National Wildlife Federation v. E.P.A.

• Decision Date: 19 April 2002
• Docket Number: No. 99-1452.,No. 99-1456.,No. 99-1455.,No. 99-1454.,99-1452.,99-1454.,99-1455.,99-1456.
• Citation: 286 F.3d 554
• Parties: NATIONAL WILDLIFE FEDERATION, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator, Environmental Protection Agency, Respondents. American Forest and Paper Association Inc., Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

286 F.3d 554

NATIONAL WILDLIFE FEDERATION, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator, Environmental Protection Agency, Respondents.

American Forest and Paper Association Inc., Intervenor.

No. 99-1452.

No. 99-1454.

No. 99-1455.

No. 99-1456.

United States Court of Appeals, District of Columbia Circuit.

Argued January 24, 2002.

Decided April 19, 2002.

COPYRIGHT MATERIAL OMITTED

On Petitions for Review of a Final Rule of the Environmental Protection Agency.

Neil S. Kagan argued the cause and filed the briefs for petitioners National Wildlife Federation, et al.

Raymond B. Ludwiszewski argued the cause for petitioners Alliance for Environmental Technology, et al. With him on the briefs were Peter E. Seley and Scott H. Segal. Gene E. Godley entered an appearance.

Carol Ann Siciliano, Attorney, U.S. Environmental Protection Agency, and Jon M. Lipshultz, Attorney, U.S. Department of Justice, argued the cause for respondents. With them on the brief was John C. Cruden, Assistant Attorney General. Seth M. Barsky and Karen L. Egbert, Attorneys, U.S. Department of Justice, entered appearances.

Russell S. Frye argued the cause for intervenor American Forest and Paper Association Inc. With him on the brief was Richard Wasserstrom.

Before: SENTELLE, HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

A coalition of environmental organizations and a Native American tribe led by the National Wildlife Federation (collectively "NWF") and the Alliance for Environmental Technology, Boise Cascade Corporation, International Paper Company, The Mead Corporation, and Westvaco Corporation (collectively "Industry Petitioners") separately challenge the Final Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance Standards for the Pulp, Paper, and Paperboard Category. 63 Fed. Reg. 18,504 (April 15, 1998) ("Final Rule"). Their challenge is confined to that portion of the Final Rule promulgated by the Environmental Protection Agency ("EPA") under the Clean Water Act as applied to one subcategory of the pulp and paper industry — the bleached papergrade kraft and soda subcategory (often referred to as the "BPK" subcategory). The American Forest & Paper Association, Inc. intervenes in support of the Final Rule. We deny the petitions.

I.

The Clean Water Act of 1977 ("CWA") requires EPA to promulgate limitations on the discharge of pollutants into the waters of the United States. 33 U.S.C. § 1311 (1994). These limitations are referred to as effluent limitations. The effluent limitations are based on the discharge levels achievable by what EPA determines to be the "best available technology economically achievable" (known as the "BAT") for existing discharging sources (defined as "point sources" in the statute), id. § 1311(b)(2)(A), (C), (D), & (F), and a different technology — the best available demonstrated control technology or "BADT" — for new pollutant sources, known as the new source performance standard or "NSPS," id. § 1316(b)(1)(B). In determining a BAT and BADT, EPA evaluates existing or "available" technologies and considers their cost and capabilities among other factors. Id. § 1314(b)(2)(B). EPA then promulgates discharge limitations that correspond to the application of the identified technology but does not require dischargers to install that technology.

Pursuant to a 1988 consent decree entered into by EPA in settlement of Environmental Defense Fund v. Thomas, 657 F.Supp. 302 (D.D.C.1987), EPA committed to reviewing effluent limitations guidelines under the CWA for pulp and paper mills producing bleached pulp. 58 Fed. Reg. 66,078, 66,089 (Dec. 17, 1993). EPA also anticipated that it would be imposing substantial new air pollution control requirements on these mills under the Clean Air Act ("CAA"), 42 U.S.C. § 7412. In order to avoid incompatible and potentially overly burdensome rulemaking, EPA commenced a "Cluster Rulemaking" that would jointly establish effluent limitations guidelines under the CWA and hazardous air pollutant standards under the CAA. Involved in the instant appeal is the portion of the Cluster Rules that apply to the BPK subcategory within the pulp and paper industry. These provisions establish limitations on the discharge of several pollutants as identified by EPA. See 40 C.F.R. §§ 430.20-430.28. These pollutants include dioxin, abbreviated as TCDD, furan, abbreviated as TCDF, 12 specific chlorinated phenolic pollutants, chloroform, and adsorbable organic halides ("AOX"). National Emission Standards & Effluent Limitations Guidelines, 63 Fed. Reg. 18,504, 18,542 (Apr. 15, 1998).

