Opposition Brief — American Mining Congress v. Thomas

fs | Supreme Court, U.S,

() 4 ) (* EILED

OCTOBER TERM, 1985

AMERICAN MINING CONGRESS, ET AL., PETITIONERS

v.

LEE M. THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY

SECONDARY LEAD SMELTERS ASSOCIATION, INC., ET AL.,

PETITIONERS

V.

LEE M. THOMAS, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

CHARLES FRIED

Solicitor General

F. HENRY HABICHT, II

Assistant Attorney General

ROBERT L. KLARQUIST

SCOTT E. SLAUGHTER

Altorneys

FRANCIS S. BLAKE Department of Justice

General Counsel Washington, D.C. 20530

STEVEN E. SILVERMAN (202) 633-2217

Attorney

United States Environmental

Protection Agency

Washington, D.C. 20460

a Cale ss

ie eae at 5

QUESTIONS PRESENTED

1. Whether the United States Environmental Protec-

tion Agency (EPA) complied with public notice and com-

ment requirements of the Administrative Procedure Act

when it promulgated effluent limitations guidelines and

standards for the primary lead, zinc, copper, and

metallurgical acid plant subcategories of the nonferrous

metals industry under the Clean Water Act.

2. Whether the court of appeals applied the proper

standard under the Administrative Procedure Act in

reviewing EPA’s promulgation of effluent limitations

guidelines and standards for the secondary lead sub-

category of the non-ferrous metals industry.

(1)

TABLE OF CONTENTS

Page

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a abe wes Ga wees cece l

Neen ne kes eebeecaaeeseseas 2

a ee eee eee 5

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TABLE OF AUTHORITIES

Cases:

American Federation of Labor and Congress of Indus-

tries Organizations v. Donovan, 757 F.2d 330 ........ 8,9

American Paper Inst. v. EPA, 660 F.2d 954 ............ .)

American Petroleum Inst. v. EPA, 540 F.2d 1023, cert.

NN a na nk seen sc bse kavess 13

Baltimore Gas & Electric Co. v. Natural Resources De-

I I MOR, EP gw eee eens 10

BASF Wyandotte Corp. v. Costle, 598 F.2d 639, cert.

Se ee eee ‘ 13

Bowen v. American Hospital Ass’n, No. 84-1529 (June 9,

eh ie k Gaye a KK e Cae e es uenese 10

Chemical Manufacturers Ass’n v. Natural Resources De-

Sense Council, No. 83-1013 (Feb. 27, 1985) ........... 2, i2

Chocolate Manufacturer Ass’n v. Block, 755 F.2d 1098 .. 8

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

NES Beg SE 11

E.I. duPoint de Nemours & Co. v. Train, 430U.S.112... 2,7

EPA vy. National Crushed Stone Ass’n, 449 U.S. 64 ...... 13

Reynolds Metals Co. v. EPA, 760 F.2d 549 ............ 13

ee ee, y

South Terminal Corp. v. EPA, 504 F.2d 646 ........... i)

EPA v. State Water Resources Control Bd., 426 U.S. 200 2

Tanner’s Council of America, Inc. v. Train, 540 F.2d

ee eet h i ewes kk hsv Gbwesenes ses 13

Taylor Diving & Salvage Co. v. Department of Labor, 559

ee ck ck panes ccc eavea es tesa 9

Universal Camera Corp. v. NLRB, 340 U.S. 474 ........ 11

(IIT)

IV

Statutes and regulations: Page

Clean Water Act, 33 U.S.C. 1251 ef seq. .........-.+--: 2

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Miscellaneous:

48 Fed. Reg. (1983):

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49 Fed. Reg. (1984):

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SEE SL ARK G6 4 RREA TAS WERT WOEN CER EERE OS 14

In the Supreme Court of the Gnited States

OCTOBER TERM, 1985

No. 85-1741

AMERICAN MINING CONGRESS, ET AL., PETITIONERS

v.

