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THOMAS, Circuit Judge.
This case involves a dispute over a Bureau of Reclamation project to build a concrete-lined canal to replace an unlined portion of the All-American Canal. The district court denied declaratory and in-junctive relief. A motions panel of our Court granted a temporary injunction halting work on the project pending appeal. After the initial oral argument and based on intervening legislation, the United States filed a motion to vacate the injunction and to remand the action to the district court with instructions that several of the claims be dismissed as moot. We held a second oral argument to consider the motion.
After consideration of the extensive briefing and arguments of the parties, we conclude that the environmental and other statutory claims are moot and that the district court lacked subject matter jurisdiction over the remaining claims. We vacate the injunction of the project pending appeal and remand the case to the district court with instructions to dismiss it.
I
Colorado Poet Laureate Thomas H. Fer-ril described the West by saying: “Here is the land where life is written in water.” The legacy of the West is one of continual, and often bitter, controversies about water rights, both above and below the surface. In the West, “whiskey is for drinking; water is for fighting over,” Mark Twain is said to have observed. Our water dispute brings us to the Mexican-California border and the plans of the United States Bureau of Reclamation to prevent the All-American Canal from seeping water — seepage upon which thousands of Mexicans rely.
The All-American Canal is one of the world’s largest irrigation canals, carrying water from the Colorado River to the Imperial Valley in California. The Imperial Valley lies between the Mexican boundary and the Saltón Sea, bounded on the east by sandhills and on the west by the foothills of the San Diego Mountains. The canal is the valley’s only source of water.
The All-American canal replaced the Alamo canal, which diverted water a short distance north of the Mexican border, but transported water mostly through Mexico before it re-crossed the border into the Imperial Valley. In the 1920’s, considerable sentiment arose to have a canal that was entirely contained within the boundaries of the United States — perhaps in furtherance of the notion of character Noah Cross (slightly paraphrased), that “either you bring the water to California, or you bring California to the water.” In any event, the concept of an “all-American” canal was born.
The All-American Canal System was authorized under the Boulder Canyon Project Act of December 21, 1928, 45 Stat. 1057, codified at 43 U.S.C. § 617. Construction of the canal by the United States Bureau of Reclamation commenced in 1934 following the construction of the Hoover Dam, with the project reaching completion in 1942. The design was aimed to have the water transported entirely within the United States. The new canal, as designed, flowed only in the United States. However, water often refuses to be confined by our artificial restraints. Thus, although the canal’s surface water remained in the United States, its seepage did not — recharging the Mexicali Aquifer and providing a reservoir of groundwater to the Mexicali Valley on the other side of the border. The Mexicali Aquifer underlies both the Imperial Valley in California and the Mexicali Valley in Mexico. The complaint alleges that the roughly 1.3 million people who live in the Mexicali Valley depend on the groundwater from the aquifer, which irrigates thousands of acres of farmland.
Prior to 1901, the aquifer was recharged by the Colorado and Alamo rivers. Because it was unlined, the construction of the Alamo Canal did not impact the recharge of the aquifer. Congress considered the idea of lining the All-American Canal, but ultimately decided on an earthen and porous design that did allow seven percent of the volume to seep into northern Mexico.
Seepage from the All-American Canal first caused widespread flooding in the Mexicali Valley until mechanisms were put in place to harness the water. The residents and businesses of the Mexicali Valley have since expended considerable resources to create an infrastructure of pumping facilities and conveyance equipment that deliver the water for drinking and irrigation. As a result, the complaint alleges that a large metropolitan community has developed in reliance on the water.
In 1944, the United States and Mexico entered into a treaty designed to govern the allocation of Colorado River water between the two nations. See Treaty Between the United States of America & Mexico Respecting Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande [“1944 Treaty”], 59 Stat. 1219, T.S. No. 994, Section III, Art. 10 (Nov. 8,1945).
The Treaty came in the context of a developing set of domestic authorities designed to regulate the use of Colorado River water known collectively as the “Law of the River.” After the first World War, as Congress began considering further ways to capture and regulate Colorado River water, the states constituting the Upper Basin of the river (Colorado, Utah, New Mexico and Wyoming) grew concerned that states in the Lower Basin (Arizona, Nevada and California) would begin to claim appropriation rights to the water. See Maricopa-Stanfield v. United States, 158 F.3d 428, 430 (9th Cir.1998). The Colorado River Compact of 1922 apportioned 7.5 million acre feet of water annually to the Lower Basin states to forestall any disputes. See Act of August 19, 1921, art. 2, 43 Stat. 171, reprinted in Ariz.Rev.Stat. § 45-1311. The Boulder Canyon Project Act of 1928 (“Canyon Project Act”) then apportioned that 7.5 million acre feet among the Lower Basin states. See Maricopa-Stanfield, 158 F.3d at 430. To deliver the allocations called for in the Act, the Canyon Project Act authorized the construction of the All-American Canal. See 43 U.S.C. § 617. The apportionment between the Lower Basin states has also been the subject of a series of Supreme Court decisions and decrees, culminating in Arizona v. California, 547 U.S. 150,126 S.Ct. 1543, 164 L.Ed.2d 271 (2006) (“Consolidated Decree”).
The Treaty requires the United States to deliver 1.5 million acre feet of Colorado River water to Mexico annually at designated diversion points on the international land boundary as specified in the Treaty. The Treaty also commits the United States to delivering an additional 200,000 acre feet in any year in which there is a surplus of Colorado River water in excess of the amount required to satisfy other obligations. The Treaty then states that “Mexico shall acquire no right beyond that provided by this subparagraph by the use of the waters of the Colorado River system, for any purpose whatsoever, in excess of the 1,500,000 acre feet ... annually.” 1944 Treaty at Art. 10. The Treaty commits the United States to constructing the works necessary to deliver these waters to the diversion points. The Treaty considered the All-American Canal to be one of the mechanisms for delivery. The Treaty committed to the International Boundary and Water Commission (“Boundary Commission”) the authority to resolve disputes arising under the Treaty. Id. at Art 2, 24(d).
In 1973, the Boundary Commission issued “minute 242” addressing the problem of the salinity of the Colorado River. See Agreement Confirming Minute No. 242 of the International Boundary and Water Commission, U.S. and Mex., 24 U.S.T.1968 (Aug. 30, 1973). The minute acknowledged that there was no existing agreement governing groundwater issues in the border area between the two nations. The agreement also stated that “[w]ith the objective of avoiding future problems, the United States and Mexico shall consult with each other prior to undertaking any new development of either the surface or the groundwater resources, or undertaking substantial modifications of present developments, in its own territory in the border area that might adversely affect the other eountry.” Id.
In 1988, Congress passed the San Luis Rey Indian Water Rights Settlement Act (“Settlement Act”) which authorized the Secretary of the Interior (“Secretary”) to select one of three options for recovering the seepage lost through the All-American Canal. Pub.L. No. 100-675, 102 Stat. 4000, § 203. The choices included constructing a parallel lined canal, lining the existing canal, or constructing seepage recovery facilities such as a well-field between the All-American Canal and the border. The Secretary also considered a no action option. The Settlement Act explained that “significant quantities of water currently delivered into the All American Canal and its Coachella Branch are lost by seepage from the canals and that such losses could be reduced or eliminated by lining these canals.” Id. at § 201. The conserved water was to be used to meet the growing needs of California consumers, as well as to settle water rights claims brought by several Native American groups. Id. at § § 106, 204. The Imperial Irrigation District (“HD”), with whom the Secretary contracts to manage the All-American Canal, and the Metropolitan Water District of Southern California (“MWD”) would deliver the additional water to consumers. Id. at § 202.
