Petition for Writ of Certiorari — American Mining Congress v. Thomas

Supreme Court brief1986

Ask Donna

What actually matters in this document.

Text

8571748

{

No. - ,

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

THE SECONDARY LEAD SMELTERS ASSOCIATION, INC..

and

GULF Coast LEAD Company, INC.

Petitioners,

WILLIAM D. RUCKELSHAUS, et al..

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

PauL D. CULLEN

Counsel of Record

RoBERT N. STEINWURTZEL

THOMAS J. HAMILTON

COLLIER, SHANNON, RILL & Scorr

1055 Thomas Jefferson Street, N.W.

Suite 308

Washington, D.C. 20007

(202) 342-8400

Attorneys for Petitioners

TELLIER

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED

This case presents the question whether a United

States Court of Appeals abdicates the judicial review

responsibility it has under the Clean Water Act of

1977, 33 U.S.C. § 1869, and the Administrative Pro-

cedure Act (‘“‘APA’’), 5 U.S.C. § 706, when it fails

entirely to acknowledge arguments petitioners made

challenging the rulemaking of the Environmental Pro-

tection Agency (“EPA’’), and, recognizing that the

subject matter is complex and the record voluminous,

merely defers in each instance to the Agency’s de-

cision as not constituting an abuse of discretion. This

case raises a fundamental question regarding the de-

gree of care and scrutiny with which a reviewing

court must examine the rulemaking record of the

EPA.

PARTIES TO THE PROCEEDING

Petitioner, the Secondary Lead Smelters Associa-

tion, Inc. (‘‘Association’’), is a non-profit trade asso-

ciation of secondary lead smelters that represents

approximately 85 percent of the secondary lead smelt-

ing capacity in the United States. Petitioner, Gulf

Coast Lead Company, Inc., is a secondary lead smelter

and is a member of the Association.!

‘In the proceeding below, the following were also parties:

American Mining Congress, AMAX Inc., ASARCO Incorpo-

rated, St. Joe Minerals Corporation, Kennecott, GTE Products

Corporation and Mallinckrodt, Inc.

iil

TABLE OF CONTENTS

PAGE

eS ]

Ne nL. 5 cca cinsevencavcabiacnstecescscaves 2

isis sccsnananacnadcnaessessesvaveressnseses 2

RII I WOME CAME oo isnssncsccsccncacsceasescssssessees 2

1. The EPA Rulemaking Proceeding ............. 5

2. Petitioners’ Challenge to EPA’s Rulemak-

me tm te Fourth Circuit .......................... 6

3. The Failure of the Fourth Circuit to Un-

dertake Meaningful Review of the EPA's

Rulemaking and to Consider Petitioners’

sac aensndanibiassasentansshass

REASONS FOR GRANTING THE WRIT .............ceccceeeeeee

1. The Fourth Circuit Abdicated its Respon-

sibility to Give Meaningful Judicial Review

to the EPA’s Rulemaking ..................0000008.

2.The Decision Below Obviates Challenges

SE UNMET 5. .sccscnscngeusensescconesesscens

Nee ccnuabueamevevsnnsecees

APPENDIX A - Opinions Below ...............ccsssseeessseeees

APPENDIX B - Petition for Rehearing and Suggestion

I OU I sos ca casnarensuacvasserseaccecses

APPENDIX C - Statutory Authority ................c

TABLE OF AUTHORITIES

CASES: Page

American Iron & Steel Institute v. Environmental

Protection Agency, 526 F.2d 1027 (8rd Cir.

RUPEE i heotantaces cokcbs een encadoas dane rkcdandeduianeteusobeareaas 7

American Meat Institute v. Environmental Protection

Agency, 526 F.2d 442 (7th Cir. 1975) ............

American Tunaboat Association v. Baldridge, 738

ae SOE Ge Ce. IED | sesercksventciesecesirenssions

Bowman Transportation, Inc. v. Arkansas - Best

Freight System, Inc., 419 U.S. 281 (1974). ..... 15

Chocolate Manufacturers Association of the United

States v. Block, 755 F.2d 1098 (4th Cir.

BID cavaccaccticmbcdudehon leainese edeieraecaudimtiaeasasanpconionss 13

Cities of Carlisle and Neola, Iowa v. Federal Energy

Regulatory Commission, 741 F.2d 429 (D.C. Cir.

RN aris earache aianlataaariipadeienttincans 16

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

LS e: AE PEE” acs cisuknekanddcasanonshedsvasemibandaioncadnones 14

Cleveland Electric Illuminating Co. v. Environmen-

tal Protection Agencu, 603 F.2d 1 (6th Cir.

DUT ' incticiscocecctea nverokcstbiienianienesinctaarceboaion 16

FMC Corporation v. Train, 5389 F.2d 973 (4th Cir.

RIPTD o asidicpacesxeeanedenlons Cease uci aceaieeaionranens 7

Frisby v United States Department of Housing and

Urban Development, 755 F/2d 1052 (8rd Cir.

DUNE edb tdc cuss incsiesanctnienisn ach menendoracaeiaiatasioietbkin 15

Hooker Chemicals & Plastics Corp. v. Train, 537

Ae Ie es TD eked cacncasssasencndcccocesactnss 7, 16

Kennecott v. U.S. Environmental Protection Agency,

780 F.2d 445 (4th Cir. 1985) .......000.. ; fe, 22,

Motor Vehicle Manufacturers Association v. State

Farm Mutual Automobile Insurance Company,

SD eens, RO CR OD CRUG) xxcsnsssinnsecs 15

Table of Authorities Continued

Page

National Crushed Stone Association v. Environmen-

tal Protection Agency, 601 F.2d 111 (4th Cir.

1979), rev'd on other grounds, 449 U.S. 64

PIE Suc odeainicucerasy cn sus uncedekcca gan eceiecaumadececoeaies 7,9

National Labor Relations Board v. Brown, 380 U.S.

RES declan A Gibbels ce 14

National Renderers Association v. Environmental!

Protection Agency, 541 F.2d 1281 (8th Cir.

NES” pbiiec create el eee ine 16

Owens v. Heckler, 748 F.2d 1511 (11th Cir.

RUE + Succicansaucusipeaitiuae ban kusbeecaleeseacedenuuntekeurceanta 15

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

5 Gee Gs FONE cienndrcnentinin tales 12

STATUTES:

The Administrative Procedure Act,

5 U.S.C. §§ 551 et seg. (1976),

RUE” Vereen ccambcnseyeadaceh eeccden aks ee cébedadiaadabeemdaatns ee 2, 14

Be FARRAR RRR Ea ese tn cakes ern earner ie Ree fA 7

The Clean Water Act of 1977,

SS U.S.C. GR 1BG1 ct mae. CUBR) ovvcscccccscccnccesasiccossns 2

ee ea Fiche Racer cesnsacent pneu cack totaanareioacaee 2, 14

Be 8 RR RS San arectcet me cote vnc onkin te Aone ~

TS Uk So Teen Te sec 2

REGULATIONS:

OD See ee Re atic eee 3, §

MISCELLANEOUS:

49 Fed. Reg. 8742 (1984) (codified at 40 C.F.R.

Fo i EN eT 5

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

No.

THE SECONDARY LEAD SMELTERS ASSOCIATION, INC.,

and

GULF Coast LEAD COMPANY, INC.

Petitioners,

Vv.

WILLIAM D. RUCKELSHAUS, et.al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS

FOR THE FOURTH CIRCUIT

Petitioners, The Secondary Lead Smelters Associ-

ation, Inc. and Gulf Coast Lead Company, Inc. re-

spectfully pray that a writ of certiorari issue to review

the opinion and judgment of the United States Court

of Appeals for the Fourth Circuit entered in this pro-

ceeding on December 26, 1985.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Fourth Circuit is reported at 780 F.2d 445

(4th Cir. 1985). That opinion denied a petition for

review of a rulemaking proceeding by the United

States Environmental Protection Agency under the

Clean Water Act.’ establishing effluent limitations for

the secondary lead smelting industry and other non-

ferrous metals industries.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit was entered on December 26,

1985. A petition for rehearing and rehearing in banc

was denied on January 24, 1986. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1) (1976).

STATUTES INVOLVED

This case presents questions arising under the ju-

dicial review provisions of the Clean Water Act of

1977, 33 U.S.C. § 1869 (1982), and the Administrative

Procedure Act, 5 U.S.C. § 706 (1976).

STATEMENT OF THE CASE

This case presents a fundamental question regard-

ing the right of parties who are subject to federal

regulations to have a federal court conduct a mean-

ingful review of the rulemaking proceedings of a fed-

eral agency. In this instance, the United States Court

of Appeals for the Fourth Circuit abdicated the re-

sponsibility it has under both the Clean Water Act

and the Administrative Procedure Act to scrutinize

the record of the United States Environmental Pro-

tection Agency (““EPA”’ or “‘Agency’’) in establishing

effluent limitations for the secondary lead smelting

233 U.S.C. § 1251 et seg.

and other non-ferrous metals industries, and to review

the deliberative process of the Agency in anything

resembling a responsible and careful manner.’ In this

case the court merely recognized that the issues raised

were technically complex and the record voluminous,

and deferred in each instance to the Agency’s decision

as not constituting an abuse of discretion. In several

instances, the court failed entirely to even address

the arguments that petitioners made.

The abdication of judicial responsibility by the

Fourth Circuit in this instance threatens the very

foundations of federal administrative law. The role of

the federal courts of appeals is instrumental in the

federal regulatory scheme. In reviewing an agency

rulemaking, courts must ensure that the agency has

acted reasonably and responsibly and has adequately

explained the reasons for its actions. The federal

courts provide an essential check on possible care-

lessness and abuse by agencies, and prevent agencies

from promulgating rules that are arbitrary, unrea-

sonable, or lack an adequate foundation in fact. Fed-

eral judicial review is the exclusive remedy private

industry has for improper and irresponsible agency

decisions.

The increasing role federal regulations play in mod-

ern industria! society underscores the importance of

the function Congress has assigned the federal judi-

ciary in the administrative scheme. In the future, EPA

- in response t> its mandate from Congress to protect

our natural environment - will promulgate rules that

are increasingly comprehensive. The complexity of

EPA’s task, and of its rulemaking proceedings, will

’ These regulations are codified at 40 C.F.R. § 421 (1985).

expand as EPA struggles to formulate regulations

addressing a variety of environmental issues.

In turn, increased EPA rulemaking activities will

correspondingly complicate the review courts must

make of the EPA’s actions. The federal courts of

appeals cannot be allowed to toss up their hands in

frustration whenever the subject matter of these pro-

ceedings becomes technical or the record is volumi-

nous, and merely rubberstamp the Agency’s action

with the incantation that it is not wholly arbitrary.

While federal courts cannot, and indeed must not,

engage in de novo economic and technical analysis in

rulemaking proceedings, they nonetheless must scru-

tinize, in what may be painstaking detail, the rea-

soning and methodology the Agency followed in

arriving at its conclusions. Otherwise, federal agencies

will have the first - and the final - say as to how

private industry shall operate, and private industry

will be denied its due process right to be governed

only by reasonable and lawfully promulgated regula-

tions.

In this proceeding, the EPA promulgated effluent

limitations standards for the secondary lead smelting

industry. In formulating these standards the EPA es-

tablished unachievable guidelines. EPA ignored all the

data that the secondary lead smelting industry had

submitted regarding the proposed effluent limitations

standards. The Agency aiso failed to allow for public

notice and comment regarding certain changes it made

in these standards before it promulgated them. Al-

though the industry brought these errors to the at-

tention of the court, the court simply ignored several

of petitioners’ arguments, and failed to give anything

resembling a careful examination of the Agency’s ac-

tions. The court accordingly abrogated its responsi-

bility to scrutinize agency rulemaking proceedings, and

allowed an entire industry to be saddied with regu-

lations that are fatally flawed, economically unachiev-

able, and technically infeasible.

1. The EPA Rulemaking Proceeding

On March 8, 1984, the EPA promulgated effluent

limitations and pretreatment standards for the sec-

ondary lead smelting industry. These regulations were

published in the Federal Register at 49 Fed. Reg.

