## Facts

- EPA promulgated technology-based effluent limitation guidelines (BPT/BPCTCA) for existing point sources in the pulp, paper, and paperboard industry under the Federal Water Pollution Control Act Amendments of 1972 (as amended).
- The rulemaking covered hundreds of plants organized into subcategories and subdivisions, following multiple notice-and-comment rounds from 1973 to 1976.
- Weyerhaeuser and other industry petitioners sought direct judicial review in the D.C. Circuit under the Clean Water Act’s review provisions and the APA, challenging both procedure and substance.
- Petitioners argued, among other things, that EPA should account for receiving-water characteristics, employ a different cost-benefit approach for BPT, inadequately assessed non-water environmental impacts, and adopted an unlawful variance mechanism.
- A specific dispute concerned EPA’s biological oxygen demand (BOD) limitation for acetate-grade dissolving sulfite mills, which was materially changed after the close of public comment.

## Issues

1. What level of deference applies under the APA to EPA’s technical judgments in national effluent limitation regulations.
2. Whether EPA’s notice-and-comment process was legally adequate, including whether post-comment changes required additional opportunity to comment.
3. Whether BPT effluent limits must consider receiving-water quality and assimilative capacity, rather than being uniform technology-based limits.
4. Whether EPA’s BPT cost-benefit analysis was lawful without using the petitioners’ proposed incremental cost-benefit methodology.
5. Whether EPA adequately considered non-water quality environmental impacts when setting BPT limits.
6. Whether EPA’s variance provision was lawful in light of the Clean Water Act and governing Supreme Court precedent.
7. Whether the BOD limitation for acetate-grade dissolving sulfite mills was procedurally valid and supported.

## Decision

- The D.C. Circuit upheld EPA’s pulp-and-paper BPT regulations in substantial part under APA review standards.
- The court applied a deferential arbitrary-and-capricious standard to EPA’s technical determinations while separately assessing statutory authority and procedural compliance.
- The court held EPA generally satisfied notice-and-comment requirements and provided extensive opportunity for participation.
- The court rejected the argument that BPT limits must be based on receiving-water characteristics, approving EPA’s technology-based approach.
- The court upheld EPA’s overall cost-benefit balancing for BPT and declined to require an incremental cost-benefit method.
- The court held EPA sufficiently considered non-water quality environmental impacts and declined to second-guess the agency’s technical balancing once consideration was shown.
- The court upheld EPA’s variance mechanism as consistent with the requirement to account for “fundamental differences” on a limited, case-by-case basis.
- The court remanded only the BOD limitation for acetate-grade dissolving sulfite mills because EPA materially changed that standard after the comment period, requiring repromulgation.

## Legal Principles

- Under APA § 706(2), courts review EPA regulations for statutory authority, procedural regularity, and whether the agency acted arbitrarily or capriciously; technical judgments receive substantial judicial deference.
- The Clean Water Act’s 1972 amendments implement technology-based, nationally uniform effluent limits for categories of industrial dischargers, not limits tailored to receiving-water conditions.
- For BPT, EPA must consider costs and benefits, but the statute does not require a particular cost-benefit methodology so long as the agency’s approach is reasonable and supported by the record.
- EPA must consider non-water quality environmental impacts in setting BPT limits; once the agency demonstrates it considered those impacts, courts should not substitute their own technical assessments.
- Effluent guideline regulations may include a limited variance procedure to address plant-specific “fundamental differences,” consistent with the national standards framework.
- A material change to a final rule after the close of public comment, without adequate opportunity for affected parties to comment, violates notice-and-comment requirements and warrants remand for repromulgation.

## Conclusion

The D.C. Circuit sustained EPA’s technology-based BPT effluent limits for the pulp and paper industry against broad procedural and substantive challenges, applying deferential APA review to technical determinations, but remanded one BOD limitation because it was materially revised after the comment period without proper notice-and-comment.


Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir. 1978)