LEE M. THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY

No. 85-1748

SECONDARY LEAD SMELTERS ASSOCIATION, INC., ET AL.,

PETITIONERS

v.

LEE M. THOMAS, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-33a)!

is reported at 780 F.2d 445.

JURISDICTION

The judgment of the court of appeals was entered on |

December 26, 1985. Petitions for rehearing and rehearing

en banc were denied on January 24, 1986. The petitions

for a writ of certiorari were filed on April 24, 1986. The

jurisdiction of the Court is invoked under 28 U.S.C.

1254(1).

'“Pet. App.” refers to the separately bound appendix in No.

85-1741.

(1)

STATEMENT

These two cases concern the validity of effluent limita-

tions guidelines and standards for the non-ferrous metals

industry promulgated by United States Environmental

Protection Agency (EPA) pursuant to the Clean Water

Act, 33 U.S.C. 1251 et seg. On petitions for review, the

court of appeals upheld the guidelines and standards (Pet.

App. la-33a).

1. Inthe Clean Water Act, Congress authorized EPA

to establish technology-based effluent limitations

guidelines and standards for categories of industrial

dischargers. See 33 U.S.C. 1311(b), 1314(b), 1316,

1317(a).2 On February 17, 1983, EPA published proposed

guidelines and standards for the nonferrous metals in-

dustry. 48 Fed. Reg. 7032-7126.3 The guidelines and

standards were based on data obtained by EPA from

responses to questionnaires sent to 319 firms, consulting

reports, and scientific literature. Pet. App. 7a-8a; 48 Fed.

Reg. 7044-7045 (1983). In the Federal Register publica-

tion, EPA announced that the proposed regulations were

supported by three major documents, including a

“Development Document” which explained the bases of

EPA’s technical conclusions. 48 Fed. Reg. 7032 (1983).

2? “Effluent limitations guidelines” concern existing industrial

dischargers (33 U.S.C. 1314(b)), with the exception of those sources

which discharge into publicly owned treatment works, which are

governed by “pretreatment standards” (33 U.S.C. 1317(b) and (c)).

New source performance standards concern new industrial dischargers

(33 U.S.C. 1316). See generally Chemical Manufacturers Ass’n v.

Natural Resources Defense Council, Inc., No. 83-1013 (Feb. 27,

1985), slip op. 1-8; E.J. duPont de Nemours & Co. v. Train, 430 U.S.

112, 116-121 (1977); EPA v. State Water Resources Control Bd., 426

U.S. 200, 203-209 (1976).

> EPA had previously promulgated effluent limitations guidelines

and standards and pretreatment standards for certain nonferrous

metals manufacturing subcategories. See 48 Fed. Reg. 7033-7034

(1983).

3

EPA made publicly available all three documents, in-

cluding the Development Document, for inspection and

copying (ibid.).

The initial comment period, which continued for 11

weeks, was reopened on two occasions. See 48 Fed. Reg.

50906 (1983); 48 Fed. Reg. 52604 (1983). EPA considered

the comments and, at least with respect to each petitioner

in these two cases, contacted the commenting party to

make further inquiry (Pet. App. 7a-8a). In light of these

comments, EPA revised several proposals and sought ad-

ditional data concerning others (id. at 8a). On March 8,

1984, EPA published final effluent limitations guidelines

and standards. 49 Fed. Reg. 8742-8831. The final ad-

ministrative record for the rulemaking was approximately

55,000 pages in length (85-1741 Pet. 5). The final rules,

like the proposed rules, provided guidelines and standards

for twelve subcategories within the general category of

nonferrous metals manufacturing. 49 Fed. Reg. 8743

(1984).

2. Petitioners, among others, challenged the validity

of the final effluent limitations guidelines for the non-

ferrous metals industry in a consolidated action in the

United States Court of Appeals for the Fourth Circuit.

