American Paper Institute v. Train

No. 74-1480 (D.C. Cir. August 6, 1976)

ELR Digest

Petitioners challenge the EPA Administrator's action in promulgating regulations establishing effluent limitations and new source performance standards for the pulp, paper and paperboard industries, and appeal a lower court of appeals. The D.C. Circuit regulations lies exclusively in the court of appeals. The D.C. Circuit affirms the district court's dismissal, holds valid the EPA regulations, and dismisses the petitions for review. Reiterating the interpretation of the statutory structure it enunciated in American Frozen Food Institute v. Train, 6 ELR 20485 (D.C. Cir. May 11, 1976), the court holds that EPA has the authority to promulgate effluent limitations guidelines pursuant to both §§ 301 and 304 of of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA), 33 U.S.C. §§ 1311, 1314, and that review is therefore lodged exclusively in the court of appeals under § 509(b)(1), 33 U.S.C. § 1359(b)(1). This view of the statute is contrary to that expressed in CPC International v. Train, 515 F.2d 1038, 5 ELR 20392 (8th Cir. 1975), but is in agreement with the holdings on this issue in American Iron & Steel Institute v. EPA, 526 F.2d 1027, 6 ELR 20068 (3d Cir. 1975), American Meat Institute v. EPA, 526 F.2d 442, 6 ELR 20029 (7th Cir. 1975), Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 6 ELR 20467 (2d Cir. Apr. 28, 1976), E.I. Du-Pont de Nemours & Co. v. Train, 528 F.2d 1136, 6 ELR 20117 (4th Cir. 1975), cert. granted, 44 U.S.L.W. 3585 (U.S. Apr. 20, 1976), and American Petroleum Institute v. EPA, 526 F.2d 1343 (10th Cir. 1975). EPA was also correct in setting the limitations as single numbers since the permit issuing authority will be able to apply any discharge limitation between the national ceiling and zero it deems appropriate for a specific plant. The court then applies the "arbitrary and capricious" standard of review in evaluating petitioners' specific challenges to the validity of the regulations.

The Administrator adequately considered both the total cost of the 1977 effluent limitations in relation to the benefits to be achieved and the cost of the 1983 standards pursuant to §§ 304(b)(1)(B), 304(b)(2)(B) and 306. He also fulfilled his obligation under §§ 304 and 306 to consider non-water quality environmental impact and energy requirements in establishing both effluent limitations and new source performance standards.

Petitioners err in asserting that the FWPCA precludes in-plant control measures as part of the 1977 best practicable control technology currently available standard, since such internal control measures may be included if they are considered normal practice within industry. Hooker Chemicals, supra; Tanners Council of America v. Train, 6 ELR 20379 (4th Cir. Mar. 10, 1976). Petitioner is also mistaken in asserting that the 1977 effluent limitations may not be based upon the average of the best performing mills in each subcategory, and that by specifying allowable discharge levels EPA has failed to identify the degree of effluent reduction attainable through application of the 1977 technology as required under § 304.

The court holds further that petitioners have failed to show that the Administrator erred by setting biological oxygen demand and total suspended solid standards for 1977 which are not practicable. EPA's 1983 limitations for biological oxygen demand are rationally based on actual raw waste data for mills operating today and thus must be upheld. The 1983 total suspended solids limitations are similarly upheld because they are based on a reasonable projection of a 60 percent reduction below the 1977 discharge levels through application of mixed media filtration, a technology which has been demonstrated. Moreover, in setting the 1983 color effluent limitations, the agency adequately responded to petitioners' comments on color removal, and did not establish limitations that cannot be met by the prescribed technologies of minimum lime treatment and reverse osmosis. Petitioners' assertion that color is merely objectionable on aesthetic grounds and has no harmful effect on receiving waters is in error, since the record supports a judgment that color is a major pollutant.

The court also upholds EPA's new source performance standards against a number of the same objections. The record as a whole shows that the regulations represent a reasonable exercise of the agency's discretion.

The full text of this opinion is available from ELR (54 pp. $6.75, ELR Order No. 1079).

Counsel for Petitioners
Thomas H. Truitt
Charles Fabrikant
David R. Berz
Charles S. Fax
Truitt, Fabrikant, Bucklin & Lenzer
910 17th St., NW
Washington DC 20006
(202) 872-8155

Counsel for Respondent
Thomas F. Bastow
Edmund B. Clark
Martin Green
Raymond Zagone
Department of Justice
Washington DC 20530
(202) 739-8200

Bruce Diamond
Office of General Counsel
Environmental Protection Agency
Washington DC 20460
(202) 755-2500

Counsel for Amicus Curiae National Resources Defense Council, Inc.
Edward L. Strohbehn, Jr.
Natural Resources Defense Council, Inc.
917 15th St., NW
Washington DC 20005
(202) 737-5000

Robb, J., joined by Wilkey & Solomon,^* JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]

* Senior District Judge, District of Oregon, sitting by designation.