The Secretary then undertook several environmental studies to consider the impact of the All-American Canal lining project (“Lining Project”) and issued a final environmental impact statement (“FEIS”) and record of decision (“ROD”) in 1994. The FEIS was noticed in the Federal Register at that time. 59 Fed.Reg. 18,573 (Apr. 19, 1994). After consideration of all the alternatives, the ROD selected the parallel lined canal option and the Bureau of Reclamation approved the ROD on July 29,1994.
Thereafter, the United States engaged in a diplomatic interchange with Mexico and the Mexican section of the Boundary Commission. There is some dispute as to the nature and extent of that exchange. The United States claims that it engaged in an extensive consultation progress; Mexico, as amicus, complains of cursory and insufficient consultation.
The Lining Project lay dormant, however, because the Settlement Act required that the project be paid for by entities benefitting from the conserved seepage and not by the United States. Settlement Act at § 203. While the plan was dormant, the Bureau of Reclamation conducted a reexamination of the FEIS in 1999, but determined that no new significant information changed the initial analysis and thus a supplemental environmental impact statement (“SEIS”) was not required.
By 2002, the State of California was using over five million acre feet of Colorado River water per year, 600,000 acre feet above its 4.4 million acre feet allotment under the terms of the Canyon Project Act and Consolidated Decree. Awareness of the size of this usage led to an intensive effort by the region’s water users to assist California in reducing its historical overuse of Colorado River water. This effort led to a series of agreements in 2003 between the United States, the MWD, Coachella Valley Water District, IID, San Diego County Water Authority (“SDCWA”), the La Jolla, Pala, Pauma, Rincon & San Pasqual Bands of Mission Indians, the San Luis Rey River Indian Authority, and the City of Escondido & Vista Irrigation District (the “Allocation Agreement”). The Allocation Agreement provided how the conserved seepage water would be allocated. One aspect of the agreement was that the State of California would pay for the Lining Project.
With the project back on track, the Bureau of Reclamation asked the United States Fish and Wildlife Service (“FWS”) to confirm as a biological opinion a conference opinion the FWS had issued on February 8, 1996, regarding the Lining Project’s impact on the Peirson’s Milk Vetch, a threatened plant species. FWS so confirmed the opinion on September 9, 2004.
On July 19, 2005, this action was filed in the District of Nevada seeking to enjoin the Lining Project. The Plaintiffs consisted of Consejo de Desarrollo Económico de Mexicali, A.C. (“Consejo”), a Mexican community group, and two American non-profit environmental groups (“Environmental Plaintiffs”) (Citizens United for Resources and the Environment [“CURE”] and Desert Citizens Against Pollution [“Desert Citizen”]). The City of Calexico, California, (“Calexico”) later intervened as a plaintiff as to one count of the complaint. The parties stipulated to, and the district court approved, the intervention of multiple entities on the side of the defense, including the Imperial Irrigation District, the San Diego County Water Authority, the Central Arizona Water Conservation District, the State of Nevada, the Southern Nevada Water Authority, and the Colorado River Commission of Nevada. The court also has been aided at various points in the proceedings by other interested parties and amici.
After the district court dismissed a number of counts in the original complaint, the Plaintiffs filed an amended eight-count complaint on February 23, 2006, seeking declaratory and injunctive relief. The first four counts were brought by Consejo, on behalf of a class of beneficial users of the Mexicali Aquifer and the All-American Canal on the Mexican side of the border. Count One alleged an “unconstitutional deprivation of property without due process of law in violation of the class’ substantive and procedural rights.” Count Two alleged a constitutional tort pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), based on the “usurpation of water rights owned by the well owners and water users in the Mexicali Valley” by the Secretary and the Commissioner of the Bureau of Reclamation. Count Three alleged that the “application of water rights priorities in the present context is subject to the doctrines of equitable apportionment or equitable use,” and that “[t]he Secretary and Commissioner have an affirmative duty to configure and implement the All-American Canal Project in a manner that results in the reasonable utilization of the water resources of the Mexicali Valley.” Count Four alleged that the “Secretary and Commissioner are estopped from operating the All-American Canal” in any manner that would block the seepage that has recharged the Mexicali Aquifer for the preceding 63 years.
All of the Plaintiffs joined in Count Five, which alleged a violation of the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act (“APA”). In this count, the Plaintiffs argued that the Secretary and Commissioner failed to prepare a SEIS despite the existence of significant new circumstances bearing on the proposed project. The Plaintiffs argue that five new circumstances warrant preparation of a SEIS: (1) the discovery of the Andrade Mesa Wetlands in Mexico and its importance as a habitat for the endangered Yuma Clapper Rail after preparation of the FEIS; (2) the anticipated transborder socio-eco-nomic impacts from the water loss, which has been altered and exacerbated since the FEIS by demographic changes and the passage of NAFTA; (3) new reports suggesting possible unexplored impacts on the Saltón Sea; (4) alterations in the project plan with regard to human safety mechanisms designed to prevent drowning; and (5) changes in the air quality condition of the effected region. The district court later granted Plaintiff in Intervention status to Calexico as to this count.
The final three counts were brought by the Environmental Plaintiffs. Count Six alleged violations of the Endangered Species Act. Specifically, the amended complaint alleged that Bureau of Reclamation failed to reinitiate consultations with the FWS as required despite new information about wetlands habitat and the species therein — namely, the Yuma Clapper Rail and the Peirson’s Milk Vetch — which came to light after the FEIS and biological opinions in existence had been issued. Count Seven alleged an unlawful taking of a listed migratory bird in violation of the Migratory Bird Treaty Act. Count Eight alleged violations of environmental requirements that were made a part of the Settlement Act. The amended complaint also alleged that no amount of damages would be sufficient and thus equitable relief was necessary.
Subsequent to the filing of the complaint in this case, on November 18, 2005, the Bureau of Reclamation issued a biological analysis for the Lining Project regarding the Potential Species Impact in the Republic of Mexico and transmitted it to the FWS. The FWS informed the Bureau of Reclamation by memorandum dated January 11, 2006, that, in its opinion, consultation with FWS was not required by the ESA when the impacts being considered take place in foreign territory. One day later, on January 12, 2006, the Bureau of Reclamation issued a Supplemental Information Report (“SIR”) which determined that no substantial changes, significant new information, or circumstances existed that would require the Bureau of Reclamation to issue a SEIS.
The Plaintiffs moved for summary judgment as to Count Five (NEPA violations) and CURE moved for summary judgment as to Count Six (Endangered Species Act violations). The Defendants opposed those motions and cross-moved for summary judgment on those claims. The Defendants also moved to dismiss counts 1-4 and 6-8 of the amended complaint for lack of standing, and contended in addition that claims five, seven and eight were time barred.
On June 23, 2006, the district court granted the motion to dismiss Consejo with respect to Counts 1-4 and 6-8, but denied the motion to dismiss CURE with respect to Counts 6-8. The order also held that Counts Seven and Eight were time-barred and that Count Five was time-barred with respect to any challenge to the 1994 FEIS, but not with respect to any challenge to the Bureau of Reclamation’s failure to produce a SEIS.
