Chemical Mfrs. Ass'n v. U.S. E.P.A.
| Decision Date | 10 October 1989 |
| Docket Number | Nos. 87-4849,s. 87-4849 |
| Citation | 885 F.2d 253 |
| Parties | , 58 USLW 2258, 20 Envtl. L. Rep. 20,076 CHEMICAL MANUFACTURERS ASSOCIATION, et al., Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. , et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Theodore L. Garrett, Corinne A. Goldstein, Jay T. Smith, Covington & Burling, Washington, D.C., for petitioners.
Doy Weitman, Michael Wenig, David J. Kaplan, Washington, D.C., for respondent.
Ronald J. Wilson, Robert Wayne Adler, Washington, D.C., for intervenor: Natural Resources, etc.
Petitions for Review of an Order of the Environmental Protection Agency.
(Opinion March 30, 1989, 5th Cir.1989, 870 F.2d 177)
ON PETITIONS FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
Before, RUBIN, GARZA, and KING, Circuit Judges.
At the conclusion of our original opinion 1 we encouraged the parties to file petitions for rehearing in order to ensure that we had given each issue in this complex case its due. 2 After considering the parties' arguments, we now clarify certain aspects of our earlier opinion and grant rehearing and remand two parts of the regulations to the Environmental Protection Agency (EPA) for further rulemaking proceedings. As in our original opinion, we have divided responsibility for drafting this opinion: Judge King prepared the sections concerning the regulations based on the best practicable control technology (BPT), and Judge Rubin prepared the sections concerning regulations based on the best available technology (BAT). No issues have been raised on rehearing with respect to the parts of the original opinion authored by Judge Garza.
Several of the petitioners have requested that we clarify that our opinion does not preclude them from seeking an FDF variance. Although we had attempted to make clear that nothing in our opinion should be deemed prejudicial to the petitioners' ability to seek FDF variances, we will address the specific points raised by the individual petitioners in their requests for rehearing.
DuPont objects to the language in our opinion which states that "[a]n FDF variance would not exempt petitioners from the limitations; it would merely subject them to less stringent limits using the best technology." 3 DuPont asserts that this is not correct--an FDF variance might allow an applicant to leave its present technology in place or to install technology less costly than the model technology. Because this language was merely dicta, we direct that the final paragraph of part II. F.5. 4 in our original opinion be disregarded. The fact remains, however, that this court may not grant the relief petitioner requests. Under Sections 509(b)(1) 5 and 505(a)(2) 6 of the CWA, we do not have jurisdiction in this proceeding to require the EPA to process petitioners' applications in a more expeditious manner, 7 nor may we stay the regulations pending the EPA's actions. As we noted in our original opinion, the Act provides explicitly that an application for an FDF variance " 'shall not stay the applicant's obligation to comply with the effluent limitation guideline or categorical pretreatment standard which is the subject of the application.' " 8
Therefore, we adhere to our refusal to order the EPA to process FDF-variance applications.
Union Carbide asserts that we may have prejudiced its ability to obtain an FDF variance for its Taft, Louisiana, plant. The discussion of the Taft plant issue in our original opinion may not be sufficiently clear because a number of petitioners had raised plant-specific claims as objections to the EPA's categorical rulemaking and that was one of a number of such claims. At any rate, we affirm that such objections must be raised in an FDF variance proceeding, and not in a proceeding of review of the national rules. 9 Our discussion of the Taft plant issue was intended only to hold that the EPA did not err in refusing to address this plant-specific claim in the context of the national rulemaking. Nothing in our discussion should be deemed prejudicial to Union Carbide's efforts to obtain an FDF variance.
