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American Paper Inst. v. EPA

Citation: 11 ELR 20865
No. Nos. 79-1511 et al., 660 F.2d 954/16 ERC 1252/(4th Cir., 07/28/1981)

The court invalidates and remands the Environmental Protection Agency's (EPA's) best conventional pollutant control technology (BCT) regulations for "conventional" water pollutants on the ground that the Agency failed to conduct a cost-effectiveness test mandated by § 304(b)(4)(B) of the Federal Water Pollution Control Act (FWPCA). Section 304(b)(4)(B) requires EPA, in promulgating BCT limitations, to (1) consider the reasonableness of the relationship between the costs and benefits of achieving pollutant reductions and (2) compare the costs and pollutant reduction levels for industrial sources with those for publicly owned treatment works (POTWs). EPA's only criterion for gauging the cost reasonableness of the BCT limitations was a comparison with the cost that would be incurred by an average POTW in moving from secondary treatment to advanced secondary treatment. The court concludes that EPA's failure to apply a separate cost-effectiveness test violates § 304(b)(4)(B). In the court's view, the requirement that the Agency perform separate POTW and cost-effectiveness tests is apparent from the language of the statute, without resort to the ambiguous legislative history. In addition, the court rejects challenges to the incremental approach used by EPA in developing and applying its POTW benchmark figure. EPA did not act arbitrarily in comparing the cost of upgrading POTWs with the cost of upgrading private industry effluent controls. The court also upholds EPA's use of advanced secondary treatment to mark the increment of improvement for POTWs, finding that this choice was made after a reasoned consideration of alternatives. Because of recently discovered data errors, however, the court remands the POTW benchmark at EPA's request. A dissenting judge would defer to EPA's interpretation that a POTW comparison test satisfies both aspects of § 304(b)(4)(B). He regards the statute as unclear on its face and finds support for EPA's reading of it in the legislative history.

Counsel for Petitioners
Henry L. Diamond, John N. Hanson, Jonathan Z. Cannon
Beveridge & Diamond
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 828-0200

Richard L. Williams, James L. Sanderlin, Robert E. Payne, David E. Evans, Thomas W. McCandlish
McGuire, Woods & Battle
Ross Bldg., Richmond VA 23219
(804) 644-4131

Russell S. Frye
Smith & Schnacke
3000 Cthse. Plaza NE, Dayton OH 45401
(513) 226-6500

William M. Bradner Jr, Michael K. Glenn
Chadbourne, Parke, Whiteside & Wolff
30 Rockefeller Plaza, New York NY 10112
(212) 541-5800

Counsel for Respondents
Ronald C. Hausmann, Donald W. Stever Jr; James W. Moorman, Ass't Attorney General; Angus C. Macbeth, Deputy Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4160

Barry Malter, Jeffrey M. Gaba; Michele B. Corash, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Joined by Widener, J.

Phillips, J., concurs in part and dissents in part in a separate opinion.