8742 (1984), and are codified at 40 C.F.R. § 421

(1985). These standards are one part of a set of reg-

ulations the EPA established for non-ferrous metals

manufacturing operations. The Secondary Lead

Smelters Association, Inc., which represents approx-

imately 85 percent of the secondary lead smelting

capacity in the United States, and Gulf Coast Lead

Company, Inc., a secondary lead smelter, participated

in the rulemaking process by submitting extensive

comments and data on the proposed regulations.

The challenged standards govern the amount of pol-

lutants (‘‘effluents’’) that secondary lead smelting

plants may discharge into navigable waters and into

publicly owned treatment works. The secondary lead

smelting industry recycles lead principally from dis-

carded batteries, and thereby recovers lead from spent

batteries that otherwise would be disposed of in a

manner potentially dangerous to human health and

the environment.

The secondary lead smelting process generally oc-

curs in four phases. Each phase generates waste

streams that are subject to EPA regulation. During

the first phase batteries are broken or shredded by

saws or crushers. The second phase separates and

‘classifies’ several parts of the broken battery by

immersing them in water. The lead removed from the

batteries then is smelted during the third phase. In

the fourth and final phase the smelted lead is refined

and cast.

Since the industry uses unique production proc-

esses, the type and degree of effluents discharged in

resulting waste streams are peculiar to the industry.

It follows, accordingly, that any regulation that at-

tempts to impose effluent limitations on the industry

must address each significant waste stream and its

particular characteristics.

2.Petitioners’ Challenge to EPA’s Rulemaking in the

Fourth Circuit

On January 15, 1985, petitioners filed a petition for

review of the EPA’s rulemaking alleging that the

EPA had violated the Clean Water Act and the Ad-

ministrative Procedure Act in several respects. The

petitioners made four principal contentions.

First, the petitioners maintained that EPA had

wrongfully relied upon unrepresentative data, and had

rejected actual industry data, in establishing the per-

missible lead concentrations for wastewater. The

petitioners demonstrated that the EPA, in establish-

ing allowable lead concentrations, had relied upon

sample data from two plants unrepresentative of in-

dustry practices. Since the lead content of wastewater

discharged from secondary lead smelting facilities dif-

fers substantially from the wastewater of the two

plants that EPA relied upon to establish the lead

limitations, the promulgated limitations were flawed.

The EPA ignored data that well-designed and oper-

ating secondary lead smelting plants had submitted

to the Agency. Accordingly, the EPA failed to con-

sider the levels of effluent removal that the industry

was actually achieving and was capable of achieving.

The refusal of EPA to evaluate the present capa-

bilities of the industry to remove pollutants from its

wastewaters resulted from the Agency’s unwillingness

to consider any data submitted by the industry. The

petitioners emphasized that the Agency’s failure vi-

olated well-recognized judicial principles requiring that

evidence from the affected industry be considered in

promulgating effluent limitations standards.‘ It is well

established that an Agency cannot ignore relevant

data submitted during rulemaking.® In this instance,

however, EPA rejected actual industry data in favor

of data from a dissimilar industry. EPA failed to

explain why it had used data from an unrepresen-

tative industry and had rejected data from the sec-

ondary lead smelting industry during the rulemaking

proceeding. The petitioners maintained that the

Agency, therefore, had neglected to explain its in-

quiries, its analysis, and its reasoning as required by

the Administrative Procedure Act, 5 U.S.C. §

706(2)(A).

* Judicia] decisions applying this requirement include, inter

alia, National Crushed Stone Association v. Environmental Pro-

tection Agency, 601 F.2d 111, 113 (4th Cir. 1979), rev’d on other

grounds, 499 U.S. 64 (1980); FMC Corporation v. Train, 539

F.2d 973, 978 (4th Cir. 1976); American Iron & Steel Institute

v. Environmental Protection Agency, 526 F.2d 1027, 1057 (8rd

Cir. 1975); American Meat Institute v. Environmental Protection

Agency, 526 F.2d 442, 456 (7th Cir. 1975).

° See, inter alia, American Tunaboai Association v. Baldridge,

738 F.2d 1013, 1016 (9th Cir. 1984); Hooker Chemicals & Plastics

Corp. v. Train, 537 F.2d 620, 636-37 (2d. Cir. 1976).

Petitioners also maintained that EPA had wrong-

fully ignored data from the secondary lead smelting

industry regarding typical wastewater flow condi-

tions, and, therefore, had promulgated effluent limi-

tations that were not achievable. The petitioners

contended that the failure of EPA to consider this

data resulted in arbitrary and unlawful standards.

Second, petitioners argued that the EPA had vio-

lated the Clean Water Act and the Administrative

Procedure Act by ignoring relevant data from sec-

ondary smelting facilities in setting cadmium treata-

bility values. The petitioners pointed out that the

Agency had used data bases from dissimilar industries

in establishing the cadmium limits. Consequently, the

EPA again ignored essential characteristics of the

lead smelting industry in promulgating concentration

limits.

Third, petitioners challenged the failure of EPA to

demonstrate that the technology identified by EPA

to achieve the promulgated limits (filtration) was in

fact the best available technology: that it was eco-

nomicailly achievable and would result in reasonable

progress towards the elimination of water pollution

as required by the Clean Water Act, 33 U.S.C. §

1311(bX2\A). The petitioners underscored that filtra-

tion technology in the secondary lead smelting in-

dustry would remove fewer additional pounds of

pollutants than was the case in five other industries

where EPA already had determined that filtration

was an uneconomic and unacceptable means of ef-

fluent reduction.

Finally, the petitioners alleged that the EPA had

violated the Clean Water Act and the Administrative

Procedure Act by failing to allow for public notice of

and comment upon certain changes that the EPA had

made in lead concentration values and flow allow-

ances. (Pet. Rep. Br. at 8-9) The EPA had failed to

provide notice of, or an adequate opportunity for,

public comment on several changes in flow allowances

and on a change in the lead concentration value that

were set out in its final regulations. The EPA had

offered no opportunity for public comment on the data

it considered to establish permissible lead concentra-

tion values. The failure of the EPA to allow the af-

fected industry to comment upon the data that it

relied upon in promulgating final regulations con-

travenes well established principles of administrative

law.®

The EPA also improperly failed to notify petitioners

that it was going to reject the data they had sub-

mitted on this issue, thus denying them an oppor-

tunity to respond to EPA’s concerns or to correct

any perceived defects in the submitted data. (Pet.

Rep. Br. at 8-9)

3.The Failure of the Fourth Circuit to Undertake Mean-

ingful Review of the EPA’s Rulemaking and to Con-

sider Petitioners’ Arguments

On December 26, 1985, the Fourth Circuit issued

a decision denying petitioners’ arguments. Despite the

deficiencies in EPA’s rulemaking, the court found that

the EPA had properly promulgated the effluent lim-

itation guidelines. The court observed that “‘the ex-

pertise of the parties with regard to the non-ferrous

metals industry exceeds that of this court’ and un-

® See, e.g., National Crushed Stone Association v. Environ-

mental Protection Agency, 601 F.2d 111 (4th Cir. 1979), rev'd

on other grounds, 449 U.S. 64 (1980).

derscored the ‘“‘general rules of deference that run

throughout administrative law.” Kennecott v. Envi-

ronmental Protection Agency, 780 F.2d 445, 447 (4th

Cir. 1985). The court concluded that ‘‘the benefit of

the doubt in the battle of the data belongs to the

Agency” and that technical and scientific issues are

difficult to resolve through traditional principles of

judicial decision making. Jd. at 447, 448. Having fore-

shadowed its approach, the court then undertook a

casual analysis of some, but not all, of the issues the

Association had raised in its petition. The court ad-

dressed petitioners’ arguments as follows:

Lead Concentrations

The court failed to address petitioners’ primary con-

tention that EPA improperly distorted the data upon

which it based its lead concentration limits and had

ignored representative data submitted by industry.

The EPA initially promulgated concentration values

based upon three data points from one battery man-

ufacturing facility, (“Johnson Controls’), but later ex-

panded its data base to include 201 additional data

points submitted from an integrated battery/second-

ary lead smelting operation. £PA, however, averaged

the 201 data points from the integrated operation to

the equivalent value of the three data points from

the battery plant, the average of which resulted in

artificially stringent lead concentration values. The

court recognized that the data from the battery man-

ufacturing facility alone would have provided an er-

roneous basis upon which to promulgate effluent

limitations for the secondary lead industry. Kennecott,

780 F.2d at 457. The court even took EPA somewhat

to task in this regard. The court declared:

The agency’s euphemistic assertion, without

accompanying figures, that Johnson Controls’

wastewater ‘‘contained lead at concentrations

comparable to the lower end of the range of

secondary lead plants’ is not appreciated.

Such representations serve to obscure, not to

clarify.

Id. at 457 n. 3.

Accordingly, while the court recognized the inade-

quacy of the battery manufacturing plant data, it

failed to address petitioners’ principal contention that

EPA improperly gave this data too much weight in

promulgating the concentration limits. The failure of

the court to even address petitioners’ claim on this

crucial issue is egregious.

The court also held that EPA legitimately had ex-

cluded data the industry submitted regarding per-

missible lead concentration limits because it failed to

satisfy EPA’s criteria for exemplary operation. The

court, however, overlooked petitioners’ argument that

the battery manufacturing data that EPA had relied

upon also failed to satisfy these criteria. (Pet. Rep.

Br. at 4-5, 17) Moreover, the court ignored petitioners’

documentation that certain data that the industry sub-

mitted did in fact satisfy EPA’s criteria and should

have been considered by the Agency. (Pet. Rep. Br.

at 7)

The court additionally overlooked the failure of EPA

to document any secondary lead smelting facility that

can presently comply with the promulgated values.

The inability of the EPA to identify a single plant in

the industry capable of complying with these stand-

ards is contrary to the court’s own decision in Tan-

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

1188, 1191-92 n. 10 (4th Cir. 1976).

Filtration

The court also ignored arguments petitioners made

challenging EPA’s adoption of filtration as the model

technology for the industry. The court failed to con-

sider petitioners’ argument that filtration technology

would not achieve necessary environmental benefits

as mandated by the Clean Water Act. Petitioners

demonstrated that use of filtration in the secondary

lead smelting industry would remove approximately

20 percent less pollutants than would have been

achieved in five other industries where the EPA had

determined that filtration was not supportable. (Pet.

Rep. Br. at 7) The court, therefore, failed to consider

petitioners’ contention that EPA’s rulemaking in this

regard was arbitrary.

Cadmium

The court improperly held that petitioners’ chal-

lenge to the cadmium limitation standards was not

ripe for judicial review. Kennecott, 780 F.2d at 485.

In making this determination the court reached two

conclusions that are erroneous. First, the court

wrongfully perceived that a permit writer does not

have to apply the limits promulgated and, second, that

individual facilities are free to challenge cadmium lim-

its contained in permits issued on a plant-by-plant

basis. Jd. at 485. EPA’s regulations compel an indi-

vidual permit writer to base cadmium limits on ef-

fluent guidelines developed by EPA. Additionally,

individual plants are not free to challenge the un-

derlying promulgated limitations in the context of a

specific permit proceeding. (Pet. Rep. Br. at 9) Ac-

cordingly, the court erred in holding that the cadmium

limitations standards are not ripe for judicial review.

Notice and Comment

Another glaring deficiency was the failure of the

court to even address the petitioners’ argument that

EPA had violated the notice and comment provision

of the Administrative Procedure Act in failing to al-

low for public notice of, and comment upon, certain

changes EPA made in the lead concentration values

and flow allowances it had promulgated. In establish-

ing lead concentration values, the EPA considered

additional data from an integrated battery manufac-

turing/secondary lead smelting plant without provid-

ing the industry any opportunity to comment upon

this data and to demonstrate that it was inapplicable

to the industry. The failure of EPA to provide notice

and comment upon this important data violates fun-

damental principles of administrative law.’

The court similarly ignored petitioners’ contention

that EPA improperly rejected the data petitioners had

submitted regarding prevailing lead concentration in

industry wastewaters, without giving petitioners no-

tice that EPA would do so. (Pet. Rep. Br. at 8-9)

’ See, e.g., Chocolate Manufacturers Association of the United

States v. Block, 755 F.2d 1098, 1102 (4th Cir. 1985), ‘‘(t)he

requirement of notice and a fair opportunity to be heard is basic

to administrative law.”

