Association Of Pacific Fisheries v. Environmental Protection Agency

In 1972 Congress, intending "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters," amended the Federal Water Pollution Control Act (Act), 33 U.S.C. § 1251 et seq. Congress established national pollution goals to be achieved by specific dates. By July 1, 1977, industries discharging pollutants into the nation's waters were to have achieved "the best practicable control technology currently available (BPT)." Section 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A). By 1983, industry is to achieve "the best available technology economically achievable (BEA)." Section 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A). The Environmental Protection Agency (EPA or Agency) was entrusted with the responsibility of defining and policing the efficient and prompt achievement of these goals. Section 304, 33 U.S.C. § 1314.

This case involves a challenge to regulations promulgated by the Agency establishing effluent guidelines for the Canned and Preserved Seafood Processing Point Source Category. 40 C.F.R. §§ 408.10 et seq. See also 40 Fed.Reg. 55770 et seq. (Dec. 1, 1975). Petitioner Association of Pacific Fisheries is a trade association representing canners and fresh and frozen fish processors in affected subcategories. The remaining petitioners process seafood in all the subcategories at issue on this appeal.

The EPA's regulations governing the fish processing industry were promulgatedin two phases.1 In the first phase, the EPA issued regulations affecting catfish, crab, shrimp, and tuna processors. These regulations were issued on June 26, 1974, and are not challenged by petitioners. Rather, petitioners challenge several of the regulations promulgated during phase II of the Agency's proceedings. These phase II regulations covered nineteen separate subcategories. The subcategories were determined by the species of fish being processed; whether there was mechanization in the processing technique; for Alaska processors, the location of the plant, i. e., whether the plant was located in a "population or processing center"; and in some cases, the production capacity of the plant. At issue are the regulations which apply to Alaskan hand-butchered salmon (Subpart P), Alaskan mechanized salmon (Subpart Q), west coast hand-butchered salmon (Subpart R), west coast mechanized salmon (Subpart S), Alaskan bottomfish (Subpart T), west coast bottomfish (Subparts U and V), Alaskan scallops (Subpart AC), and herring fillets (Subparts AE and AF). See 40 C.F.R. §§ 408.160-408.226, 408.290-408.296, 408.310-408.326.

The effluent which is the subject of the regulations consists of unused fish residuals. This discharge includes heads, tails, and internal residuals of the processed fish. Substantial quantities of water are used at various stages of the plant operations. This water comes into contact with the fish residuals and contains pollutants when discharged. The regulations prescribe limitations on discharge, and utilize three measures of pollution: five-day biochemical oxygen demand (BOD 5); total suspended solids (TSS); and oil and grease (O & G).2 The regulations establish daily maximum levels and monthly average levels for each subcategory, and are measured in terms of the amount of pollutant per thousand pounds of fish processed.

The prescribed 1977 BPT for processors not located in Alaska, and Alaska processors located in "population or processing centers," is the installation of screens to trap the larger fish particles before the effluent is discharged from the plant.3 Residuals trapped by the screens may be disposed of in ways discussed below. Alaska processors in "remote" locations are subject only to limitations on the size of particles in the effluent, a requirement that can be met by grinding the solids before discharge.

By 1983 the fisheries must comply with more rigorous technology requirements and effluent limitations. For nonremote facilities, the Agency directed that a dissolved air flotation unit be installed at each location and that the end-of-pipe effluent be channeled through this system before it is discharged into the receiving water. These regulations apply to all nonremote subcategories except Subpart V, Conventional Bottomfish. There, the Administrator has prescribed aerated lagoons as the BEA. Remote Alaska fish processors will be required by the 1983 regulations to screen the effluent before discharging it into the receiving waters.4Scope of Review

The scope of our review in cases like this is well-settled and need not be restated at length. Our task is to insure that the Agency has accumulated sufficient material upon which to make a reasoned decision, reviewed that material, and promulgated regulations that are the result of reasoned decisionmaking. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Marathon Oil Co. v. EPA, 564 F.2d 1253, 1266 (9th Cir. 1977); American Meat Inst. v. EPA, 526 F.2d 442, 453 (7th Cir. 1975). A comprehensive discussion of a reviewing court's role in this area is contained in Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309, 323-27, 590 F.2d 1011, 1024-28 (D.C.Cir.1978) (McGowan, J.).