Petitioners in No. 85-1741 argued, inter alia, that certain

final effluent limitations guidelines for subcategories of

the primary metals industry were invalid because they

departed so substantially from the proposed rules that

petitioners were deprived of adequate notice of, and a

meaningful opportunity to comment on, the final rules

(Pet. App. 9a, 13a-14a).4 EPA’s final rules, while basically

adhering to the effluent limitations guidelines and stand-

ards proposed,’ added that any plant unable to meet the

4 Because petitioners do not renew their other challenges to EPA’s

final rules, we do not address those contentions.

5 The final effluent limitations guidelines and standards were either

unchanged or less restrictive than those proposed.

4

effluent limitations by using the technology described in

the proposed rule (lime precipitation, settle, and filter

treatment technology (LS&F)) should also use “sulfide

precipitation” to achieve the further effluent reduction re-

quired (id. at 13a).° Petitioners complained below that

EPA failed to notify them that the agency might rely on

that additional method of waste treatment (id. at 13a-14a).

The court of appeals rejected petitioners’ claim on the

ground that there was “ample indication [in the record to

the proposed rule] that [petitioners] should reasonably

have known that EPA was considering sulfide precipita-

tion” (id. at 14a-15a). The court noted that the preamble

to the proposed rule solicited comments on alternative

treatment technologies and that the proposed Develop-

ment Document discussed in detail the advantages and

disadvantages of sulfide precipitation (id. at 15a).

Petitioners in No. 85-1748 argued, inter alia, that por-

tions of the final effluent limitations guidelines and stand-

ards for the secondary lead industry were invalid because

EPA had failed adequately to consider compliance costs,

used erroneous data, improperly rejected industry data,

and, as a result, imposed unachievable effluent limitations

guidelines and standards that lacked record support. Pet.

App. 2la-27a. The court of appeals rejected all of these

contentions and upheld EPA’s rulemaking (ibid.). The

court ruled that EPA had made a “careful analysis of com-

pliance costs and their economic impact” (id. at 23a), did

not act arbitrarily in selecting data, particularly in reject-

ing some of the data supplied by the industry (id. at

23a-24a), and otherwise had a reasonable basis in the ad-

® As explained by the court of appeals (Pet. App. 13a), sulfide

precipitation is based on the principle that the addition of sulfide to

wastewater will cause certain pollutants to precipitate out and in turn

to settle to the bottom of the solution where the solid product may

easily be removed. Lime precipitation operates in a similar fashion ex-

cept that lime ts used as the precipitating agent instead of sulfide.

ministrative record for the effluent limitations guidelines

and standards finally promulgated (id. at 2la-24a,

25a-27a). The court also held that petitioners’ challenge to

effluent limitations guidelines and standards for the pollu-

tant cadmium was not ripe (id. at 25a-26a).

ARGUMENT

The court of appeals’ decision is correct, does not con-

flict with any decision of any other court of appeals or of

this Court, and presents no issue warranting this Court’s

review.

1. a. Petitioners in No. 85-1741 contend that EPA

violated the Administrative Procedure Act (APA) public

notice and comment requirements because the final rules

relied upon a_ technology—sulfide precipitation—not

relied upon in the proposed rule. Petitioners, however,

mischaracterize the notice provided by EPA and misap-

prehend the APA’s procedural mandate, which has been

amply satisfied in this case. The APA requires only that an

agency make public “either the terms or substance of the

proposed rule or a description of the subjects and issues

involved.” 5 U.S.C. 553(b)(3). When promulgating rules

under the Administrative Procedure Act, an administra-

tive agency typically will revise proposed rules in response

to comments the agency receives—indeed, the agency

might well be faulted for not adequately considering the

comments if it did not. The agency is not, however, bound

to repropose every rule that it chooses to revise. A con-

trary rule could lead to endless proposed rulemakings and

thus to prolonged frustration of important statutory pur-

poses. Instead, an agency is normally obliged to publish a

new proposed rule, rather than a revised final rule, only

when two circumstances are present: (1) the revision is

substantial; and (2) absence of notice would deprive the

public of a meaningful opportunity to comment on the

revision. Neither circumstance is present in this case.