REASONS FOR GRANTING THE WRIT

1. The Fourth Circuit Abdicated its Responsibility to

Give Me. r.agful Judicial Review to the EPA’s Ru-

lemaking

The Fourth Circuit abdicated the responsibility that

it has under the Clean Water Act and the Adminis-

trative Procedure Act to give meaningful and sub-

stantive review to EPA rulemaking proceedings. This

Court has held that the judicial review provisions of

the APA, 5 U.S.C. § 706, require a reviewing court

to scrutinize the fact finding and deliberative proc-

esses of the agency to ensure that the agency pro-

mulgated the regulations responsibly, and carefully

considered all relevant evidence. Judicial review under

the Clean Water Act, 33 U.S.C. § 1369, requires the

same careful attention.

In Citizens to Preserve Overton Park Inc. v. Volpe,

401 U.S. 402, 415 (1971), the Court declared that ‘‘the

generally applicable standards of § 706 require the

reviewing court to engage in a substantial inquiry’,

and that the presumption favoring adminstrative reg-

ularity ‘“‘is not to shield (the) action from a thorough,

probing, in-depth review.”’ The Court underscored that

“this inquiry into the facts is to be searching and

careful.”’ Jd. at 416.

This Court also has recognized that federal courts

would abdicate their responsibility if they did not

scrutinize whether an administrative decision was con-

sistent with the statutory authority of the agency. In

National Labor Relations Board v. Brown, 380 U.S.

278, 291-292 (1965), the Court held:

Reviewing courts are not obliged to stand

aside and rubberstamp their affirmance of

administrative decisions that they deem in-

consistent with a statutory mandate or that

frustrate the congressional policy underlying

a statute. Such review is always properly

within the judicial province, and courts would

abdicate their responsibility if they did not

fully review such administrative deci-

sions. ...

See also, Bowman Transportation, Inc. v. Arkansas-

Best Freight System, Inc., 419 U.S. 281, 285 (1974),

underscoring the ‘‘searching and careful’’ review that

a court must make into the fact finding processes of

a federal agency; Motor Vehicle Manufacturers As-

sociation v. State Farm Mutual Automobile Insurance

Company, __U.S. __, 108 S. Ct. 2856, 2867 (1983),

“normally, an agency rule would be arbitrary and

capricious if the agency ... entirely failed to consider

an important aspect of the problem, (or) offered an

explanation for its decision that runs counter to the

evidence before the agency.”

The absence of critical scrutiny of the rulemaking

record in this case contrasts sharply with the review

other circuit courts of appeal have applied. See, e.g.,

Frisby v. United States Department of Housing and

Urban Development, 755 F.2d 1052, 1055 (8rd Cir.

1985), the presumption favoring regularity in agency

process does not ‘“‘prevent a reviewing court from

taking a probing, ‘hard look’ at the agency’s ac-,

tion.” ;Owens v. Heckler, 748 F.2d 1511, 1516 (11th

Cir. 1984), ‘‘we are neither to conduct a de novo

proceeding, nor to rubber stamp the administrative

decisions that come before us. Rather, our function

is to ensure that the decision was based on a rea-

sonable and consistently applied standard, and was

carefully considered in light of all the relevant facts.’’;

Cities of Carlisle and Neola, Iowa v. Federal Energy

Regulatory Commission, 741 F.2d 429, 433 (D.C. Cir.

1984), ‘‘no deference is due when the agency has

stopped shy of carefully considering the disputed

facts.”’

The court’s cursory treatment of the issues also

conflicts with the scrutiny reviewing courts tradition-

ally have given EPA rulemaking proceedings. See,

e.g., Cleveland Electric Illuminating Co. v. Environ-

mental Protection Agency, 603 F.2d 1 (6th Cir. 1979),

(vacating the refusal of the EPA to grant an electric

company a permit to discharge effluents from its gen-

erating plant for failing to consider all relevant fac-

tors in its decision); National Renderers Association

v. Environmental Protection Agency, 541 F.2d 1281

(8th Cir. 1976), (remanding to the EPA for repro-

mulgation regulations limiting the effluent limitations

for the rendering industry on grounds that the EPA

failed to properly consider the economic achievability

of the standards); Hooker Chemicals & Plastics Corp.

v. Train, 5387 F.2d 620 (2d Cir. 1976), (remanding

effluent limitation guidelines that EPA had estab-

lished for the phosphate-manufacturing industry for

failing to consider all prescribed factors).

The failure of the court to review EPA’s rulemak-

ing with anything resembling the care and scrutiny

that the foregoing decisions entail alone justifies an

exercise by this Court of its power of supervision.

The lower court has departed impermissibly from the

accepted and usual manner in which a federal ap-

pellate court reviews the record of a federal agency

in a rulemaking proceeding. The Court, in discharging

its responsibility to supervise the federal judiciary,

should ensure that the performance the court gave in

this instance does not become acceptable.

2. The Decision Below Obviates Challenges to EPA

Rulemaking

The failure of the Fourth Circuit to adequately per-

form its judicial review function endangers the due

process rights of all who are subject to EPA regu-

lations. By ignoring certain of the petitioners’ argu-

ments, and giving short shrift to others, the court

validated a rulemaking proceeding that was fraught

with errors, inconsistencies, and illegalities. The

court’s abdication of responsibility poses grave con-

sequences not only for the secondary lead smelting

industry, but for all persons impacted by EPA reg-

ulations.

The role Congress has assigned to courts in the

federal administrative process is crucial. The judicial

review mechanism that both the Clean Water Act and

the Administrative Procedure Act prescribe is the only

defense private industry has against the carelessness

and caprice of the EPA. Congress has charged the

federal courts with the responsibility of protecting the

rights regulated parties have in due process of law,

to ensure that regulations are thoughtfully considered,

carefully tailored to promote a specific Congressional

directive, and grounded upon a secure foundation in

fact.

Congress has made clear that regulations cannot be

lawful and legitimate unless they meet these require-

ments, and has charged the federal courts with the

responsibility of ensuring that they are.

The obligation the federal courts have in this regard

is not always easily carried out. The federal judiciary

must monitor and review the actions of all federal

agencies. These agencies preside over a wide range

of subject matters which, with expanding jurisdic-

tions, are becoming increasingly complex. To mean-

ingfully review the rulemaking proceedings of these

agencies often entails a painstaking effort. The court

must educate itself about the industry, the particular

rulemaking proceeding, and the record of the agency’s

action to ensure that in each challenged instance the

agency has acted reasonably and circumspectly. A re-

viewing court also must ensure that the agency has

honored the due process rights of those governed to

participate in the proceedings, and has adequately

considered such evidence and comments that those

parties have submitted.

The complexity of the judicial review function will

increase, rather than diminish, in the future. Judicial

review will be especially more demanding for EPA

rulemaking proceedings. The widening jurisdiction of

the EPA, arising from the ever-broadening mandate

Congress has given it to protect the environment, will

exacerbate the complexity inherent in imposing eco-

nomically and technically achievable limitations on the

amount of pollutants private industry may discharge

into the environment. The technical and scientific as-

pects of rulemaking in the environmental area will

continue to proliferate.

This march of the regulatory process impels federal

courts to keep step if they are to properly discharge

their appointed responsibility. The Court cannot allow

the federal judiciary to rubberstamp the actions of a

federal agency whenever the subject matter is com-

plicated and the record voluminous. Federal agencies,

and the industries they regulate, will always have

more technical expertise in the prescribed area than

does a federal court, but this consideration cannot

forestall courts from scrutinizing the rules and reg-

ulations the agencies promulgate. The federal courts

cannot be allowed merely to acknowledge conflicts in

the evidence and then escape further inquiry with the

incantation that the agency’s action was not arbitrary.

Judicial review under both the Clean Water Act and

the Administrative Procedure Act requires consider-

ably more.

This Court cannot allow the judicial review provi-

sions of the Administrative Procedure Act and the

Clean Water Act to lose their vitality.

CONCLUSION

For the foregoing reasons, this Court should grant

the instant petition for certiorari to the United States

Court of Appeals for the Fourth Circuit.

Respecfully submitted,

PAUL D. CULLEN

Counsel of Record

ROBERT N. STEINWURTZEL

THOMAS J. HAMILTON

COLLIER, SHANNON, RILL & ScoTT

1055 Thomas Jefferson Street, N.W.

Suite 308

Washington, D.C. 20007

(202) 342-8400

Counsel for Petitioners the Secondary

Lead Smelters Association, Inc., and

Gulf Coast Lead Company, Inc.

Dated: April 1986

eee

APPENDIX

ee, Ce ae oe ee ee ee. Oe Dy oS

APPENDIX A

United States Court of Appeals,

Fourth Circuit.

KENNECOTT,

Petitioner,

¥.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

GTE Propucts CORPORATION,

Intervenor/Petitioner.

AMERICAN MINING CONGRESS, AMAX, INC., AND

ASARCO INCORPORATED,

Petitioners,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

St. JOE MINERALS CORPORATION,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

THE SECONDARY LEAD SMELTERS ASSOCIATION,

Petitioner,

WILLIAM RUCKELSHAUS, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

GULF Coast LEAD COMPANY,

Intervenor/Petitioner,

MALLINCKRODT, INC.,

Petitioner,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Nos. 84-1288(L), 84-1479, 84-1487,

84-1659 and 84-1694.

Argued Oct. 9, 1985.

Decided Dec. 26, 1985.

Rehearing and Rehearing In Banc

Denied Jan. 24, 1986.

Petitions were filed seeking review of an order of the

Environmental Protection Agency setting effluent limita-

tions for the nonferrous metals manufacturing industry.

The Court of Appeals, Wilkinson, Circuit Judge, held that

the agency conducted its rule making in conformity with

the Administrative Procedure Act and the Clean Water

Act.

Petitions denied.

Before PHILLIPS, MURNAGHAN and WILKINSON,

Circuit Judges.

WILKINSON, Circuit Judge:

Petitioners challenge the effluent limitations set by the

Environmental Protection Agency for the non-ferrous met-

als manufacturing industry. EPA established the limita-

tions in a rulemaking pursuant to the Clean Water Act

of 1977, 33 U.S.C. §§ 1251-1376 (1982).! Congress passed

the Clean Water Act as an amendment to the Federal

Water Pollution Control Act of 1972. The amendment pre-

serves the fundamental purpose of the 1972 Act: ‘‘{t]o

restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.”’ 33 U.S.C. § 1251. In

‘The challenged regulations are codified at 40 C.F.R. § 421 (1985).

setting effluent limitations for the nonferroys metals in-

dustry, EPA acted to implement this congressional man-

date to clean up the nation’s navigable waterways. We

have reviewed with care petitioners’ challenges to these

regulations. We conclude, however, that EPA has properly

discharged the task it is required by Congress to perform.

The instant action reflects the tensions recurrent in

every case of environmental regulation. The first group of

petitioners here produce substantial amounts of the coun-

try’s primary copper, lead, and zinc. Others recycle dis-

carded lead batteries for a variety of uses, and still another

produces columbium-tantalum, of importance to the aero-

space, energy, and transportation industries. The indus-

tries contend that the effluent limitations adopted by EPA

in the name of the Act are unachievable and will impose

widespread costs upon the industries themselves and upon

those who depend for their economic livelihood upon non-

ferrous metals use.

EPA in turn states that petitioners discharge massive

amounts of pollutants, over 3 million pounds annually, in-

cluding ‘“‘some of the most toxic metals found in industrial

waste streams ... lead, cadmium, arsenic, antimony, and

zine.”’ It contends these poilutants create ‘‘a variety of

serious adverse health and environmental effects, including

cancer, brain damage, and kidney failure.’”’ The effluent

limits are, in EPA’s view, based upon achievable technol-

ogies and must be met promptly to fulfill the basic pur-

poses of the Clean Water Act.

The record in this case is voluminous. The rulemaking

itself is highly technical. Petitioners have challenged EPA’s

choice of data, its statistical methods, and its economic

analysis. It is something of an understatement to say that

the expertise of the parties with regard to the non-ferrous

metals industry exceeds that of this court. Without sus-

pending our critical faculties, we nonetheless believe that

the benefit of the doubt in the battle of the data belongs

to the agency in which Congress has reposed responsibility

for administration of the Act, see 33 U.S.C. § 1251(d). In

addition, this court is bound by the general rules of de-

ference that run throughout administrative law. We may

not overturn the agency’s judgment simply because we

might have drafted different regulations; remand is limited

to those cases in which the agency has acted without rea-

sonable basis. American Meat Inst. v. EPA, 526 F.2d 442,

450 (7th Cir.1973).