What might be termed a scope of review issue is raised by petitioner's substantial reliance on evidence accumulated after promulgation of the final regulations and not a part of the record before the EPA. Whether this court may examine such evidence in reviewing the Agency's actions is addressed below.

The 1977 regulations raise four broad areas of dispute. First, the petitioners question the Agency's decision to divide some subcategories into remote versus nonremote locations. Second, the petitioners contend that the cost of operating the required technology is wholly disproportionate to the resulting pollution control benefits, and that both costs and benefits were erroneously calculated by the Agency. Third, the petitioners argue that the Agency's data collection and analysis are fatally flawed. Finally, petitioners argue that even with the required technology in place, they will be unable to comply with the 1977 effluent limitations.

A large segment of the fishing industry affected by these regulations is located in Alaska. In determining what is the BPT, the Agency concluded that certain Alaska processing facilities not located in "population or processing centers" should be designated "remote" and subject to less stringent requirements.5 In the population or processing centers, screening is the designated BPT. According to the EPA, the solids trapped by the screens may be transported over land by trucks either to landfills or to other facilities for further processing, such as conversion to pet food, or barged out to sea and dumped at approved locations. Remote locations are not required to screen. Plants in these locations may simply grind the solids before dumping the effluent into receiving waters.

The Agency's definition of a "population or processing center," as distinct from a "remote center," makes our review difficult because it is neither a closed-ended definition, that is, one stated in terms relatively incapable of future expansion, nor one which sets forth the characteristics of the definitional class in any functional way. Rather, the definition simply states that certain locations are population or processing centers, and leaves open the possibility that other places may nevertheless possess certain undefined characteristics justifying designation as population or processing centers by some later determination. The definition is contained in the regulations as follows: "Any . . . facility (in this subcategory) located in population or processing centers including but not limited to Anchorage, Cordova, Juneau, Ketchikan, Kodiak, and Petersburg shall meet the following limitations: . . . ." See, e. g., 40 C.F.R. § 408.162 (Alaskan Hand-Butchered Salmon Processing Subcategory).

Petitioners do not contest the Agency's authority to classify point sources as remote and nonremote locations if the record provides support for such a distinction. They contend, however, that: (a) the record provides no support for the remote/nonremote distinction;6 (b) even if there is a basis for the distinction, designation of the particular named cities as nonremote is unwarranted; and (c) the definitions of a population center and a processing center are impermissibly vague.

The definitional language, as we have indicated, is not commendable for its precision or for the light it sheds upon the Agency's criteria for determining what is a nonremote location. In view of the evidence before the Agency in this record, however, we cannot say the distinction is entirely unwarranted or arbitrary, and we sustain it as to the specific locations named as population or processing centers. We find somewhat more support for treating as nonremote cities which are population centers, as distinguished from processing centers. Accordingly, we discuss the two aspects of the definition separately.

There is evidence in the record indicating that construction costs are significantly less for plants located in population centers than in other areas. A study conducted by the National Canners Association shows that the average costs of construction in Anchorage (population of 173,800) and in Juneau (16,600) are 1.5 and 1.6 respectively (1.0 represents 1971 costs in western Washington). Record 7342 (hereinafter R.). For remote Alaska, the cost is about 2.5. R. 6905, 7342. The Agency could reasonably infer from these data that the costs of constructing and operating pollution abatement technology in remote versus nonremote areas would differ. The record also provides some support for the conclusion that plants located in population centers have more dependable access to transportation and landfills. Finally, the Agency suggested in the record that nonremote locations enjoyed economic advantages such as lower rates for transportation, access to population (reflected in relatively lower wages), and more power. R. 14302. Although more detailed analysis would have been preferable, these items provide support for the conclusion that construction, installation, and operation of facilities required to meet the guidelines is more expensive at remote locations than at population centers.

