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RSR Corp. v. Browner

ELR Citation: 26 ELR 21353
Nos. 95 Civ. 0354, 924 F. Supp. 504/42 ERC 2146/(S.D.N.Y., 04/30/1996)

The court affirms the U.S. Environmental Protection Agency's (EPA's) decision that production rate data a secondary lead smelting plant submitted to EPA under the Federal Water Pollution Control Act (FWPCA) are "effluent data" ineligible for confidential treatment under exemption 4 of the Freedom of Information Act (FOIA). The court first holds that a de novo review of EPA's decision is not required because EPA's fact-finding procedures were adequate. The court next holds that EPA's decision that the plant's monthly production data are effluent data was reasonable, and therefore was not arbitrary, capricious, or otherwise an abuse of discretion. Because the pretreatment standard applicable to the plant is expressed in terms of pounds of pollutant per million pounds of lead produced from smelting, it was reasonable for EPA to conclude that the production rate data were "necessary" to determine the amount of pollutants that the plant was authorized to discharge. The court then holds that EPA Regional Counsel's failure to explicitly state that EPA actually used the production rate data to determine the plant's compliance with the FWPCA is inconsequential. Implicit in the Regional Counsel's statement that the production data at issue were necessary to determine the allowable pretreatment standards for the plant is a representation that the data were used to determine the allowable standards. Moreover, the regulation defining effluent data does not require that the information must actually have been used to determine compliance; it simply provides that such information must be "necessary" to determine factors relating to compliance. The court further holds that the plant is a "point source" that is subject to the FWPCA's reporting and disclosure requirements. The court rejects the plant's argument that because the wastewater generated by the plant is treated at a publicly owned treatment works (POTW) before it is discharged into a river, the plant is not a point source. The court concludes that the FWPCA's plain language and remedial purposes, as well as other court decisions, support finding that a facility that discharges wastewater into a POTW is a point source. The court next holds that disclosure of the production rate data under FOIA would not violate the Trade Secrets Act because the disclosure is authorized by the FWPCA. Furthermore, the data were not submitted voluntarily so as to be eligible for confidential treatment under 40 C.F.R. §§2.302(e) and 2.201(i).

Counsel for Plaintiffs
Philip H. Gitlin
Whiteman, Osterman & Hanna
One Commerce Plaza, Albany NY 12260
(518) 487-7600

Counsel for Defendant
Mary Jo White
U.S. Attorney's Office
One St. Andrew's Plaza, New York NY 10007
(212) 791-0008