On Petition for Review of an Order of the Environmental Protection Agency
Pell, Stevens and Tone, Circuit Judges.
This is a review of effluent limitations promulgated by the Administrator of the Environmental Protection Agency under the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., 86 Stat. 816 et seq. (hereinafter "the Act").*fn1 Petitioner is the American Meat Institute ("AMI"), whose members operate slaughterhouses and meat-packing plants throughout the country. The regulations under review limit the quantities of various pollutants which these plants can discharge into waterways. Our jurisdiction is invoked under § 509(b) of the Act.
The objective of the Act "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Section 101(a). The Act sets as national goals the elimination by 1985 of all "discharges of pollutants into the navigable waters," and the achievement by 1983, "wherever attainable" of a water quality adequate to maintain aquatic life and allow recreational use. Id.
As intermediate steps to the 1985 goal, § 301(b) of the Act requires*fn2 the achievement
(1) by July 1, 1977 of "effluent limitations for point sources*fn3 . . which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act"; and
(2) by July 1, 1983 of "effluent limitations for categories and classes of point sources . . . which (i) shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 304(b) (2) of this Act. . . ."*fn4
For convenience, we shall refer to the technology which must be used by 1977 as the 1977 technology, and to that which must be used by 1983 as the 1983 technology.
The 1977 and 1983 technologies are to be defined by the Administrator under § 304. Subsection (b) of that section provides that "[for] the purpose of adopting or revising effluent limitations under this Act," the Administrator is to publish "regulations, providing guidelines for effluent limitations." These guidelines are to be promulgated within one year after enactment of the Act,*fn5 "after consultation with appropriate Federal and State agencies and other interested persons," and they are to be revised at least annually, if appropriate. The guidelines are to identify, in terms of specific pollutants, "the degree of effluent reduction attainable through the application of" the 1977 and 1983 technologies. Thus, subdivision (1) of § 304(b), referring to the 1977 criterion, requires identification of "the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources."*fn6 Subdivision (2), referring to the 1983 criterion, requires identification of "the degree of effluent reduction attainable through the application of the best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods, and other alternatives for classes and categories of point sources. . . ."
In connection with both the 1977 and 1983 criteria, the guidelines are to specify "factors to be taken into account" in determining the applicable technology. These factors are to include, for the 1977 technology, "consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application," and, for the 1983 technology, "the cost of achieving such effluent reduction." For both the 1977 and 1983 technologies the factors are to include "the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques [and], process changes," as well as "non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate. . . ." § 304(b)(1)(B) and (2)(B). Finally, the guidelines are to "identify control measures and practices available to eliminate the discharge of pollutants from categories and classes of point sources, taking into account the cost of achieving such elimination of the discharge of pollutants." § 304(b)(3).
To complement §§ 301 and 304, which govern existing sources, § 306 requires the Administrator to promulgate "regulations establishing Federal standards of performance for new sources" within certain categories of sources. These regulations are to cover only plants on which construction began after publication of proposed new-source regulations for that category.
Section 402 adds to the regulatory scheme a permit system for discharges which replaces the permit system formerly administered by the Army Corps of Engineers under the Act of 1899, 30 Stat. 1152, 33 U.S.C. § 407. Permits may be granted by the Administrator provided the discharger complies with all the requirements of the Act, including those of §§ 301, 302, and 306. The Administrator may delegate his permit-granting authority to the states, if they provide sufficient assurances that they will enforce these requirements.*fn7
Background of the Regulations
The regulations before us cover the "Red Meat Processing Segment of the Meat Products Point Source Category." The common characteristic of the plants in this segment of the meat industry is that they all slaughter animals (but not poultry) and produce fresh meat, which may be sold as whole, half, or quarter carcasses, or as smaller meat cuts. Plants that produce only fresh meat are called slaughterhouses; those that also produce cured, smoked, canned, or other prepared meat products are called packinghouses. Both types of plants usually perform some by-product processing, such as rendering (separation of fats and water from tissue), blood processing, and hide processing.
