Reynolds Metals Co. v. U.S. E.P.A.
| Decision Date | 01 May 1985 |
| Docket Number | Nos. 84-1183,s. 84-1183 |
| Citation | 760 F.2d 549 |
| Parties | , 15 Envtl. L. Rep. 20,736 REYNOLDS METALS COMPANY and United States Brewers Association, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. MILLER BREWING COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. (L), 84-1184. |
| Court | U.S. Court of Appeals — Fourth Circuit |
R. Stuart Broom (Riddell, Fox, Holroyd & Jackson, P.C., Washington, D.C., Kenneth A. Barry, Norton F. Tennille, Jr., Lester Sotsky, Arnold & Porter, Denver, Colo., on brief), for petitioners.
Ellen Siegler, E.P.A., John L. Wittenborn, Dept. of Justice, Washington, D.C. (A. James Barnes, Gen. Counsel, E.P.A., Colburn T. Cherney, Associate Gen. Counsel, Susan Lepow, Asst. Gen. Counsel, F. Henry Habicht, II, Asst. Atty. Gen., Margaret N. Strand, Dept. of Justice, Washington, D.C., on brief), for respondent.
Before SPROUSE and CHAPMAN, Circuit Judges, and HARGROVE, United States District Judge for the District of Maryland, sitting by designation.
In these consolidated cases, petitioners Reynolds Metals Company, Miller Brewing Company, and United States Brewer's Association, ask us to set aside as invalid effluent limitations promulgated for the canmaking industry 1 by the Environmental Protection Agency (Agency) under the Clean Water Act 2 (Act). The canmaking industry discharges in its effluent 3 conventional, toxic and nonconventional pollutants. Standards for canmaking were promulgated to control all three types of pollutants, conventional, toxic and nonconventional, but it is that portion of the standards relating to the removal of the total toxic organics (TTO) and toxic metals that generate petitioners' objections. As in other "clean water" regulations, the Agency devised limitations for pollution from canmaking by first determining the best ways to remove pollutants (the model technology), then testing wastewaters to determine the effectiveness of the technology, and prohibiting pollutant discharges in excess of limits determined to be achievable by reference to the model technology.
Petitioners contend that the standards for effluent control are invalid in that the Agency erroneously concluded that because the removal of oil and grease had effectively removed total toxic organics in the aluminum forming and coil coating industries, it would achieve similar results in the canmaking industry. They also contend that the Agency arbitrarily refused to subcategorize the canmaking industry, erred in its pass-through analyses, overstated the presence of chromium, zinc, and copper, and failed to observe its statutory duty to "weigh" costs relating to one standard and to "consider" costs for another. We disagree with all of these contentions and affirm.
Canmaking encompasses all of the manufacturing processes employed in the production of various shaped metal containers used to package and store foods, beverages, and other products. The two major types are two-piece (seamless) and three-piece (seamed) cans. A vegetable or soup can is an example of a three-piece can and an aluminum soda can is an example of a two-piece can. It is only the seamless, or two-piece, cans that are subject to the regulation which is involved in this appeal. The EPA excluded from regulation manufacturers of three-piece cans, can ends, can tops and seamless cans which are not washed because these processes do not generate wastewater.
In the manufacturing of a two-piece can a coiled metal sheet is coated with an oil lubricant and straightened. A machine called a cupper then cuts a circular blank from the metal sheet and forms the blank into a cup that is drawn into the required height and diameter by a process known as ironing. This ironing process is performed by a machine called a body maker. The can bodies are then cleaned, the metal is treated, and coatings and decorations are applied. Finally, the open end of the can body is flanged to receive the can top.
The forming process employs oil lubricants at virtually all stages. In order to remove the lubricants from the can bodies, the process utilizes a can washer, which usually consists of six spray processing stations. After leaving the body maker, the cans are conveyed through the canwasher on a continuous metal belt. The six canwashing stages include (1) prewash, to remove the layer of lubricant remaining on the can from the body maker; (2) acid wash, to further clean and etch the surface of the can; (3) rinse, to further remove contaminants; (4) surface treatment, to prepare the can for decorating by the application of either chromium- or zirconium phosphate-based coatings; (5) rinse, to remove contaminants remaining from surface treatment; and (6) DI rinse, using de-ionized water to rinse off the last remnants of the processing solutions.
