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Association of Pac. Fisheries v. EPA

Citation: 10 ELR 20336
No. No. 75-2007, 615 F.2d 794/17 ERC 1425/(9th Cir., 02/04/1980)

The Ninth Circuit Court of Appeals upholds, with one exception, challenged portions of the Environmental Protection Agency's (EPA's) regulations establishing effluent limitations for seafood processors on the West Coast and in Alaska. There is sufficient evidence in the record to support EPA's decision to apply more stringent best practical technology (BPT) requirements to plants in "populations or processing centers" as compared to those in remote locations. Although the differentiation between the two is less than precise, it is not impermissibly vague. The court also finds that the Agency adequately calculated and considered the costs, including some plant closures, of its BPT requirements in relation to the effluent reduction benefits. The court likewise upholds the adequacy of EPA's data and the methodology by which it formulated the challenged BPT limitations. It is inappropriate for petitioners to base their challenges on studies completed after the regulations were promulgated, and these studies, in any event, do not undercut the conclusion that the limitations are the product of reasoned decision making. Moreover, there are other mechanisms, such as the variance procedures and periodic review of the limitations themselves, through which the Agency can consider evidence developed after the regulations were promulgated. The court rules further that EPA took adequate account of the variability of pollutant load due to the condition of the raw fish and that the Agency's assumption as to the average water flow rate processors will use per pound of raw material was permissible. The record supports the Agency's finding that better water control and waste management practices can substantially reduce effluent load. The provision prescribing the use of a dissolved air flotation unit as the "best available technology economically achievable" for certain subcategories by 1983 was not arbitrary simply because it was based upon a study of a single plant. The court refuses to consider new evidence developed after the final 1983 limitations were promulgated and rules that the Agency properly evaluated and considered the costs of meeting these standards since a marginal cost-benefit comparison was not required. The 1983 requirement for the use of aerated lagoons by one subcategory of point sources is remanded to EPA, however, because the Agency's data fail to show that adoption of this technology, which requires large amounts of land, is economically achievable or will reduce suspended solids and oil and grease discharges to the required levels.

Counsel for Petitioners
Charles R. Blumenfeld
Bogle & Gates
Bank of California Center, Seattle WA 98164
(206) 682-5151

Counsel for Respondent
Lee R. Tyner
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3607

Before TRASK, SNEED, and KENNEDY, Circuit Judges.