6

Petitioners’ complaint is not directed to any change in

the effluent limitations guidelines or standards between

the proposed and final rules, but rather merely to the

agency’s announcement in the final rules that a sup-

plemental control technology might be used to achieve the

level of effluent reduction required. The Clean Water Act

requires only that an industrial discharger meet applicable

effluent limitations and standards and does not direct the

discharger to adopt a particular control technology. See 33

U.S.C. 1311(b), 1314(b). Consequently, EPA’s addition of

a supplemental control technology was not, without more,

a substantial revision of EPA’s proposed rule.

In any event, even if the reference in the final rules to

the availability of a supplemental control technology

could properly be considered a substantial revision, peti-

tioners had adequate notice of that control technology at

the proposal stage. As the court of appeals found (Pet.

App. 14a-15a), there was “ample indication [in the record]

that [petitioners] should reasonably have known that EPA

was considering sulfide precipitation.” The Federal

Register notice of the proposed rules explained .that

chemical precipitation (which includes sulfide precipita-

tion) was one of the treatment technologies under con-

sideration by EPA and EPA specifically requested com-

ments on “the treatment technologies relied upon for this

regulation, and also other equally effective treatment

technologies.” 48 Fed. Reg. 7046, 7073 (1983) (emphasis

added). Even more fundamentally, the Development

Document, the importance of which EPA stressed in the

Federal Register notice and which EPA made publicly

available (48 Fed. Reg. 7032 (1983)), contained an exten-

sive discussion of sulfide precipitation. The Development

Document noted that sulfide precipitation is “highly

reliable,” and is effective in achieving incremental reduc-

tion of specific metals that are not fully removed by LS&F

technology under the circumstances petitioners main-

7

tained were present at their plants (A.R. 21718, 21727,

21729, 21730).’ And, as the court of appeals stressed (Pet.

App. 15a), “the Development Document contained several

charts on sulfide precipitation, including data on the per-

formance of sulfide-precipitation-sedimentation systems

and a comparison of the solubilities of hydroxides and

sulfides of selected metals.”

Petitioners nonetheless contend (85-1741 Pet. 5, 10-13)

that notice was inadequate because the Development

Document was not published in the Federal Register and

sulfide precipitation was just one of many control

technologies discussed in the Document. Concomitantly,

petitioners claim (id. at 13) that the court of appeals

misunderstood the nature of the Document, believing it to

be formally part of the proposal (/bid.). Both contentions

are unpersuasive. The central role of the Development

Document is not only well settled in administrative

rulemaking under the Clean Water Act (see E./. duPont de

Nemours & Co. v. Train, 430 U.S. at 132 n.23) but, as

noted above, was highlighted by EPA in its Federal

Register notice. A fundamental purpose of the Develop-

ment Document is to afford “a greater opportunity for

public input into the final [effluent limitation] regulations,

by giving notice of the general outlines of those regula-

tions” (ibid.). The Document need be neither formally

published in the Federal Register nor formally part of the

proposed regulation to serve this important function. Peti-

tioners, moreover, are particularly hard-pressed to suggest

(85-1471 Pet. 12-13) that they were unaware of the impor-

tance of the Document and its contents given that they re-

quested, received, and submitted comments on a draft of

the Document prior to publication of the proposed rules

(A.R. 18496-18506). As the court of appeals properly

’ Citations to the Administrative Record (A.R.) are taken from the

brief filed by the government in the court of appeals.

8

noted (Pet. App. 15a), “industry may not remain silent

during th[e] [comment] period only to complain upon ap-

peal that it was deprived of an opportunity to comment on

what it might reasonably have been apprised.”

Moreover, petitioners were not denied an opportunity

to challenge EPA’s adoption of sulfide precipitation as a

supplemental technology. The court of appeals carefully

considered petitioners’ objections to sulfide precipitation,

particularly their claim that the technology would not

reduce effluent concentrations to the required level (Pet.

