FMC Corp. v. Train

• Decision Date: 10 March 1976
• Docket Number: 74-1400,74-1502,Nos. 74-1386,s. 74-1386
• Parties: , 6 Envtl. L. Rep. 20,382 FMC CORPORATION et al., Petitioners, v. Russell E. TRAIN, Respondent. to 74-1505, 74-1729 and 74-1761 to 74-1765.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 973

539 F.2d 973

8 ERC 1731, 6 Envtl. L. Rep. 20,382

FMC CORPORATION et al., Petitioners, v. Russell E. TRAIN, Respondent.

Nos. 74-1386, 74-1400, 74-1502 to 74-1505, 74-1729 and

74-1761 to 74-1765.

United States Court of Appeals,

Fourth Circuit.

Argued Sept. 25, 1975.

Decided March 10, 1976.

Robert C. Barnard, Washington, D. C. (Daniel B. Silver, Eric Schwartz and Cleary, Gottlieb, Steen & Hamilton, Washington, D. C., on brief), for petitioners.

Bruce M. Diamond, Atty., E. P. A., Washington, D. C. (Alan G. Kirk, II, Asst. Administrator for Enforcement and Gen. Counsel, Wallace H. Johnson, Asst. Atty. Gen., Raymond N. Zagone, Glen R. Goodsell, Attys., U. S. Dept. of Justice, Washington, D. C., on brief), for respondent.

Edward L. Strohbehn, Jr., Washington, D. C., and Angus Macbeth, New York City, on brief for amicus curiae Natural Resources Defense Council, Inc., in No. 74-1386.

Before RIVES * and BREITENSTEIN **, Senior Circuit Judges, and WIDENER, Circuit Judge.

RIVES, Circuit Judge:

These petitions seek to have this Court set aside regulations issued on April 5, 1974, by the Administrator of the Environmental Protection Agency (hereinafter "the Administrator") establishing "effluent limitations guidelines" for existing sources and "standards of performance" for new sources for the Plastics and Synthetics Point Source Category adopted pursuant to § 301, § 304(b) and (c), § 306(b) and (c), and § 307(c) of the Federal Water Pollution Control Act, as amended (hereinafter "the Act"). ¹

The Act sets out "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters and establishes as a national goal the elimination of the discharge of pollutants into the navigable waters by the year 1985. § 101(a). Section 306(b)(1)(B) of the Act directs the Administrator to propose and publish within one year federal standards of performance for new sources, defined as a source of pollution discharge, "the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source." § 306(a)(2). " Effluent limitations guidelines" prescribe the amount of pollution discharge permitted by existing plants and are divided into two phases a 1977 stage and a 1983 stage. Under § 509(b)(1), review of these regulations lies in the United States Court of Appeals. See duPont v. Train, 528 F.2d 1136 (4th Cir. 1976).

Support for these regulations under review included a "Development Document for Proposed Effluent Limitations Guidelines and New Source Performance Standards for the Synthetic Resins Segment of the Plastics and Synthetic Materials Manufacturing Point Source Category" (hereinafter Petitioners in these cases are manufacturers of plastic and synthetic materials subject to the regulations. In addition to raising technical challenges to the regulations (discussed, infra ), petitioners present questions of jurisdiction and Agency authority to issue these "effluent limitations guidelines" under § 301 of the Act. Both issues were raised in related cases decided by this panel. See duPont v. Train, 528 F.2d 1136 (4th Cir. 1976); duPont v. Train, --- F.2d ---- (4th Cir. 1976) (No. 74-1261). In duPont v. Train, No. 74-2237, we held that judicial review of "effluent limitations guidelines" is properly before a United States Court of Appeals, in the first instance; while in duPont v. Train, No. 74-1261, we held that the Commissioner, under a combination of powers granted to him by §§ 301 and 304 of the Act, does have authority to issue "effluent limitations guidelines." No further treatment of the two issues is now necessary.

"Development Document") and another study entitled "Economic Analysis of Proposed Effluent Guidelines, Plastics and Synthetics Industry" (September 1973). 39 Fed.Reg. 12502 (April 5, 1974). In promulgating these regulations, EPA divided the plastics and synthetics point source category into 31 product process subcategories and, under these "Phase I" regulations, ² established single-number effluent standards for various pollution parameters ³ in 13 of the subcategories. ⁴ Each effluent limitation guideline and standard of performance is a value expressed in pounds of a pollutant that may be discharged by a plant for each thousand pounds of product manufactured. ⁵ EPA's methodology for setting these standards was to select for each subcategory a uniform hydraulic flow (expressed in terms of gallons of water per thousand pounds of product or the metric equivalent) and to multiply that figure by an effluent concentration (expressed in milligrams per liter of water or the English equivalent) determined to be attainable by application of the designated technologies. ⁶ Daily and monthly variability factors were then applied to reflect the varying results achieved even by properly designed and operated treatment facilities. As a result, the standards provide a maximum discharge for any one day and a slightly lower figure which represents the average daily value not to be exceeded over a 30-day period.