To understand these limitations and the process by which they were determined, we provide a brief description of the paper production process. One of the components of wood (the basis of paper products) that must be removed during the pulping process is called lignin. The process of removing lignin is called "delignification." The degree of delignification is expressed as a "kappa" number. Prior to bleaching, additional lignin can be removed through either of two extended delignification processes: extended cooking or oxygen delignification ("OD"). Supplemental Technical Development Document ("STDD") § 7.2.3, at 7-4 and § 7.2.6, at 7-9 (Oct. 15, 1997). During bleaching, traditional bleaching agents that are used lead to the formation of a number of pollutants that are ultimately discharged into external streams. Using a process known as elemental chlorine free ("ECF") bleaching lowers chemical consumption during bleaching and thereby reduces the formation of undesired pollutants. The material removed from the pulp in bleaching is typically discharged to the mill wastewater treatment system. This wastewater is known as effluent; its environmental quality at discharge depends in part on the quantity of lignin in the pulp remaining after bleaching.

For the model technologies, EPA considered a number of options, each in turn involving a package of technologies for prevention of pollution within a pulp mill and treatment of wastewater once it leaves the mill, 58 Fed. Reg. at 66,109-10, ultimately focusing, after public comment on additional data, on two technologies, referred to as Option A and Option B. 61 Fed. Reg. 36,835, 36,838-39. In the Final Rule, Option A was defined as conventional pulping followed by ECF bleaching. 63 Fed. Reg. at 18,542. Option B did the same but added oxygen delignification and/or extended cooking that resulted in a kappa number at or below 20 for softwoods and below 13 for hardwoods. Id. EPA determined that Option B was too costly to be the BAT, naming it instead as the BADT for new sources and naming Option A as the BAT. Id. at 18,549-53. The projected capital cost of Option B was more than twice that of Option A (already almost $1 million) and would result in mill closures and the likely bankruptcy of major paper companies. Id. at 18,550. EPA further determined that imposing limitations based on Option B technology would result in little incremental reduction in toxic pollutants and would produce no difference in monetized water quality benefits. See id. at 18,545; 61 Fed. Reg. at 36,841. Cf. 63 Fed. Reg. at 18,590 with 63 Fed. Reg. at 18,592. EPA did adopt, however, an innovative Voluntary Advanced Technology Incentives Program, which offered various benefits to mills that installed beyond-BAT technology, such as OD plus ECF or totally chlorine free ("TCF") processes. 63 Fed. Reg. at 18,593-611.

EPA declined to establish separate limitations for mills bleaching exclusively hardwood or softwood, even though unbleached hardwood pulp contains less lignin than unbleached softwood pulp, in view of both the absence of complete data on how these mills work and the difficulty of applying separate limitations, as many mills pulp both hardwood and softwood in varying proportions, or swing between the two. See, e.g., 58 Fed. Reg. at 66,167; Proposed Technical Development Document for Pulp, Paper, and Paperboard Category Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance Standards (Oct. 29, 1993) DCN 08517 at 2-3; STDD at 5-7. EPA also declined to set effluent limitations for color, finding that the natural coloring of receiving waters varies, with the result that the aesthetic and aquatic impacts of color discharges on a particular receiving water is driven by highly site-specific conditions, best left to regulation under federal and state permitting procedures. 63 Fed. Reg. at 18,538.

In these appeals, the petitioners are at either extreme in challenging the Cluster Rules under the CWA regarding the BPK subcategory of the pulp and paper industry. Essentially, NWF contends that the Final Rule is too lax, because EPA should have based the BAT for the BPK subcategory on Option B, technology that EPA wrongly found too costly, while Industry Petitioners contend that the Final Rule is too strict, moving far beyond the adoption of ECF bleaching as the BAT and the NSPS, and thus beyond EPA's authority. Supporting the rule, the industry association as Intervenor points out that the Final Rule is not only the result of a unique process involving simultaneous development of air and water regulations, but the result of many years of research and analysis by both EPA and the pulp and paper industry and the result of a process in which environmental interest groups also had substantial involvement. Who is right about the Final Rule as it applies to BPK in an ultimate sense is not the concern of the court.

The question before the court is limited to whether EPA has acted arbitrarily or capriciously, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A); see American Iron & Steel Inst. v. EPA, 115 F.3d 979, 1004 (D.C.Cir.1997). This standard is a narrow one, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 823-24, 28...