We begin with the philosophy of the Clean Water Act.

The Act requires EPA to set effluent limitations for in-

dustries in two stages. As a preliminary matter, Congress

asked EPA to set limits based on the ‘“‘best practicable

contro] technology currently available’ (BPT). 33 U.S.C.

§ 1311(bX1KA). EPA defines BPT as ‘‘the average of the

best existing performance by plants of various sizes, ages

and unit processes within each industrial category or sub-

category. This average is not based upon a broad range

of plants within an industrial category or subcategory, but

is based upon performance levels achieved by exemplary

plants."” EPA v. Nat'l Crushed Stone Ass'n, 449 U.S. 64,

76 n. 15, 101 S.Ct. 295, 303 n. 15, 66 L.Ed.2d 268 (1980),

quoting 39 Fed. Reg. 6580 (1974).

In the second stage, Congress directed EPA to set an

even more stringent standard, basing effluent limitations

on the “‘best available technology economically achievable”’

(BAT) for an industrial category. 33 U.S.C. § 1311(bX2\A),

(C), (D) and (F). The BAT standard reflects the intention

of Congress to use the latest scientific research and tech-

nology in setting effluent limits, pushing industries toward

the goal of zero discharge as quickly as possible. In setting

BAT, EPA uses not the average plant, but the optimally

operating plant, the pilot plant which acts as a beacon to

show what is possible. See A Legislative History of the

Water Pollution Control Act Amendments of 1972, 93d

Cong., lst Sess. (Comm. Print 1973), at 798 (hereinafter

‘““Leg.Hist.’’). “The distinction between ‘best practicable’

and ‘best available’ is intended to reflect the need to press

toward increasingly higher levels of control. . . .’’ Leg.Hist.

at 170.

For the purposes of this case, the non-ferrous metals

industry was generally subject to BAT requirements. De-

fining Best Available Technology requires substantial tech-

nical expertise in evaluating both the efficiency of advanced

technologies and the adaptability of those technologies to

the production processes of the companies in this case.

Our review of the EPA rulemaking is appropriately cau-

tious. As this court has previously noted, ‘‘The scope of

our review is further colored by the policy of the Clean

Water Act and the sophisticated data evaluations man-

dated by that lengthy and complicated statute.... Fur-

ther, technological and scientific issues, such as those

presented in this case, are by their very nature difficult

to resolve by traditional principles of judicial decisionmak-

ing. Reynolds Metals Co. v. EPA, 760 F.2d 549, 558-59

(4th Cir.1985).

We proceed, however, on the understanding that Best

Available Technology was the means chosen by Congress

to achieve ‘‘the national goal that the discharge of pol-

lutants into the navigable waters be eliminated by 1985,”

33 U.S.C. § 1251(aX1), a goal that implies some urgency

to the environmental] task that Congress set. While Con-

gress was careful to require agency consideration of such

factors as the cost to industry of achieving appropriate

effluent reductions, it left EPA some latitude in defining

BAT, permitting in addition to enumerated criteria, the

consideration of ‘‘such other factors as the Administrator

deems appropriate.” See 33 U.S.C. § 1314(bX2\B).

To achieve a reasoned result in a dispute over technol-

ogies, EPA is bound to consider industry data, but it is

not bound to accept it. Any other resolution would un-

dermine the integrity of agency decisionmaking. For ob-

vious reasons, this court should be loathe to compel ar.

agency to accept data submitted by a regulated industry.

That does not imply we are blind to the capacities of

agencies to enthrone their own agendas and dismiss con-

tending views. In considering petitioners’ challenges to the

non-ferrous metals rulemaking, we ask whether EPA’s

technical judgments find support in the record and whether

they reflect the rule of reason, not the imposition of fiat.

The deference to the technical expertise of the Admin-

istrator supplements the deference generally required of

courts reviewing administrative actions. The Administra-

tive Procedure Act (APA) specifies that a court may over-

turn an agency action only if it is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2XA). The court best acts as a check

on agency decisionmaking by scrutinizing process and by

determining whether ‘“‘the decision was based on a con-

sideration of the relevant factors and whether there has

been a clear error of judgment.”’ Citizens to Preserve Over-

ton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814,

823, 28 L.Ed.2d 136 (1971). Whether the agency has pro-

vided notice and an opportunity to comment, and has fairly

considered all significant data and comments, is the heart

of the judicial inquiry. Chocolate Mfrs. Ass’n v. Block, 755

F.2d 1098 (4th Cir.1985). Once the agency has been found

to follow the prescribed course of procedure, its ‘“‘choice

of scientific data and statistical methodology” is entitled

to respect. National Ass’n of Metal Finishers v. EPA, 719

F.2d 624, 657 (8rd Cir.1983), rev’d on other grounds sub

nom. Chemical Mfrs. Ass’n v. NRDC, __U.S. ——, 105

S.Ct. 1102, 84 L.Ed.2d 90 (1985).

EPA did not approach casually the task of non-ferrous

metals rulemaking. In 1977, the agency began gathering

data for the proposed rules which it published on February

17, 19838. 48 Fed.Reg. 7032-7126. Data was obtained from

plant visits, plant samplings, studies of scientific journals,

and consultations with industry. Three hundred and nine-

teen firms, operating 416 facilities, received questionnaires

from EPA asking for information on flow rates, production

rates, wastewater treatment, and costs. Jd. at 7044. Each

plant visited by EPA also received an opportunity to com-

ment on the trip report prepared by the agency. Various

of the petitioners met with EPA both before and after

publication of the proposed rules.

The resulting record ran 24,000 pages. EPA solicited

public comment on all aspects of the regulations, high-

lighting points on which the agency wanted additional in-

formation. Jd. at 7073. The initial comment period lasted

eleven weeks. EPA reopened the comment period twice

and accepted late-filed comments from one of the

petitioners. 48 Fed.Reg. 50906 (Nov. 4, 1983); 48 Fed.Reg.

52604 (Nov. 21, 1988).

The agency considered the comments and contacted each

petitioner with follow-up inquiries. The comments led EPA

to re-examine its selections of model technologies and data

bases. EPA likewise considered additional data on the

treatment of lead and ammonia, as well as continuing to

request and evaluate data from plants that had not pre-

viously submitted data. The long process of gathering data

and the ongoing dialogue with the industry culminated in

the final rule promulgated March 8, 1984.

We do not imply, in detailing this lengthy consideration,

that a matter of the magnitude and complexity of non-

ferrous metals rulemaking deserved anything less. We note

only that an appellate court cannot be oblivious to the

expenditure of effort that preceded its consideration and

that, if the process has been a fair one, a time does come

when rulemaking may cease and compliance must com-

mence.

II.

For the purposes of this appeal, petitioners have been

grouped according to industry. The first group of

(92)

petitioners are Kennecott, American Mining Congress,

AMAX, Inc., ASARCO Incorporated, St. Joe Minerals Cor-

poration, and GTE Products Corporation (hereinafter

Kennecott’). Together these companies are responsible

for much of the United States production of primary cop-

per, primary lead and primary zinc. Their plants process

ore mined from the ground to produce the primary base

metals.

Kennecott objects to the non-ferrous metals rulemaking,

arguing that the agency’s data base was flawed, that

petitioners were not given the opportunity to comment on

part of the model technology, sulfide precipitation, and

that EPA incorrectly calculated flow allowances. After

carefully considering petitioners’ numerous and specific ob-

jections, we have concluded that EPA acted within the

bounds of its discretion when it set effluent limits for the

primary metals industry.

When it set effluent limits for the primary metals in-

dustry, EPA used as its model technology a waste treat-

ment process called lime, settle and filtration (L,S & F).

Briefly, this treatment technique works in the following

way: adding lime to was.water increases the pH; it makes

the wastewater more alkaline. At different pHs, different

metals precipitate, that is, emerge from solution and be-

come suspended as solids in the wastewater. Eventually,

most solids settle at the bottom of the tank. The precip-

itate can then be disposed of separately from the waste-

water. The wastewater is often subsequently filtered

through coal or sand in order to remove additional sus-

pended solids.

A number of industries use lime and settle. Beginning

in the late 1970’s, EPA collected data from six such in-

dustries (aluminum forming, battery manufacturing, sec-

ondary lead, coil coating, copper forming, and porcelain

enameling). After deleting unreliable data, EPA compiled

the Combined Metals Data Base (CMDB). The agency then

used the CMDB to calculate achievable effluent limitations

for several related industries, including the primary base

metals industry.

Kennecott objects to EPA’s use of the CMDB. It argues

that the CMDB data was limited, that the wastewaters of

CMDB plants differed significantly from those of the pri-

mary metals plants, and that EPA should not have rejected

data submitted by the primary metals industry.

Kennecott’s basic objection is that EPA used data from

the waste treatment systems of other industries (the

CMDB) rather than using data submitted by the primary

metals industry. Specifically, Kennecott makes the follow-

ing argument: EPA’s data base was limited, containing

only 300 raw and treated data points from nineteen plants.

EPA did not obtain samples from any given plants over

a long term; therefore, the data cannot accurately reflect

long-term performance. Kennecott contends that long-term

data is necessary because fluctuations in pollutant concen-

trations occur even in properly operated treatment facil-

ities due to “seasonal changes in temperature and

precipitation, production surges or slow downs” and other

variables. Because EPA did not collect enough samples,

over a long enough period of time, Kennecott contends

that the data does not accurately reflect achievable con-

centrations. Therefore, Kennecott says, petitioners will not

be able to meet the effluent limitations.

In response, EPA notes that courts customarily defer

to an agency’s choice of data, and that in any case, EPA

could use the CMDB to predict long-term performance

accurately. On the first point, the agency is indisputably

correct. This court has consistently given EPA a reason-

able leeway in its selection of data and statistical methods.

FMC Corp. v. Train, 539 F.2d 973, 986 (4th Cir.1976).

“(W]e note that an agency’s data selection and choice of

10a

statistical methods are entitled to great deference ... and

its conclusions with respect to data and analysis need only

fall within a ‘zone of reasonableness’.”” Reynolds Metals,

760 F.2d at 559 (citations omitted). The question is thus

whether EPA acted reasonably in basing effluent limita-

tions for the primary base metals industry on the CMDB.

EPA contends that it does not necessarily need long-

term data to predict long-term performance. It notes that

the data base at issue here has been used in regulations

in a number of other metals industries. By using well-

established statistical methods, EPA could factor in the

variability one would expect in an optimally operating

plant. It is true that prediction of long-term performance

would not account for fluctuations resulting from opera-

tional failures. However, the agency argues that plants

with operating problems do not represent the Act’s goal

of Best Available Technology. FMC Corp. v. Train 539

F.2d at 986 (‘The purpose of these variability factors is

to account for the routine fluctuations that occur in plant

operation, not to allow for poor performances.’’) Moreover,

the agency contends that the addition of second-step sul-

fide precipitation to the model technology further reduces

the variability of lime and settle treatment. See subsection

IIB, infra. Courts have traditionally respected the agency’s

selection of a data base in the face of challenges that the

data failed to account for variable pollution loads, Ass'n

of Pac. Fisheries v. EPA, 615 F.2d 794, 812-13 (9th

Cir.1980); American Petroleum Inst. v. EPA, 540 F.2d

1023, 1035-36 (10th Cir.1976). The number of data points

here is not insignificant, and there must exist some rea-

sonable termination point in the process of data collection.

Kennecott responds that even if EPA collected a suf-

ficient number of data points, the CMDB remains flawed.

It argues that the CMDB wastewater is so different from

the wastewater in the primary metals industries that EPA

cannot use the CMDB to set effluent limits that would

apply to Kennecott. Without quantifying its claim, Ken-

lla

necott says that the base metals industry has “huge

amounts of wastewater,’’ ‘‘tremendously high concentra-

tions of metals,’’ and a ‘‘very large variety of different

metals” in the wastewater. EPA’s similarly unquantified

response is that the wastewaters in the CMDB industries

and those of the primary base metals industry are indeed

comparable. The agency agrees that the differences in con-

centration of metals may be statistically significant. How-

ever, there is evidence to show that the treatability of

wastewater depends on the solubility of the pollutants, not

on their concentrations. A difference in concentration of

influents would thus not affect the concentration of ef-

fluents. See Proposed Rules, 48 Fed.Reg. 7050 (Feb. 17,

1983). This judgment constitutes a reasonable basis for

EPA’s belief that the wastewaters are comparable. We

cannot say that EPA has acted arbitrarily or capriciously

in using the CMDB to set effluent limitations for the pri-

mary metals industries.

