National Crushed Stone Ass'n, Inc. v. E.P.A.

• Citation: 601 F.2d 111
• Decision Date: 18 June 1979
• Docket Number: 76-1929 and 76-1930,Nos. 76-1914,s. 76-1914
• Parties: , 9 Envtl. L. Rep. 20,535 NATIONAL CRUSHED STONE ASSOCIATION, INC. and Luck Quarries, Inc., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, WARREN BROTHERS COMPANY, a Division of Ashland Oil Co., Inc., and Ashland Oil, Inc., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. ARKHOLA SAND AND GRAVEL COMPANY, a Wholly Owned Subsidiary of Ashland Oil,Inc., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 111

601 F.2d 111

13 ERC 1277, 9 Envtl. L. Rep. 20,535

NATIONAL CRUSHED STONE ASSOCIATION, INC. and Luck Quarries, Inc., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, WARREN BROTHERS COMPANY, a Division of Ashland Oil Co., Inc., and Ashland Oil, Inc., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

ARKHOLA SAND AND GRAVEL COMPANY, a Wholly Owned Subsidiary

of Ashland Oil,Inc., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 76-1914, 76-1929 and 76-1930.

United States Court of Appeals,

Fourth Circuit.

Argued April 4, 1978.

Decided June 18, 1979.

Theodore L. Garrett, Washington, D. C. (Covington & Burling, Washington, D. C., on brief), for petitioners.

James A. Rogers, U. S. Environmental Protection Agency, Barbara Brandon, Atty. Dept. of Justice, Washington, D. C. (James W. Moorman, Asst. Atty. Gen., Land and Natural Resources Division, Angus Macbeth, Chief, Pollution Control Section, Joan Z. Bernstein, Gen. Counsel, and Bruce M. Diamond, Atty., Environmental Protection Agency, Washington, D. C., on brief), for respondent.

Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

Petitioners, National Crushed Stone Association (NCSA), Warren Brothers Company (Warren Brothers), and Arkhola Sand and Gravel Company (Arkhola) seek review of certain regulations promulgated by the Environmental Protection Agency (EPA) pursuant to §§ 301, 304 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1311, 1314. These regulations establish limitations on the discharge of pollutants ¹ from existing point sources ² of the crushed stone and construction sand and gravel subcategories of the mineral mining and processing point source category, based upon the best practicable control technology currently available (BPT). ³ The regulations challenged here were promulgated in final form on July 12, 1977, to be effective August 11, 1977, 42 F.R. 35843 et seq. Previous to the promulgation of the final regulations, the EPA had issued regulations in "interim final" form, ⁴ June 10, 1976, 41 F.R. 23552 et seq. This court has jurisdiction under § 509(b)(1) of the FWPCA, 33 U.S.C. 1369(b)(1).

The crushed stone subcategory regulations, 42 F.R. 35849-50, to be codified as a part of 40 C.F.R., Part 436, subpart B, apply "to the mining or quarrying and the processing of crushed and broken stone and riprap. This subpart includes all types of rock and stone." 42 F.R. 35849. Riprap consists of large, irregular stones used chiefly in highway embankments and in river and harbor work. Other types of crushed stone are used, for example, in concrete, macadam, and bituminous aggregate, in railroad ballast, in agriculture, and in road bases. Approximately three quarters of all crushed stone is limestone. The crushed stone industry is widespread, with all States reporting some production. The size of individual facilities varies widely, from less than 25,000 to 15 million tons per year. Facilities which produce less than 25,000 tons per year constitute one-third of the total number of facilities, but only 1.3% Of total national output. At the other extreme, 5.2% Of the facilities each produce more than 900,000 tons annually, but together these make up 39.5% Of the total output. Nationwide there are approximately 4800 crushed stone facilities.

The construction sand and gravel subcategory regulations, 42 F.R. 35850-51, to be codified as 40 C.F.R., Part 436, subpart C, apply "to the mining and the processing of sand and gravel for construction or fill uses." 42 F.R. 35850, § 436.30. Construction sand and gravel is used in building, paving, fill and railroad ballast applications. As with crushed stone, sand and gravel facilities are found in all States. Of the more than 5,000 firms engaged in production, 40% Have an annual capacity of less than 25,000 tons; these smaller firms account for 4% Of the national output. Larger firms with an annual capacity of more than one million tons, on the other hand, account for 12-15% Of the national output, although by number they constitute less than 1% Of the producing facilities.

