RIVES, Circuit Judge:
These petitions seek to have this Court set aside regulations issued on April 5, 1974, by the Administrator of the Environmental Protection Agency [hereinafter "the Administrator"] establishing "effluent limitations guidelines" for existing sources and "standards of performance" for new sources for the Plastics and Synthetics Point Source Category adopted pursuant to § 301, § 304(b) and (c), § 306(b) and (c), and § 307(c) of the Federal Water Pollution Control Act, as amended [hereinafter "the Act"].
The Act sets out "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters and establishes as a national goal the elimination of the discharge of pollutants into the navigable waters by the year 1985. § 101(a). Section 306(b)(1)(B) of the Act directs the Administrator to propose and publish within one year federal standards of performance for new sources, defined as a source of pollution discharge, "the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source." § 306(a)(2). "Effluent limitations guidelines" prescribe the amount of pollution discharge permitted by existing plants and are divided into two phases — a 1977 stage and a 1983 stage. Under § 509(b)(1), review of these regulations lies in the United States Court of Appeals. See duPont v. Train, 528 F.2d 1136 (4th Cir. 1976).
Support for these regulations under review included a "Development Document for Proposed Effluent Limitations Guidelines and New Source Performance Standards for the Synthetic Resins Segment of the Plastics and Synthetic Materials Manufacturing Point Source Category" [hereinafter
Petitioners in these cases are manufacturers of plastic and synthetic materials subject to the regulations. In addition to raising technical challenges to the regulations (discussed, infra), petitioners present questions of jurisdiction and Agency authority to issue these "effluent limitations guidelines" under § 301 of the Act. Both issues were raised in related cases decided by this panel. See duPont v. Train, 528 F.2d 1136 (4th Cir. 1976); duPont v. Train, 541 F.2d 1018 (4th Cir. 1976) [No. 74-1261]. In duPont v. Train, No. 74-2237, we held that judicial review of "effluent limitations guidelines" is properly before a United States Court of Appeals, in the first instance; while in duPont v. Train, No. 74-1261, we held that the Commissioner, under a combination of powers granted to him by §§ 301 and 304 of the Act, does have authority to issue "effluent limitations guidelines." No further treatment of the two issues is now necessary.
In Nos. 74-1400, 74-1502, 74-1503, and 74-1765, petitioners raise the questions of the proper technological standards to be applied to the 1977 and 1983 effluent limitations guidelines and the new source standards of performance. Additionally, the manufacturers contend that EPA's inadequate
In petitions Nos. 74-1505, 74-1729, 74-1761, and 74-1762, the manufacturers present a detailed analysis of EPA's alleged methodological errors with regard to a single subcategory — acrylics. EPA has conceded that petitioners' arguments in regard to acrylics have merit and has agreed to re-examine the data base which supports the effluent limitations guidelines and new source performance standards for the acrylics subcategory and to suspend these regulations during the reconsideration period. (Resp. Brief at 134-136.) In view of this concession, we find it unnecessary to decide the issues raised in petitions Nos. 74-1505, 74-1729, 74-1761, and 74-1762, and remand these regulations to the Administrator.
I. General Validity of the Regulations
Petitioners assert that § 304(b) of the Act requires the Administrator to promulgate ranges of values rather than single-number limitations. In duPont v. Train [No. 74-1261], supra at 1029-1030, this Court rejected that same argument, holding that the Act does not contain such an inflexible requirement. Rather, the Administrator is free to exercise reasonable discretion in establishing these pollution standards and may set single-number limitations unless such action is arbitrary in a particular case.
B. Data Base
Petitioners allege that these regulations are defective because they are based on data obtained only from a small number of plants which were not shown to be representative of the various affected subcategories. This argument is meritless in view of the extensive research conducted by EPA in the development of these regulations. The contractor responsible for compiling the Development Document reviewed both a survey submitted by the Manufacturing Chemists Association (App. 4835-5635) and a study undertaken by the Celanese Research Company under the sponsorship of EPA (App. 6474-6696), as well as applications for discharge permits under the Refuse Act. (Resp. Brief at 35-56.) On the basis of this information, EPA's contractor, A. D. Little, Inc., selected 19 exemplary plants for testing and study. See Dev. Doc. 98. Given the time pressures of a court-imposed deadline for issuing these regulations, see Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 710-714 (1974), it would have been impossible for EPA to have conducted a comprehensive survey of all plants affected by these regulations. See American Iron and Steel Institute v. Environmental Protection Agency, 526 F.2d 1027, 1057 (3d Cir. 1975).
Sections 304(b)(2)(A) and 306 of the Act require the Administrator to consider cost in establishing the 1983 effluent limitations guidelines and new source standards of performance. Additionally, § 304(b)(1)(A) mandates a consideration of the total cost of the application of technology in relation to the degree of effluent reduction to be achieved by the 1977 standards. Petitioners contend that EPA's assessment of the cost is inadequate for the following reasons:
(1) The Administrator's refusal to make a cost-benefit analysis. Petitioners assert that the statute is not satisfied unless the Administrator quantifies in monetary terms the benefits to be obtained by reducing pollution and compares this sum to the achievement cost. This Court in duPont v. Train [No. 74-1261], supra, has, however, rejected that argument. The Act's overriding objective of eliminating by 1985 the discharge of pollution into the waters of our
(2) Errors in EPA's Economic Analysis.