App. 15a-18a). The court concluded that EPA had a

reasonable basis for including sulfide precipitation in the

final rules and therefore had not acted arbitrarily or

capriciously (id. at 17a-18a).

b. Petitioners incorrectly assert (85-1741 Pet. 16-18) that

the decision of the court of appeals conflicts with the deci-

sion of the District of Columbia Circuit in American

Federation of Labor and Congress of Industrial Organiza-

tions v. Donovan, 757 F.2d 330 (1985), and with the

Fourth Circuit’s own prior decision in Chocolate

Manufacturers Ass’n v. Block, 755 F.2d 1098 (1985). In

both Donovan and Chocolate Manufacturers Ass’n,

however, the agency had adopted a revised rule the

substance of which had not been placed in issue in the in-

itial Federal Register publication and defended its action

on the ground that comments from persons other than

those asserting inadequate notice had placed the revision

in question and thereby provided the necessary notice. See

Donovan, 757 F.2d at 338-339; Chocolate Manufacturers

Ass’n, 755 F.2d at 1103. Here, by contrast, EPA revised,

but did not fundamentally alter, the very rule that was the

focus of the proposal and about which the agency had in-

vited public comment. Moreover, EPA does not claim that

notice of the possible relevance of sulfide precipitation

technology was supplied by a comment. Instead, EPA

submits, and the court of appeals found, that notice was

9

provided by the initial Federal Register publication and

the contents of the Development Document. Petitioners,

therefore, can hardly rely on either case to claim unfair

surprise, particularly where, as here, the revision was part-

ly triggered by their comments that LS&F technology

would be insufficient and that additional treatment

technologies would be needed (see Pet. App. 13a; A.R.

26392, 26395, 26456, 26476-26477). See Donovan, 757

F.2d at 339-340 (“It would be passing strange for a party

which had recommended in its comment that certain

changes be made to a regulation later to complain that it

had inadequate notice of the possiblity that the regulation

might indeed by changed.”). Indeed, the decision below

merely exemplifies the commonsense notion, repeatedly

applied by the courts, that an agency “may make ‘substan-

tial changes’ in its original proposed rule if the changes are

a ‘logical outgrowth’ of the original proposal and the

notice and comments upon it.” Pet. App. 15a, quoting

American Paper Inst. v. EPA, 660 F.2d 954, 959 n.13 (4th

Cir. 1981); accord Sierra Club v. Costle, 657 F.2d 298,

352-353 (D.C. Cir. 1981); Taylor Diving & Salvage Co. v.

Department of Labor, 599 F.2d 622, 626 (Sth Cir. 1979);

South Terminal Corp. v. EPA, 504 F.2d 646, 659 (ist Cir.

1974).

c. Ultimately, therefore, the petition raises no signifi-

cant legal issue, but presents only a fact-bound dispute

with the court of appeals concerning the adequacy of the

notice petitioners received in the particular rulemaking at

issue. Petitioners’ claim was fully addressed by the court

below and further review is not warranted.

2. Petitioners in No. 85-1748 seek review on the ground

that the court of appeals did not apply the correct stand-

ard of judicial review in considering their challenges to

EPA’s rulemaking. Specifically, petitioners contend that

the court deferred excessively to EPA’s expertise by resolv-

ing conflicts in the evidence in the agency’s favor and

10

should instead have “scrutinize[d]” the agency decision in

“painstaking detail” as required by the Administrative

Procedure Act, which petitioners describe as “the only

defense private industry has against the carelessness and

caprice of the EPA.” 85-1748 Pet. 2-5, 14-19. According

to petitioners, agency regulations must be “carefully

tailored to promote a specific Congressional directive” and

“srounded upon a secure foundation in fact” (id. at 17).