On July 3, 2006, the district court denied The Plaintiffs’ motion for summary judgment as to Count five and CURE’S motion for summary judgment as to Count Six and granted The Defendants’ cross-motions on both those counts. Judgment was entered on July 3, 2006. The Plaintiffs filed timely appeals from the judgment.
The Plaintiffs then filed a motion in the district court for an injunction pending appeal, which was denied. The Plaintiffs filed a motion for an injunction pending appeal with this Court, which was granted by a motions panel of the Court.
After we heard oral argument on the merits of the appeal in December 2006, Congress enacted and the President signed into law the Tax Relief and Health Care Act of 2006, Pub. Law No. 109-432, 120 Stat. 2922 (“2006 Act”). Contained within the 274-page omnibus tax bill were sections directly affecting the Lining Project. In pertinent part, the 2006 Act provided that:
(a) ... Notwithstanding any other provision of law, upon the date of enactment of this Act, the Secretary shall, without delay, carry out the All American Canal Lining Project identified — (1) as the preferred alternative in the record of decision for that project, dated July 29, 1994; and (2) in the allocation agreement allocating water from the All American Canal Lining Project, entered into as of October 10, 2003.
(b) ... (1) ... Subject to Paragraph (2), if a State conducts a review or study of the implications of the All American Canal Lining Project as carried out under subsection (a), upon request from the Governor of the State, the Commissioner of Reclamation shall cooperate with the State, to the extent practicable, in carrying out the review or study.
(2) Restriction of Delay. — A review or study conducted by a State under paragraph (1) shall not delay the carrying out by the Secretary of the All American Canal Lining Project.
Id. at § 395. Section 397 of the 2006 Act provides that:
The Treaty between the United States of America and Mexico relating to the utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande, and supplementary protocol signed November 14, 1944, signed at Washington February 3, 1944 (59 Stat. 1219) is the exclusive authority for identifying, considering, analyzing, or addressing impacts occurring outside the boundary of the United States of works constructed, acquired, or used within the territorial limits of the United States.
Id. at § 397.
Following the effective date of the 2006 Act, the United States filed a motion to remand this case to the district court with instructions that Counts Five through Eight of the amended complaint be dismissed as moot and for an order vacating the injunction pending appeal imposed by the motions panel. The Plaintiffs vigorously opposed the motion, and we heard argument on the motion.
II
If legislation passing constitutional muster is enacted while a case is pending on appeal that makes it impossible for the court to grant any effectual relief, the appeal must be dismissed as moot. Paulson v. City of San Diego, 475 F.3d 1047, 1048 (9th Cir.2006). Here, the government contends that enactment of the 2006 Act renders the statutory environmental claims contained in Counts 5-8 of the amended complaint moot. In those counts, the Environmental Plaintiffs allege that the Lining Project cannot proceed until the government complies with NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act.
A
In examining the impact of the 2006 Act on this case, we employ our usual methodology in statutory construction. As always, our starting point is the plain language of the statute. Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir.1999). “[W]e examine not only the specific provision at issue, but also the structure of the statute as a whole, including its object and policy.” Id. If the plain meaning of the statute is unambiguous, that meaning is controlling and we need not examine legislative history as an aid to interpretation unless “the legislative history clearly indicates that Congress meant something other than what it said.” Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 877 (9th Cir.2001) (en banc). If the statutory language is ambiguous, we consult legislative history. United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.1999).
The government underscores the provisions of the 2006 Act that direct the Bureau of Reclamation to proceed with the Lining Project “without delay” and “notwithstanding any other provision of law.” 2006 Act, § 395(a). The government contends that the import of this language is to exempt the Lining Project from compliance with any other federal law.
Assuming it uses constitutional means, Congress may exempt specific projects from the requirements of environmental laws. See Sierra Club v. USFS, 93 F.3d 610, 613-14 (9th Cir.1996); Mt. Graham Coalition v. Thomas, 89 F.3d 554, 556-58 (9th Cir.1996); Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1457-61 (9th Cir.1992); Stop H-3 Ass’n v. Dole, 870 F.2d 1419, 1432 (9th Cir.1989) (noting that Congress may “moot a pending controversy by enacting new legislation”). Our first task in examining the statute is to determine whether Congress intended that result.
The fact that the 2006 Act used the phrase “notwithstanding any other provision of law” is not dispositive. United States v. Novak, 476 F.3d 1041, 1046-47 (9th Cir.2007) (en banc). Indeed, “[w]e have repeatedly held that the phrase ‘notwithstanding any other provision of law' is not always construed literally.” Or. Natural Res. Council v. Thomas, 92 F.3d 792, 796 (9th Cir.1996). Rather, when the phrase is used, we have determined its reach by “taking into account the whole of the statutory context in which it appears.” Novak, 476 F.3d at 1046. In viewing the statutory context, we attempt “to give effect, if possible, to every clause and word of a statute, rather than to emasculate an entire section,” Estate of Reynolds v. Martin, 985 F.2d 470, 473 (9th Cir.1993), mindful that “[t]he cardinal principle of statutory construction is to save and not to destroy,” id.
Placing the “notwithstanding” language of the 2006 Act in context, we are guided by the further statutory language that the Lining Project proceed “without delay” “upon the enactment of this Act.” 2006 Act § 395(a). If Congress had intended for the Lining Project to proceed under the usual course of administrative proceedings, it would have been unnecessary for Congress to act at all. The environmental challenges would have been resolved in due course. However, proceeding along the usual course of resolving environmental disputes would be inconsistent with the Bureau of Reclamation proceeding “without delay” “upon the enactment of this Act.” The Environmental Plaintiffs allege in their complaint that the Lining Project violates various federal environmental statutes and cannot proceed until the government complies with those strictures. Thus, application of the cited statutes cannot be reconciled with the language of the 2006 Act. Under those circumstances, when Congress has directed immediate implementation “notwithstanding any other provision of law,” we have construed the legislation to exempt the affected project from the reach of environmental statutes which would delay implementation. Mt. Graham Red Squirrel, 954 F.2d at 1456. That is not to say the agency may act lawlessly in completing the project. See Or. Natural Res. Council, 92 F.3d at 797 (rejecting the idea that the phrase “notwithstanding any other provision of law” “require[d] the agency to disregard all otherwise applicable laws,” other than the environmental statutes at issue). Rather, we have applied a common sense construction of the phrase to refer to those laws that would delay the commencement of a project in derogation of express Congressional directive to proceed immediately or, in this case, “without delay.”
Applying these principles to the case at hand, we must conclude as a matter of statutory construction that the 2006 Act renders the challenges to commencement of the Lining Project based on NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act (contained in Counts Five through Eight of the amended complaint) moot. Each of those claims, if relief were to be granted, would delay commencement of the Lining Project. Congress has instructed otherwise, “notwithstanding any other provision of law.” Therefore, we must construe the 2006 Act as exempting the Lining Project from the identified statutory claims. If valid, the 2006 Act thus exempts the Bureau of Reclamation from the challenges contained in Counts 5-8 of the amended complaint.
B
Having determined the 2006 Act’s statutory reach, we turn to the Plaintiffs’ other objections to the application of the 2006 Act to the instant case. The Plaintiffs contend that the 2006 Act (1) violates the Tenth Amendment, (2) invades the judiciary’s Article III powers, (3) violates the Equal Protection Clause, and (4) deprives them of protected constitutional interests without due process of law. None of these arguments is persuasive.
