Chemical Mfrs. Ass'n v. U.S. E.P.A.

Decision Date30 March 1989
Docket NumberNo. 87-4849,87-4849
Citation870 F.2d 177
Parties, 57 USLW 2595, 19 Envtl. L. Rep. 20,989 CHEMICAL MANUFACTURERS ASSOCIATION, et al., Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. , et al. *
CourtU.S. Court of Appeals — Fifth Circuit

Theodore L. Garrett, Corinne A. Goldstein, Jay T. Smith, Covington & Burling, Washington, D.C., for Chemical Mfrs. Ass'n.

Dov Weitman, Lee M. Thomas, Acting Admin., E.P.A., Michael Wenig, David J. Kaplan, Francis S. Blake, Gen. Counsel, U.S.E.P.A., Roger Marzulla, Acting Asst. Atty. Gen., Land & Natural Resources Div., U.S. Dept. of Justice, Beth S. Ginsberg, Asst. Atty. Gen., Margaret N. Stand, Chief, Environmental Defense Section, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., for U.S.E.P.A.

Ronald J. Wilson, Robert Wayne Adler, Washington, D.C., for intervenor Natural Resources, etc.

William A. Anderson, II, A. Frank Smith, III, Washington, D.C., for Sterling Chemicals, Inc.

John C. White, William A. Olson, Houston, Tex., for Gulf Coast Waste Disposal Authority.

Theodore J. Garrett, Covington & Burling, Jay T. Smith, Washington, D.C., for Union Carbide Corp., Air Products Mfg. Corp., and Air Products and Chemicals, Inc., E.I. DuPont de Nemours & Co., Monsanto Co., Goodyear Tire & Rubber, Akzo Chemicals, Inc., et al., M & T Chemicals Inc., Sherex Chemical So., Inc.

Ronald J. Wilson, Robert W. Adler, Jessica C. Landman, Washington, D.C., Sarah Chasis, Natural Resource Defense Council, Inc., New York City, for Natural Resources Defense Council.

Lawrence R. Liebesman, Lisa Zannoni, Washington, D.C., for Nat. Paint & Coatings Ass'n.

Charles M. Lanier, Timothy E. Kelley, Sheila T. Walet, New Orleans, La., for Rubicon, Inc.

Robert Brager, Richard S. Davis, Washington, D.C., Cheryl B. Sikkema, The Dow Chemical Co., Midland, Mich., R. Dean Cooper, Plaquemine, La., for The Dow Chemical Co.

James B. Harris, Elizabeth Ann Rabon, Thompson & Knight, Dallas, Tex., for Texas Eastman Co., a div. of Eastman Kodak Co.

David M. Flannery, M. Ann Bradley, Kim Brown Poland, Robinson & McElwee, Charleston, W.Va., for Laroche Chemicals, Inc.

Robert Brager, Washington, D.C., Susan Kuis, Pittsburgh, Pa., for PPG Industries, Inc.

Beveridge & Diamond, Washington, D.C., David Landgraf, FMC Corp., Philadelphia, Pa., for FMC Corp.

Dean A. Calland, Donald C. Bluedorn, II, Babst, Calland, Clements & Zomnir, Pittsburgh, Pa., for Koppers Co., Inc.

Robert T. Stewart, Kevin R. Murray, Dallas, Tex., for The Lubrizol Corp.

R. Kinnan Golemon, Sara M. Burgin, Brown, Maroney, Rose, Barber & Dye, Austin, Tex., for Hoechst Celanese Corp.

Samuel O. Buckley, III, Michael A. Chernekoff, New Orleans, La., for Etheyl Corp.

William A. Anderson, II, Mary E. Wall, Washington, D.C., for OO Chemicals, Inc.

David M. Flannery, M. Ann Bradley, Charleston, W.Va., for Borg-Warner Specialty Chemicals, Inc.

Leonard A. Miller, Robert S. Taylor, Swidler & Berlin, Washington, D.C., for Allied-Signal, Inc., and W.R. Grace & Co.

Lynn L. Bergeson, Emily R. Paradise, Fox, Weinberg & Bennett, Washington, D.C., for Courtaulds Fibers, Inc. Petitions for Review of an Order of the Environmental Protection agency.

Before RUBIN, GARZA and KING, Circuit Judges.

By RUBIN, GARZA and KING, Circuit Judges Jointly.

Acting under the mandate of the Clean Water Act (CWA), 1 the Environmental Protection Agency (EPA), has promulgated final regulations limiting the discharge of pollutants into the nation's navigable waters by manufacturing plants in the organic chemicals, plastics, and synthetic fibers (OCPSF) industries. The regulations, which the statute requires to be implemented beginning March 31, 1989, cover both direct discharge and indirect discharge through publicly-owned treatment works (POTWs). The Chemical Manufacturers Association (CMA) and a number of companies affected by the regulations allege both procedural defects in their promulgation and substantive defects in various provisions, as well as defects in the application of specific provisions to particular plants. Intervening in some of the cases consolidated for review and appearing as amicus curiae in the others, the Natural Resources Defense Council (NRDC) also challenges the regulations, but on the different ground that they fail to require a sufficiently high degree of effluent pollution control. Although it contends that the regulations are invalid, the NRDC urges that they be enforced until more stringent standards can be adopted.

