780 F.2d 445 (4th Cir. 1985), 84-1288, Kennecott v. United States E.P.A.

Docket Nº:84-1288(L), 84-1479, 84-1487, 84-1659 and 84-1694.
Citation:780 F.2d 445
Party Name:KENNECOTT, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. GTE Products Corporation, Intervenor/Petitioner. AMERICAN MINING CONGRESS, AMAX, Inc., and ASARCO Incorporated, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. ST. JOE MINERALS CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTE
Case Date:December 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 445

780 F.2d 445 (4th Cir. 1985)

KENNECOTT, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

GTE Products Corporation, Intervenor/Petitioner.

AMERICAN MINING CONGRESS, AMAX, Inc., and ASARCO

Incorporated, Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

ST. JOE MINERALS CORPORATION, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

The SECONDARY LEAD SMELTERS ASSOCIATION, Petitioner,

v.

William RUCKELSHAUS, Administrator, United States

Environmental Protection Agency, Respondent.

Gulf Coast Lead Company, Intervenor/Petitioner.

MALLINCKRODT, INC., Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 84-1288(L), 84-1479, 84-1487, 84-1659 and 84-1694.

United States Court of Appeals, Fourth Circuit

December 26, 1985

Argued Oct. 9, 1985.

Rehearing and Rehearing In Banc Denied Jan. 24, 1986.

Page 446

James R. Walpole (Susan L. Smith, Holland & Hart, on brief), Robert A. Emmett (Reed, Smith, Shaw & McClay, on brief), Kurt E. Blase (Edwin H. Seeger, Richard

Page 447

T. Witt, Prather, Seeger, Doolittle & Farmer, Washington, D.C., Paul D. Frohardt, Holland & Hart, Denver, Colo., Douglas E. McAllister, Asst. Chief Counsel, Washington, D.C., American Mining Congress on brief), for Group I petitioners.

Robert N. Steinwurtzel (Stephen E. Roady, Mary Douglas Dick, Brown, Roady, Bonvillian & Gold, Chartered, Washington, D.C., on brief), for Group III petitioners.

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

Michael W. Steinberg, U.S. Dept. of Justice, Steven E. Silverman, Office of Gen. Counsel, U.S.E.P.A. (F. Henry Habicht, II, Asst. Atty. Gen., Land and Natural Resources Div., Dean K. Dunsmore, Scott Slaughter, U.S. Dept. of Justice, Ellen Siegler, Office of Gen. Counsel, U.S.E.P.A., Susan G. LePow, Asst. Gen. Counsel, U.S.E.P.A., Washington, D.C., on brief), for respondent.

Before PHILLIPS, MURNAGHAN and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

Petitioners challenge the effluent limitations set by the Environmental Protection Agency for the non-ferrous metals manufacturing industry. EPA established the limitations in a rulemaking pursuant to the Clean Water Act of 1977, 33 U.S.C. Secs. 1251-1376 (1982). 1 Congress passed the Clean Water Act as an amendment to the Federal Water Pollution Control Act of 1972. The amendment preserves the fundamental purpose of the 1972 Act: "[t]o restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251. In setting effluent limitations for the nonferrous metals industry, EPA acted to implement this congressional mandate to clean up the nation's navigable waterways. We have reviewed with care petitioners' challenges to these regulations. We conclude, however, that EPA has properly discharged the task it is required by Congress to perform.

I.

The instant action reflects the tensions recurrent in every case of environmental regulation. The first group of petitioners here produce substantial amounts of the country's primary copper, lead, and zinc. Others recycle discarded lead batteries for a variety of uses, and still another produces columbium-tantalum, of importance to the aerospace, energy, and transportation industries. The industries contend that the effluent limitations adopted by EPA in the name of the Act are unachievable and will impose widespread costs upon the industries themselves and upon those who depend for their economic livelihood upon non-ferrous metals use.

EPA in turn states that petitioners discharge massive amounts of pollutants, over 3 million pounds annually, including "some of the most toxic metals found in industrial waste streams ... lead, cadmium, arsenic, antimony, and zinc." It contends these pollutants create "a variety of serious adverse health and environmental effects, including cancer, brain damage, and kidney failure." The effluent limits are, in EPA's view, based upon achievable technologies and must be met promptly to fulfill the basic purposes of the Clean Water Act.

