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Weyerhaeuser Co. v. Costle

ELR Citation: 9 ELR 20284
Nos. No. 76-1674, 590 F.2d 1011/(D.C. Cir., 09/05/1978)

The D.C. Circuit Court of Appeals upholds the bulk of the Environmental Protection Agency's (EPA's) regulations requiring industrial facilities in the pulp and paper industry to limit discharges of effluents through application of the best practicable control technology (BPCT) currently available for the period 1977-1983. Guided by the standards set forth in the Administrative Procedure Act, the court first finds that in light of the burdensome and exceedingly technical nature of the EPA's responsibilities under the Federal Water Pollution Control Act, the arbitrary and capricious standard is to be used for substantive review of the Agency's actions. In addition, the court must determine whether the Agency properly interpreted its statutory authority, and whether it followed the required procedures.

With respect to procedural compliance, the court finds that the Agency bent over backward in obtaining public commentary at various stages of the regulations' development and otherwise providing for public participation. The one exception is the biological oxygen demand limitation for acetate grade dissolving sulfite mills. Because the Agency made a material change in this standard subsequent to the close of the public comment period, it is remanded for repromulgation.

With respect to the Agency's interpretation of the statute, the court upholds the inclusion in the regulations of a provision authorizing dischargers to obtain variances from the 1977 BPCT standards, as required by the Supreme Court in E.I. duPont de Memours & Co. v. Train. The variance correctly implements the congressional directive to consider economic hardship only insofar as the cost savings resulting from a variance, when compared to the incremental increase in effluent discharges, are different from the rest of the industry based on fundamental differences between the situation of the discharger and its industrial counterparts. The court also affirms the Agency's interpretation of the statutory standards of BPCT. First, BPCT limitations are not to be based upon the characteristics of receiving waters. Congress followed this approach for 24 years before explicitly rejecting it in the 1972 amendments to the Act. Second, the Agency properly compared the costs and benefits of the BPCT limitations for the dissolving sulfite subcategory of the industry despite its failure to employ the incremental analysis method urged by petitioners. Third, EPA is found not to have ignored its statutory duty to weigh the non-water environmental impacts of the limitations. Congressional intent is that the courts, once they have determined that EPA has actually considered such impacts, not delve deeply into the bases of the Agency's determinations.

The court next upholds the Agency's exercise of its statutory discretion. Its decision not to draw a distinction between facilities in cold and warm climates is adequately supported by a full record. Its failure to create a separate subcategory for certain sulfite mills for which sulfite recovery is more expensive was not an abuse of discretion. Its decision not to promulgate an "excursion" provision, but to leave unavoidable surges of pollution to the discretion of its enforcement branch, was within its authority and is consistent with its responsibility to force new pollution control technology. The setting of limitations based upon pounds of pollutant per ton of product, rather than according to volume or concentration of effluent, is well-supported in the record and not arbitrary. Nor are the BPCT limitations for the sulfite industryinvalid. While the control technologies encouraged by the EPA Administrator are subject to considerable technical difficulties, they are within the practicable reach of the industry and further the Agency's obligation to force industry to develop new technology. Finally, the court upholds the total suspended solids limitation for the entire industry, pointing to the fact that many facilities are currently in compliance with this limitation.

Counsel for Petitioners
David R. Berz, Thomas H. Truitt
Wald, Harkrader & Ross
1320 19th St. NW, Washington DC 20036
(202) 296-2121

Allan J. Topol, Roberts B. Owen, Theodore L. Garrett
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Counsel for Respondent
Donald W. Fowler; James W. Moorman, Ass't Attorney General; Peter R. Taft, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Bruce M. Diamond; G. William Frick, General Counsel; Ray McDevitt
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before McGOWAN, TAMM, Circuit Judges, and RICHEY*, United States District Judge for the District of Columbia.