Finally, we do not believe that EPA acted arbitrarily

in rejecting the data submitted by the industry. EPA ex-

amined the data from petitioners’ plants and concluded

that six of the plants were not operating properly, and

the seventh was unrepresentative. EPA determined that

three plants were improperly operating one or more steps

of the lime and settle process; they had ineffective pH

adjustment, inadequate wastewater settling time, or lacked

wastewater equalization. Plants use equalization to send

more uniform loads of pollutants to the treatment system,

ensuring that the system is not overloaded. In three other

plants, patterns of extreme variability in treated effluents

suggested to EPA that the plants were not equalizing their

wastewaters properly. Finally, EPA considered that the

seventh plant was unrepresentative because nearly all of

its wastewater came from sources not related to the man-

ufacturing processes covered by these regulations. We can-

not say, therefore, that EPA abused its discretion by

rejecting the industry data.

12a

EPA had originally proposed lime, settle and filtration

as the BAT for treating wastewater in the primary base

metals industry. Commenters objected that they would not

be abie to meet the proposed effluent limitations. In the

Final Rules, EPA responded that any plant unable to meet

the effluent limitations by using the model lime, settle and

filtration technology could add an additional step: sulfide

precipitation. While the APA requires the opportunity for

public participation in rulemaking, “[t]here is no question

that an agency may promulgate a final rule that differs

in some particulars from its proposal.” Chocolate Manu-

facturers, 755 F.2d at 1103-04. Kennecott objects, how-

ever, to the inclusion of sulfide precipitation on the grounds

that it was not given notice or the opportunity to com-

ment. Had it been given the opportunity, Kennecott says,

it would have filed comments detailing the reasons that

sulfide precipitation would not reduce effluent concentra-

tions to the required levels.

Sulfide precipitation works on the same principle as lime

and settle. When sulfide is added to wastewater, certain

pollutants precipitate out and become suspended as solids

in the wastewater. The wastewater is held in tanks until

most of the precipitated metals have settled to the bottom.

Filtration will remove additional suspended solids. When

sulfide precipitation precedes L,S & F, it is called ‘‘sulfide

pretreatment.’’ When sulfide precipitation follows L,S &

F, it is called “‘sulfide polishing.”

Kennecott charges that EPA gave no indication that it

was considering using lime, settle and filter plus sulfide

precipitation as the model technology. An agency is, of

course, required to give notice “‘sufficiently descriptive to

provide interested parties with a fair opportunity to com-

ment and to participate in the rulemaking.’ Chocolate

Manufacturers, 755 F.2d at 1104. EPA listed six control

13a

and treatment options in the proposed rules; sulfide pre-

cipitation was not among them. We note, however, that

the agency is not required to specify every precise proposal

that it may eventually adopt as a rule, Consolidation Coal

Co. v. Costle, 604 F.2d 239, 248 (4th Cir.1979). EPA ac-

tually did discuss sullide precipitation in the Development

Document, which accompanied the Proposed Rules, al-

though Kennecott contends that these brief references were

insufficient to give notice, buried as they were amidst a

discussion of two dozen other treatment technologies. As

a result, Kennecott believes it was deprived of notice and

the opportunity to comment on sulfide precipitation.

EPA would characterize the sequence of events here

differently: EPA proposed limits, the primary metals in-

dustry commented that it would not be able to meet those

limits, and EPA added another treatment step so that

plants could more readily comply with the established ef-

fluent guidelines. EPA styles its introduction of sulfide

precipitation a ‘‘natural and logical outgrowth” of the com-

menting procedure. Cf, BASF Wyandotte Corp. v. Costle,

598 F.2d 637, 642 (1st Cir.1979), cert. denied sub nom.

Eli Lilly & Co. v. Costle, 444 U.S. 1096, 100 S.Ct. 1063,

62 L.Ed.2d 784 (1980). This description of events may, of

course, mask a displeasing side of agency behavior. It is

not acceptable for an agency to set unachievable limits,

and then, when the industry objects, to pull a curative

technology out of its hat. This sort of conduct would frus-

trate the purpose of the procedural safeguards in the ad-

ministrative process, and replace participatory rulemaking

with rulemaking by ambush.

The question of adequate notice requires ‘‘careful con-

sideration on a case-by-case basis.”” BASF Wyandotte, 598

F.2d at 642. Here, there is no indication that EPA acted

in bad faith and there is ample indication that the base

metals industry should reasonably have known that EPA

was considering sulfide precipitation. In the preamble to

the proposed rules, EPA specifically asked for comments

l4a

on alternative treatment technologies. In the associated

Development Document, EPA included both lime and settle

and sulfide precipitation in its discussion of effective chem-

ical precipitation methods. EPA also discussed the advan-

tages and limitations of sulfide precipitation in some detail.

Finally, 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.

Just as an agency may not ambush an industry by with-

holding a proposed technology until after the period for

comment, an industry may not remain silent during that

period only to complain upon appeal that it was deprived

of an opportunity to comment on what it might reasonably

have been apprised. This circuit has also noted that while

an agency may not bootstrap new technologies from the

comments, it may make ‘‘substantial changes’’ in its orig-

inal proposed rule if the changes are a “‘logical outgrowth”’

of the original proposal and the notice and comments upon

it. American Paper Inst. v. EPA, 660 F.2d 954, 959 n.

13 (4th Cir.1981). Accordingly, we hold that EPA did not

violate the requirements of the Administrative Procedure

Act when, in an attempt to respond to industry comments

and complaints, it added sulfide precipitation as a supple-

ment to the Best Available Technology on which its ef-

fluent limitations were grounded.

There remains the question of whether EPA acted ar-

bitrarily in selecting sulfide precipitation as part of the

Best Available Technology. Kennecott argues that sulfide

precipitation will not reduce effluent concentrations to the

required levels. Specifically, Kennecott charges that data

from the mode! plants which currently use sulfide precip-

itation (Ashio, Japan; Boliden, Sweden; AMAX Ft. Madi-

son) cannot be used to predict achievable concentrations

at Kennecott’s plants, because conditions at the two groups

of plants are so different. Kennecott notes that the plant

15a

in Ashio, Japan, for example, uses sulfide precipitation to

produce arsenic trioxide as an end-product, rather than to

treat wastewater. EPA replies that the ultimate disposition

of the solid precipitate is irrelevant, as long as the con-

centration levels of pollutants in the wastewater are ac-

ceptable.

The model technology may exist at a plant not within

the primary base metals industry. Congress contemplated

that EPA might use technology from other industries to

establish the Best Available Technology. Reynolds Metals,

760 F.2d at 562. Progress would be slowed if EPA were

invariably limited to treatment schemes already in force

at the plants which are the subject of the rulemaking.

Congress envisioned the scanning of broader horizons and

asked EPA to survey related industries and current re-

search to find technologies which might be used to de-

crease the discharge of pollutants. Leg. Hist. at 170.

To determine that technology from one industry can he

applied to another, the agency must:

(1) show that the transfer technology is available outside

the industry;

(2) determine that the technology is transferable to the

industry;

(3) make a reasonable prediction that the technology if

used in the industry will be capable of removing the

increment required by the effluent standards.

Tanners’ Council of America, Inc. v. Train, 540 F.2d 1188,

1192 (4th Cir.1976) (using the standard set out by the

Eighth Circuit in CPC Int'l Inc. v. Train, 515 F.2d 1032,

1048 (8th Cir.1975) ).

EPA has demonstrated that sulfide precipitation—a

process it terms “‘familiar’’ and ‘‘well established’’—is

available outside the primary base metals industry and that

the technology is transferable to that industry. The agency

notes that ‘‘the low solubility of metal sulfides’? has made

l6a

sulfide precipitation a more effective treatment than the

conventional lime and settle process. We do not think it

disqualifying that the Ashio plant, for example, uses sulfide

precipitation to produce an endproduct rather than to clean

its wastewater, so long as the process adequately reduces

pollutant concentrations in wastewater. Again, granting

the agency a proper measure of deference in technical

judgments, it was not arbitrary for EPA to decide that

sulfide precipitation would remove pollutants to the degree

required by the effluent limitations.

Kennecott discusses two other differences between the

sulfide precipitation process at the model plants and the

process at the primary base metals plants. Kennecott points

out that the Ashio plant treats wastewater in batches,

while the primary base metals plants treat wastewater

continuously. EPA answers that the choice of the batch

or continuous processes affects only cost, not effectiveness,

and that study demonstrates the installation and operation

of sulfide precipitation is economically achievable.

Kennecott also notes that all three model plants use

sulfide pretreatment, rather than sulfide polishing. Again,

EPA believes that the difference is irrelevant; whether

sulfide precipitation is the step before or after LS & F

will not affect the achievability of the desired effluent

limitations. The critical matter, in the agency’s judgment,

is the application of the proper amount of precipitant and

the maintenance of proper levels of pH, factors entirely

independent of the timing of wastewater treatment.

We hold that EPA had a reasonable basis for deciding

that the sulfide precipitation technology is transferable.

We are unable to conclude the agency acted arbitrarily or

capriciously in selecting sulfide precipitation as part of the

Best Available Technology for the primary base metals

industry.

EPA expresses its effluent limitations as ‘‘mass limits.”’

EPA derives the mass limit by multiplying the maximum

concentration level of a pollutant times water flow. The

agency sets flow allowances as well as concentration limits

in order to prevent plants from avoiding ‘“‘the regulatory

impact by diiuting their effluent,’ Weyerhaeuser Co. v.

Costle, 590 F.2d 1011, 1059 (D.C.Cir.1978). In setting flow

allowances the agency uses a “building block approach.”’

That is, EPA sets a flow allowance for each individual

process step; the state or regional permit writer then cal-

culates the total flow allowance for each individual plant

by summing the allowances for each process step used at

that plant.

Kennecott contends that EPA improperly denied a flow

allowance for a step in the process of manufacturing pri-

mary lead called blast furnace slag granulation. In the final

rules, the BAT standard for blast furnace slag granulation

is zero discharge. The New Source Performance Standard

(NSPS), which governs new plants, is also zero discharge.

Because Congress thought that new plants have the op-

portunity to install the best and most efficient production

processes, NSPS is normally at least as stringent as, if

not more stringent than, BAT. American Iron and Steel

Inst. v. EPA, 526 F.2d 1027, 1058-59 (3d Cir.1975). Ob-

viously, nothing can be more stringent than zero discharge.

The blast furnace slag granulation step can be either a

wet or a dry process. Kennecott contends that dry slag

is not an option because it produces uncontrollable dust.

Therefore, plants use wet slag, which produces wastewa-

ter. Kennecott requests a flow allowance for this waste-

water. EPA responds that zero discharge for blast furnace

slag granulation is appropriate because three of four ex-

isting plants recycle 100 percent of their wastewater and

thus achieve zero discharge for reasons which are not site-

18a

specific. The agency did not abuse its discretion in con-

cluding that no flow allowance need be set for the blast

furnace slag granulation process step.

With regard to the NSPS, Kennecott lodges one addi-

tional objection. It says that the NSPS is based on py-

rometallurgical plants, but that new primary lead smelters

are likely to be hydrometallurgical. Kennecott admits that

no hydrometallurgical plant is in the process of being built

or even contemplated. When such a plant is built, it can

be designed according to EPA specifications. If zero dis-

charge is indeed impossible for a hydrometallurgical plant,

EPA has said that at that time, it will receive a petition

for a new rulemaking. 48 Fed.Reg. 8764 (Mar. 8, 1984).

On occasion, EPA sets catastrophic storm allowances.

ahese allowances permit a plant to discharge additional

wastewater under emergency circumstances. Some plants

hold liquid waste in ‘“‘surface impoundments,”’ which are

simply natural or manmade depressions. A catastrophic

storm allowance permits a plant to discharge untreated

wastewater when a storm of a certain size strikes and

causes the surface impoundment to overflow. EPA has set

no catastrophic storm allowances for primary lead and zinc

plants. Copper smelters are permitted to discharge un-

treated wastewater if a “twenty-five year storm’’ occurs.

A twenty-five year storm is a storm of such magnitude

that it is likely to occur only once per quarter century.