Finally, the "ponds petitioners" assert that our original opinion 10 mischaracterized their argument--petitioners did not seek an exemption from the BPT limitations, but sought to have the regulations declared unlawful. Our original opinion made it clear that the objections raised by the ponds petitioners regarding the EPA's consideration of the cost of compliance would not suffice to invalidate the regulations as a whole. 11 We also held that petitioners had failed to establish that the EPA erred in refusing to create a subcategory for plants employing waste stabilization ponds. 12
In so holding, we stated that "even if Texas Eastman, DuPont, and Air Products are required to install new activated-sludge systems in order to comply with BPT, the costs of these systems would be within the range generally estimated for the industry as a whole," and concluded that this did not provide a basis for "exempting" petitioners from the limits that apply to the rest of the industry. 13 The word "exemption" was intended to refer to petitioners' claim that they should have been subject, as a separate subcategory, to less stringent guidelines because the cost of compliance would be higher for petitioners than for the industry as a whole.
Petitioners now assert that they intended only to question the overall validity of EPA's costing methodology. They observe that there is nothing in the record to support the conclusion that the actual costs to petitioners of installing entirely new treatment technology would not be "fundamentally different" from costs to other plants in the industry, and argue that the language in the original opinion is misleading on this point and may be prejudicial to petitioners' efforts to obtain FDF variances.
Because we may have misconstrued petitioners' argument on the cost issue, we will alter the final paragraph of part II.E.3. 14 to read as follows:
The EPA concedes that petitioners may be required to install entirely new treatment units consisting of activated sludge and secondary clarification. However, the EPA estimated the costs of such steps for more than a quarter of the plants in the industry which would require upgrades to comply with BPT. 1 We therefore agree with the EPA that the EPA's failure to consider the actual cost of installing entirely new treatment systems at three of petitioners' plants does not distort the EPA's overall cost assessments sufficiently to undermine the validity of the BPT limits as a whole.
1. Petitioners assert on rehearing that the record does not in fact support the EPA's contention that it estimated the costs of activated sludge systems for "nearly half of the plants in the industry requiring treatment improvements." See 870 F.2d at 219-20. Petitioners' own calculation of 20% was based, however, on all of the plants in the industry, rather than only those plants requiring treatment improvements. Upon reexamining the record, we note that the EPA costed activated sludge systems for 59 plants--out of 206 requiring system upgrades (other than contract hauling) and 297 plants altogether.
We adhere to the remainder of our earlier discussion. We express no opinion whether costs, or any other consideration raised by petitioners, would provide a basis for an FDF variance.
Our original opinion failed to address one issue raised by petitioners Union Carbide, Allied, and others: whether EPA violated the Administrative Procedure Act by failing to afford adequate notice and an opportunity to comment on the inclusion of Phenol in PSES. 15
Petitioners now rely in part on our resolution of the BAT-subcategory notice and comment issue in favor of NRDC. 16 We found that the EPA had not afforded the parties sufficient opportunity for comment on the Agency's final rule establishing subcategories for BAT because the EPA had indicated in its notice that it would not establish any subcategories for BAT. 17 Our conclusion was based on the following language from the record:
EPA considered whether the industry should be subcategorized for BAT purposes by evaluating the same subcategorization factors which were considered for BPT. EPA has decided to promulgate a single set of BAT limitations which would be applicable to all OCPSF facilities.... The available data for BAT show that plants ... can achieve similar low toxic pollutant effluent concentrations by installing the best available treatment components.... Therefore, the Agency believes that BAT subcategories do not appear to be necessary for effective, equitable regulation. However, EPA will continue to explore the possibility of subcategorizing the industry for BAT purposes and invites comments and supporting date on appropriate approaches. 18
We held that "[t]he last sentence notwithstanding, this notice was not sufficient to fairly apprise interested parties that BAT subcategorization was still a live issue." 19
Petitioners contend that until the 1986 proposal--the last proposal document published before the final rule--the EPA had never mentioned phenol in the PSES rulemaking. Petitioners claim, moreover, that the 1986 proposal indicated that the EPA did not intend to include phenol in the PSES limits. Petitioners cite the following language we found inadequate with respect to the BAT-subcategory issue:
When a pollutant is reduced to similar effluent levels and the pass-through analysis compares average industry to average POTW percent removals, ... the calculation of percent removal for the POTW and industrial treatment systems becomes a function of influent concentration only for these pollutants rather than a function of actual removal efficiency.... [T]he Agency is...
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