BASF Wyandotte Corporation v. Costle

Nos. 77-1042; -1059; -1085; -1153; 78-1417; -1428; -1454; -1462 (598 F.2d 637, 13 ERC 1193) (1st Cir. May 7, 1979)

ELR Digest

Pesticide manufacturers petitioned for review of final Environmental Protection Agency (EPA) regulations, 40 C.F.R. Part 455, setting effluent limitations for pollutant discharges by the pesticide industry, alleging both procedural and substantive errors. The court rules that the Agency did not violate the requirements of the Administrative Procedure Act in deciding to merge three subcategories of dischargers specified in the interim regulations. Petitioners had fair notice of and opportunity to comment upon subcategory consolidation and cannot now complain because EPA accepted their criticism of the interim provision but chose an alternative contrary to their recommendation for the final regulations. Nor was a new round of comments required on additional discharge data because petitioners had the opportunity to comment upon both EPA's methodology in calculating effluent limitations from the discharge data and the similarity of the treatment systems of seven of the nine data base plants to other plants.

The court approves EPA's reliance on gas and thin layer chromatography as appropriate scientific methodologies for detecting organic pesticide residues and EPA's reliance on the data produced by its second private contractor. The court also concludes, with one minor reservation regarding apparently inaccurate data from one plant, that EPA has demonstrated that hydrolysis and carbon absorption are available and effective treatment techniques that are appropriately required of pesticide manufacturing facilities. The court furthermore affirms the Agency's adoption of the requirement that all manufacturers of organic, nonmetallo pesticides meet the same effluent limitation as well as its determination that the costs of these effluent controls are not wholly out of proportion to the benefits to be achieved.

The court remands for reconsideration the zero discharge standard for process waste water from metallo organic pesticide plants after finding that EPA did not consider the costs it will impose on the one discharger not now in compliance. EPA had sufficient reliable data, however, to conclude that a zero discharge standard is the best practicable control technology currently available for the pesticide formulators and packagers subcategory, and it adequately considered both the cost/benefit comparison of this standard and its non-water quality environmental impacts in the form of sludge disposal.

Noting that the two points on which the regulations must be remanded should not pose a serious obstacle to final approval of the rules, the court retains jurisdiction over the case in order to bring it to a speedy conclusion once the Agency has revised the record and made any necessary corrections.

The full text of this opinion is available from ELR (52 pp. $6.50, ELR Order No. C-1184).

Counsel for Petitioners
Douglas E. Kleiver, Robert C. Barnard, Charles F. Lettow, John S. Magney
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 223-2151

J. D. Fleming, Jr., D. Robert Cumming, Jr., John H. Fleming
Sutherland, Asbill & Brennan
1666 K St. NW, Washington DC 20006
(202) 872-7800

Counsel for Respondents
Paul M. Kaplow; James W. Moorman, Ass't Attorney General; Angus Macbeth
Land and Natural Resources Division
department of Justice, Washington DC 20530
(202) 633-2831

colburn T. Cherney; James A. Rogers, Assoc. General Counsel; Steven Schatzow, Deputy Assoc. General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Coffin, J., joined by Bownes & Mazzone, J.J., sitting by designation.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]