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RSR CORP. v. BROWNER

April 30, 1996

RSR CORPORATION and REVERE SMELTING & REFINING CORPORATION, Plaintiffs, against CAROL BROWNER, as Administrator of the United States Environmental Protection Agency, Defendant.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Plaintiffs RSR Corporation ("RSR") and Revere Smelting & Refining Corporation ("Revere") (collectively, "plaintiffs") bring this "reverse-Freedom of Information Act" case to enjoin the Environmental Protection Agency (the "EPA") from disclosing certain information submitted to the EPA pursuant to the Clean Water Act and regulations promulgated thereunder. Plaintiffs appeal from a final determination of the EPA's Regional Counsel that Revere's average monthly production data must be made available to the public. Defendant Carol Browner, Administrator of the EPA, moves to dismiss the complaint, or, in the alternative, for summary judgment based on the administrative record. For the reasons set forth below, the defendant's motion for summary judgment is granted and the EPA's determination is affirmed. *fn1"

 BACKGROUND

 Revere, a subsidiary of RSR, operates a secondary lead smelting plant in Wallkill, New York (the "Wallkill Plant"). In the course of its lead smelting operations, the Wallkill Plant generates industrial wastewater, which is treated at a facility located on-site. After this initial treatment, the water enters the public sewer system and is conveyed to a publicly-owned treatment works ("POTW") owned and operated by the Town of Wallkill (the "Wallkill POTW"). At the Wallkill POTW, Revere's pre-treated wastewater is mixed with other wastewater and, after additional treatment, is discharged into the Wallkill River.

 1. Regulatory Framework

 The Clean Water Act (the "CWA"), 33 U.S.C. § 1251 et seq., prohibits the discharge of pollutants except in accordance with standards established pursuant to the CWA. See 33 U.S.C. § 1311(a). Pursuant to 33 U.S.C. § 1317(b), the Administrator of the EPA has promulgated regulations establishing limits on the amount of pollutants that may be present in industrial wastewater discharged into a POTW ("pretreatment standards"). The pretreatment standards applicable to secondary lead smelters, expressed in pounds of pollutant allowed per million pounds of lead produced from smelting, are contained in 40 C.F.R. § 421.135(b).

 The CWA and the regulations also contain reporting requirements to assist the EPA in monitoring compliance with the pretreatment standards. See 33 U.S.C. § 1318(a); 40 C.F.R. § 403.12(e). Industrial users that are subject to pretreatment standards, such as the Wallkill Plant, must provide semi-annual reports containing information regarding the nature and concentration of pollutants in the user's wastewater. See 40 C.F.R. § 403.12(e)(1). For industrial users whose pretreatment standards are expressed in terms of the amount of pollutant allowed per unit of production, the semi-annual report is to contain the user's actual average production rate for the reporting period. 40 C.F.R. § 403.12(e)(3). In accordance with these regulations, Revere submitted semi-annual compliance reports containing data on the Wallkill Plant's monthly production rate, which Revere designated as confidential.

 2. Prior Proceedings

 On March 2, 1994, the EPA received a request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, from Carpenter Environmental Associates, Inc. ("Carpenter"). In its FOIA request, Carpenter sought records concerning the Wallkill Plant's compliance with the CWA, including the semi-annual compliance reports.

 In a final determination issued by the EPA's Regional Counsel pursuant to 40 C.F.R. § 2.205, the EPA rejected plaintiffs' claim that the records sought by Carpenter were exempt from disclosure under exemption 4 of FOIA, 5 U.S.C. § 552(b)(4), concluding that the Wallkill Plant's monthly production data was "effluent data," which is not eligible for confidential treatment. The Regional Counsel stated that effluent data is defined as "information necessary to determine the amount of pollutants which, under an applicable standard or limitation, the source was authorized to discharge (including, to the extent necessary for such purpose, a description of the manner or rate of operation of the source)." Murphy Decl. Exh. F at 2. In concluding that the Wallkill Plant's production data was effluent data, the EPA's Regional Counsel considered the pretreatment standards applicable to the Wallkill Plant, and noted that the standards applicable to a secondary lead smelter are expressed in terms of allowable discharge per unit of production or operation. The Regional Counsel reasoned that "in order to establish the allowable Standards for this type of facility, average production/operation data must be provided. Accordingly, one must know the facility's average production/operation rates to determine if the facility is in compliance with the applicable Pretreatment Standards." See Murphy Decl. Exh. F at 2. Reasoning that "the production data at issue here is necessary to determine the allowable Pretreatment Standards for this facility and, hence, the facility's compliance with an applicable Clean Water Act standard," id., the Regional Counsel concluded that the Wallkill Plant's monthly production rate constituted effluent data which is not entitled to confidential treatment and may not be withheld by the agency under FOIA exemption 4.

 On January 18, 1995, plaintiffs filed this action seeking judicial review of the Regional Counsel's determination as well as preliminary and permanent injunctions prohibiting disclosure of the Wallkill Plant's production rate data. It appears that the EPA has stayed disclosure of the data pending resolution of this action.

 DISCUSSION

 The government moves to dismiss the complaint, or, in the alternative, for summary judgment based on the administrative record. Because the defendant has submitted material outside the pleadings, namely, the administrative record, I will treat the ...


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