1
The Plaintiffs argue that the 2006 Act violates the Tenth Amendment because it requires the Bureau of Reclamation to commandeer California’s resources to carry out the project given that the Settlement Act directs that “[n]o federal funds are authorized to be appropriated to the Secretary for construction of [the canal].” Pub.L. No. 100-675, § 203(e)(1), 102 Stat. 4000 (Nov. 17,1988).
As with all claims, we must satisfy ourselves that we have jurisdiction. We must determine independently that the Article III requirement of a live case or controversy has been met, even if the issue has not been raised by the parties. See American Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir.2006). If a “live” controversy does not exist, the case is moot. Id. (citing City of Erie v. Pap’s AM., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)).
Here, the Plaintiffs argue that if the 2006 Act goes into effect, it will require the commandeering of California’s financial resources. However, California has already agreed to appropriate its financial resources to the Lining Project. See The Allocation Agreement. Therefore, the controversy the Plaintiffs seek to litigate by this challenge — whether the United States may appropriate California’s resources — no longer exists. Accordingly, we hold that this claim is moot and we therefore lack jurisdiction to reach its merits.
2
The Plaintiffs also contend that the 2006 Act violates the principle of separation of powers by dictating a specific result in a pending judicial case. Congress may change the substantive law governing a pending case so long as it does not “direct any particular findings of fact or application of law, old or new, to fact.” Robertson, 503 U.S. at 438, 112 S.Ct. 1407. However, “[t]he constitutional principle of separation of powers is violated where (1) Congress has impermissibly directed certain findings in pending litigation, without changing any underlying law, or (2) a challenged statute is independently unconstitutional on other grounds.” Ecology Ctr. v. Castaneda, 426 F.3d 1144, 1148 (9th Cir.2005) (internal quotation marks and citations omitted).
This type of controversy and claim is not new. We have considered similar challenges in the context of planned government action, and concluded that similar legislation did not violate the principle of separation of powers. Ecology Ctr., 426 F.3d at 1148-49; Mt. Graham Red Squirrel, 954 F.2d at 1457-58; Stop H-3 Ass’n, 870 F.2d at 1431. As in the legislation underpinning our prior decisions, the 2006 Act does not direct us to make any findings or to make any particular application of law to facts. Rather, the legislation changes the substantive law governing pre-conditions to commencement of the Lining Project. As such, it does not violate the constitutional separation of powers.
3
The Plaintiffs next claim that the 2006 Act violates the Equal Protection Clause by selectively denying Latinos their fundamental life and property interests in a healthy environment because the effected Imperial Valley region has a large Latino population. They argue that strict scrutiny applies to the legislation since it discriminates against Latinos as a suspect class and that the Act cannot survive strict scrutiny review.
We need not reach the merits of this claim because, on the record before us, Desert Citizen does not have standing to bring it. “An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth v. Laidlaw Envt’l Serv. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
Here, Desert Citizen fails the first of these three elements. It has not demonstrated that any of its members would have standing to bring this claim in their own right. Desert Citizen’s argument, that it is being discriminated against on the basis of a suspect class' — namely, Latinos — requires that its members are also members of that class. Nothing in the record indicates that they are. We further note that nothing in the record indicates that representing the interests of Latinos is germane to Desert Citizen’s organizational purpose. Accordingly, Desert Citizens does not have organizational standing to bring this claim.
4
Desert Citizen also challenges the 2006 Act as violating its procedural due process rights by depriving its members of life and property interests in a healthy environment without due process of law. This challenge is based on the asserted failure of Congress to comply with its own procedural rules in adopting §§ 395 and 397 of the 2006 Act. We need not decide here whether the right to a healthy environment is of constitutional magnitude. Cf. Stop H-3, 870 F.2d at 1430 & n. 21. Even assuming, arguendo, that it is, the procedural decision of Congress, discharging its function as a lawmaking body, not to hold a hearing on general legislation is a question not subject to judicial review. “It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). “A controversy is nonjusticiable — i.e., involves a political question-where there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’ ” Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663(1962)). However, “the courts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed.” Here, Article I of the Constitution provides that “[ejach House may determine the Rules of its Proceedings.” U.S. Const., art. I, § 5. In short, the Constitution textually commits the question of legislative procedural rules to Congress. Thus, whether Congress decides to hold a hearing on legislation applicable to the general public is a non-justiciable political question beyond our power to review.
5
Given that the 2006 Act passes constitutional muster on the claims raised by the Plaintiffs, we must give it full effect as we have construed it. Therefore, we conclude that, in light of the 2006 Act, we cannot fashion effective relief and the challenges raised in Counts 5-8 based on alleged past violations of NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act are moot.
Ill
The remaining claims asserted by Con-sejo in Counts 1-4 based on various property rights and common law theories are not affected by the 2006 Act. However, for various reasons, the district court lacked subject matter jurisdiction over those claims.
A
The district court lacked subject matter jurisdiction over Consejo’s first claim, that its members were deprived of property without due process of law. Assuming, without deciding, that Consejo’s members had a cognizable property interest, its remedy for an alleged takings claim is under the Tucker Act, 28 U.S.C. § 1491. A takings claim is premature until the plaintiffs have exhausted their rights under the Tucker Act. Preseault v. ICC, 494 U.S. 1, 17, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990). This restriction is jurisdictional. “The simple fact is that we have no jurisdiction to address the merits of takings claims where Congress has provided a means for paying compensation for any taking that might have occurred.” Bay View, Inc. on behalf of AK Native Village Corps. v. Ahtna, Inc. 105 F.3d 1281, 1285 (9th Cir.1997).
Consejo appears to be claiming that the Lining Project may be enjoined because it infringes on its members’ property rights. However, as we noted in Bay View, “the government is not prohibited from taking private property; indeed the eminent domain clause contemplates that the government will take private property as needed for public purposes, so long as it pays compensation.” Id. at 1284. In short, jurisdiction over Consejo’s takings claim lies in the Court of Federal Claims, not the District of Nevada.
B
The district court also lacked subject matter jurisdiction over Consejo’s Bivens claims. In Count Two of the amended complaint, Consejo seeks to enjoin various individual government officials, based on Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. Bivens created a remedy for violations of constitutional rights committed by federal officials acting in their individual capacities. In a paradigmatic Bivens action, a plaintiff seeks to impose personal liability upon a federal official based on alleged constitutional infringements he or she committed against the plaintiff. See, e.g., Balser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 (9th Cir.2003). “[A] Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.” Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). This is because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity. Nurse v. United States, 226 F.3d 996, 1004 (9th Cir.2000). Therefore, the Supreme Court has refused to extend Bivens remedies from individuals to agencies. FDIC v. Meyer, 510 U.S. 471, 484, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994).
Here, Consejo has sued various Federal officials in their official capacities. It seeks to enjoin official action. Consejo does not claim damages based on the past unconstitutional acts of Federal officials in their individual capacities. Therefore, the district court lacked subject matter jurisdiction over the claim because the United States has not consented to its officials being sued in their official capacities.
C
Consejo’s third and fourth claims (apportionment and estoppel) seek equitable remedies based on common law property rights. However, because the United States has not consented to be sued, the district court lacked subject matter jurisdiction over the claims.
The United States, as a sovereign, is immune from suit unless it has waived its immunity. Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). A court lacks subject matter jurisdiction over a claim against the United States if it has not consented to be sued on that claim. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). “When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court’s jurisdiction.” United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). A waiver of sovereign immunity by the United States must be expressed unequivocally. United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). As a general matter, purported statutory waivers of sovereign immunity are not to be liberally construed. Id. at 34, 112 S.Ct. 1011.