Crushed stone and construction sand and gravel operations produce two basic types of waste water which must be discharged and which the EPA has regulated. The first with which the Agency is concerned is that from "mine dewatering." For crushed stone operations the term means "any water that is impounded or that collects in the mine and is pumped, drained or otherwise removed from the mine through the efforts of the mine operator." 42 F.R. 35849, § 426.21(b). The definition for the construction sand and gravel industry includes identical language. 42 F.R. 35850, § 436.31(b). The introduction of pollutants includes those coming from "surface runoff of rain water into the mine and mine water treatment systems, ground water seepage and infiltration into the mine." 42 F.R. 35845. The quantity of mine water that must be discharged either has no correlation with production or is only indirectly related. Only 13% Of crushed stone facilities have no mine water. Mine water is also present in construction sand and gravel operations.

The other type of waste water commonly associated with crushed stone and construction sand and gravel operations is that used in the processing of the applicable products. In the crushed stone industry, after the stone has been extracted from the quarry and crushed and screened to meet size specifications, water is added to wash the stone. In a few operations the rough product is processed in a flotation cell, where impurities are removed in the overflow from the cell, and the product is removed in the underflow. Some facilities also have a dry production process. With the dry process, of course, there is no discharge of process generated waste water, although half of the dry process quarries must be dewatered on at least an intermittent basis. Overall in the crushed stone industry 59% Of the 4800 facilities wash their product. Of the crushed stone wet processing facilities contacted by the EPA, 33% Do not discharge their wash water.

Construction sand and gravel facilities also use water in processing the product to remove impurities such as clay and silt in separating and classifying the product, and in cooling and dust suppression. Half (35) of the facilities visited by the EPA have no discharge of process water because they recirculate all process water. A few facilities achieved no discharge of process water because of soil percolation or because of dredging closed ponds, the process water being discharged back into the pond. Some sand and gravel facilities use a dry process, and thus have no discharge of process water. 4250 industry plants have wet process operations; only about 750 have dry operations. A few sand and gravel operations use dredging techniques. ⁵

In developing the regulations the EPA considered the varieties, prevalence, and environmental effects of effluent produced by crushed stone and construction sand and gravel operations, and also the current pollution control practices used in the industries. Only two measures of pollution were considered by the Agency to be of sufficient importance to warrant regulation: Total suspended solids (TSS) and pH. ⁶ TSS measures both organic and inorganic materials, such as sand, silt, clay, grease, oil, and tar. Solids in suspension interfere with many industrial processes; they are aesthetically displeasing; they burden aquatic life by depleting the oxygen content of water and clogging the respiratory passages of various fauna. The Agency considers TSS to be the single most important pollutant parameter in the mineral mining and processing industry. The petitioners do not challenge the EPA's regulation of pollution as measured by pH. ⁷

The interim regulations published by the EPA on June 10, 1976, 41 F.R. 23552, divided waste water discharges from crushed stone and construction sand and gravel facilities into two components. "Mine dewatering," referred to earlier, was there defined for both subcategories as "any water that is pumped, drained or otherwise removed from the mine through the direct action of the mine operator." 41 F.R. 23558, § 436.21(b); 42 F.R. 23559, § 436.31(b). The definition for construction sand and gravel added "wet pit overflows," not relevant here. Mine water was permitted to be discharged if TSS concentration did not exceed 30 milligrams per liter (mg/1) of waste water output for any one day. 51 F.R. 23558, § 436.22(a)(2), 41 F.R. 23559, § 436.32(a)(2). The technical material accompanying the crushed stone regulations, 41 F.R. 23554, explained in general that "mine dewatering for all subcategories is limited on a daily maximum basis only, since mine dewatering may occur on an intermittent basis." Water which collects on quarry floors "is quite clear" and "is typically of excellent purity," 41 F.R. 23554. Thus, it often may be discharged without treatment, but "in extreme cases (where treatment is necessary) a settling pond at ground level" will permit enough of the suspended solids to settle out so that the mine water will meet the 30 mg/1 criterion. 41 F.R. 23555.

The other waste water discharge regulated by the Agency in the interim regulations was "process generated waste water," defined for crushed stone operations as "any waste water resulting from the slurry transport of ore or intermediate product, air emissions control, or processing exclusive of mining." 41 F.R. 23558, § 436.21(e). No discharge of process generated waste water pollutants was permitted by the interim regulations, Id. at § 436.22(a) (1), although the regulations contained exceptions. ⁸ Crushed stone facilities would be able to meet the no discharge requirement by clarifying process generated waste water in a settling pond, and then recirculating it in the production cycle. 41 F.R. 23554. As envisioned by EPA in the interim regulations, all water used...