Petitioners, however, misapprehend the role of judicial

review under the Administrative Procedure Act of agency

rule-making, particularly in cases, such as this one, involv-

ing highly technical issues within the expertise of the

federal agency. Petitioners also mischaracterize the ac-

tions of both the court of appeals and EPA.

a. The APA provides that a court may overturn infor-

mal agency rulemaking only if it is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. 706(2)(A). Under this standard, the

reviewing court’s role is confined to determining whether

the agency has “considered the relevant factors and ar-

ticulated a rational connection between the facts found

and the choice made.” Baltimore Gas & Electric Co. v.

Natural Resources Defense Council, Inc., 462 U.S. 87, 105

(1983). When, moreover, as in this case, the court is not

reviewing simple findings of fact, but is instead reviewing

agency determinations that, pursuant to the technology-

forcing mandate of the Clean Water Act, are necessarily

based on predictive judgments within EPA’s expertise

(i.e., the degree of effluent reduction achievable by new

and existing dischargers), “a reviewing court must general-

ly be at its most deferential” (id. at 103). See also Bowen v.

American Hospital Ass’n, No. 84-1529 (June 9, 1986), slip

op. 31 n.30 (plurality opinion) (commenting on recognized

expertise of EPA in environmentai area).

11

The court of appeals’ review of EPA’s rulemaking fully

comported with the applicable standard of judicial review.

The court “determin[ed] whether [EPA’s] ‘decision was

based on a consideration of the relevant factors and

whether there ha[d] been a clear error of judgment.’ ” Pet.

App. 7a, quoting Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 416 (1971). The court examined

“whether EPA’s technical judgments found support in the

record and whether they reflect the rule of reason” and

whether EPA had “fairly considered all significant data

and comments” (Pet. App. 7a). And the court deferred to

the expertise of EPA in disputes between the parties over

the weight to be given conflicting data in the adminis-

trative record (id. at Sa).

At bottom, therefore, petitioners’ claim that their peti-

tion presents an important question of administrative law

regarding the proper scope#f judicial review of agency ac-

tion is inaccurate. The court of appeals plainly applied the

correct standard of judicial review. The petition raises

only the issue whether the court below misapplied the cor-

rect standard of review in this particular case—an issue

that does not warrant this Court’s review. See Universal

Camera Corp. v. NLRB, 340 U.S. 474, 490-491 (1951)

(“power to review the correctness of application of the

[proper] standard [of judicial review of agency action]

ought seldom to be called into action”). Because,

moreover, it is clear that the court of appeals correctly ap-

plied that standard in upholding EPA’s rulemaking in this

case, further review would be particularly inappropriate.

b. As stressed by the court of appeals (Pet. App.

7a-8a), EPA amply satisfied APA notice and comment re-

quirements in its exhaustive investigation of the non-

ferrous metals industry prior to promulgating the final ef-

fluent limitations guidelines and standards. The agency

gathered data from responses to questionnaires sent to 319

firms representing 419 facilities, and from plant visits, in-

12

dustry consultations, and scientific journals (id. at 8a).

The agency prepared trip reports based on its follow-up

on-site visits to specific plants, allowing those plants

visited an Opportunity to comment on the report (/bid.).

The agency published proposed rules, made available

record material in support of the proposal (48 Fed. Reg.

7032 (1983)), provided substantial time and opportunity

for public comment, including a public hearing and a

public workshop (A.R. 26928-26986), solicited additional

data from industry through written communications (49

Fed. Reg. 8744-8755 (1984)), and remained in telephone

contact with companies throughout (see, e.g., Pet. App.

43a-45a). See generally id. at 8a. The resulting ad-

ministrative record of 55,000 pages reflects the careful and

considered attention EPA gave to what all must agree is a

difficult statutory assignment. See Chemical Manufac-

turers Ass'n v. Natural Resources Defense Council, Inc.,

No. 83-1013 (Feb. 27, 1985), slip op. 15-16 & n.24.

