factors relating to compliance. See 40 C.F.R. § 2.302(a)(2)(i)(B). Accordingly, I find that the Regional Counsel's failure to explicitly state that the EPA actually used the production rate data to determine the Wallkill Plant's compliance with the CWA is of no moment.
ii. Point Source
Although the issue was not raised by plaintiffs in objecting to the FOIA request, plaintiffs claim that the EPA's decision should be set aside because the Wallkill Plant is not a "point source" that is subject to the CWA's reporting and disclosure requirements. See 33 U.S.C. § 1318(a)(A); 40 C.F.R. § 2.302(b).
Under the CWA, "the term 'point source' means any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). The terms "discharge of a pollutant" or "discharge of pollutants" mean "any addition of any pollutant to navigable waters from any point source," 33 U.S.C. § 1362(12), and the term "navigable waters" is defined as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7).
Plaintiffs claim that, as the wastewater generated by the Wallkill Plant is treated at a POTW before it is discharged into the Wallkill River, the Wallkill Plant is not a point source because it does not discharge pollutants directly into navigable waters. This argument is rejected, for three reasons. First, the plain language of the CWA suggests that a facility that discharges wastewater to a POTW is a point source. The section that establishes the CWA's reporting requirements provides that "the Administrator shall require the owner or operator of any point source to," inter alia, maintain records to assist in developing and determining compliance with pretreatment standards. 33 U.S.C. § 1318(a)(A). As pretreatment standards apply only to those facilities that discharge wastewater into POTWs, it follows that such facilities are point sources.
Second, courts have found that the term "point source" encompasses facilities whose wastewater is conveyed to a POTW before it is discharged into navigable waters. See, e.g., United States Envtl. Protection Agency v. Green Forest, Arkansas, 921 F.2d 1394, 1398 (8th Cir. 1990) (discussing three different types of point sources, including "indirect dischargers," or "sources that discharge their pollutants not into navigable waters but into the POTWs") (citation omitted), cert. denied sub nom. Work v. Tyson Foods, Inc., 502 U.S. 956, 116 L. Ed. 2d 435, 112 S. Ct. 414 (1991); United States v. Velsicol Chem. Corp., 438 F. Supp. 945, 946-47 (W.D. Tenn. 1976). But see Connecticut Fund for the Env't, Inc. v. Upjohn Co., 660 F. Supp. 1397, 1417-18 (D. Conn. 1987) (holding that indirect discharger did not violate the Federal Water Pollution Control Act by discharging pollutants into POTW rather than directly into navigable waters).
Finally, in light of the remedial purposes of the CWA, it is reasonable to conclude that facilities that discharge pollutants into POTWs, which in turn discharge the pollutants into navigable waters, are point sources. Cf. Dague v. Burlington, 935 F.2d 1343, 1354 (2d Cir. 1991) (noting that "the definition of a point source is to be broadly interpreted."), rev'd in part on other grounds, 505 U.S. 557 (1992). As it is undisputed that the Wallkill Plant discharges its wastewater into the Wallkill POTW, which in turn discharges the wastewater into the Wallkill River, the Wallkill Plant is a point source subject to the CWA's disclosure requirements.
b. Not in Accordance With Law
A district court reviewing an agency's decision to disclose information under FOIA shall also set aside the decision if it is "not in accordance with law." 5 U.S.C. § 706(2)(A). In Chrysler, the Supreme Court held that disclosure of information in violation of the Trade Secrets Act, 18 U.S.C. § 1905, is "not in accordance with law" under 5 U.S.C. § 706(2)(A). 441 U.S. at 318; see McDonnell Douglas Corp. v. Widnall, 313 U.S. App. D.C. 77, 57 F.3d 1162, 1164 (D.C. Cir. 1995). The Trade Secrets Act prohibits United States officers or employees from disclosing, inter alia, trade secrets "to any extent not authorized by law." 18 U.S.C. § 1905; see Chrysler, 441 U.S. at 295. Here, plaintiffs claim that disclosure of the Wallkill Plant's production rates would violate the Trade Secrets Act, but nowhere do plaintiffs argue that the planned disclosure is "not authorized by law," as is required to state a violation of the Trade Secrets Act. See 18 U.S.C. § 1905. In fact, it is clear that the disclosure approved of by the EPA is authorized by law, as both the CWA and the regulations promulgated under it permit disclosure of so-called "effluent data." See 33 U.S.C. § 1318(b);
40 C.F.R. § 2.302(e) ("Information which is effluent data . . . is not eligible for confidential treatment" under 40 C.F.R. § 2.208). Therefore, the EPA's decision is in accordance with law.
4. Information Voluntarily Submitted to the EPA
Finally, in their complaint and Memorandum of Law plaintiffs state that the monthly production rate information was provided to the EPA voluntarily, as the regulations only require that plaintiffs submit semi-annual data. Information that is voluntarily submitted is eligible for confidential treatment under the CWA regulations. 40 C.F.R. § 2.302(e); see 40 C.F.R. § 2.201(i) (defining term "voluntarily submitted information"). Plaintiffs are not entitled to review of this argument on this appeal, however, as they did not raise the issue before the EPA. See Railway Labor Executives' Ass'n v. United States, 791 F.2d 994, 1000 (2d Cir. 1986) (Second Circuit has "declined to review arguments not raised before an administrative agency, absent exceptional circumstances") (citation omitted); Kendrick v. Sullivan, 784 F. Supp. 94, 99 (S.D.N.Y. 1992).
Moreover, it does not appear that plaintiffs submitted the information voluntarily, as they provided the monthly production rate data to the EPA as part of the semi-annual report required under 40 C.F.R. § 403.12(e). The record shows that plaintiffs submitted only monthly data; they did not provide the EPA with the required six-month production averages. See Murphy Decl. Exh. A. As plaintiffs elected to provide monthly figures to satisfy their semi-annual reporting requirements, it cannot be said that the information was submitted voluntarily.
Upon reviewing the Regional Counsel's final determination and the administrative record, I find that the EPA's decision that the Wallkill Plant's monthly production data should be released was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. Accordingly, the Clerk of the Court shall enter judgment affirming the decision of the EPA and dismissing the complaint with prejudice.
Dated: New York, New York
April 30, 1996
United States District Judge