The record in this case is voluminous. The rulemaking itself is highly technical. Petitioners have challenged EPA's choice of data, its statistical methods, and its economic analysis. It is something of an understatement to say that the expertise of the parties with regard to the non-ferrous metals industry exceeds that of this court. Without suspending our critical faculties, we nonetheless believe that the benefit of the doubt in the battle of the data belongs to the agency in which Congress has reposed responsibility for administration of the Act, see 33 U.S.C. Sec. 1251(d). In addition, this court is bound by the general rules of deference that run throughout administrative law. We may not overturn the agency's judgment simply because we

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might have drafted different regulations; remand is limited to those cases in which the agency has acted without reasonable basis. American Meat Inst. v. EPA, 526 F.2d 442, 450 (7th Cir.1975).

We begin with the philosophy of the Clean Water Act. The Act requires EPA to set effluent limitations for industries in two stages. As a preliminary matter, Congress asked EPA to set limits based on the "best practicable control technology currently available" (BPT). 33 U.S.C. Sec. 1311(b)(1)(A). EPA defines BPT as "the average of the best existing performance by plants of various sizes, ages and unit processes within each industrial category or subcategory. This average is not based upon a broad range of plants within an industrial category or subcategory, but is based upon performance levels achieved by exemplary plants." EPA v. Nat'l Crushed Stone Ass'n, 449 U.S. 64, 76 n. 15, 101 S.Ct. 295, 303 n. 15, 66 L.Ed.2d 268 (1980), quoting 39 Fed.Reg. 6580 (1974).

In the second stage, Congress directed EPA to set an even more stringent standard, basing effluent limitations on the "best available technology economically achievable" (BAT) for an industrial category. 33 U.S.C. Sec. 1311(b)(2)(A), (C), (D) and (F). The BAT standard reflects the intention of Congress to use the latest scientific research and technology in setting effluent limits, pushing industries toward the goal of zero discharge as quickly as possible. In setting BAT, EPA uses not the average plant, but the optimally operating plant, the pilot plant which acts as a beacon to show what is possible. See A Legislative History of the Water Pollution Control Act Amendments of 1972, 93d Cong., 1st Sess. (Comm. Print 1973), at 798 (hereinafter "Leg.Hist."). "The distinction between 'best practicable' and 'best available' is intended to reflect the need to press toward increasingly higher levels of control...." Leg.Hist. at 170.

For the purposes of this case, the non-ferrous metals industry was generally subject to BAT requirements. Defining Best Available Technology requires substantial technical expertise in evaluating both the efficiency of advanced technologies and the adaptability of those technologies to the production processes of the companies in this case. Our review of the EPA rulemaking is appropriately cautious. As this court has previously noted, "The scope of our review is further colored by the policy of the Clean Water Act and the sophisticated data evaluations mandated by that lengthy and complicated statute.... Further, technological and scientific issues, such as those presented in this case, are by their very nature difficult to resolve by traditional principles of judicial decisionmaking." Reynolds Metals Co. v. EPA, 760 F.2d 549, 558-59 (4th Cir.1985).

We proceed, however, on the understanding that Best Available Technology was the means chosen by Congress to achieve "the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985," 33 U.S.C. Sec. 1251(a)(1), a goal that implies some urgency to the environmental task that Congress set. While Congress was careful to require agency consideration of such factors as the cost to industry of achieving appropriate effluent reductions, it left EPA some latitude in defining BAT, permitting in addition to enumerated criteria, the consideration of "such other factors as the Administrator deems appropriate." See 33 U.S.C. Sec. 1314(b)(2)(B).

To achieve a reasoned result in a dispute over technologies, EPA is bound to consider industry data, but it is not bound to accept it. Any other resolution would undermine the integrity of agency decision-making. For obvious reasons, this court should be loathe to compel an agency to accept data submitted by a regulated industry. That does not imply we are blind to the capacities of agencies to enthrone their own agendas and dismiss contending views. In considering petitioners' challenges to the non-ferrous metals rulemaking, we ask whether EPA's technical judgments find support in the record and whether they reflect the rule of reason, not the imposition of fiat.

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The deference to the technical expertise of the Administrator supplements the deference generally required of courts reviewing administrative actions. The Administrative Procedure Act (APA) specifies that a court may overturn an agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C Sec. 706(2)(A). The court best acts as a check on agency decisionmaking by scrutinizing process and by determining whether "the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d...

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