The case is of such complexity that the parties have submitted briefs totalling more than 3,000 pages and a joint appendix 9,000 pages long distilled from a 600,000-page administrative record. To enable us to render a decision as promptly as possible, the members of the panel have divided responsibility for preparing portions of this opinion, as the District of Columbia Circuit did in Alabama Power Co. v. Costle. 2 Judge Garza prepared sections V, VI, and VII of this opinion, as well as all portions discussing issues raised by the NRDC; Judge Rubin prepared sections I and III; and Judge King prepared sections II and IV, except for those portions discussing issues raised by the NRDC.

This is a summary of our rulings on the principal issues:

I. The EPA did not violate the notice-and-comment requirements of the Administrative Procedure Act (APA) by: (1) utilizing an updated Dun & Bradstreet economic-impact study to supplement data it had previously disclosed without making the new data public either during the notice-and-comment period or in the public record except to this court under seal; or (2) by failing to publish its regulations for the control of toxic metals for public comment prior to final promulgation.

II. Best Practicable Technology (BPT) Issues:

A. The EPA's Consideration of the Costs of "Complying with the BPT Limitations:

1. The Act does not require the EPA to apply a 'knee-of-the-curve' cost-effectiveness test in establishing BPT limitations; the EPA sufficiently considered the total costs of the BPT limitations in relation to the effluent-reduction benefits and this is all that the Act requires.

2. The BCT cost-effectiveness test does not replace the BPT cost requirement.

3. Although the BPT limitations will double industry's current costs for the removal of conventional pollutants, these costs are not sufficiently high to make the Administrator's decision arbitrary or capricious; identifying the point of diminishing returns is within the discretion of the Administrator.

B. The EPA's Definition of the BPT Data Base:

1. The EPA did not use unreasonably weak statistical editing criteria to determine the 'average of the best' dischargers in defining the BPT data base.

2. The EPA's rejection of polishing ponds and multimedia filtration as the BPT model technology was not arbitrary or capricious; the EPA determined that the benefits of polishing ponds relative to their costs were not substantial and that the effectiveness of multimedia filtration was not well demonstrated.

C. The 'Summer/Winter Issue':

The EPA's determination that neither special subcategorization nor establishing special limits was necessary for plants utilizing biological treatment systems in colder climates was not arbitrary or capricious; the record shows that the performances of such plants were comparable to those in other regions and technological modifications are available to account for the limited instances in which cold weather may affect treatment performance.

D. BPT Subcategorization:

1. The EPA's use, in part, of Standard Industrial Classification (SIC) codes for the purpose of categorizing the OCPSF industry was reasonable; because SIC codes are based on product type, the EPA could reasonably assume that plants producing similar products would have similar wastestreams.

2. The NRDC's contention that the EPA failed to provide public notice of its intent to limit the applicability of the regulations to certain SIC codes is without merit; as early as 1985 the EPA defined the OCPSF industries to include all facilities within specified SIC codes.

E. Issues Concerning Waste Stabilization Ponds:

1. The EPA's determination that pond algae are conventional pollutants is consistent with the Act, which defines a conventional pollutant as a biological oxygen-demanding substance or a suspended solid.

2. The EPA's decision not to create a subcategory for plants employing waste stabilization pond treatment systems was reasonable, because the EPA determined that more effective technology was available; the EPA need not create separate subcategories for industry members that install less effective technology than the model technology.

3. The EPA adequately considered the compliance costs that will be incurred by plants utilizing pond technology.

4. The EPA's suggestion in the final regulations that copper sulfate could be used to control pond algae was in response to the industrial petitioners' comments and thus did not require further notice and comment under the Administrative Procedure Act.

5. The costs of the BPT limitations are not wholly disproportionate to its benefits.

F. Plant-Specific Challenges to the BPT Limitations and the Availability of Fundamentally-Different-Factor Variances

1. The EPA reasonably concluded that the BPT limitations for biological oxygen-demanding substances were achievable for Union Carbide's plants through the use of biological treatment.
2. The EPA reasonably concluded that the BPT limitations were achievable for Borg-Warner's plants and others with phenol-dominated wastestreams.
3. DuPont's claim that the wastestream of its Chambers Works plant is uniquely complex, precluding compliance with the BPT limitations, is not a basis for invalidating the limitations.

4. The EPA's decision not to create a separate subcategory, as urged by Ethyl and Monsanto, for plants with high concentrations of influent total-dissolved solids was reasonable;...

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