EPA*fn8 employed North Star Research Institute to study the industrial processes used by slaughterhouses and packinghouses, the wastes generated, and the treatment technologies in use or available to these plants, and to recommend, inter alia, effluent limitations under § 301(b). North Star proceeded to study relevant literature and information on the meat industry it had previously gathered for EPA. In conjunction with AMI, it prepared questionnaires which were distributed to slaughterhouses and packinghouses. From the responses to the questionnaires and information acquired from various other sources, North Star classified the plants into four subcategories and attempted to identify those in each subcategory having the most effluent control. To verify the questionnaire responses, selected plants from these groups were inspected and monitored to a very limited extent. In June 1973, North Star submitted to EPA a report in which the information North Star had gathered was collected and summarized, and analyses and recommendations were presented.
After reviewing the North Star report, distributing copies to industry representatives, and receiving their comments, EPA revised the report and published the revision as a Draft Development Document in October 1973. The standards recommended in this document were then incorporated into proposed regulations, which the agency published the same month. Proposed EPA Reg. 40 C.F.R., part 432, 38 Fed. Reg. 29858 (Oct. 29, 1973).
After publication of the proposed regulations, EPA received further comments. On February 28, 1974, it promulgated the final regulations which are the subject of this review proceeding. 40 C.F.R., part 432, 39 Fed. Reg. 7894. In addition, a revised version of the October 1973 Draft Development Document was published under date of February 1974 as the Final Development Document (hereinafter sometimes cited as FDD).
The regulations classify slaughterhouses and packinghouses into the following four subcategories:*fn9
(1) simple slaughterhouses, which slaughter animals and perform a limited number, usually no more than two, by-product processing operations (subpart A, §§ 432.10 - 432.16);
(2) complex slaughterhouses, which slaughter animals and perform several, usually three or more, by-product processing operations (§§ 432.20 - 432.27);
(3) low-processing packinghouses, which not only slaughter animals but process meat from animals killed at that plant into cured, smoked, canned, and other prepared meat products, normally processing less than the total kill (§§ 432.30 - 432.36); and
(4) high-processing packinghouses, which not only slaughter animals but process meat from both animals killed at the plant and animals killed elsewhere (§§ 432.40 - 432.46).
For existing sources in each subcategory, the regulations set forth "[effluent] limitations guidelines" for 1977, which apparently are intended to constitute both guidelines under § 304(b) and effluent limitations under § 301(b). 40 C.F.R. §§ 432.12, 432.22, 432.32, 432.42. The same is true of the 1983 standards. 40 C.F.R. §§ 432.13, 432.23, 432.33, 432.43.*fn10
The regulations limit the discharge of "BOD5," "TSS," and ammonia, in addition to other pollutants not involved in this proceeding. Two of these terms require explanation:
BOD5. The initials "BOD" stand for "biochemical oxygen demand" and describe pollutants which, when they decompose, deplete oxygen necessary to support aquatic life. BOD5 is BOD measured over a five-day period.
TSS. The initials "TSS" stand for "total suspended solids," which are particles of organic and inorganic matter suspended in the water or floating on its surface.
The regulations permit the discharge of certain amounts of BOD5 and TSS per 1,000 pounds (or per 1,000 kilograms) of live weight killed ("LWK"). The 1983 ammonia standard is set in terms of milligrams of ammonia per liter of effluent (mg/1), which shows the concentration of ammonia in the effluent. The regulations challenged in this case are the existing source limitations for 1977 and 1983 relating to BOD5 and TSS, and those for 1983 relating to ammonia. These limitations are set out in the following table:
The maximum discharge for any individual day is twice the maximum daily average for any 30 consecutive days.
Jurisdiction and EPA's Authority To Promulgate Effluent Limitations Under § 301
At the threshold, we are met with a challenge to our jurisdiction. AMI's petition for direct review of the existing source regulations is grounded on § 509(b)(1), ...