The only waiver of the sovereign immunity of the United States cited by Consejo is the Administrative Procedure Act. Section 702 of the APA states that
[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.... The United States may be named as a defendant in any such action ... Provided, That any mandatory or injunc-tive decree shall specify the Federal officer or officers ... personally responsible for compliance.
5 U.S.C. § 702 (emphasis added).
However, as we have noted, “[d]espite the breadth of this language, the statute does not confer jurisdiction independent of some other specific statute.” Office of Governor, Territory of Guam v. Dep’t of Health and Human Servs., Admin. on Dev. Disability, 997 F.2d 1290, 1292 (9th Cir.1993). In Califano v. Sanders, 430 U.S. 99, 107 n. 6, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Supreme Court noted that the § 702 language must be read in conjunction with § 703, which suggested that the APA remedies under § 702 “look[ed] to outside sources of jurisdictional authority.”
By itself, § 702 does not impose any substantive duties on agencies or government officials. It is a procedural statute that requires another relevant statute to form the legal basis for the complaint that the government has acted unlawfully. See Wright, Miller & Cooper, 14A Federal Practice and Procedure § 3659 (3d ed.2006).
Here, Consejo’s counts three and four rely not on relevant statutes that the Bureau of Reclamation is alleged to have violated, but rather on Consejo’s members’ common law water rights. In count three, Consejo alleges that “[t]he Secretary and Commissioner have an affirmative duty to configure and implement the All-American Canal Project in a manner that results in the reasonable utilization of the water resources of the Mexicali Valley,” but it does not state from where that duty derives. In count four, Consejo only alleges that “[t]he Secretary and Commissioner are es-topped from operating the All-American Canal Project differently” than before. Absent any relevant statute on which to judge the legality of the agency’s actions, § 702 is inapplicable and cannot be invoked as a waiver of sovereign immunity.
Therefore, Consejo’s equitable claims of apportionment and estoppel are barred by sovereign immunity. Because the United States has not consented to be sued, the district court lacked subject matter jurisdiction over the claims.
IV
In sum, the 2006 Act renders the claims based on past violations of NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Settlement Act moot. The district court lacked jurisdiction over Consejo’s takings claim, which must be asserted before the Court of Federal Claims. Consejo’s remaining claims are barred by sovereign immunity.
We remand this case to the district court with instructions to dismiss Counts 5-8 as moot and to dismiss Counts 1-4 for lack of subject matter jurisdiction. We vacate the injunction pending appeal previously entered by the motions panel. Given our decision, we need not and do not reach any other questions raised by the parties or relied upon by the district court. All pending motions are denied as moot.
VACATED and REMANDED with instructions.
. Chinatown (Paramount 1974).
. The Plaintiffs make two additional claims that we do not address. First, the Plaintiffs contend that if the currently-planned project proceeds it will violate the 2006 Act itself, because the Act calls for implementation of the preferred alternative as determined by the 1994 ROD, but the plan has changed since then — namely, the 1994 plan called for human safety ridges on the canal to prevent drowning while the 2006 plan calls for ladders. Because the complaint never alleged violations of the 2006 Act — indeed, it could not have — that claim is not properly before us.
Likewise, Desert Citizen claims that the 2006 Act still requires compliance with the air quality commitments made in the 1994 FEIS and ROD. We agree and the government does not dispute this point. Desert Citizen has not alleged that Reclamation is not in compliance with those commitments. To the extent Desert Citizen’s claim is that the project is or will be in violation of the 2006 Act if it does not so comply, that claim is similarly not before us.
. Although the Bureau of Reclamation, being a Federal agency, is not subject to the strictures of the Equal Protection Clause, "In Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), the Supreme Court indicated that the Fifth Amendment’s Due Process Clause, subjects the federal government to constitutional limitations that are the equivalent of those imposed on the states by the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause commands that no state shall deny any person the equal protection of the laws. U.S. CONST. amend. XIV, § 1.” Stop H-3 Assn, 870 F.2d at 1429 n. 18. We therefore read Desert Citizen’s challenge as a Fifth Amendment claim.
. This contention is based on the claim that minority communities are often exposed to greater environmental hazards than non-minority communities. See Kessler v. Grand Cent. Dist. Management Ass’n, Inc., 158 F.3d 92, 130 (2d Cir.1998) (citing Michele L. Knorr, Environmental Injustice, 6 U. Balt. J. Envtl. L. 71, 77-84 (1997) (summarizing evidence of discrimination against minority and low-income communities with respect to pollution and hazardous waste disposal); Edward P. Boyle, Note, It’s Not Easy Bein’ Green: The Psychology of Racism, Environmental Discrimination, and the Argument for Modernizing Equal Protection Analysis, 46 Vand. L.Rev. 937, 968 (1993) ("A substantial amount of evidence shows that environmental discrimination is a national phenomenon.”); Rachel D. Godsil, Note, Remedying Environmental Racism, 90 Mich. L.Rev. 394, 397 (1991) ("A host of studies have concluded that minorities are exposed to a higher level of pollution of all forms than are whites.”); Marianne Lavelle & Marcia Coyle, Unequal Protection: The Racial Divide in Environmental Law, Nat'l. L.L, Sept. 21, 1992, at S2 (concluding from results of study that "federal government, in its cleanup of hazardous sites and its pursuit of polluters, favors white communities over minority communities under environmental laws meant to provide equal protection for all citizens”)).
. We consider this claim brought exclusively by Plaintiff Desert Citizens as Plaintiff Conse-jo has failed to sufficiently argue this claim in its brief.
. Because it is an interlocutory order pending appeal, see Fed. R.App. P. 8(a), our order vacating the injunction pending appeal shall become effective immediately upon the filing of this opinion, regardless of when the mandate issues.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.1111111111111111, Costs: 0.03174603174603174
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J. BLAINE ANDERSON, Circuit Judge:
The plaintiffs, numerous environmental organizations and one private citizen, appeal from the district court’s judgment dissolving the injunction prohibiting acquisition of right-of-way for the proposed highway expansion by State and Federal defendants.
This appeal involves yet another phase in the continuing saga concerning a corridor for Interstate Highway 90 (1-90) in the state of Washington between the cities of Seattle and Bellevue. The proposed facility consists of an eight-lane, limited access highway consisting of two three-lane roadways for the use of private motor vehicles and a two-lane center roadway devoted to the use of transit car pools and limited general traffic from Mercer Island. The project is 6.9 miles in length located between 1-5 in Seattle and 1-405 near Bellevue, and generally follows the alignment of the existing highway facility in the corridor. The new facility will incorporate a new tunnel immediately adjacent to the existing tunnel through Mt. Baker Ridge, require the construction of a new floating bridge adjacent to the existing floating bridge across Lake Washington, and will contain two extensive “lidded” sections in Seattle and Mercer Island. Access to and from the facility is provided by several interchanges throughout its length: to Interstate 5, the western terminus of the project, by a major interchange with the center lane ramp terminating at the existing South Dearborn Street, and at another major interchange at the project’s eastern terminus, an already completed portion of 1-90, tying the facility into Interstate 405, the major north-south highway facility east of Lake Washington.
I. BACKGROUND
The facts pertinent to this appeal are here recited briefly, but for a complete understanding of this case’s litigation, see Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971), Lathan I, the district court opinion on remand, Lathan v. Volpe, 350 F.Supp. 262 (W.D.Wash.1972), and the second appeal to this court, Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974), Lathan II.
