On Petition for Review of Decisions of the Environmental Protection Agency
Before Castle, Senior Circuit Judge, Cummings and Pell, Circuit Judges.
This case is before us on the petition of the Alton Box Board Company (Alton) seeking review of an October 21, 1977, order of the United States Environmental Protection Agency (EPA) denying Alton's request for a renewal of its National Pollutant Discharge Elimination System (NPDES) permit for the discharge of wastewaters from its mill located in a congested area of Alton, Illinois, into the Mississippi River. Alton also seeks review of EPA's December 21, 1977, denial of its request for an adjudicatory hearing concerning that action.
The petition for review is brought pursuant to Section 509(b)(1)(F) of the Clean Water Act (33 U.S.C. § 1369(b)(1)(F)), formerly known as the Federal Water Pollution Control Act.*fn1 This controversy concerns Alton's oldest mill which has been in operation since 1910. In 1972 half of the fiber requirements for this mill's paperboard manufacture came from wood chips pulped at the mill. Another major source of fiber was wastepaper. At that time, it became apparent that the pulping of wood chips as a primary source of fibers had to be abandoned to meet federal and Illinois water pollution standards established under the Federal Water Pollution Control Act, as amended in 1972 (33 U.S.C. § 1251 Et seq.) and under Illinois laws.*fn2 The federal statute established a timetable for phased reduction in permitted pollutant discharges. Effluent levels which could be obtained by the application of "best practicable control technology currently available" (BPT) were required by July 1, 1977. 33 U.S.C. § 1311(b)(1)(A). Also by July 1, 1977, the statute required compliance with any more stringent state standards. 33 U.S.C. § 1311(b)(1)(C). By July 1, 1983 (now July 1, 1984) these levels were to be reduced further to levels attainable by the application of the "best available (control) technology economically achievable" (BAT). 33 U.S.C. § 1311(b)(2). The BPT effluent limitations were to be based upon effluent "guidelines" promulgated by EPA after consideration of
"the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, * * * the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, nonwater quality environmental impact, (including energy requirements), and such other factors as the (EPA) Administrator deems appropriate."
33 U.S.C. § 1314(b)(1)(B).
In 1974 EPA published BPT guidelines and general BPT effluent limitations. 39 Fed. Reg. 18742. Ultimately the Supreme Court held that the Act as amended in 1972 "authorizes the 1977 limitations as well as the 1983 limitations to be set by regulation, so long as some allowance is made for variations in individual plants, as EPA has done by including a variance clause in its 1977 limitations."*fn3 E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 128, 97 S. Ct. 965, 975, 51 L. Ed. 2d 204 (footnote omitted).
To meet Illinois and federal water pollution standards, Alton adopted the following four-stage program in 1973 to control biochemical oxygen demand (BOD 5) and suspended solids:
1) the installation of replacement processing equipment
2) the phasing out of wood chips and the phasing in of new sources of used corrugated fiber
3) closing up the mill process water system
4) treatability study and final treatment of residual flow.
Stages 1 and 2 of this program were necessary to accomplish the process change to accommodate the exclusive use of wastepaper as the source of fiber. Stages 3 and 4 were intended to bring Alton into compliance with BPT for plants exclusively using wastepaper. The four-stage completion program was submitted to the Illinois Pollution Control Board which permitted a variance from the general Illinois effluent limitations on a year to year basis from 1973 to April 1977 during construction which was to be completed on June 30, 1978. We are told that a requested extension to cover the final year of Alton's construction program and seeking a variance until April 6, 1978 (R. 915) is presently pending before the Illinois Pollution Control Board. The current status of that proceeding is not shown in the record but Alton must now be seeking a variance beyond April 1978.
When EPA promulgated its regulation for the pulp, paper and paperboard industry on May 29, 1974, the Alton mill was still using a combination of wood chips and reclaimed wastepaper to produce paperboard. By June 30, 1975, phase two of the previously described program was complete and the mill was converted into a mill manufacturing paperboard exclusively from reclaimed wastepaper, thus permitting Alton to begin collecting the necessary raw waste-load data for designing ...