Chemical Manufacturers Association v. U.S. Environmental Protection Agency

Summary

The Fifth Circuit reviewed consolidated petitions challenging EPA regulations governing pollutant discharges from the organic chemicals, plastics, and synthetic fibers industries under the Clean Water Act. The court upheld most of the regulations, including provisions concerning BPT, BAT, pretreatment standards, and toxic pollutants, but held that EPA violated the Administrative Procedure Act by failing to provide notice and an opportunity for comment on its BAT subcategorization. The court also held that EPA's failure to consider wastestream recycling in establishing new source performance standards was arbitrary.

Holdings

1. EPA did not violate the APA by using updated and expanded Dun & Bradstreet data in its economic-impact analysis without reopening notice and comment.
2. The Clean Water Act does not require EPA to apply a quantitative knee-of-the-curve or equivalent stringent cost-benefit test when establishing BPT limitations; EPA must consider total costs in relation to effluent-reduction benefits, and costs need not be given primary importance.
3. The BCT cost-effectiveness test supplements, rather than replaces, the BPT requirements; EPA may promulgate BPT limitations for conventional pollutants even when facilities were previously regulated by individual NPDES permits.
4. EPA reasonably selected its representative best performers and reasonably used SIC codes and other industrial characteristics in subcategorizing the OCPSF industry.
5. EPA was not required to resolve individualized plant-specific claims during national rulemaking because fundamentally different factor variances provide the appropriate collateral mechanism for such claims.
6. The court lacked jurisdiction under Clean Water Act section 509(b)(1) to review challenges concerning implementation of the regulations or the delayed processing of individual FDF applications; such claims belong in district court proceedings.
7. EPA violated the APA by failing to publish its BAT subcategorization for public comment before promulgating the final regulations.
8. EPA acted arbitrarily by failing to consider wastestream recycling as a model technology in establishing NSPS where the record indicated that recycling was well demonstrated and produced substantially greater pollutant removal.

Questions Presented

1. Whether EPA violated the APA's notice-and-comment requirements by relying on updated Dun & Bradstreet economic data and by adopting metal limitations and BAT subcategorization without adequate notice.
2. Whether EPA's BPT limitations satisfied the Clean Water Act's requirements concerning cost, technology, data selection, subcategorization, seasonal effects, waste-stabilization ponds, and plant-specific differences.
3. Whether EPA's BAT limitations and statistical and analytical methodologies were arbitrary or capricious or otherwise unlawful.
4. Whether EPA properly established pretreatment standards for existing sources, including pass-through determinations, small dischargers, paint/resin plants, and removal credits.
5. Whether EPA lawfully established NSPS by relying on BPT and BAT costing methods and by failing to consider wastestream recycling.
6. Whether EPA adequately considered the economic effects of the Montreal Protocol on the chlorofluorocarbon industry.
7. Whether the court had jurisdiction over NRDC's challenge to EPA's reservation of pollutants for future rulemaking.
8. Whether the OCPSF regulations applied to research as well as manufacturing discharges.

Disposition

reversed_and_remanded