Jump to Navigation
Jump to Content

Reynolds Metals Co. v. EPA

ELR Citation: 15 ELR 20736
Nos. Nos. 84-1183(L), -1184, 760 F.2d 549/22 ERC 1794/(4th Cir., 05/01/1985)

The court upholds the Environmental Protection Agency's (EPA's) effluent limitations for the canmaking industry, which require the removal of total toxic organics (TTO) and toxic metals, against a number of challenges to EPA's data collection and selection and its consideration of cost factors. The court first adopts the arbitrary and capricious standard for review, adding that the need for quick and uniform effluent standards counsels court circumspection and that the difficulty of reviewing technical issues requires great deference to EPA's conclusions. The court then considers the pretreatment TTO challenges. The petitioners challenged EPA's use of aluminum-forming industry data in setting canmaking industry standards, first on the grounds that EPA inaccurately sampled and tested the aluminum-forming wastewater. The court refuses to judge the quality of EPA's methods, holding only that EPA acted reasonably, both affording industry representatives the opportunity to comment and responding to those comments. The petitioners also argued that the efficiency of aluminum-forming pollutant removal could not be applied to canmaking pollutant removal. The court holds that the agency thoroughly considered removal efficiency and did not abuse its discretion. The court then rejects two arguments concerning alleged sampling errors, because EPA has discretion to select the data for estimating the pollutant composition of wastewater and adequately explained its decision to ignore certain samples. The court further holds that EPA properly assumed that the pollutant removal technology from the aluminum-forming category could be transferred to the canmaking category. Transfer of technology is permissible if EPA determines the technology can be practicably applied. The issue has been fully aired during rulemaking and repeatedly justified by EPA. The court then considers the argument that the statutory criteria for the imposition of pretreatment standards for TTO have not been met because the publicly owned treatment works can remove a greater percentage of TTO than a direct discharger. It holds that the argument presumes that EPA's determination of pollutant concentrations is incorrect and ignores EPA's proper exercise of its administrative role in calculating pollutant concentrations and TTO removal. The court notes that a number of the petitioners' objections were not presented to EPA during the rulemaking procedure, and should be given less weight in order to uphold the validity of that procedure.

Turning to the petitioners' objections to the regulation of toxic metals, namely chromium, zinc, and copper, the court holds that EPA did not abuse its discretion in failing to create a subcategory for those plants that use a chromium-based process. Though the agency ignored differences in manufacturing processes, it reasoned that a chromium effluent standard covering all canmaking plants is justified because all plants are capable of using chromium in the future, all plants discharge chromium in some quantity, and subcategorization would probably not affect the effluent standards. The court also rejects the petitioners' argument that the statutory criteria for pretreatment standards were not satisfied, noting that petitioners again presumed that EPA's data was incorrect and also ignored the increased efficiency achievable through reduction of water flow. The court holds that petitioners have failed to show that EPA was guilty of serious technological errors in arriving at a pretreatment standard.

Finally, the court holds that EPA satisfied the Federal Water Pollution Control Act's requirement that it consider the cost effectiveness of treatment options. The court rejects the petitioners' argument that the failure to subcategorize chromium-process plants and include sampling data from 1983 skewed the cost data, because EPA has broad discretion in selecting data. EPA properly exercised its discretion in considering costs in incremental levels of the technology rather than the overall benefit for each treatment level. Though EPA incorrectly placed the burden on the petitioners to demonstrate the hexavalent/trivalent chromium mix in their wastewater, its estimate has support in the administrative record and would not affect the regulation even if it were completely erroneous.

Counsel for Petitioners
R. Stuart Broom
Riddell, Fox, Holyroyd & Jackson
Suite 723, Washington Bldg., Washington DC 20005
(202) 636-4800

Counsel for Respondent
Ellen Siegler
Water Division
Environmental Protection Agency, Washington DC 20460
(202) 382-7700

John Wittenborn
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2182

Before SPROUSE and CHAPMAN, Circuit Judges, and HARGROVE, United States District Judge for the District of Maryland, sitting by designation.