburn T. Cherney, Atty., Environmental Protection Agency, with whom James A. Rogers, Associate Gen. Counsel, Steven Schatzow, Deputy Associate Gen. Counsel, Environmental Protection Agency, James W. Moorman, Asst. Atty. Gen., and Angus MacBeth, Washington, D. C., were on brief, for respondent.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, MAZZONE, [*] District Judge.

COFFIN, Chief Judge.

These consolidated petitions have been brought by eleven manufacturers of pesticides 1 against the respondent, the Administrator of the Environmental Protection Agency (EPA or Agency), seeking review of regulations governing the discharge of pollutants by the pesticide industry. 40 C.F.R. Part 455, 43 Fed.Reg. 17776 and 43 Fed.Reg. 44845 (1978). An industry organization, the National Agricultural Chemical Association (NACA), has intervened. The Federal Water Pollution Control Act states as a "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." 33 U.S.C. § 1251(a)(1). These regulations are promulgated in response to Congress' direction that the Administrator provide guidelines for the effluent reduction possible through implementation of the "best practicable control technology currently available". 33 U.S.C. §§ 1311(b)(1)(A) and 1314(b)(1). 2

In 1974 the Agency hired an outside contractor, Roy F. Weston, Inc. (Weston), to analyze the industry. Weston submitted its final report in December of 1975. In early 1976 EPA hired a second contractor, Environmental Science and Engineering, Inc. (ESE), to evaluate Weston's work. ESE determined that Weston's work needed improvement and undertook its own study of the industry. In late 1976 EPA published interim final regulations that were immediately effective, but on which EPA invited public comment. 41 Fed.Reg. 48087 (1976). An interim development document and an economic analysis explaining the derivation of the interim regulations were also released.

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In the months following publication of the interim regulations EPA received comments on many issues raised by the regulations. EPA also collected additional data and conducted further research. In early 1978 the final regulations were published, 43 Fed.Reg. 17776 (1978), as were a final development document and economic analysis. The final regulations differed from the interim regulations in a number of significant ways. The one principally relevant in this case is that EPA finally subdivided the industry into three subcategories: (1) Organic Pesticide Chemicals Manufacturing; (2) Metallo-Organic Pesticide Chemicals Manufacturing; and (3) Pesticide Chemicals Formulating and Packaging. In the interim regulations the organic pesticide subcategory had been further divided into three subcategories. For the second and third final subcategories the regulations permit "no discharge of process waste water pollutants into navigable waters." 40 C.F.R. §§ 455.32 and 455.42. For the first subcategory, 40 C.F.R. § 455.22 limits the pounds or kilograms of chemical oxygen demand (COD), biological oxygen demand (BOD), total suspended solids, and pesticide chemicals that a plant may discharge per thousand pounds or kilograms of pesticide produced during any one day or any 30 consecutive days. The levels set are lower than the levels set by the interims for some producers and higher for others. Also the pH level (the relative acidity or alkalinity) of the effluent must be within a set range.

After the final regulations issued, one of the petitioners filed a motion for reconsideration alleging, among other things, that analytical techniques were not available to detect many pesticides at the levels stated in the regulations. EPA reexamined the record and discovered that some measurement methods that EPA thought were available might not be reliable. Accordingly, EPA amended the regulations so that the pesticide content of process waste water would be limited for the producers of only 49 out of several hundred pesticides. 43 Fed.Reg. 44845, 44856 (1978).

The first petition for review challenged the interim final regulations. When the final regulations were published we granted permission to amend so as to include review of the finals. BASF Wyandotte Corp. v. Costle, 582 F.2d 108 (1st Cir. 1978). Subsequently the petitions for review filed in other circuits were transferred to this circuit. The consolidated petitions assert several procedural and substantive errors in the regulations and their promulgation.

I. Organic Pesticide Manufacturing

  1. Administrative Procedure Act Compliance

    Petitioners' first complaint is that EPA failed to comply with the requirements of the Administrative Procedure Act in that the final regulations were so different from the interim final regulations that the interims were not notice of "either the terms or substance of the proposed rule or a description of the subjects and issues involved." 5 U.S.C. § 553(b)(3). This requirement is a critical one because it supports the assumption we make with regard to EPA's substantive decisions that those decisions are in fact the product of informed, expert reasoning tested by exposure to diverse public comment. Though our review of an agency's final decision is relatively narrow, we must be strict in reviewing an agency's compliance with procedural rules. See Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1027-1028 (D.C. Cir. 1978).

    In this case EPA issued interim final regulations and sought comments on them. Industry representatives, government agencies, and others submitted voluminous comments on many aspects of the interim regulations. It is clear that EPA gave careful consideration to these comments. The Agency summarized the public comment, together with the Agency responses in the prologue to the final regulations. 43 Fed.Reg. 17781-85 (1978). The Agency accepted several suggestions made in comments critical of the interim regulations. For instance, EPA deleted some parameters by which the interim regulations controlled

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    discharges, 3 abandoned use of COD/BOD ratios to supplement raw waste load data, and tried certain statistical tests proposed by commenters. EPA further demonstrated its openness to comments by eliminating, as we have noted, pesticide discharge limits for all but 49 chemicals in response to information received after the final regulations were printed.

    The procedural rules were meant to ensure meaningful public participation in agency proceedings, not to be a straitjacket for agencies. An agency's promulgation of proposed rules is not a guarantee that those rules will be changed only in the ways the targets of the rules suggest. "The requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs from the rule it proposed, partly at least in response to submissions." International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 428, 478 F.2d 615, 632 (1973); Weyerhaeuser Co. v. Costle, supra, at 1031; American Frozen Food Institute v. Train, 176 U.S.App.D.C. 105, 132, 539 F.2d 107, 134 (1976). Even substantial changes in the original plan may be made so long as they are "in character with the original scheme" and "a logical outgrowth" of the notice and comment already given. South Terminal Corp. v. EPA, 504 F.2d 646, 658, 659 (1st Cir. 1974).

    The essential inquiry is whether the commenters have had a fair opportunity to present their views on the contents of the final plan. 4 We must be satisfied, in other words, that given a new opportunity to comment, commenters would not have their...

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