The Agency's distinction between processing centers, i. e., locations with multiple plants, and remote locations finds somewhat less support in the record, but we are prepared to sustain the Agency's decision, recognizing that in some later review of this regulatory scheme more specific information may be available either to the Agency or to the industry which might require reconsideration of this distinction. The principal justification for the processing center classification was the finding that there were potential cost savings to plants located in processing centers resulting from the possibility of collective treatment techniques. It is less expensive for plants to share certain disposal costs, such as barging or transportation to landfills or reduction facilities, than if each plant bears them alone. The record indicates that a reduction facility was already in existence in Petersburg, which had the potential for common use, and that four plants in Cordova similarly could employ cooperative barging. By contrast, Agency studies concluded that remote locations would have greater difficulty disposing of waste on lands in part because of undependable land transportation and in part because of geographical conditions making construction and operation of landfills very expensive. We think the assumption that cost savings are available to plants in processing centers is sustainable, at least on the data available when the regulations were initially promulgated. A regulation which recognizes the possibility of pollution treatment through sharing facilities or costs is consistent with the Act.

The current definition of a "population or processing center" is admittedly vague. The regulations as written, however, do indicate that population (173,800 for Anchorage and 16,600 for Juneau), plant concentration within the city limits (three phase II plants in Ketchikan and four in Cordova and Petersburg), and relative ease of access to elements which reduce the cost of installing and operating the prescribed technology, are criteria considered by the Agency. We must afford the EPA substantial discretion to implement the mandate of the Act. We would expect that as later category questions arise, the agency will make the definition more precise, and that the more precise definition will have an adequate basis in demonstrated cost savings for waste treatment. We do not, at this point, set aside the Agency's distinction between nonremote and remote as impermissibly vague.

B. Cost-Benefit Comparisons and the Question of Screening

The parties dispute whether or not the requirement of screening plus barging or land-based disposal was reached after a proper evaluation of costs and benefits. The disagreement extends both to questions of interpreting the statute and to whether the Agency followed the Act even assuming its own interpretation is correct.

Section 304(b)(1)(B) of the Act provides in part:

Factors relating to the assessment of best practicable control technology currently available to comply with subsection (b)(1) of section 301 of this Act shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application . . . .

We think it plain that, as a general rule, the EPA is required to consider the costs and benefits of a proposed technology in its inquiry to determine the BPT. The Agency has broad discretion in weighing these competing factors, however. See Weyerhaeuser, supra, 191 U.S.App.D.C. at 346, 590 F.2d at 1048. When considering different levels of technology, it must be shown that increased costs are wholly disproportionate to potential effluent reduction before the Agency is permitted to rely on a cost-benefit comparison to select a lower level of technology as the BPT. This conclusion is consistent with the interpretation of section 304(b)(1)(B) given in the Conference Report on the bill which ultimately became the Act. The Report states:

The balancing test between total cost and effluent reduction benefits is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction for any class or category of sources.

Congressional Research Service, A Legislative History of the Water Pollution Control Act Amendments of 1972 at 170 (1973) (hereinafter L. H.).

