Association of Pacific Fisheries v. E.P.A.
| Decision Date | 04 February 1980 |
| Docket Number | No. 75-2007,75-2007 |
| Citation | 615 F.2d 794 |
| Parties | , 10 Envtl. L. Rep. 20,336 ASSOCIATION OF PACIFIC FISHERIES, New England Fish Company, Peter Pan Seafoods, Petersburg Fisheries, Inc., and Whitney-Fidalgo Seafoods, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles R. Blumenfeld, Seattle, Wash., for petitioners.
Petition to Review a Decision of the Environmental Protection Agency.
Before TRASK, SNEED, and KENNEDY, Circuit Judges.
In 1972 Congress, intending "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," amended the Federal Water Pollution Control Act (Act), 33 U.S.C. § 1251 et seq. Congress established national pollution goals to be achieved by specific dates. By July 1, 1977, industries discharging pollutants into the nation's waters were to have achieved "the best practicable control technology currently available (BPT)." Section 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A). By 1983, industry is to achieve "the best available technology economically achievable (BEA)." Section 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A). The Environmental Protection Agency (EPA or Agency) was entrusted with the responsibility of defining and policing the efficient and prompt achievement of these goals. Section 304, 33 U.S.C. § 1314.
This case involves a challenge to regulations promulgated by the Agency establishing effluent guidelines for the Canned and Preserved Seafood Processing Point Source Category. 40 C.F.R. §§ 408.10 et seq. See also 40 Fed.Reg. 55770 et seq. (Dec. 1, 1975). Petitioner Association of Pacific Fisheries is a trade association representing canners and fresh and frozen fish processors in affected subcategories. The remaining petitioners process seafood in all the subcategories at issue on this appeal.
The EPA's regulations governing the fish processing industry were promulgatedin two phases. 1 In the first phase, the EPA issued regulations affecting catfish, crab, shrimp, and tuna processors. These regulations were issued on June 26, 1974, and are not challenged by petitioners. Rather, petitioners challenge several of the regulations promulgated during phase II of the Agency's proceedings. These phase II regulations covered nineteen separate subcategories. The subcategories were determined by the species of fish being processed; whether there was mechanization in the processing technique; for Alaska processors, the location of the plant, i. e., whether the plant was located in a "population or processing center"; and in some cases, the production capacity of the plant. At issue are the regulations which apply to Alaskan hand-butchered salmon (Subpart P), Alaskan mechanized salmon (Subpart Q), west coast hand-butchered salmon (Subpart R), west coast mechanized salmon (Subpart S), Alaskan bottomfish (Subpart T), west coast bottomfish (Subparts U and V), Alaskan scallops (Subpart AC), and herring fillets (Subparts AE and AF). See 40 C.F.R. §§ 408.160-408.226, 408.290-408.296, 408.310-408.326.
The effluent which is the subject of the regulations consists of unused fish residuals. This discharge includes heads, tails, and internal residuals of the processed fish. Substantial quantities of water are used at various stages of the plant operations. This water comes into contact with the fish residuals and contains pollutants when discharged. The regulations prescribe limitations on discharge, and utilize three measures of pollution: five-day biochemical oxygen demand (BOD 5); total suspended solids (TSS); and oil and grease (O & G). 2 The regulations establish daily maximum levels and monthly average levels for each subcategory, and are measured in terms of the amount of pollutant per thousand pounds of fish processed.
The prescribed 1977 BPT for processors not located in Alaska, and Alaska processors located in "population or processing centers," is the installation of screens to trap the larger fish particles before the effluent is discharged from the plant. 3 Residuals trapped by the screens may be disposed of in ways discussed below. Alaska processors in "remote" locations are subject only to limitations on the size of particles in the effluent, a requirement that can be met by grinding the solids before discharge.