Reviewing these contentions, we find no error made by EPA in its economic analysis which rises to the level of arbitrary or capricious action.
D. Non-water Environmental Impact and Energy Requirements
Sections 304 and 306 tell the Administrator that non-water quality environmental impact and energy requirements must be considered in establishing effluent limitations guidelines and standards of performance. Petitioners argue that EPA failed to fulfill this statutory obligation due to inadequate consideration of cost and landfill problems associated with solid waste disposal. We note in the Development Document that EPA has assessed the problems associated with sludge disposal and has even computed a range of disposal costs per pound of product manufactured. Dev. Doc. 146 (App. 6210.) In view of this assessment, it cannot be said that the Administrator failed to perform his statutory duty to consider these factors.
II. Validity of Specific Regulations
A. Hydraulic Flows
1. 1977 Limitations
The hydraulic flows used as the basis for computing BPCTCA
EPA asserts that this procedure results in figures that are reasonably typical of each industrial subcategory. Petitioners disagree, citing the following conclusions of EPA's contractor, A.D. Little, Inc., made in the draft Development Document:
Given these observations, petitioners contend that EPA was arbitrary in selecting a single hydraulic flow from a wide range of flows and then applying this level of water usage uniformly throughout a subcategory.
The ranges in hydraulic flows found among plants in the subcategories bear witness to the contractor's conclusion that there is no uniform water usage per unit of product manufactured. The following are a few examples. In the polyvinyl chloride subcategory: demonstrated wastewater flow is 1,800 gallons per 1,000 pounds of product, range is 300-5,000 gallons. For cellulose acetate (resin): demonstrated wastewater flow is 5,000 gallons per 1,000 pounds of product, range is 2,000 to 20,000 gallons. For rayon: demonstrated wastewater flow is 16,000 gallons per 1,000 pounds of product, range is 4,000 to 23,000 gallons.
EPA in its brief admits that substantial questions have been raised concerning the hydraulic flow chosen for 1977 in the acrylics subcategory. (Resp. Brief at 135.) We think there are substantial questions in the other categories as well and direct EPA to re-examine its use of uniform hydraulic flows for purposes of calculating the regulations in this industry.
The legislative history and the statute make clear Congress' intent that BPCTCA standards are to rely principally upon end-of-manufacturing treatment of
2. 1983 Limitations
The Development Document does not disclose what flow figures were used for calculating the BATEA
3. New Source Standards
Flow levels used to establish new source standards of performance are explained as follows:
EPA contends that since the new source flows are achieved by at least one plant in each subcategory, no technological breakthrough in production methods or engineering techniques is necessitated and the technology is therefore "demonstrated" as required by § 306(a)(1). The record, however, does not identify the particular plants used, nor does it disclose their operating or technological characteristics. Without these important guides, manufacturers seeking to build new plants could be at a loss to find ways to design and construct facilities that conform to the flows used to establish the standards of performance. Petitioners claim that this violates Congress' command in § 304(c) of the Act that:
In its brief, EPA contends: "It is not unreasonable to require petitioners to utilize their resources and abilities to achieve reduced hydraulic flows. The Agency must provide guidance, and this it has done. But it is not required to prepare a cookbook." (Resp. Brief at 102.) Much of the guidance provided by the Agency, however, has been only vague references to better maintenance and avoidance of leaks and spills. See App. 6193-6195. The Development Document, in perhaps its most informative statement, recommends "judicious control of process steps using water for washing, scrubbing, and so on, by employing countercurrent flow operations and by strict attention to housekeeping operations." Dev. Doc. 109 (App. 6173). In our opinion, this information is not sufficiently detailed to provide the type of technological guidance EPA is required to give under § 304(c). A remand of these regulations is necessary to assure compliance with this statutory obligation.
B. COD as a Pollutant
Petitioners contend that EPA's designation of chemical oxygen demand (COD) as a control parameter is arbitrary and capricious. Both BOD
While EPA admits that "the specific harm caused by the chemical components of COD is not yet known for this industry" (Resp. Brief at 105), it nonetheless feels that its action is justified in view of the statutory definition of "pollution." This term is defined in § 502(19) of the Act, not in terms of harm to the environment, but as "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water." This definition satisfies us that EPA, in designating COD as a pollution parameter, acted in accordance with the law.
