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Ford Motor Co. v. United States Environmental Protection Agency and Douglas M. Costle

decided: September 20, 1983.

FORD MOTOR COMPANY, INC., PETITIONER
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND DOUGLAS M. COSTLE, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS; NATURAL RESOURCES DEFENSE COUNCIL, INC., INTERVENOR



ON PETITION FOR REVIEW OF ACTIONS OF THE ENVIRONMENTAL PROTECTION AGENCY.

Gibbons, Hunter, and Becker, Circuit Judges. James Hunter, III, Circuit Judge, dissenting.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Circuit Judge.

We deal here with a petition by Ford Motor Co., Pursuant to section 509(b)(1) of the Clean Water Act, 33 U.S.C. § 1369(b)(1) (1976), for review of the January 28, 1981 action of the United States Environmental Protection Agency (EPA) denying its petition for reconsideration of the applicability of that agency's Electroplating Pretreatment Standards for Existing Sources, 40 C.F.R. Part 413, to integrated manufacturing facilities with combined wastestreams.*fn1 The petition is one of a group of consolidated petitions for review directed at the EPA's regulations applicable to the discharge of electroplating wastes to publicly operated treatment facilities. In an opinion filed simultaneously herewith, we dispose of the other consolidated petitions.*fn2 The issues presented by this one are distinct. We deny the petition for review.

The EPA, in its general pretreatment regulations, has adopted a combined wastestream formula to adjust the discharge limit set by a categorical pretreatment standard where a wastestream containing a regulated pollutant is combined with other wastewaters prior to pretreatment by a discharger to a publicly owned treatment facility. 40 C.F.R. § 403.6(e) (1982). In Part II E of Judge Hunter's opinion disposing of the other consolidated petitions for review, we reject challenges to the combined wastestream formula. EPA has also adopted categorical pretreatment regulations establishing numerical limits, based on BPT-level technology,*fn3 for the electroplating point source category. 40 C.F.R. Part 413 (1982). In Parts III A and B of Judge Hunter's opinion we reject challenges to those standards predicated upon the EPA's methodology, and upon its consideration of the cost of segregated pretreatment of electroplating wastewaters.

When the combined wastestream formula was proposed, Ford submitted comments respecting the relationship between that formula and the electroplating pretreatment standards, as both would affect integrated manufacturing facilities which included some electroplating point sources. III App. 548-722. In this submission, Ford stated that "sound engineering practices dictate that combined treatment should be used at automotive plants with [wastestreams characteristic of Ford's plants]." III App. 570. Ford also commented on the proposed categorical pretreatment standards for existing electroplating point sources. IV App. 769-74. After the promulgation of those categorical pretreatment regulations, on May 15, 1980, Ford filed a petition under the Administrative Procedure Act*fn4 seeking reconsideration by EPA of the application of those regulations to integrated facilities with combined wastestreams.

Ford requested a separate industrial category for automotive manufacturing. Part II E 1 of Judge Hunter's opinion rejects the contention that the Clean Water Act required EPA to regulate whole plants rather than operations or processes. That opinion, therefore, disposes of the principal ground on which Ford petitioned for reconsideration.

Ford also requested that rulemaker proceedings on electroplating pretreatment standards be reopened for comment because of the impact of the combined wastestream formula on manufacturers in whose plants electroplating wastewater is combined with other wastestreams. In support of the petition to reopen, Ford argued that EPA's formula would not permit combined treatment where process effluent was mixed with other wastewaters, because the combined stream limits were technologically unattainable in many instances. Ford also contended that EPA had disregarded the economic impact of the formula on integrated facilities containing electroplating point sources. The EPA Administrator denied the petition for reconsideration.

Noting that Ford had presented technological criticisms in its comments on the proposed formula, that the agency revised the formula, and that, as adopted, it had not been finally determined at the time the petition for reconsideration was filed, the Administrator concluded that the revised formula resolved Ford's technical objections. 46 Fed. Reg. 9476 (1981). Part II E of Judge Hunter's opinion rejects technical challenges to the formula, and thus they are not addressed here.

Turning to Ford's contention that the agency had failed to take into account the economic impact of the formula on integrated facilities, the Administrator wrote:

The final combined wastestream formula will, in most instances, obviate the need for segregation of process wastestreams. Thus, a reconsideration of economic impact is unnecessary. Nevertheless, EPA examined the data submitted by Ford in an effort to make a rough estimate of the economic impact that would result if all integrated facilities were required to segregate their wastestreams. Since the agency believes that very few facilities will be forced to segregate, this estimate gives an exaggerated economic impact.

Id. at 9477. Thus what EPA did was make a worst-case assumption about the feasibility of combined wastestream treatment. The agency then obtained from Booz Allen & Hamilton, management consultants, a detailed economic analysis of the likely results of that worst case assumption.

Booz Allen & Hamilton used two data sources. The first was its 1976 national survey on captive plating operations, which was conducted in support of the economic analysis by EPA of categorical electroplating pretreatment regulations. The second data source was the Ford petition itself. Table V, Appendix 1 of Ford's comments in support of that petition presents four cost estimates for different treatment options. IX App. 2002. EPA selected as the option most applicable to integrated facilities such as Ford's the Ford Category C: an existing manufacturing plant having an existing process collecting system, which is required to segregate several wastes from that system and at the same time maintain plant production schedules. Ford's estimate was that ...


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