This court, in Lathan I, reversed the trial court’s denial of a preliminary injunction, holding, inter alia (1) that the State and Federal defendants were to prepare an environmental impact statement (EIS) for the project pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321, et seq. (1970), and (2) that the displaced persons relocation plan prepared by defendants was insufficient to provide assurances of adequate housing to comply with the Uniform Relocation Act, 84 Statute 1894 (URA). An injunction was entered by the district court pursuant to this court’s instruction, specifying that the defendants were enjoined from acquiring the right-of-way pending compliance with “applicable federal law.” Lathan I, 455 F.2d at 1122.
Subsequently, a partial EIS was prepared (for the segment between 1-5 in Seattle and Mercer Island — “Seattle Segment”) and a new relocation plan. Following the ruling of the district court, this court in La-than II affirmed, finding the Environmental Impact Statément (EIS) and § 4(f) statements inadequate. The Lathan II court, however, reversed a portion of the district court’s' decision and ordered that a new public hearing be held for the entire length of the 1-90 project between 1-5 and 1-405, pursuant to 23 U.S.C. § 128. In addition, this court ordered that an EIS consistent with the requirements of NEPA was to be the basis of the public hearing, and continued the injunction pending com- • pliance. No issue was raised regarding the district court’s determination that the defendants had complied with the requirements of the URA based on the new relocation plan.
After Lathan II, WDOT prepared a new draft EIS covering the entire uncompleted portion of the 1-90 project to serve as the basis for new public hearings under § 128(a). Three public hearings were held during January and February 1976. Following these hearings, it was clear that conflict existed regarding the size of the then ten-lane plan between the .State and local affected jurisdictions. In an effort to resolve those conflicts, negotiations were initiated between the State of Washington DoT and the cities of Seattle, Mercer Island, and Bellevue, King County, and METRO concerning further project development. As a result of these negotiations, an interjurisdictional consensus was reached in December 1976. This Memorandum of Agreement (MOA) provided for an eight-lane plan, continued incorporation of all environmental protection measures which had previously been incorporated into the larger project, and an independent study to be undertaken of various “transit access” provisions at both termini of the 1-90 project (Seattle on the West and Bellevue on the East), with the parties subsequently seeking Federal funds to finance the access project.
A Final EIS for the eight-lane project was prepared by WDOT and submitted to the Secretary of Transportation on April 12, 1977, including a separate report addressing the § 4(f) Involvements of the project. Judge Thompson, Jr., following agreement by the parties, wrote to the Secretary of Transportation requesting a decision. September 7, 1978, the Secretary issued his § 4(f) findings in the “§ 4(f) Determination,” that there were no feasible and prudent alternatives to the use of the § 4(f) lands and that the project included all planning to minimize harm to such § 4(f) lands.
Secretary Adams approved the project encompassing the entire uncompleted portion of the 1-90 project between 1-5 and the 1-405 based upon the FEIS and “§ 4(f) Analysis” in his “Decision Document” dated September 20, 1978. The Final Environmental Impact/§ 4(f) Statement was approved and adopted by the Federal Highway Administration (FHWA) on September 22, 1978.
Defendants moved on October 3, 1978 to dissolve the injunction entered after Lathan I and requested the district court to enter an order establishing a schedule to control the course of future litigation in the consolidated cases. The parties stipulated, notwithstanding other issues in the case, that WDOT should proceed with necessary safety improvements within the 1-90 corridor, including removing the “bulge” in the Lacey V. Murrow floating bridge.
During the course of discovery proceedings, many parties plaintiff in the consolidated actions were dismissed. The pretrial order framed issues under NEPA, Federal Aid Highway Act 23 U.S.C. §§ 128(a), 134(a), and 138, the Clean Air Act, 42 U.S.C. § 1983, and the Administrative Procedure Act, 5 U.S.C. § 551, et seq.
Trial was to the court in June 1979. The parties submitted Proposed Findings of Fact and Conclusions of Law as the court requested. On August 27, 1979, the court entered its Judgment dissolving the injunction and ruling for the defendants, based upon its Findings of Fact and Conclusions of Law dated August 22, 1979.
II. DISCUSSION
A. District Court Duty to Take a “Hard Look”
We summarily dispose of appellants’ assertion that the district court erred in “mechanically” adopting findings of fact and conclusions of law. There is virtually nothing in this record to support the bald assertion. The evidence is, however, that the court studied the findings and conclusions submitted by both parties and that some were completely rewritten or substantially modified. The principles we apply are well established and we see no need to reiterate them once again. See, Hagans v. Andrus, 651 F.2d 622 (9th Cir.), cert. denied, Hagans v. Watt, - U.S. -, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981); Mayview v. Rodstein, 620 F.2d 1347 (9th Cir. 1980); Westside Property Owners v. Schlesinger, 597 F.2d 1214 (9th Cir. 1979); and Photo Electronics Corp. v. England, 581 F.2d 772 (9th Cir. 1978).
Appellants’ argument that the district court did not conduct an objective review is based upon a letter by the court to the federal Secretary of Transportation. Appellants contend the court had a “personal commitment to seeing the project through to completion, . . . [the judge had] made [a] personal written plea to Secretary Adams, urging him to expedite required approvals.... ” Brief of Appellants at 13.
From our analysis, there is nothing in the record to indicate the trial court acted with bias toward the defendants and their program. (RT 734). The judge remarked that he had written to the Secretary, requesting him “to approve this thing or not approve it, or at least make a decision on it ...” (RT 734). The bold assertions of one-sidedness by appellants are not supported by the record.
The appellants also contend- the district court failed to independently review the appellees’ administrative actions by ignoring central issues and excluding relevant evidence. These assertions relate to the adequacy of the EIS and the section 4(f) statement, and will be considered within the discussions of these issues, respectively.
B. 4(f) Determination
Appellants raise several questions pertaining to the Secretary of Transportation’s compliance with the Department of Transportation Act of 1966, § 4(f), 49 U.S.C. § 1653(f) (1970). The national policy, announced in § 4(f) and in identical language of § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 (1970), is to take “special effort ... to preserve the natural beauty of the countryside and public parks and recreation lands. . . . ” Section 4(f) provides:
“It is hereby declared to be the national jiolicy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.”
49 U.S.C. § 1653(f).
The issues raised by appellants parallel the questions involved in judicial review as announced by the Supreme Court in the leading case, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In discussing § 4(f), the Court rejected both the substan-' tial evidence test and the de novo review of whether the decision was “unwarranted by the facts.” Though the Secretary’s decision is entitled to a presumption of regularity, the reviewing court still engages in a substantial inquiry because the presumption does not “shield his action from a thorough, probing, in-depth review.” 401 U.S. at 415, 91 S.Ct. at 823, 28 L.Ed.2d at 153.
The opinion enunciates three questions for the reviewing court to consider. First, the court must examine whether the Secretary acted within the scope of his authority. Analyzing this facet of the review, the court must determine if, on the facts, the Secretary’s decision can reasonably be said to be within the small range of choices Congress specified, and whether the Secretary could have reasonably believed in that, particular case there were no feasible and prudent alternatives, or that the alternatives involved unique problems. 401 U.S. at 416, 91 S.Ct. at 823, 28 L.Ed.2d at 153. The Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1964 ed., Supp. V) requires the determination actually made not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” to avoid being set aside by the reviewing court. Second, in examining the decision, the reviewing court must evaluate whether “the decision was based on a consideration of the relevant facts and whether there has been a clear error of judgment.” Overton Park, 401 U.S. at 416, 91 S.Ct. at 823-4, 28 L.Ed.2d at 153. The third and final inquiry is whether the Secretary’s action followed the necessary procedural requirements.