It is relevant in this case, moreover, to consider the definition of the benefits the Agency is directed to weigh. We agree with the Agency's contention that Congress intended BPT standards to be based primarily on employment of available technology for reducing effluent discharge, and not primarily on demonstrated changes in water quality. See 40 Fed.Reg. at 55771; EPA v. California, 426 U.S. 200, 204-05, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). Congress was aware that prior enforcement efforts based on water quality standards had not been successful. It determined, accordingly, that the Agency should have the authority to require effluent reduction benefits as defined by the amount or degree of reduction achieved by a level of technology applied to discharge, without the necessity of demonstrating the incremental effect of that technology on the quality of the receiving water. As the D.C. Circuit explained in Weyerhaeuser, supra, 191 U.S.App.D.C. at 339-42, 590 F.2d at 1041-44, the "effluent reduction benefits" referred to in the Act are not primarily water quality benefits; rather, "(e)ffluent reduction occurs whenever less effluent is discharged, i. e., whenever a plant treats its wastes before discharge." Id., 191 U.S.App.D.C. at 342 n. 49, at 1044 n. 49.

In light of these principles, we evaluate the petitioners' claim that the Agency overestimated the benefits of screening and improperly ignored or underestimated the benefits of grinding. Petitioners assert that grinding should have been considered expressly by the Agency as an alternate technology. It was used by a significant number of plants before the regulations became effective, and the Agency expressly permitted grinding for plants in remote areas. Petitioners assert that the Agency's failure to consider grinding makes its analysis deficient and invalidates the cost-benefit determination that justifies prescribing screening for nonremote processors. According to petitioners, the record demonstrates that "every 'adverse environmental impact' identified by respondent is either eliminated by grinding and dispersion or not alleviated by screening at all." Reply Brief of Petitioners at 11.

We do not understand petitioners to dispute seriously that removing solids by screening is superior to grinding in terms of reducing both the total amount of fish solids and pollutants as defined by the measures used by the EPA. Their point, rather, is that the EPA's determination of BPT must be evaluated by taking into account the methods of disposing of the collected fish products that are permitted by the regulations in question. Petitioners contend that the ultimate reduction in pollution achieved by screening is the same as grinding, since the EPA permits screened solids to be barged and dumped at specified ocean sites located only 1/2 to 2 1/2 miles from the processing plants. We think petitioners' reasoning is flawed in various respects.

Barging of solids for dumping at ocean sites is only one of various waste disposal alternatives permitted. Transportation to landfills or pet food processing plants, where the by-products can be sold to the food processors, are also possible methods of handling collected solids. It was reasonable for the Agency to find that given a choice between barging and transporting to a land-based reduction center, some plants would choose the latter. See 40 Fed.Reg. at 55774. To the extent that screened solids are not returned to the receiving waters, fewer pollutants are discharged, and presumably TSS, BOD and O & G are also reduced. We do not think the EPA is required at this stage of the proceedings to demonstrate that the amount of effluent entering the receiving waters would be reduced to the same degree at each site by application of BPT.

The Agency says further that the receiving waters into which it approved discharge of barged solids "are not the same waters" as those used by processors to discharge their ground effluent, because the approved sites are farther offshore. While the petitioners argue that this is irrelevant, there is support for the Agency's distinction in the legislative history of the Act.7 The Agency has not explained to this court as clearly as it might have how the asserted water quality benefits of discharging a given amount of effluent farther offshore should be considered within the statutory framework of technology-based, not water quality-based, pollution limitations. But even assuming, contrary to our conclusion in the previous paragraph, that application of the BPT would result in no decrease in the amount of pollutants discharged into receiving waters (both nearshore and offshore), we think that the Act permits the EPA to consider an improvement in nearshore water quality to be an "effluent reduction benefit."8 Cf. American Iron & Steel Inst. v. EPA, 568 F.2d 284, 297 (3d Cir. 1977) (affirming Agency's cost-benefit analysis, noting that Agency considered the harmful effects of pollutants in question). No doubt Congress sought in the Act to do more than simply have the EPA relocate the same amount of effluent discharge, but we doubt that it prohibited the EPA from requiring relocation of that discharge where environmental benefits of such a relocation have been demonstrated.9

The record contains evidence that because of inadequate tidal dispersion in various locations affected by the regulations, discharges by processors caused aesthetic and environmental harm by forming sludgebeds at or near beaches and shoreline. The Agency cites studies showing such effects at Kodiak, Cordova, Petersburg, and Anchorage. See R. 11567-11614. The Agency also considered a study by the Canadian Environmental Protection Service which indicated that effluent from fish processing facilities can have harmful environmental effects up to one mile from the discharging facility, altering the environmental balance of the receiving waters and creating toxic waste products. See 40 Fed.Reg. at 55771. The dumping sites approved by the Agency are located in deeper waters and in areas of high tidal activity. These factors facilitate dispersion and decomposition of discharged fish solids.