Kennecott can no longer challenge the catastrophic storm

allowances for zinc and copper. EPA denied the cata-

strophic storm allowance for zinc in a 1975 rulemaking;

the BAT and BPT allowances for copper were set in 1975

and 1980. See 40 Fed.Reg. 8528 (Feb. 27, 1975); 40

Fed.Reg. 8524 (Feb. 27, 1975); 45 Fed.Reg. 44929 (July

2, 1980). Petitioners failed to raise their objections within

19a

the ninety days specified by the Clean Water Act. 33

U.S.C. § 1369(b\1).

Kennecott is free to challenge the denial of a storm

allowance for the primary lead industry, but we do not

find its arguments persuasive. EPA did not set a cata-

strophic storm allowance for primary lead plants because

surface impoundments are not part of the model technol-

ogy. 48 Fed.Reg. 7048-49 (Feb. 17, 1983). EPA made a

conscious decision to discourage impoundments because of

associated problems: the risk of groundwater contamina-

tion and the danger that heavy pollutants will be dis-

charged all at once. Given EPA’s reservations about

impoundments and the fact that impoundments are not

part of the model technology, EPA did not act arbitrarily

in refusing to grant an allowance for catastrophic storms.

EPA also did not set allowances for non-scope flows,

that is, wastewater which is not generated by the man-

ufacturing process but comes from other sources like em-

ployee showers or handwashing. The preamble to the Final

Rules asks permit writers to consider non-scope flows when

they write permits for individual] plants. 47 Fed.Reg. 8778

(March 8, 1984). Kennecott is concerned that because EPA

does not specifically authorize allowances for non-scope

flows in the body of the regulations, permit writers will

erroneously deny allowances. However, EPA did not set

allowances for non-scope flows because these flows are so

idiosyncratic. We do not believe that EPA was required

to list site-specific sources as a separate subpart of the

final regulations. Individual plants will, of course, be able

to challenge the flow allowances set by permit writers.

Finally, Kennecott says that it was denied notice and

the opportunity to comment on the Pretreatment Stand-

ards for Existing Sources (PSES). BAT applies to plants

which are ‘‘direct dischargers,”’ that is, plants whose was-

20a

tewater goes directly into the waterways. Indirect dis-

chargers are plants which discharge waste which is treated

by a sewage plant before it reaches public waterways.

Indirect dischargers are subject to PSES, rather than to

BAT. Because many pollutants either pass through or in-

terfere with the operation of sewage treatment plants,

EPA frequently sets PSES equal to BAT.

EPA failed to propose PSES for the primary zine and

lead subcategories because it did not realize there were

any indirect dischargers. When EPA learned from the

comments that there were indirect dischargers, EPA set

PSES equal to BAT. Because EPA had previously dis-

closed its methodology for establishing BAT, and because

it was foreseeable that PSES would be the same as BAT,

we cannot say that EPA failed to provide adequate notice.

Ill.

The next petitioners represent the secondary lead in-

dustry, which recycles lead, principally from discarded bat-

teries, in four steps. First the batteries are cracked, then

the various parts are separated or ‘‘classified’’ by im-

mersing the battery parts in water. In this step, for ex-

ample, plastic and rubber are separated from the lead

plate. In the third process step, the lead which has been

removed from the batteries is smelted. Piants use wet air

pollution contro] systems (‘‘scrubbers’’) to control the emis:

sion from smelting. Finally, the lead is refined and cast.

At this stage, plants often use another wet air pollution

system, ‘‘kettle scrubbers.’’ Each of these process steps

results in a wastewater stream contaminated by lead and

other pollutants.

The Secondary Lead Smelters Association (SLSA) rep-

resents eighty-five percent of U.S. secondary lead smelting

capacity. SLSA has challenged the non-ferrous metals ru-

lemaking, arguing that filtration is not economically achiev-

2la

able, that EPA’s data base was flawed, and that EPA

incorrectly set flow allowances. We have considered its

objections and conclude that SLSA has failed to show that

EPA acted arbitrarily or capriciously in setting effluent

limits for the secondary lead industry.

EPA used multimedia filtration as the last step in the

combination of techniques which represent BAT for the

secondary lead industry. SLSA contends that multimedia

filtration is not economically achievable, and that EPA has

already considered and rejected filtration in rulemaking

for five other industries.

According to SLSA, EPA significantly underestimated

the total cost of filtration by failing to include the costs

of larger treatment facilities and remodeling. In its Eco-

nomic Development Document, EPA considered the pos-

sible adverse economic impacts of filtration, including

possible plant closures, loss of business to foreign com-

petition, increased cost of production, decreased return on

investment, and rising unemployment. This court will not

undertake its own economic study, but must uphold the

regulations if EPA has established in the record a rea-

sonable basis for its decision. Courts generally allow EPA

some leeway in its analysis of costs. Kennecott Copper

Corp. v. EPA, 612 F.2d 1232, 1238 (10th Cir.1979); BASF

Wyandotte, 598 F.2d at 656. Here we must find that EPA

has built a record sufficient to support its decision that

multimedia filtration is economically achievable.

It is true that EPA has not required filtration for other

industries. It is well settled, however, that such inter-in-

dustry comparisons are not determinative. American Meat

Inst., 526 F.2d at 466; Portland Cement Ass’n v. Ruck-

elshaus, 486 F.2d 375, 389 (D.C.Cir.1973). The question is

whether filtration should be required for the secondary

lead industry, not whether it should be required for some

22a

other industry. As the District of Columbia Circuit has

noted: “It would be unmanageable if, in reviewing the

cement standards, the court should have to consider

whether or not there was a mistake in the incinerator

standard, with all the differences in parties, practice, in-

dustry procedures, and record for decision.’”’ Id. at 389.

This court does not have before it the records of the ru-

lemakings for the five other industries; we are, therefore,

reluctant to launch comparisons of model technologies es-

tablished for one industry with those established for an-

other.’

The cost of installing and operating a model technology

is not, however, a matter that Congress has permitted the

agency to ignore. The statute requires EPA to take into

account the cost of achieving effluent reduction. 33 U.S.C.

§ 1314(b\2\B). Furthermore, the agency has the duty to

explain its cost analysis fully. Pacific Fisheries, 615 F.2d

at 820.

Here, EPA did execute a careful analysis of compliance

costs and their economic impact. The agency used data

from the secondary lead industry to estimate the produc-

tion and capacity of each plant, and then computed prob-

ably revenues from those production and capacity figures.

Taking into account wastewater flows and treatment tech-

nology already in place, the agency calculated compliance

costs for each plant in the secondary lead industry. EPA

next compared compliance costs to revenues for each plant.

If the compliance costs exceeded one percent of the rev-

*The fact that the agency may undertake such comparisons in es-

tablishing BAT for a particular industry poses no anomaly. As we have

noted, such comparisons are consistent with the agency’s statutory

mandate and, in any event, the agency must establish transferability.

See section IIB, supra.

Moreover, we discern a difference in terms of the statutory purpose

between an industry pleading comparisons as a basis for the most

lenient effluent guidelines and the agency utilizing comparisons in as-

sessing the Best Available Technology.

23a

enues, EPA went on to determine whether the plant could

remain profitable in the long run, and whether it could

absorb the necessary costs during the first few years of

compliance.

EPA also calculated changes in cost of production, in-

crease in price, and changes in return on investment, and

compared compliance investment costs to average capital

expenditures. On completion of its economic analysis, EPA

concluded that no plants would be forced to close because

of increased costs, and that the regulations would not have

a significant adverse impact on employment, foreign trade

or the secondary lead smelting industry. Recognizing the

importance of this issue to those plants and businesses

affected, we nonetheless conclude that EPA acted in ac-

cordance with its statutory mandate in assessing the costs

of BAT compliance.

SLSA’s next request is that the effluent limitations for

lead be remanded for consideration of additional data. In-

itially, EPA based the effluent limitations for lead on three

data points from one battery manufacturing plant, Johnson

Controls. EPA then added to its data base 201 points from

an integrated battery manufacturing/secondary smelting

facility, General Battery. SLSA argues that EPA was

wrong to use this data, while rejecting data submitted by

the industry. We find that EPA did not act arbitrarily

with regard to its choice of data.

Specifically, SLSA claims that the wastewaters from the

plants EPA used differ significantly from industry was-

tewater. SLSA says that secondary lead wastewater has

higher concentrations of lead. Secondary lead raw was-

tewater contains 11-92 milligrams per liter of lead. The

untreated wastewater at Johnson Controls contained lead

in concentrations of 1.0-1.45 mg/1. However, lead concen-

trations at Genera] Battery ranged from 21-41 mg/1 in the

24a

EPA sampling and 0.96-301 mg/1 in the plant’s self-sam-

pling. We conclude that EPA was not unreasonable in

basing its effluent limits on the General Battery data. Had

EPA set limits using only the Johnson Controls data, we

might well decide this question differently.’

EPA also acted within its discretion when it rejected

data submitted by the secondary lead industry. EPA said

that the data submitted by petitioners did not contain

paired influent/effluent points or effluent pH ranges. As

a result, EPA felt it was unable to determine whether

petitioners’ data represented exemplary operation. We can-

not find that the agency’s rejection of the secondary lead

industry data on a matter committed to its expertise is

unfounded or arbitrary.

The question of whether the secondary lead industry can

achieve cadmium limitations set for other industries is not

ripe for review. EPA has not set cadmium limitations for

the secondary lead industry. When EPA decides to forego

general regulations in favor of having limits set by indi-

vidual permit writers, the agency has made a considered

decision to set particular limitations on a plant-by-plant

basis. For this court to deal with the issue of cadmium

limitations on appeal as if it were a general rulemaking

matter would be to flout the agency’s approach to the

problem.

The requirement of ripeness is designed ‘‘to protect

agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a con-

crete way by the challenging parties.’’ Abbott Laboratories

*The agency's euphemistic assertion, without accompanying figures,

that Johnson Controls’ wastewater ‘‘contained lead at concentrations

comparable to the lower end of the range of secondary lead plants”

is not appreciated. Such representations serve to obscure. not to clarify.

25a

v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18

L.Ed.2d 681 (1967). In determining whether a challenge

to an administrative regulation is ripe for review, the court

must ask first whether the issue is appropriate for judicial

resolution, and second whether the parties will suffer hard-

ship if judicial review is denied. Jd. at 149, 87 S.Ct. at

1515.

Here the matter we are asked to review is doubly spec-

ulative. We do not know whether the individual permit

writers will choose to regulate cadmium at all. Further,

it is unclear that a permit writer who does choose to set

limits for cadmium will do so by applying standards from

other industries to particular secondary lead plants. Cf.

NAMF, 719 F.2d at 654-55.

The secondary lead industry will likewise suffer no real

hardship as a result of this court’s denial of judicial review

at this juncture. If a permit writer does set cadmium limits

for a secondary lead plant, the plant is free to seek review

of the permit. See Diamond Shamrock Corp. v. Costle, 580

F.2d 670 (D.C.Cir.1978). Given the double contingency, and

the fact that secondary lead smelting plants enjoy an av-

enue of relief in the event of future injury, we decline to

address this matter in the present litigation.

SLSA’s next contention is that EPA erred when it set

or failed to set flow allowances for the various steps in

the secondary lead smelting pr cess. As noted above, sec-

ondary lead smelters recycle batteries to produce lead in

four steps: battery cracking, battery classification, smelt-

ing, and refining. During smelting, plants use furnace wet

air pollution control. The refining process produces par-

ticulate matter, which is controlled by a kettle wet air

pollution control system. Each process step produces a

wastestream. Some plants recycle most, if not all, of the

wastewater produced by the battery classification process

26a

and the two air pollution controi processes. EPA did not

set a flow allowance for the battery classification process

step. SLSA challenges this lack of flow allowance, and, in

addition, challenges as too low the flow allowances for the

battery cracking process step, furnace wet air pollution

control, and kettle wet air pollution control. We find that

EPA’s decisions as to flow allowances were not arbitrary

or capricious, and uphold the regulations.

EPA did not set a flow allowance for battery case clas-

sification because it had obtained data from plants which

reuse 100 percent of the wastewater from this process

step. SLSA contends that recycling wastewater ‘“‘dirties’’

equipment, necessitating continuous maintenance. Con-

gress, however, required EPA to search out the Best

Achievable Technology, and to strive for zero discharge.