Appellants have not voiced any objection to the Secretary’s compliance with procedural requirements. Instead, the issues presented are: (1) whether the Secretary relied on improper considerations in his § 4(f) determination, (2) the correctness of the conclusion that there were no feasible and prudent alternatives, and (3) whether there was a failure to incorporate all possible planning measures to minimize harm.
1. Application
Section 4(f) is triggered only when the Secretary of Transportation is asked to approve a transportation program or project seeking to employ federal funds, which requires the “use” of land from a public park, recreation area, wildlife or waterfowl refuge, or from an historic site. The labeling of property as “used” or “not used” is the prerequisite to further examination and to compliance with the provisions of § 4(f).
This phase of § 4(f) was not discussed by the Court in Overton Park. It was not disputed that the highway, slated to dissect Overton Park by separating the zoo from the rest of the park, would be a “use” within the meaning of the statute; it was acknowledged. Here, the assertion is the Secretary incorrectly concluded that, of the 50 potential sites, 29 were “not used,” and, as a result, failed to examine § 4(f)’s two requirements with respect to those sites. Appellants argue some of these 29 sites are closer to the project than the site classified as used in Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 610 (1976).
Though correct in discussing Stop H-3 for the interpretation of “use,” appellants do not correctly characterize the opinion as emphasizing the proximity between the project and the threatened site as the crucial factor. This court discussed the geographic closeness of Pohaku Ka Luahine (the protected site, a petroglyph rock) to H-3 (the proposed highway), not merely in terms of distance, but rather its utility or importance as a site would be impaired by the highway’s location, and hence was “used.” Similarly, in Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972), the court found a campground to be used, within the meaning of § 4(f), when encircled by the proposed highway project. There would be an adverse impact on the campground from the highway since its isolation would be interrupted.
The term “use” is to be construed broadly, not limited to the concept of a physical taking, but includes areas that are significantly, adversely affected by the project. Department of Transportation Order No. 5610.1A, para. 9(c)(1), 36 Fed.Reg. 23681 (1971). Even off-site activities are governed by § 4(f) if they could create sufficiently serious impacts that would substantially impair the value of the site in terms of its prior significance and enjoyment. D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir. 1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972).
The importance of this analysis is obvious since absent a determination of “use,” the section’s provisions do not apply. An analogy can be drawn between this classification and the initial determination that a project is one which “significantly affects the quality of the human environment” involving preparation of an environmental impact statement (EIS) as per the National Environmental Policy Act of 1969 (NEPA), § 102(2)(c), 42 U.S.C. § 4322(2)(c) (1970). The threshold test requiring preparation of NEPA’s impact statement is met when a plaintiff alleges “facts which, if true, show that the proposed project would materially degrade any aspect of environmental quality.” Environmental Defense Fund v. Armstrong, 487 F.2d 814, 817, n.5 (9th Cir. 1973), cert. denied, 416 U.S. 974, 94 S.Ct. 2002, 40 L.Ed.2d 564 (1974), overruled on other grounds, Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552, n.3 (9th Cir. 1977).
2. Secretary’s Determination
This court, in reviewing the Secretary’s decision, “must satisfy itself that the Secretary evaluated the highway project with the mandate of § 4(f) clearly in mind.” Stop H-3, 533 F.2d at 445; Overton Park, 401 U.S. at 416, 91 S.Ct. at 828, 28 L.Ed.2d at 154. The combined Final Environmental Impact/Section 4(f) Statement recites the standard applied here for determining use:
“A site is considered ‘used’ whenever land from or buildings on the site are taken by the proposed project, or whenever the pro])osed project has significant adverse air, water, noise, land, accessibility, aesthetic, or other environmental impacts on or around the site, as per the Stop H-3 Association v. Coleman [opinion].”
FEIS, vol. IV at 4.
Using this standard, the Secretary concluded that of the 50 potential § 4(f) sites, only 18 were used. The FEIS/§ 4(f) document was used as a basis for the Secretary’s decision; we examine it to determine if consideration was given according to § 4(f) mandates. Appellants’ argument that the Secretary incorrectly determined that only 21 of the 50 sites were “used,” is not supported by references to the record of particular sites that should have been classified as adversely affected, i.e., “used.” We independently found the differences in the number of sites discussed in these documents, but believe the failure to specifically discuss the four sites in the “§ 4(f) Determination” and in the Secretary’s “Decision Document” is not significant nor dispositive. All 50 sites, “used” and, “unused,” were thoroughly investigated during this long and tedious process. All sites are treated extensively in the “§ 4(f) Analysis.”
We read all three documents together as no one of them alone, fully satisfies the commands of § 4(f). As noted above, the “§ 4(f) Analysis” provides the standard the Secretary applied in determining “use,” the “§ 4(f) Determination” cites alternatives considered, the conclusion that there is no feasible and prudent alternative to the use of 18 sites, and recites efforts to minimize harm. The “Decision Document” records the decision of the Secretary that no alternatives are feasible and prudent to “the use of the parks and historic sites required for the project, and that all possible planning to minimize harm to the affected areas has taken place,” and his “decision to approve construction of 1-90 as proposed by the Washington State Department of Transportation.” Id., “Decision Document,” at 5 and 1, respectively.
We first examine the “use” classification applying the Overton Park analysis and then the Secretary’s § 4(f) conclusion by the same standard. Looking to the scope of the Secretary’s authority, any conclusion utilizing an appropriate standard relative to the 50 sites would satisfy the first segment as being within the “small range of choices the Secretary could make.” The second part of the question concerning the Secretary’s authority encompasses whether he could have reasonably believed that only 18 of the 50 were used. Attention is given in the “§ 4(f) Analysis” to all 50 sites, detailing possible environmental effects from this project. This section appears reasonably complete, discussing such factors as noise, air quality, aesthetics, access and more.
The Secretary, in his “Decision Document,” states in part, “In making my decision, I have before me the EIS, including the submission pursuant to section 4(f), and other elements of the administrative record.” “Decision Document,” p. 3. He lists several other reports he has reviewed in making his decision. The Secretary concludes the paragraph, “I have considered both the adverse and beneficial impacts of alternatives and the measures which will be taken to minimize the adverse impacts.”
The district court found the Secretary could have reasonably believed that less than the 50 sites were used. We agree. These findings are not clearly erroneous. The Secretary determined “use” based on the studies before him, which considered relevant facts concerning environmental impacts.
Moving to the Secretary’s “§ 4(f) Determination,” relative to the alternatives to using the 18 sites, we review it under the same standard, Overton Park. The Supreme Court clarified the meaning attached to “feasible and prudent alternatives.” Recognizing that “feasible” allows for little administrative discretion, the Court considered it to mean, as a matter of “sound engineering it would not be feasible to build the highway along any other route.” Overton Park, 401 U.S. at 411, 91 S.Ct. 821, 28 L.Ed.2d 150, citing 114 Cong.Rec. 19915 (1968) (statement by Rep. Holified.) Whether alternative, feasible routes would be “prudent” was not intended to focus on cost and community disruption unless the results reached “extraordinary magnitudes” or was not prudent because there were “truly unusual factors present in a particular case.” Overton Park, 401 U.S. at 413, 91 S.Ct. at 822, 28 L.Ed.2d at 151.