The petitioners direct our attention to a study of the Petersburg facilities. The document provides qualified support for the conclusion that the nearshore currents at Petersburg are sufficiently strong to prevent sludgebed accumulations. The EPA counters that the study supports a conclusion that grinding and dispersal nearshore has harmful environmental consequences, in particular because it substantially reduces the oxygen in receiving waters. We do not think, therefore, that the study is conclusive of the petitioners' contentions even as to the Petersburg site, and in any event it does not demonstrate the regulation is inappropriate for the industry as a whole. We cannot find erroneous the Agency's conclusion regarding inadequate tidal action and environmental effects of discharge into nearshore receiving waters. It was not an abuse of discretion for the Agency to consider an improvement in nearshore water quality as one factor in support of the effluent limitations.

The costs of screening were also considered by the Agency. For example, the Agency projected that for mechanized Alaskan salmon canning plants, "Grinding costs ranged from $30,000 for a 20 ton per-day plant to $54,000 for a 150 ton per-day plant respectively. Screening and barging costs varied from $72,000 to.$146,000 for the same plants." R. 15061-62. The figures for Alaskan Bottom Fish indicate that grinding costs ranged from $20,000 capital outlay and $50/day operation and maintenance (O & M) for a 13.6 ton per day plant to $38,000 capital and $60/day O & M for a 105.6 ton per-day plant. Screening and barging costs varied from $55,000 capital outlay and $150/day O & M for the smaller plant to $98,000 capital outlay and $190/day O & M for the larger plant. R. 14859.

After estimating the costs for affected subcategories, the Agency concluded the total internal costs of the 1977 effluent limitations would be $6.2 million for investment and $1.3 million of annual expenditures. 40 Fed.Reg. 55777. External costs included a minor effect on prices and the expected closure of some processing plants because of inability to comply economically with the regulations. See id. The effect of these closures on the domestic industry capacity was anticipated to be small. Id.

Petitioners argue that the number of plants estimated to close as a result of the regulations demonstrates that the costs of implementing the technology are wholly out of proportion to the effluent reduction benefits, and thus that the regulations do not prescribe a practicable technology. We do not find the Agency's action can be set aside on this issue.

Precisely how many plants in nonremote locations the EPA estimated would close as a result of the 1977 BPT is not completely clear from the record. In the Preamble to the Regulations, 40 Fed.Reg. 55777, the Agency states only that "a number of small plants are projected to be adversely affected by the effluent limitations." The record shows that in affected subcategories 28 out of 172 plants were projected to close as a result of the 1977 BPT. In its brief, the Agency argues that for several reasons, stated in the record, its original estimate of the number of plant closings was too high. It does not, however, point to any revised estimate. Thus, the most concrete estimate available is that contained in EPA's Economic Analysis. These data also disclose that in Alaska nonremote subcategories the Alaska subcategories where screening is the BPT seven out of sixteen plants were predicted to close as a result of inability to meet BPT. (R. 15055 and 15073).10