Two secondary lead plants recycle 100 percent of their

battery classification wastewater by running it through

lime, settle and filtration. Since all secondary lead plants

have a lime, settle and filtration system, EPA believes all

secondary lead plants can achieve 100 percent recyclé and

zero discharge for battery classification. EPA thus did not

act arbitrarily in denying a flow allowance for the battery

classification process step.

SLSA also contends that the flow allowance for the

battery cracking process step is too low. SLSA says that

EPA wrongly excluded data from two plants, and based

its data on plants with unrepresentatively low flows. Ac-

cording to EPA, twenty of the thirty-five plants with this

wastestream currently meet the flow allowance limit set

for battery cracking. EPA contends that it rejected data

from two plants with excessively high flows, because it

could find no technical justification for the high flows. The

agency can reject data it reasonably believes to be unre-

liable. American Meat Inst., 526 F.2d at 457. While it is

not free to reject data arbitrarily, it may do so if it rea-

sonably concludes that the plant is not operating effi-

ciently. The standard set by Congress is high; there is no

27a

room for data from plants which are not functioning op-

timally.

EPA also set comparatively low flow allowances for both

kettle and furnace wet air pollution control systems. SLSA

again argues that both flow allowances are too low, and

therefore not achievable by secondary lead smelters. Spe-

cifically, SLSA says that, in setting flow aliowances for

kettle scrubbers, EPA erroneously excluded data from two

plants. EPA says that plants which use kettle scrubbers

recycle the water used and then periodically discharge the

water in order to flush out the system. EPA received data

from three plants and used the lowest rate to set the flow

allowance, after deciding that there was no technical jus-

tification for the two higher rates. We cannot say that

EPA did not duly consider all the data, or that the agency

acted unreasonably in setting the flow allowance on the

basis of the best performance.

SLSA next objects that the furnace air pollution control

flow allowance is too low. EPA received data from eight

plants, but based the flow allowance on data from only

three plants. Again, EPA’s action was consistent with Con-

gress’ instruction to base effluent limitations on the Best

Available Technology. Two plants recycle all of their fur-

nace air pollution control wastewater. EPA based its flow

allowance on a ninety percent recycle rate. We cannot say

that EPA acted unreasonably in setting the flow allowance

for furnace air pollution control systems.

In sum, EPA did not abuse its discretion in either set-

ting or failing to set flow allowances for any of the steps

in the secondary lead smelting process.

IV.

The last petitioner is Mallinckrodt, which produces co-

lumbium and tantalum salts. Columbium and tantalum are

used in the aerospace, energy, and transportation indus-

28a

tries. There are five companies in the United States which

process columbium and tantalum. Three integrated plants

process ore to make salts, and then process the salts to

produce metal. Mallinckrodt processes raw material to

make columbium and tantalum salts, whieh are then used

by the fifth firm to make metal.

Mallinckrodt complains that EPA failed to provide ad-

equate notice and opportunity to comment on the ammonia

standards and on flow allowances. We find, however, that

EPA did meet the notice and comment requirements. In

addition, Mallinckrodt charges that EPA was arbitrary and

capricious in promulgating rules on the basis of inadequate

data. We find that EPA was neither arbitrary nor capri-

cious, and accordingly deny Mallinckrodt’s petition.

Mallinckrodt uses a process known as ‘‘steam-stripping”’

to reduce the levels of ammonia in wastewater. EPA set

effluent limitations for ammonia, using steam-stripping as

the model technology. EPA based the ammonia concen-

tration standard on data from a single plant in the iron

and steel industry. In its comments, Mallinckrodt objected

that the data was insufficient. In connection with a related

rulemaking, EPA had obtained data from a zirconium-haf-

nium plant that also used steam stripping. EPA examined

the zirconium-hafnium data to see what levels of ammonia

concentration were achievable.

Mallinckrodt argues that EPA’s failure to publish the

data from the zirconium-hafnium plant deprived Mallinck-

rodt of the opportunity to comment. Had it been given

the opportunity, Mallinckrodt says, it would have pointed

out that Mallinckrodt’s wastewater has significantly greater

quantities of fluorides and sulfates than does the zircon-

ium-hafnium wastewater. Malinckrodt says that the fluor-

ides and sulfates interfere with the ability of steam

stripping to release ammonia, hence it will not be able to

29a

achieve the effluent limitations based on the zirconium-

hafnium data. According to EPA, however, the iron and

steel data continued to be the basis for the final regula-

tions; the zirconium-hafnium data was used only to confirm

the limits.

The requirement of notice and an opportunity to com-

ment is designed to ensure that interested persons are

apprised of the “‘subjects and issues’’ before the agency.

American Iron and Steel Inst. v. EPA, 568 F.2d 284, 293

(3rd Cir.1977). This requirement should not, however, be

maneuvered to block enforcement of a regulation indefi-

nitely. The case law establishes that an agency may pro-

mulgate a rule which differs from the proposed rule,

without re-opening the comment period. ‘‘The requirement

of submission of a proposed rule for comment does not

automatically generate a new opportunity for comment

merely because the rule promulgated by the agency differs

from the rule it proposed, partly at least in response to

submissions.” International Harvester Co. v. Ruckelshaus,

478 F.2d 615, 632 (D.C.Cir. 1973). Were the law otherwise,

rulemakings might never be terminated.

The reviewing court must in turn strike a balance be-

tween ensuring public participation and not obstructing the

passage of valid regulations. ‘“‘The essential inquiry is

whether the commenters have had a fair opportunity to

present their views on the contents of the final plan. We

must be satisfied, in other words, that given a new op-

portunity to comment, commenters would not have their

first occasion to offer new and different criticisms which

the Agency might find convincing.”” BASF Wyandotte, 598

F.2d at 642 (footnote omitted).

Had it been given the opportunity to comment on the

zirconium-hafnium data, Mallinckrodt would have discussed

fluoride and sulfate interference. However, as Mallinckrodt

itself concedes, other commenters discussed the possibility

of fluoride/sulfate interference when they commented on

30a

the iron and steel data. Mallinckrodt commented on the

iron and steel data; it could have raised the issue of fluor-

ide/sulfate interference at this point. We cannot conclude

that by its use of the zirconium-hafnium data EPA de-

prived Mallinckrodt of meaningful notice and opportunity

to comment on the effluent limits for ammonia.

Mallinckrodt challenges the flow allowances for the co-

lumbium-tantalum industry, on the grounds that it did not

have notice or an opportunity to comment on the nor-

maling parameter, and that EPA did not use data from

one of Mallinckrodt’s plants. Neither of Mallinckrodt’s con-

tentions with respect to flow allowance merits remanding

the regulations. In the proposed rules, EPA had calculated

the permissible flows according to the amount of end-prod-

uct. That is, a plant was entitled to discharge more was-

tewater if it produced more salts or metal. In the final

rules, EPA made flow allowances proportional to the

amount of raw material used. Mallinckrodt complains that

it was never given an opportunity to comment on EPA’s

decision to normalize flow on the basis of raw concentrate

rather than end-product. Mallinckrodt says that the final

rules would permit it to disharge only 218 pounds of am-

monia per year, aS opposed-to the 1,219 pounds per year

permitted by the proposed rules.

EPA replies that Mallinckrodt’s flow allowance dropped

not because of the change in normalizing parameters but

because EPA obtained more flow data and realized that

the original flow allowance was too high. EPA changed

the normalizing parameter in response to other comments.

However, Mallinckrodt’s flow allowance would have

dropped dramatically even if EPA had not changed the

normalizing parameter. Therefore, the pertinent question

is whether EPA acted arbitrarily in excluding Mallinck-

rodt’s data when it calculated the flow allowance.

3la

To set the flow for concentrate digestion wet air pol-

lution control, EPA obtained data from three plants, num-

bered 507, 509 (Mallinckrodt’s plant) and 519. Plant 519

used the same air pollution control for two separate proc-

esses; EPA concluded that it could not base a flow allow-

ance for one process on the data from plant 519. Plant

509 discharged fifteen times more wastewater than plant

507. EPA says that the two plants were similar in many

respects and that although Mallinckrodt had many oppor-

tunities to do so, it never pointed out any process differ-

ences during the rulemaking. EPA decided that plant 509’s

flow rate was excessive, and based the standard on plant

507.

Here, EPA was setting the standard according to BPT

(best practicable technology), rather than BAT. BPT is

normally the average of the best performing plants. How-

ever, since EPA had data from only three plants, and one

set of data was clearly unusable; it was not unreasonable

for EPA to set limits according to the better remaining

performer. See National Crushed Stone, 449 U.S. at 76 n.

15, 101 S.Ct. at 303 n. 15.

¥.

The objections made to the EPA regulations by

petitioners have been numerous. We have considered those

we believe to be the most substantial, and we find them

insufficient to establish a case of arbitrary behavior on the

part of the agency. The technical intricacy of the judg-

ments at issue reminds us again of the constraints and

limitations of judicial review and of the heavy obligations

imposed upon agency specialists to bring to their tasks a

sense of fairness as well as a briefcase of expertise.

In this case the Environmental Protection Agency con-

ducted its rulemaking in conformity with the Administra-

tive Procedure Act and the Clean Water Act. To the best

of this court’s belief, the regulations here were properly

32a

promulgated and will assist the protection of human health,

nutriment, and recreation which the Congress envisioned

as the legacy of cleaner waterways.

The petitions are accordingly

DENIED.

33a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1288

KENNECOTT,

Petitioner,

versus

U. S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

GTE Propucts CORPORATION,

Intervenor/Petitioner.

No. 84-1479

—E————Es

AMERICAN MINING CoNGRESS, AMAX, INC.,

AND ASARCO INCORPORATED,

Petitioners,

versus

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

No. 84-1487

———_

St. Jo—E MINERALS CORPORATION,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

34a

___

No. 84-1659

THE SECONDARY LEAD SMELTERS ASSOCIATION,

Petitioner,

versus

WILLIAM RUCKELSHAUS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

GuLF Coast LEAD Company,

Intervenor, Petitioner

No. 84-1694

_—_—_—_————_

MALLINCKRODT, INC.,

Petitioner,

versus

UniITED STaTES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ORDER

The petitions of Group I Petitioners: Kennecott, Amer-

ican Mining Congress, AMAX, Inc., ASARCO, Inc. and

St. Joe Minerals Corporation; Group III Petitioners: The

Secondary Lead Smelters Association, Inc. and Gulf Coast

Lead Company, Inc.; and Group IV Petitioner: Mallinck-

rodt, Inc. for rehearing and suggestions for rehearing in

bane were submitted to this Court. As no member of the

Court requested a poll on the suggestions for rehearing

in bane, and

As the panel considered the petitions for rehearing and

is of the opinion that they should be denied.

35a

IT IS ORDERED that the petitions for rehearing and

Suggestions for rehearing in banc are denied.

Entered at the direction of Judge Wilkinson with the

concurrence of Judge Phillips and Judge Murnaghan.

For the Court,

/s/ John M. Greacen

CLERK

36a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1288(L)

No. 84-1659

THE SECONDARY LEAD SMELTERS

ASSOCIATION, INC.,

Petitioner,

and

GULF Coast LEAD COMPANY, INC.,

Petitioner - Intervenor.

WILLIAM D. RUCKELSHAUS, et al.,

Respondents.

PETITION FOR REHEARING AND

SUGGESTION FOR A REHEARING IN BANC

Pursuant to Rules 35 and 40 of the Federal Rules of

Appellate Procedure, petitioners the Secondary Lead

Smelters Association, Inc. and Gulf Coast Lead Company,

Inc. (‘‘Petitioners’’) respectfully request that this Court

grant a rehearing in the above-captioned consolidated cases

and further suggest that a rehearing in banc be granted.

STATEMENT OF PURPOSE

In the undersigned counsel’s judgment, a rehearing

should be granted for the following reasons: (1) this Court

overlooked or misunderstood several material facts which

would have significantly affected the Court’s decision, and

37a

(2) the Court’s ruling appears to be in conflict with a

previous decision of this Circuit, Tanners’ Council of Amer-

wa, Inc. v. Train, 540 F.2d 1188 4th Cir. 1976).

