ELR Citation: ELR 20076
No(s). s. 87-4849 et al (5th Cir. Oct 10, 1989)

The court clarifies aspects of its earlier decision that generally upheld the Environmental Protection Agency's (EPA's) Federal Water Pollution Control Act (FWPCA) effluent limitations for the organic chemicals, plastics, and synthetic fibers industries. The court first clarifies its prior holding related to the best practicable technology (BPT), holding that it does not have jurisdiction to require EPA to process petitioners' applications for fundamentally different factors (FDF) variances in a more expeditious manner, or stay the regulations pending EPA's actions. Further, plant-specific claims, raised as objections to EPA's categorical rulemaking, must be raised in an FDF variance proceeding, not in a proceeding of review of the national rules. Finally, EPA's failure to consider the actual cost of installing entirely new treatment systems at three of petitioners' plants does not distort EPA's overall cost assessments sufficiently to undermine the validity of the BPT limits as a whole.

Next, the court clarifies that petitioners were fairly apprised that phenol might be subject to pretreatment standards for exising sources (PSES). The record demonstrates that EPA had considered approaches that would regulate phenol, and EPA made clear in its 1986 proposal that PSES would regulate any pollutant that EPA had found to be removed less effectively by publicly owned treatment works (POTWs). The court clarifies that PSES cannot be required to be relaxed by subcategorization for users of allegedly exemplary POTWs, until EPA promulgates regulations addressing the presence of toxic pollutants in sludge.

The court next clarifies best available technology (BAT) issues. The court upholds EPA's use of the recognized statistical technique of weighted averaging as within EPA's broad discretion in the choice of statistical techniques. The court further upholds EPA's decision not to modify its sampling data as rational and within its discretion, even though the sampling did not account for whether the influent streams were "natural" or "diluted" where measured. The court upholds EPA's calculation of variability factors from less than 100 percent of the data and concludes that EPA's editing criteria were designed to select a representative group of well-operated plants utilizing BAT technology. It was thus reasonable for EPA to exclude individual data points representing the most extreme departures from normal operation as caused by quality-control problems.

In the area of achievability of the BAT limitations for volatile pollutants based on steam-stripper technology, the court upholds EPA's exclusion of an isolated and extremely high discharge as reasonable and EPA's determination of the "best" plant upon which to base BAT limitations on a pollutant-by-pollutant basis. The court further holds that EPA's useof data, from three end-of-pipe plants, in designating in-plant biological treatment as the model technology for the treatment of 20 priority pollutants, is arbitrary and capricious. The regulations thus must be remanded to EPA for further rulemaking proceedings. Finally, the court orders three complexed metals erroneously included by EPA to be stricken from an appendix to the regulation.

[The court's previous opinion appears at 19 ELR 20989.]

Counsel for Petitioners
Theodore L. Garrett, Corinne A. Goldstein, Jay L. Smith
Covington & Burling
1201 Pennsylvania Ave. NW, P.O. Box 7566, Washington DC 20044
(202) 662-6000

Counsel for Respondent
Beth S. Ginsberg, Ass't Attorney General; Margaret N. Stand, Chief, Environmental Defense Section
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611 Ben Franklin Station, Washington DC 20044
(202) 633-2689

Dov Weitman, Francis S. Blake
Office of General Counsel
U.S. Environmental Protection Agency, 401 M St. SW, Washington DC 20460
(202) 475-8040

Counsel for Intervenor
Ronald J. Wilson, Robert Wayne Adler
Wilson & Cotter
1531 P St. NW, Washington DC 20036
(202) 232-3601

Before, RUBIN, GARZA, and KING, Circuit Judges.