In Nos. 74-1400, 74-1502, 74-1503, and 74-1765, petitioners raise the questions of the proper technological standards to be applied to the 1977 and 1983 effluent limitations guidelines and the new source standards of performance. Additionally, the manufacturers contend that EPA's inadequate In petitions Nos. 74-1505, 74-1729, 74-1761, and 74-1762, the manufacturers present a detailed analysis of EPA's alleged methodological errors with regard to a single subcategory acrylics. EPA has conceded that petitioners' arguments in regard to acrylics have merit and has agreed to re-examine the data base which supports the effluent limitations guidelines and new source performance standards for the acrylics subcategory and to suspend these regulations during the reconsideration period. (Resp. Brief at 134-136.) In view of this concession, we find it unnecessary to decide the issues raised in petitions Nos. 74-1505, 74-1729, 74-1761, and 74-1762, and remand these regulations to the Administrator.

assessment of cost, energy use, and non-water environmental detriments failed to fulfill the requirements of the Act. Petitions Nos. 74-1504, 74-1763, and 74-1764 raise the arguments that EPA made serious methodological and technological errors in computing the values set as the effluent limitations guidelines and standards of performance and that EPA failed to substantiate in the record the major engineering and other technical assumptions on which were based its effluent limitations guidelines and standards of performance.

I. General Validity of the Regulations

A. Ranges

Petitioners assert that § 304(b) of the Act requires the Administrator to promulgate ranges of values rather than single-number limitations. In duPont v. Train (No. 74-1261), supra at ---- - ----, this Court rejected that same argument, holding that the Act does not contain such an inflexible requirement. Rather, the Administrator is free to exercise reasonable discretion in establishing these pollution standards and may set single-number limitations unless such action is arbitrary in a particular case.

B. Data Base

Petitioners allege that these regulations are defective because they are based on data obtained only from a small number of plants which were not shown to be representative of the various affected subcategories. This argument is meritless in view of the extensive research conducted by EPA in the development of these regulations. The contractor responsible for compiling the Development Document reviewed both a survey submitted by the Manufacturing Chemists Association (App. 4835-5635) and a study undertaken by the Celanese Research Company under the sponsorship of EPA (App. 6474-6696), as well as applications for discharge permits under the Refuse Act. (Resp. Brief at 35-56.) On the basis of this information, EPA's contractor, A. D. Little, Inc., selected 19 exemplary plants for testing and study. See Dev. Doc. 98. Given the time pressures of a court-imposed deadline for issuing these regulations, see Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 710-714 (1974), it would have been impossible for EPA to have conducted a comprehensive survey of all plants affected by these regulations. See American Iron and Steel Institute v. Environmental Protection Agency, 526 F.2d 1027 (3d Cir. 1975).

C. Cost

Sections 304(b)(2)(A) and 306 of the Act require the Administrator to consider cost in establishing the 1983 effluent limitations guidelines and new source standards of performance. Additionally, § 304(b)(1)(A) mandates a consideration of the total cost of the application of technology in relation to the degree of effluent reduction to be achieved by the 1977 standards. Petitioners contend that EPA's assessment of the cost is inadequate for the following reasons:

(1) The Administrator's refusal to make a cost-benefit analysis. Petitioners assert that the statute is not satisfied unless the Administrator quantifies in monetary terms the benefits to be obtained by reducing pollution and compares this sum to the achievement cost. This Court in duPont v. Train (No. 74-1261), supra, has, however, rejected that argument. The Act's overriding objective of eliminating by 1985 the discharge of pollution into the waters of our (2) Errors in EPA's Economic Analysis. ⁷ Petitioners contend that, while EPA's economic analysis finds that the "major overriding factor" of cost is the ability of the manufacturer to pass on cost, the Analysis states that it is impossible to determine the economic ability of this industry to pass on costs in 1977 or 1983. Next, petitioners feel that EPA has been callous to small producers who will be forced to shut down in the face of the sizeable capital outlays needed for pollution equipment. ⁸ Further, they contend EPA's study includes only the cost of the...