A. Standard of Review

The decision by this Court has significant implications

for the secondary lead smelting industry as well as other

industries who in the future wish to challenge regulations

promulgated by EPA. Despite the fact that EPA failed to

identify any secondary lead smelter that can achieve the

promulgated effiuent limitations at issue in this case, in-

cluding the two plants that have adopted the model tech-

nology utilized by EPA to establish the limitations, this

Court decided to accept the judgment of the agency with-

out any detailed analysis and sustain the promulgated val-

ues.

Petitioners recognize, as this Court noted in its decision,

that the case is highly complex and technical, and that the

administrative record is voluminous (sl. op. 5). Neverthe-

less, this Court is required to scrutinize EPA’s decision-

making process rather than merely acknowledge the

existence of a dispute between parties and then conclude

without analysis that the agency’s action «vas not arbitrary

and capricious. Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402 (1971). A more detailed examination

of the issues presented by Petitioners and the underlying

record is necessitated by the significance of this case as

well as by the Administrative Procedure Act, 5 U.S.C.

§706, and underlying case law. By failing to undertake a

detailed examination of the agency’s action and the un-

derlying record, this Court’s decision effectively allows

EPA, as well as other regulatory agencies, to promulgate

regulations provided the agency merely acknowledges the

existence of data and comments that are critical of its

proposed action.

Moreover, as this Court has previously recognized, ad-

equate notice and an opportunity to comment are critical

38a

to the rights of interested parties, and it is the respon-

sibility of this Court to ensure that the rights are not

abridged by regulatory agencies. Chocolate Manufacturers

Association v. Block, 755 F.2d 1098 (4th Cir. 1985). In

this case, however, the Court apparently overlooked the

fact that data submitted by industry was rejected without

adequate notice to Petitioners and that other EPA deter-

minations were rendered without adequate notice or an

opportunity for comment.

In short, this Court apparently limited its review to the

arguments and statements contained in the parties’ briefs

without a detailed examination of the record. Moreover,

this Court overlooked in its decision critical agency errors

identified and documented in Petitioners’ briefs. Petitioners

have summarized these errors below.

B. Lead Concentration Limitations

This Court concluded that EPA acted within its discre-

tion when the agency rejected data submitted by the sec-

ondary lead smelting industry because the Court accepted

EPA’s determination that industry data lacked certain crit-

ical information representative of exemplary operaticn (si.

op. at 32-33). In reaching this conclusion, this Court over-

looked two crucial factual issues briefed fully by

Petitioners. First, the battery manufacturing data relied

upon by EPA in promulgating the lead concentration lim-

itations for the secondary lead smelting industry failed also

to satisfy EPA’s own criteria of representative exemplary

operation (Pet. Rep. Br., pp. 4-5, 17). Second, a review of

the administrative record discloses that contrary to EPA’s

representations to the Court, which the Court relied upon

in upholding the agency’s rejection of industry data, cer-

tain data submitted by industry did satisfy EPA’s criteria

and thus should have been accepted and analyzed by EPA

in establishing the lead concentration limitations (Pet. Rep.

oD. Th

39a

In addition, this Court ignored another critical issue with

respect to the data utilized by EPA to promulgate the lead

concentration limits. EPA initially proposed the lead con-

centration values based on three data points from one

battery manufacturing facility (Johnson Controls). There-

after, in response to comments submitted by Petitioners,

EPA expanded the data base by considering 201 data

points from an integrated battery manufacturing/secondary

lead smelting facility (General Battery). The inadequacy of

the Johnson Controls data standing alone was recognized

by this Court (sl. op. at 32).

In expanding the data base, however, EPA did not es-

tablish the lead concentration values by utilizing al] 204

data points (Johnson Controls - 3 data points, General

Battery - 201 data points). Instead, EPA averaged the 201

data points from General Battery to the equivalent of only

3 data points. This statistical manipulation was extremely

significant. It resulted in artificially stringent lead con-

centration values. Indeed, had EPA utilized all 204 data

points, it is unlikely that Petitioners would have filed this

action. It should also be noted that Petitioners were not

informed of the manipulation of the data until after the

close of the comment period and two and one-half weeks

prior to the publication of the final rule. Petitioners have

maintained that these agency actions are arbitrary and

capricious (Pet. Br., p. 25, Pet. Rep. Br., pp. 32-35). Never-

theless, this Court ignored these actions and failed to ana-

lyze them in its decision.

Furthermore, this Court apparently overlooked a key

factual issue presented by Petitioners with respect to com-

pliance with the promulgated lead limitations. EPA failed

to document any secondary lead smelting facility, including

those facilities that employ the model technology, that is

in compliance with the promulgated values. That failure

places the agency squarely at odds with this Court’s ruling

in Tanners’ Council of America, Inc. v. Train, 540 F.2d

1188, 1191-92 and n. 10 (4th Cir. 1976). In Tanners’ Coun-

40a

ci) this Court concluded that ‘‘[uJniess the required levels

of reduction can be met by existing plants, the designated

technology cannot be said to be ‘currently available’ ”’. Jd.

See, also, Portland Cement Association v. Ruckelshaus, 486

F.2d 375, 389 (D.C. Cir. 1973), cert. denied, 417 U.S. 921

(1974); American Iron and Steel Institute v. EPA, 526 F.2d

1027, 1062 (8rd Cir. 1975). This critical ruling appears to

have been entirely overlooked by the Court in its decision.

C. Filtration

Petitioners challenge to the adoption by EPA of filtra-

tion as the model technology was based, in part, on a

comparison with five other industrial categories in which

EPA rejected the application of filtration. In their briefs,

Petitioners demonstrated that the agency’s decision to

adopt filtration was arbitrary in light of its action with

respect to the other industrial categories for two reasons:

first, the technology was not economically achievable; and,

second, the technology wouid not result in reasonable prog-

ress towards improvement in the quality of the receiving

water bodies (Pet. Br., pp. 16-17, Pet. Rep. Br., pp. 8-

13).

In considering Petitioners’ challenge to filtration, this

Court limited its review to the economic achievability ar-

gument but ignored the environmental benefit issue raised

by Petitioners. Petitioners recognize that this Court is re-

luctant to compare model technologies between industrial

categories, although Petitioners note that EPA relied on

data from other industries to promulgate limits for the

secondary lead smelting industry and that the data was

present in the administrative record before this Court (see

sl. op., p. 80). However, Petitioners have demonstrated

that the adoption of filtration by the secondary lead smelt-

ing industry would result in approximately 20 percent less

pollutant removal than the lowest amount that would have

been removed in the five categories where EPA deter-

mined filtration was not supportable. Petitioners’ claim,

4la

which this Court has overlooked, is that the agency’s de-

termination in the rulemaking before this Court, in light

of its actions in five previous rulemakings, is arbitrary and

flies in the face of the requirements of the Clean Water

Act as recognized by this Circuit. Appalachian Power Com-

pany v. EPA, 545 F.2d 1851, 1361 (4th Cir. 1976).

D. Cadmium

This Court concluded that industry’s challenge to the

promulgated cadmium limitations is not ripe for review (sl.

op., pp. 33-34). In rendering this determination, this Court

reached two key conclusions which are in error: (1) that

in setting limits in an individual permit proceeding, it is

unclear whether the permit writer will apply the limits

promulgated in the context of the challenged rulemaking;

and (2) that individual facilities are free to challenge the

cadmium limits contained in permits issued on a plant-by-

plant basis.

As addressed in Petitioner’s briefs, EPA’s own regu-

lations direct an individual permit writer to EPA’s devel-

opment and guidance documents to establish cadmium

limits for a plant. (Pet. Rep. Br., p. 20). Accordingly, a

permit writer in establishing cadmium limits in an indi-

vidual permit is bound to base the limits on the effluent

guidelines developed in the context of the challenged ru-

lemaking. Thus, contrary to this Court’s reasoning, the

limits challenged by Petitioners will serve as the basis for

individual permits.

Moreover, although plants can challenge cadmium limits

contained in individual permits, such challenges are re-

stricted to factual disputes and thus the hearings would

be devoted only to the issue whether the promulgated

guidelines have been properly applied to an individual fa-

cility. EPA itself has maintained since the passage of the

Clean Water Act that an individual permittee cannot chal-

lenge the underlying promulgated limitations in the con-

text of a specific permit proceeding since the only

42a

mechanism available to challenge the underlying promul-

gated limitations is to petition a court of appeals of com-

petent jurisdiction at the time of promulgation, as

Petitioners have done in this case (Pet. Rep. Br., pp. 20-

21). Accordingly, Petitioners have standing to challenge

the cadmium limits and their claim is ripe for review.

D. Notice and Comment

This Court apparently overlooked Petitioners’ challenge

to the rulemaking based on EPA’s violation of the notice

and comment provision of the Administrative Procedure

Act (Pet. Br., p. 57, and Pet. Rep. Br., pp. 18, 30-35).

Petitioners demonstrated in their briefs that EPA failed

to inform industry that the agency was going to reject its

data;* that the reason (“representative exemplary opera-

tion’’) for rejection of certain industry data was first stated

in the preamble to the final rule, thus depriving Petitioners

of the right to comment; and that industry was not pro-

vided with an opportunity to review and comment on data

from General Battery, which is one of the two battery

manufacturing plants relied upon by EPA to promulgate

the lead concentration values. The failure to provide notice

and comment also extends to the flow allowances allocated

for wastestream sources since industry was not informed

until promulgation of the final rule that no flow allowances

would be provided (battery case and facility washdown) or

that industry data would be rejected, thus resulting in

unrealistically iow allowances (handwash and truck wash).

It is a basic principle of administrative law that an agency

must give notice which apprises interested parties of a

rule sufficiently to enable them to comment intelligently.

Appalachian Power Company v. EPA, 579 F.2d 846, 852-

55 (4th Cir. 1978). This Court has ignored Petitioners’

* In addition to rejecting al! of the data submitted by industry, EPA

elected not to visit any of the facilities which submitted that data thus

ensuring that industry would not have an opportunity to respond to

the agency's concerns.

43a

showing that no such notice or an opportunity for comment

was afforded industry.

CONCLUSION

WHEREFORE, for each of the foregoing reasons,

Petitioners respectfully request that this Court grant a

rehearing of its decision rendered December 26, 1985, and

that a rehearing be held in banc.

Respectfully submitted

/s/Robert N. Steinwurtzel

COLLIER, SHANNON, RILL & SCOTT

1055 Thomas Jefferson Street, N.W.

Washington, D.C. 20007

(202) 342-8400

Attorney for Secondary Lead

Smelters Association, Inc. and

Gulf Coast Lead Company

Dated: January 8, 1986

44a

APPENDIX C

THE ADMINISTRATIVE PROCEDURE ACT OF

1946, AS AMENDED (5 U.S.C. § 706 (1976)):

Scope of Review:

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action. The reviewing court shall—

(1) compe! agency action unlawfully withheld or un-

reasonably delayed; and

(2) hold unlawful and set aside agency action, findings,

and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law;

(B) contrary to constitutional right, power, privi-

lege, or immunity;

limitations, or short of statutory right:

(D) without observance of procedure required by

law;

(E) unsupported by substantial evidence in a case

subject to sections 556 and 557 of this title or

otherwise reviewed on the record of an agency

hearing provided by statute; or

(F) unwarranted by the facts to the extent that the

facts are subject to trial de novo by the review-

ing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a

party, and due account shall be taken of the rule of prej-

udicial error.

45a

THE CLEAN WATER ACT OF 1977, AS AMENDED

(33 U.S.C. § 1369(b) (1982)):

Administrative Procedure and Judicial Review

(b) Review of Administrator’s Actions

(1) Review of the Administrator’s action (A) in promul-

gating any standard of performance under section 1316 of

this title, (B) in making any determination pursuant to

section 1316(bX1\C) of this title, (C) in promulgating any

effluent standard, prohibition, or pretreatment standard

under section 1317 of this title, (D) in making any deter-

mination as to a State permit program submitted under

section 1342(b) of this title, (E) in approving or promul-

gating any effluent limitation or other limitation under

section 1311, 1312, or 1316 of this title, and (F) in issuing

or denying any permit under section 1342 of this title,

may be had by any interested person in the Circuit Court

of Appeals of the United States for the Federal judicial

district in which such person resides or transacts such

business upon application by such person. Any such ap-

plication shall be made within ninety days from the date

of such determination, approval, promulgation, issuance or '

denial or after such date only if such application is based

solely on grounds which arose after such ninetieth day.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) of

this subsection shall not be subject to judicial review in

any civil or criminal proceeding for enforcement.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.