National Renderers Association v. Environmental Protection Agency

No. 75-1182 (8th Cir. August 30, 1976)

ELR Digest

The Eighth Circuit remands EPA's new source performance standards for rendering operations. EPA must reformulate the standards to take into account the reasonableness of the cost of the best available control technology and the relationship of the new source standards to the 1983 best available technology standards for existing plants. Petitioners sought review of the new source standards promulgated under § 306 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1316, ELR 41101, that apply to plants that render animal wastes from packing plants and dead aniaml stock from farms into animal and poultry feed and tallow. 40 C.F.R. §§ 432.100-.106. The standards are to be met by plants whose construction begins after the effective date of the regulations, Jan. 3, 1975. Plants that process less than 75,000 pounds of raw material per day are exempt. Id. § 432.101(b). EPA must consider the cost in determining the greatest degree of effluent reduction achievable with the "best available demonstrated control technology," 33 U.S.C. §§ 1316(a)(1), 1316(b)(1)(B), and whether the cost is reasonable, CPC International, Inc. v. Train, 6 ELR 20728 [digest] (8th Cir. Aug. 18, 1976) (CPC II). EPA must fully explicate its reasoning. Appalachian Power Co. v. EPA, 477 F.2d 495, 4 ELR 20310 (4th Cir. 1973). Petitioners do not challenge EPA's determination that currently available control technology exists that will enable new rendering plants to meet the proposed new source standards.

EPA's decision that air scrubber water and equipment for the segregation of drainage not be included in the cost of new source technology is neither arbitrary nor capricious, since the equipment would be installed in any well-designed new plant even without the new source standards. However, EPA's decision that an equalization tank and air flotation system can be excluded is arbitrary, since the cost for initial installation is must less than their cost as add-on equipment. Similarly, the pump and piping necessary to recirculate condenser water must be included in the technology cost. EPA must reconsider the cost, size, and design of the lagoon system, but need not consider the cost of a sand filtration system (apart from land acquisition).

EPA must reconsider the cost data used in arriving at its economic viability figures, since the cost figures were stale and the economic impact analysis for new plants was insufficient to produce profitability conclusions. The new source technology would add costs to new plants of more than double the amount used by EPA in its economic analysis. EPA must calculate the impact of the cost of controls on income, cash flow, and invested capital as well as on the annual incremental cost of effluent controls.

EPA has not satisfactorily explained why the new source standards allow greater effluent discharges than the 1983 standards, even though identical technology can be used to meet both standards. If EPA feels that no new plants could be built at the cost of meeting lower discharges, it should so indicate. Because of the unique nature of this industry, EPA may wish to include factors of geography or plant size in setting the new source standards.

The court interprets EPA's pretreatment standards for rendering plants to allow unlimited discharges of "compatible" (able to be removed by public treatment works, 40 C.F.R. § 128.131) pollutants, which make up all effluents discharged from rendering plants. These standards must be revised to the extent that they incorporate the vague language concerning "excessive" discharges disapproved in CPC International, Inc. v. Train, 515 F.2d 1032, 5 ELR 20392 (8th Cir. 1975).

Petitioners cannot invoke judicial review of EPA's failure to prepare an inflationary impact statement pursuant to Executive Order No. 11821, 39 Fec. Reg. 41501 (1974), since the Order is not a legal framework enforceable by private civil action. Independent Meat Packers Ass'n v. Butz, 526 F.2d 228 (8th Cir. 1975), cert. denied, U.S. , 96 S. Ct. 1461 (1976).

The full text of this opinion is available from ELR (23 pp. $3.00, ELR Order No. C-1085).

Counsel for Petitioner
Edward W. Warren
Kirkland, Ellis & Rowe
1776 K St., NW
Washington DC 20006
(202) 833-8400

Counsel for Respondent
Lloyd S. Guerci
Land and Natural Resources Division
Department of Justice
Washington DC 20530
(202) 739-2717

Heandy, J., joined by Gibson, C.J. & Webster, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]