C. 1977 and New Source COD Limits
In all subcategories, COD limits are established for the 1977 effluent limitations guidelines and the new source standards of performance despite the fact that EPA does not require the application of any COD control technology. The COD limits established by EPA are set on the basis of a ratio of COD to the BOD
D. 1983 COD Limits
The 1983 COD limits are based on the application of activated carbon absorption. For eight subcategories an effluent concentration of 130 mg/l was set as the attainable level of reduction for BATEA. Demonstrated COD concentrations are used in the subcategories already achieving a level lower than 130 mg/l. Dev. Doc. 211 (App. 6274). Petitioners contend that EPA failed to substantiate its determination that this 130 mg/l. concentration is attainable across the board for all eight subcategories. EPA justifies this level of concentration on the basis of performance data from a pilot plant using activated carbon and the results presently obtained by a few exemplary plants. Id. Petitioners argue that carbon absorption does not meet the statutory criteria of "availability" throughout the industry as the pilot plant involved a single process for the making of only one product. In Tanners' Council, Inc. v. Train, 540 F.2d 1188 (4th Cir. 1976) [No. 74-1740], this panel rejected a similar argument by the tannery industry and held that "in establishing these 1983 standards, the Agency may look to the best performer in the industry and even assess technologies that have not been applied as long as the record demonstrates
The Development Document describes the results of carbon absorption treatment as follows:
This report goes on to say that:
It is apparent to this Court that the reasonableness of the COD limits set by EPA for 1983 cannot be reviewed at this time. The figure of 130 mg/l is only a projection, and its accuracy cannot be determined until data from EPA's ongoing research and testing of carbon absorption treatment has been obtained. But waiting until the scientific results are conclusive may be too late. As petitioners point out, "[i]t may take one or more years merely to design and test a treatment facility and even longer to actually build such a facility and put it in operation." (Pet. Reply Brief, Nos. 74-1400, et al., at 37.) The technology designated by EPA should be implemented. Then, if the results are not up to EPA's earlier projections, sections 304(b) and 301(d) place a duty upon the Administrator to review and revise these regulations.
D. 1977 TSS Limits
Total Suspended Solids (TSS) measures the amount of inorganic and organic materials suspended in the wastewater. If allowed to settle in the receiving water, these solids form a sludge deposit on the lake or river bed which destroys aquatic life. See Dev. Doc. 88-89 (App. 6152-6153). For 1977, the Agency uses a uniform effluent concentration of 30 mg/l of TSS for all subcategories. Petitioners contend that this standard TSS level fails to take into account the differences in the treatability of wastewater for the different subcategories. The Administrator maintains that, while BOD treatments experience wide variations in removal efficiency, TSS removal is relatively uniform. This is borne out by the data from the exemplary plants observed by EPA. Dev. Doc. 81 (App. 6145). Finding that the Administrator's position is supported by the record, this Court upholds EPA's use of a 30 mg/l effluent concentration level for calculating the 1977 TSS limits.
E. 1983 and New Source TSS Limits
For existing sources — 1983 stage and new sources, EPA uses an effluent concentration of 10 mg/l. This concentration is set on the basis of the application of mixed media filtration.
F. Variability Factors
In establishing these effluent limitations guidelines and standards of performance, EPA took notice of the fact that even in the best treatment systems changes continually occur in the treatability of wastes. To account for this variability, the Administrator made a statistical analysis to determine day-to-day and month-to-month standard deviations. From this, daily and monthly variability factors were defined which, when multiplied by the long-term yearly average, determine the effluent limitations guidelines for each subcategory. The monthly variability factor results in an effluent limit that is exceeded 2 to 3 percent of the time for a plant attaining the long-term average, while the daily variability factor results in only a 0.0-0.5 percent violation. Dev. Doc. 203-207, 212-213, 215-217 (App. 6267-6271, 6275-6276, 6277-6279).
Petitioners contest the reasonableness of this procedure. EPA, they contend, committed three serious errors. First, the calculation of the variability factors was based on effluent concentrations. The limitations and standards of performance are expressed, however, in pounds of pollutant per 1,000 pounds of product (derived by multiplying hydraulic flow by effluent concentration). In effect, the element of hydraulic flow has been removed from the variability calculations. Petitioners insist that this results in a lower variability factor than would have resulted had these computations been based on pounds of pollutant per 1,000 pounds of product.
Third, petitioners contend that it is arbitrary for EPA to fail to make provision for "excursions" when it realizes to a certainty that even a proper treatment facility will be in violation on a few occasions. EPA denies that excursions are necessary, contending that there is always a theoretical chance that a plant achieving the limitations on a long-term basis will exceed the monthly and daily limits. Nonetheless, this Court is of the opinion that EPA should provide an excursion provision that will offset the expected 2 to 3 percent and .5 percent violations. Plant owners should not be subject to sanctions when they are operating a proper treatment facility. Such excursions are provided for by the ambient air standards established under the Clean Air Act, 40 C.F.R. §§ 50.4-50.10, and this Court sees no reason why appropriate excursion provisions should not be incorporated in these water pollution regulations.
The effluent limitations guidelines and standards of performance for the Plastics and Synthetics Industry Point Source Category are remanded to the Administrator for reconsideration in light of the reasons stated in this opinion.