None of the specific claims petitioners renew in this

Court suggests a contrary conclusion. Petitioners, for ex-

ample, argue that EPA relied upon unreliable data in pro-

mulgating lead content effluent limitations guidelines

(85-1748 Pet. 10-12). In particular, petitioners assert that

“EPA improperly gave data [from a battery manufactur-

ing plant] too much weight in promulgating the concentra-

tion limits,” gave insufficient weight to industry data, and

failed to identify a secondary lead plant currently capable

of complying with the limitations (id. at 11-12). The court

of appeals thoroughly considered and properly rejected

these contentions (Pet. App. 24a-25a). The court of ap-

peals correctly concluded that EPA’s use of data from the

battery manufacturing plant was “not unreasonable”

because EPA had also relied on data based on the per-

formance of plants with wastewater of lead concentration

levels comparable to those of petitioners’ plants (ibid.); see

generally 49 Fed. Reg. 8751-8752 (1984)). The court

13

further concluded that EPA had not acted arbitrarily in re-

jecting other data submitted by petitioners because, as

EPA had explained (Pet. App. 25a), petitioners had not

shown that the data represented exemplary operation, as

required by the Clean Water Act. Petitioners may con-

tinue to disagree with those conclusions, but their asser-

tion that the court of appeals neglected to review and

carefully consider their objections is groundless.

Petitioners’ additional argument that the court of ap-

peals failed to consider the absence of a showing that a —

secondary lead plant was currently meeting those limita-

tions similarly lacks merit. It is well settled that the ef-

fluent limitations and standards petitioners challenge can

be and were properly based on the performance levels

which other industries have achieved by using the underly-

ing treatment technology. See, e.g., Reynolds Metals Co.

v. EPA, 760 F.2d 549, 559 (4th Cir. 1985); BASF Wyan-

dotte Corp. v. Costle, 598 F.2d 637, 645 (Ist Cir. 1979),

cert. denied, 444 U.S. 1096 (1980); American Petroleum

Inst. v. EPA, 540 F.2d 1023, 1035-1036 (10th Cir. 1976),

cert. denied, 430 U.S. 922 (1977).8

8 The effluent limitations guidelines at issue are generally based on

“best available [control] technology economically achievable” (see 33

U.S.C. 1311(b)(2)(A), 1314(b)(2)), which this Court has described as

reflecting “a commitment of the maximum resources economically

possible to the ultimate goal of eliminating all pollution discharges.”

EPA v. National Crushed Stone Ass’n, 449 U.S. 64, 74-75 (1980).

Petitioners mistakenly cite (85-1748 Pet. 11-12) Tanner’s Council of

America, Inc. v. Train, 540 F.2d 1188 (4th Cir. 1976), for the proposi-

tion that EPA must demonstrate that an existing secondary lead plant

currently meets its promulgated BAT limitations (85-1748 Pet. 11-12).

In Tanner’s Council, the Fourth Circuit held merely that some existing

facility should be meeting the effluent limitations; the court did not

rule that one of the existing facilities in the particular industry

category or subcategory to which the proposed effluent limitation will

apply must already meet the limitation. 540 F.2d at 1192 n.10. Indeed,

the court in Tanner’s Council specifically held that EPA may establish

effluent limitations guidelines and standards based on the perform-

14

Equally unpersuasive is petitioners’ claim (85-1748 Pet.

12) that the court of appeals ignored their argument that

EPA improperly relied on a filtration technology that the

agency had considered and rejected when promulgating ef-

fluent limitations guidelines for other industries. The

court of appeals directly addressed this argument and held

that EPA had not acted arbitrarily (Pet. App. 22a-24a).

The court stated that “such inter-industry comparisons are

not determinative. The question is whether filtration

should be required for the secondary lead industry, not

whether it should be required for some other industry.”