By 1983 the fisheries must comply with more rigorous technology requirements and effluent limitations. For nonremote facilities, the Agency directed that a dissolved air flotation unit be installed at each location and that the end-of-pipe effluent be channeled through this system before it is discharged into the receiving water. These regulations apply to all nonremote subcategories except Subpart V, Conventional Bottomfish. There, the Administrator has prescribed aerated lagoons as the BEA. Remote Alaska fish processors will be required by the 1983 regulations to screen the effluent before discharging it into the receiving waters. 4
The scope of our review in cases like this is well-settled and need not be restated at length. Our task is to insure that the Agency has accumulated sufficient material upon which to make a reasoned decision, reviewed that material, and promulgated regulations that are the result of reasoned decisionmaking. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Marathon Oil Co. v. EPA, 564 F.2d 1253, 1266 (9th Cir. 1977); American Meat Inst. v. EPA, 526 F.2d 442, 453 (7th Cir. 1975). A comprehensive discussion of a reviewing court's role in this area is contained in Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 323-27, 590 F.2d 1011, 1024-28 (D.C.Cir.1978) (McGowan, J.).
What might be termed a scope of review issue is raised by petitioner's substantial reliance on evidence accumulated after promulgation of the final regulations and not a part of the record before the EPA. Whether this court may examine such evidence in reviewing the Agency's actions is addressed below.
The 1977 regulations raise four broad areas of dispute. First, the petitioners question the Agency's decision to divide some subcategories into remote versus nonremote locations. Second, the petitioners contend that the cost of operating the required technology is wholly disproportionate to the resulting pollution control benefits, and that both costs and benefits were erroneously calculated by the Agency. Third, the petitioners argue that the Agency's data collection and analysis are fatally flawed. Finally, petitioners argue that even with the required technology in place, they will be unable to comply with the 1977 effluent limitations.
A large segment of the fishing industry affected by these regulations is located in Alaska. In determining what is the BPT, the Agency concluded that certain Alaska processing facilities not located in "population or processing centers" should be designated "remote" and subject to less stringent requirements. 5 In the population or processing centers, screening is the designated BPT. According to the EPA, the solids trapped by the screens may be transported over land by trucks either to landfills or to other facilities for further processing, such as conversion to pet food, or barged out to sea and dumped at approved locations. Remote locations are not required to screen. Plants in these locations may simply grind the solids before dumping the effluent into receiving waters.
The Agency's definition of a "population or processing center," as distinct from a "remote center," makes our review difficult because it is neither a closed-ended definition, that is, one stated in terms relatively incapable of future expansion, nor one which sets forth the characteristics of the definitional class in any functional way. Rather, the definition simply states that certain locations are population or processing centers, and leaves open the possibility that other places may nevertheless possess certain undefined characteristics justifying designation as population or processing centers by some later determination. The definition is contained in the regulations as follows: "Any . . . facility (in this subcategory) located in population or processing centers including but not limited to Anchorage, Cordova, Juneau, Ketchikan, Kodiak, and Petersburg shall meet the following limitations: . . . ." See, e. g., 40 C.F.R. § 408.162 (Alaskan Hand-Butchered Salmon Processing Subcategory).
Petitioners do not contest the Agency's authority to classify point sources as remote and nonremote locations if the record provides support for such a distinction. They contend, however, that: (a) the record provides no support for the remote/nonremote distinction; 6 (b) even if there is a basis for the distinction, designation of the particular named cities as nonremote is unwarranted; and (c) the definitions of a population center and a processing center are impermissibly vague.
The definitional language, as we have indicated, is not commendable for its precision or for the light it sheds upon the Agency's criteria for determining what is a nonremote location. In view of the evidence before the Agency in this record, however, we cannot say the distinction is entirely unwarranted or arbitrary, and we sustain it as to the specific locations named as population or processing centers. We find somewhat more support for treating as nonremote cities which are population centers, as distinguished from processing centers. Accordingly, we discuss the two aspects of the definition separately.
There is evidence in the record indicating that construction costs are significantly less for plants located in population centers than in other areas. A study conducted by the National Canners Association shows that the average costs of construction in Anchorage (population of 173,800) and in Juneau (16,...
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