Petitioners agree Congress contemplated that implementing BPT might result in plant closures in some industries. See American Iron & Steel Inst. v. EPA, 526 F.2d 1027, 1052 (3d Cir. 1975). The proportion of plants estimated to close in the nonremote Alaska subcategories (57% for nonremote Alaskan fresh and frozen salmon and 33% for nonremote Alaskan salmon canning) is substantially higher than that approved in some other cases. See, e. g., Weyerhaeuser, supra, 191 U.S.App.D.C. at 345, 590 F.2d at 1047 (summarizing facts in American Paper Inst. v. Train, 177 U.S.App.D.C. 181, 191-92, 543 F.2d 328, 338-39 (D.C.Cir.), cert. dismissed, 429 U.S. 967, 97 S.Ct. 398, 50 L.Ed.2d 335 (1976)) (out of 270 mills and 120,000 people, 8 mills estimated to close and 1800 people laid off; in three subcategories, of 30 mills, 3 estimated to close). The Agency determined, however, that the effect on prices of implementing the BPT would be small: "price increases generally in the range of 0.3 to 0.5 percent are projected," 40 Fed.Reg. at 55777. It also found that "domestic industry capacity is not expected to be affected by the potential closure of these particular small plants." Id. The percentage of estimated plant closures in the seafood processing category generally is low. Given these findings, the estimated number of plant closings in the nonremote Alaska subcategories, standing by itself, does not invalidate its cost/benefit analysis or require us to set aside the Agency's determination that the required technology was practicable.

The Agency need not balance the costs of compliance against effluent reduction benefits with pinpoint precision, see Weyerhaeuser, supra, 191 U.S.App.D.C. at 146, 590 F.2d at 1048; American Iron & Steel Inst., supra, 568 F.2d at 297, in part because many of the benefits resulting from the effluent reduction are incapable of precise quantification. Cf. American Petroleum Inst. v. EPA, 540 F.2d 1023, 1038 (10th Cir. 1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977) ("The value of the resulting benefits is not capable of present-day determination."). See also Appalachian Power Co. v. Train, 545 F.2d 1351, 1361 (4th Cir. 1976) ("(W)e (reject) Industry's contention that benefits derived from a particular level of effluent reduction must be quantified in monetary terms . . . . This reflects the simple fact that such benefits often cannot be reduced to dollars and cents.").

The Agency, upon consideration of the effluent reduction benefits thought to be achieved by screening, both the water quality benefits and the amount of pollutants discharged into the receiving waters, determined that the costs of screening were justified. We conclude the Agency complied with the Act's mandate to consider the costs of technology in relation to effluent reduction benefits.

C. Accuracy of the Agency's Data and Methodology

Petitioners argue that important segments of the EPA's data collection and the analysis which led to formulation of the effluent limitations were erroneous, with the result that the limitations are arbitrary. The petitioners' objections to the Agency's methodology are sufficiently well taken so that the Agency should reconsider such matters at the times specified by the statute for review of the regulations. Given the limitations the Agency faced when it adopted industry standards for the first time, we rule that there was a sufficient basis for promulgating the regulations as an initial matter. Under this standard, despite the petitioners' objections, we think the 1977 effluent limitations were the product of reasoned decisionmaking, adequately supported by information available to the Agency.

In determining the effluent guidelines for the subcategories, the Agency employed a model plant analysis. Because the Agency determined that treatment practices in the industry were inadequate, it constructed a model plant utilizing processing data gathered from operating processors during the 1973 season, and financial data from 1968 through 1972. The Agency used peak flow in gallons per minute as the major determinant of the size and cost of treatment equipment which would be required.

As we understand petitioners' challenge, it is that the Agency's model plant for nonremote Alaskan canned salmon facilities (and presumably other subcategories as well) underestimated the amount of fish processed per hour at actual processors, since the data gathered by the EPA were collected during the 1973 season, an unproductive season not representative of most years. As a result, petitioners say, the model plant analysis underestimated the costs of installing and operating required screening technology. The increased costs would result from the necessity of installing larger screens to handle the greater flow, and possibly also from requirements for more trucks or barges to handle the screened solids.