Pet. App. 22a-23a (citations omitted). The court in turn

examined EPA’s assessment of the costs of compliance in

the secondary lead industry, including the economic im-

pact of compliance, and concluded that EPA fully con-

sidered the costs of achieving effluent reduction as re-

quired by the Clean Water Act (id. at 23a-24a). Peti-

tioners’ claim that their arguments were ignored by the

court of appeals and by EPA therefore is flatly con-

tradicted by the record.

ance of facilities in other industrial categories. Jd. at 1192. That deci-

sion, therefore, is entirely consistent with the same court of appeals’

decision in this case.

9 As the court of appeals noted (Pet. App. 23a n.2 (emphasis

added)), “that the agency may undertake such comparisons in

establishing BAT for a particular industry poses no anomaly.

* * * * * (There is] a difference in terms of the statutory purpose be-

tween an industry pleading comparisons as a basis for the most lenient

guidelines and the agency utilizing comparisons in assessing [BAT]”.

In addition, EPA specifically found that larger quantities of the more

toxic pollutants are removed by multimedia filtration in the secondary

lead category than in other industries and that the use of filtration by

secondary lead smelters would remove on an annual basis over one ton

of toxic pollutants more than the next available, less stringent treat-

ment option. See 49 Fed. Reg. 8762, 8767 (1984); A.R. 41742-41743,

44389-44438.

15

Petitioners’ final two points of contention —(85-1748

Pet. 12-13) that the court of appeals gave short shrift to

their claims that EPA’s “cadmium limitation standards”

were invalid and that EPA had violated APA notice and

comment requirements—raise no issue requiring this

Court’s attention. With respect to the former, the court of

appeals correctly held that petitioners’ claim was not ripe

(Pet. App. 25a-26a). EPA did not promulgate any cad-

mium limitations or standards applicable to secondary

lead smelters and instead left their development and im-

position to the permit-issuer or control authority in in-

dividual cases. Consequently, there are no cadmium

limitations or standards for petitioners to challenge. If and

when EPA chooses to promulgate cadmium limitations or

standards on an industry-wide basis, or a permit-issuer or

control authority decides to impose such limitations on a

specific secondary lead facility, there will be ample oppor-

tunity for the facility to challenge any limitations or stand-

ards imposed. Petitioners’ mere speculation that a permit-

issuer might look to cadmium limitations applicable to

other industries does not give rise to a justiciable con-

troversy.

Petitioners’ claim (85-1748 Pet. 13) that the court ig-

nored EPA’s violations of “fundamental principles of ad-

ministrative law” in promulgating the lead limitations and

standards lacks any record support. The court of appeals

specifically held that EPA had “conducted its rulemaking

in conformity with the [APA]” and the court, as discussed

above, thoroughly reviewed petitioners’ contentions that

EPA had relied on erroneous data and improperly rejected

industry data. Pet. App. 24a-25a, 32a. EPA, moreover,

made publicly available the key methodologies and data

underlying its lead limitations and standards, and twice

reopened the public comment period to solicit additional

public comment on those data and methodologies. See 48

Fed. Reg. 50906-50907 (1983); 48 Fed. Reg. 52604-52605

16

(1983). Petitioners’ claim that EPA violated the APA by

not notifying petitioners that the agency planned to dis-

count certain industry data borders on the frivolous. Such

a notice requirement would lead to a never-ending cycle of

public notice and comment and thereby frustrate impor-

tant statutory purposes, which, in the case of the Clean

Water Act, Congress determined must be implemented by

the agency within specified time deadlines.

c. In sum, petitioners’ claim that the court of appeals

applied the incorrect standard of judicial review is wholly

insubstantial. The court clearly articulated the proper

standard of review and applied that standard correctly in

upholding EPA’s rulemaking.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

F. HENRY HABICHT, II

Assistant Attorney General

ROBERT L. KLARQUIST

SCOTT E. SLAUGHTER

Altorneys

FRANCIS S. BLAKE

General Counsel

STEVEN E. SILVERMAN

Altorney

United States Environmental

Protection Agency

JUNE 1986

U.S. GOVERNMENT PRINTING OFFICE: 1986-—491-507/20255