Nationally, eighty-six plants generate wastewater from the manufacture of two-piece cans. Of these, eighty are indirect dischargers and three are direct dischargers. 4 The remaining three dispose of wastewater by land application. Pollutants found in two-piece canmaking wastewaters 5 include (1) conventional pollutants, (2) toxic organics, (3) toxic metals, and (4) nonconventional pollutants.
The Clean Water Act directs the EPA to issue nationally-applicable effluent limitations guidelines and standards for classes or categories of point sources. 6 E.I. duPont deNemours & Co. v. Train, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977). The standards normally are to apply uniformly. 7 After standards and guidelines are established by regulations, facilities may achieve the specified effluent discharge allowance through the use of the technology described in the regulation or in any other manner. The Agency's actions in regulating industrial water pollution have been so frequently the subject of appellate review that detailed references to the statutory scheme mandating regulations seems redundant. An overview, however, is necessary to frame the issues presented by petitioners' objections to the removal technology recommended by the Agency for canmaking as well as the issues relating to the treatability of toxic metals and the final issue of whether the Agency properly considered costs of the removal technology.
In passing the Act, which amended the Federal Water Pollution Control Act of 1972, Congress set as a national goal the elimination, by 1985, of the discharge of pollutants into navigable waters. 33 U.S.C. Sec. 1251(a)(1) (1982). To reach that goal, the Act directed the Administrator of the Agency to promulgate regulations setting limits on the pollutants that can be discharged by "point sources." 33 U.S.C. Sec. 1362(14) (1982).
First, the Act required the Administrator to establish effluent limitations for point sources which discharge pollutants directly into navigable waters i.e. "direct dischargers". The Administrator had to define effluent limitations for categories or classes of point sources that would require existing direct dischargers to employ by 1977 the "best practicable control technology currently available" (BPT), 33 U.S.C. Secs. 1311(b)(1)(A), 1314(b)(1)(A), and to comply by 1984 with limitations based on the "best available technology economically achievable" (BAT). 33 U.S.C. Secs. 1311(b)(2)(A), 1314(b)(2)(B). 8 For newly-constructed dischargers, the Administrator had to establish new source performance standards (NSPS) requiring the application of the "best available demonstrated control technology" to remove all types of pollutants. 33 U.S.C. Sec. 1316. The Administrator's BPT, BAT, and NSPS limitations were to be based upon a consideration of the factors specified in sections 304(b) and 306(b) of the Act. 33 U.S.C. Secs. 1314(b)(1)(B), 1316(b)(1)(B).
Second, the EPA is required to establish effluent limitations for point sources that expel wastewater into publicly owned treatment works (POTWs), which treat the wastewater prior to its introduction into public waterways, by requiring such indirect dischargers to pretreat wastewater before allowing it to flow into a POTW. Under unregulated conditions, indirect dischargers ultimately would introduce fewer pollutants into waterstreams than direct dischargers because indirect discharges flow through sewers into POTWs where much pollution is removed before it is, in turn, discharged into a national stream of water. In requiring standards for indirect dischargers, however, Congress realized that a POTW normally would not remove the same amount of pollutants from industrial wastewater as direct dischargers are now required to remove. Additionally, a POTW is unable to successfully operate on some pollutants--specific pollutants might interfere with or be incompatible with its operation. Because of these factors, the Agency is required to establish standards for pretreatment of wastewater before it enters a POTW "to prevent the discharge of any pollutant through [POTWs] which interferes with, passes through, or otherwise is incompatible with such works." 33 U.S.C. Sec. 1317(b)(1). The legislative history indicates that pretreatment standards are analogous to the standards for direct dischargers, i.e. the combined treatment of wastewater by an indirect discharger and the POTW should achieve the same level of pollution removal as would be realized if the industrial source were treating wastewater and then directly discharging it. See H.R.Conf.Rep. No. 830, 55th Cong., 1st Sess. 87, reprinted in 1977 U.S.Code Cong. & Ad.News 4326, 4424, 4462. The EPA accordingly has imposed pretreatment standards both for existing sources (Pretreatment Standards for Existing Sources or PSES) and for newly-constructed facilities (Pretreatment Standards for New Sources or PSNS). 33 U.S.C. Sec. 1317(c).
Third, though not relevant to this appeal, the Act requires that the Administrator set effluent limitations for...
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