The Agency's graph representing nonremote Alaskan canned salmon states that the average processing season is 42 days long. Petitioners claim that the average processing season is actually 14 to 30 days long. The graph shows the average working day during the processing season to be 18 hours. Petitioners claim there is only one crew per plant and that the crews rarely work 18 hours a day. The Agency correlated its figures with the annual production rate and determined that large canners processed approximately 8.3 tons per hour, the medium-sized processors 5.0 tons, and the small plants less than 1.1 tons. Petitioners claim that, in fact, large processors on occasion process up to 40 tons per hour, the medium plants 20 tons, and the small fisheries 10 tons. To make petitioners' claim more concrete, if a large processor had a water flow rate of 2.2 gallons per minute (the EPA figure) and processed 40 tons of raw material per hour instead of the model plant figure of approximately 8, the cost of compliance with the regulations, while perhaps not being exactly five times as expensive as predicted by the EPA, would nevertheless be substantially higher than the predicted figure.

The Agency defends the model plant as being designed on the basis of figures obtained from actual processors. The Agency also supports its analysis with at least two further arguments. It first notes that the relation, if any, between tons of fish processed per hour and the cost of installing appropriate screening technology is not linear. One cost comparison made by the Agency indicated that a facility which processes ten times as much fish per hour would probably spend only 1.4 times as much as the small facility for the screening technology. R. 7343-7347. Thus, any underestimation regarding plant production would not affect the Agency's cost estimations to such a degree that its analysis must be set aside.

The Agency's other argument is that several of the facilities sampled had or could have had a water use rate of substantially less than 2.2 gallons per pound of raw material, the figure assumed for the model plant. Therefore, even if the tons of raw material processed per hour at a plant were greater than the EPA estimated, its cost figures were not unreasonable estimates, because the plant could process more than 8.3 tons of material per hour using the same flow rate as the model plant, and the cost of installing screens to handle the flow rate would thus be similar to that of the model plant.

The Agency may or may not have constructed the model plant with complete accuracy, but that is not the question for this court. After consulting with members of the processing industry and other knowledgeable sources, the EPA engaged in sampling procedures designed to collect representative data given the constraints imposed by time and difficulties of data collection.

The court's treatment of a somewhat similar challenge in American Iron & Steel Inst., supra, 568 F.2d at 300-01, is instructive:

The Companies also argue that the EPA's approach of determining the BPCTCA after calculating the average effluent load at the best plants in each subcategory "permitted (it) to derive limitations from effluent samples without analyzing how these particular treatment levels could be achieved at other plants, or investigating why they were not being (met) by other plants." But this argument really amounts to a claim that it was "necessarily an abuse of discretion to base the regulations on results obtained from a few plants which were using the best technology" a claim which was rejected in AISI I, 526 F.2d at 1057. It is true that as long as EPA focuses only on some plants in each subcategory there is a possibility that some differences between plants in the subcategory may be ignored: not all plants within a subcategory are perfectly typical of all plants within the subcategory even once the industry has been subcategorized in a permissible manner. But petitioners have not made an adequate showing that the plants EPA surveyed do not constitute an adequate sampling of the subcategories they represent.

The Agency had relevant information before it and considered this information in formulating its production and cost estimates. We decline to second guess the Agency's expert determinations as to the model plant, since there is adequate support for those conclusions in the record.

The Agency itself recognized that its data collection was not as thorough as it otherwise would have been: "The time constraints imposed by the statutory deadlines precluded the Agency from conducting an exhaustive sampling program." One of those time constraints was the decision in National Resources Defense Council v. Train, 6 E.R.C. 1033 (D.D.C.1973), rev'd in part and remanded, 166 U.S.App.D.C. 312, 510 F.2d 692 (D.C.Cir.1975). Similarly, some of petitioners' critique of the Agency's methodology is simply an elaboration of shortcomings which the Agency itself considered:

After identifying representative processing facilities, one of the criteria for selecting a plant for detailed study was physical ease of collecting unit operation and end-of-pipe full shift flow proportioned composite samples. Some facilities would have required plumbing cha