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Kennecott v. EPA

ELR Citation: 16 ELR 20435
Nos. Nos. 84-1288(L) et al., 780 F.2d 445/23 ERC 1793/(4th Cir., 12/26/1985) reh'g denied Jan.24, 1986

The court holds that the Environmental Protection Agency (EPA) acted in conformity with the Federal Water Pollution Control Act and the Administrative Procedure Act (APA) when it issued best available technology (BAT) effluent limitations for the nonferrous metals manufacturing industry. The court holds that EPA acted within its discretion when it set effluent limits for the primary metals portion of the nonferrous metals industry. EPA reasonably rejected industry data and based the effluent limits on a data base compiled from analysis of wastewater from related industries. The court rules that EPA did not violate the APA's notice and comment requirements when, in response to industry complaints that it would not be able to achieve the proposed limits, EPA added a new treatment option, sulfide precipitation, as part of the final BAT. There is no indication that EPA acted in bad faith and the development document gave the industry notice that EPA was considering it. The court holds that EPA did not abuse its discretion in deciding to set the BAT and new source performance standards at zero discharge for a step in the primary lead manufacturing process called blast furnace slag granulation since existing plants achieve zero discharge by recycling 100 percent of the wastewater generated by this process step. It future primary lead plants are unable to meet the zero discharge NSPS due to changes in the smelting process, EPA will consider a petition for new rulemaking. EPA did not act arbitrarily in refusing to grant the primary lead industry a catastrophic storm allowance, which permits plants to discharge additional wastewater from surface impoundments under emergency situations, because of the environmental hazards posed by such impoundments. Also, EPA was not required to set allowances for wastewater not generated by the manufacturing process. The court rules that EPA did not violate the APA's notice and comment requirement by promulgating final pretreatment standards for the primary zinc and lead industries without proposing such standards, since EPA had been unaware of the existence of indirect dischargers in these categories and set the standards equal to BAT, which was extensively commented on as proposed for direct dischargers.

The court next upholds the effluent limitations for the secondary lead industry. The court holds that EPA had a reasonable basis for deciding that a step in the BAT process called multimedia filtration is economically achievable. That EPA has not required filtration for other industries is not dispositive and EPA did carefully consider the cost and economic impact of the requirement on the secondary lead industry. The court holds that EPA's rejection of industry data and selection of data on which it based the effluent limits was reasonable. It also holds that whether the industry can achieve cadmium limitations set for other industries is not ripe for review. The application of these limitations, which are set by individual permit writers on a plant-by-plant basis, is highly speculative and may be challenged in court if a permit writer does set cadmium limits for a plant. The court also holds that EPA's selection of flow allowances for the various steps in the secondary lead smelting process was reasonable. EPA's denial of a flow allowance based on evidence that two plants recycle 100 percent of the wastewater and reliance on flow data from plants with relatively low allowances was consistent with Congress' instruction to base effluent limits on the best available technology.

Finally, the court holds that EPA was not arbitrary or capricious in setting effluent limits for the columbium-tantalum industry. EPA did not deprive petitioner of notice and opportunity to comment on the effluent limits for ammonia when it failed to publish data used by the agency to confirm its results since other commenters discussed petitioner's concerns. EPA reasonably excluded petitioner's data in calculating flow allowance, since petitioner's plant discharged 15 times more wastewater than the plant on which EPA based the standards.

Counsel for Petitioner
James R. Walpole
Holland & Hart
Suite 1200, 1875 Eye St. NW, Washington DC 20005
(202) 872-1101

Robert N. Steinwurtzel, Stephen E. Roady, Mary Douglas Dick
Brown, Roady, Bonvillian & Gold
Suite 300, 1300 19th St. NW, Washington DC 20036
(202) 331-9420

Theodore L. Garrett
Covington & Burling
1201 Pennsylvania Ave. NW, P.O. Box 7566, Washington DC 20044
(202) 662-6000

Counsel for Respondent
Michael W. Steinberg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3144

Steven E. Silverman
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20036
(202) 475-8040

Before PHILLIPS, MURNAGHAN, and WALKINSON, Circuit Judges.