The Secretary concluded that there was no feasible and prudent alternative to the use of the 18 sites. Appellants argue he based his decision on irrelevant factors and an inadequate and outdated “§ 4(f) Analysis.” Appellees assert the Secretary’s conclusion is properly based on findings of fact not clearly erroneous, including (1) other alternatives would still require “use” of § 4(f) lands, (2) other corridors would cause severe community disruption, (3) design alternatives involve their own § 4(f) involvement and would not serve the function of the project, and (4) even the no-build alternative would perpetuate congestion.
Though most alternatives appear to deal with the composite project, the “§ 4(f) Determination” states, “the alternatives ■ discussed here are generally common to all or to a number of the § 4(f) lands associated with the proposed project.” “§ 4(f) Determination” at 1. The Secretary’s decision is entitled to a presumption of regularity. Absent argument by appellants pointing to the record and demonstrating with specificity the alleged errors of judgment or irrelevant factors that formed the basis for his decision, we are not inclined to make their case for them. Even if the decision of the Secretary be different from the one this court would make if it were our responsibility to choose, we will not substitute our judgment for that of the Secretary. We have not been directed to any portion in the record demonstrating an erroneous decision and, as a result, find no grounds to disturb the Secretary’s conclusion that there are no feasible and prudent alternatives to the use of such § 4(f) lands.
Once the Secretary determines that § 4(f) lands will be adversely impacted and finds there are no feasible and prudent alternatives to such use, he must address the final portion of § 4(f) which requires a finding that “such program includes all possible planning to minimize harm to such park . . . resulting from such use.” 49 U.S.C. § 1653(f)(2). Appellants assert § 4(f) requires all measures “technically possible ... be implemented” if there is no feasible and prudent alternative to the use of protected lands. This statement goes beyond where this court is willing to venture and is not required by the Act nor existing precedent.
Other circuits, in addressing this question, have said that implied within the statement “all measures,” is the condition that such efforts to minimize harm be feasible and prudent, or reasonable. Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 86 (5th Cir. 1976); Citizens to Preserve Overton Park v. Volpe, 335 F.Supp. 873, 883 (W.D.Tenn.1972) (§ 4(f) requires “all reasonably possible planning”). See generally, D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1239 (D.C.Cir. 1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972); and Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 700-701 (2d Cir. 1972). Such a reading fully considers the practicalities involved and yet maintains the strict command of the section’s language. Monroe County characterizes the section as creating an “affirmative duty” to minimize the damage to parkland as:
“[a] condition precedent to approving] such a taking for highway purposes where federal lands are involved; and the Secretary must withhold his approval unless and until he is satisfied ... full implementation of such planning ... is an obligated condition of the project.”
Id., 472 F.2d at 701.
This second phase of § 4(f) is discussed by the District of Columbia Circuit which concludes it involves far more than merely calculating the number of acres to be asphalted. D.C. Federation, 459 F.2d 1231. The Court emphasized, “the location of the affected acres in relation to the remainder of the parkland may be a more important determination than the number of acres affected.” Id., 459 F.2d at 1239.
It is also important to note the bifurcated analysis of the two considerations of § 4(f). The Fifth Circuit has discussed the completely unconnected nature of the two § 4(f) considerations:
“[t]he significant difference between . . . subsections (1) and (2) assays is that considerations which might make an alter-' hate imprudent (such as displacement of persons or businesses or a Title 6 problem) are simply not relevant to determining whether a different path would minimize harm to the [value of the protected lands].”
Louisiana Environmental Society, 537 F.2d at 86. Inquiry under subsection (2) of § 4(f) requires a balancing of the harm to the site by the proposed project, with the harm to the same site by another alternative or a plan to implement mechanisms to diminish that particular harm.
There may be, as appellants assert, some “technical” deficiencies or some actions may not be “technically” correct (the four sites discussed in the “§ 4(f) Analysis” yet not discussed in the Secretary’s final decision). However, even under the exacting § 4(f) requirements, the judicial branch may not “fly speck,” if it appears, in its review, that all factors and standards were considered. Whether or not the reports and studies use the “magic” terminology, there has been a reasonable and thorough review of a voluminous record accumulated over a span greater than ten years, which includes extensive public contribution.
Substitution of the 180-acre greenbelt is important here as a measure to minimize harm, though it is not per se dispositive of compliance with the second prong of § 4(f). Even with some of the deficiencies pointed out by the appellants, considering the entire plan and the record as a whole, we are of the opinion that § 4(f) standards have been satisfied.
When considering all other alternatives, i.e., the conceptual ones, no-build, nonstructural, corridors north or south, design alternatives, rail transit and safety improvements, as the Secretary did, the conclusion is there has been reasonable compliance, even with the minor deficiencies pressed by appellants. There is a foundation in the record for the reasonable belief that no feasible and prudent alternatives exist and that all possible planning to minimize harm has been undertaken. The district court so found and we agree.
As to several areas of the project, the Secretary’s approval was conditional. ■ We are satisfied the project will proceed subject to those conditions. The Secretary and the agencies, both Federal and State, have complied with the prior directives of this court in Lathan I and II, and the mandates of § 4(f).
C. NEPA Issues
The third argument appellants raise before this court involves the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321, et seq. (hereinafter NEPA). NEPA requires the preparation of an environmental impact statement (EIS) under § 102(2)(c), when a federal agency recommends “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment....” 42 U.S.C. § 4332(2)(c). One purpose of the EIS is to “provide decision-makers with an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of its environmental consequences.” Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974). In addition, preparation “provide[s] the public with information on the environmental impact of a proposed project, as well as encouragefsj public participation in the development of that information.” Id.
1. Standard of Review
The appropriate standard for review of the adequacy of an EIS is well established in this circuit as that set forth in § 706(2)(D) of the Administrative Procedure Act: whether the EIS was prepared “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D) (1976). See Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 781 (9th Cir. 1980); Trout Unlimited v. Morton, 509 F.2d at 1282; Lathan II, 506 F.2d at 692-3. The determination of adequacy is essentially pragmatic. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir. 1977) (per curiam). Whether an EIS will be found in compliance with NEPA involves an evaluation of whether the discussion of environmental impacts “reasonably set[s] forth sufficient information to enable the decision-maker to consider the environmental factors and make a reasoned decision.” Westside Property Owners v. Schlesinger, 597 F.2d 1214, 1217 (9th Cir. 1979). See Columbia Basin Land Protection Assn. v. Schlesinger, 643 F.2d 585, 592 (9th Cir. 1981); Coalition for Canyon Preservation, 632 F.2d at 782; Trout Unlimited, 509 F.2d at 1283. Preparing an EIS requires the exercise of judgment; however, a court in its review may not substitute its judgment, but instead is limited to ensuring that the agency has considered the environmental consequences of its action. Strycker’s Bay Neighborhood Council, Inc. v. Karlen, et al., 444 U.S. 223, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980); Lathan II, 506 F.2d at 693.
We note initially, compliance with one environmental statute does not assure compliance with another. In Preservation Coalition, Inc. v. Pierce, 667 F.2d 851 (9th Cir. 1982), we discussed the commands found in the National Historic Preservation Act, 16 U.S.C. §§ 470, et seq., and those in NEPA. In the case of historic buildings, each statute “mandates separate and distinct procedures, both of which must be complied with . . . . ” Id. at 859. Similarly, a finding of compliance or noncompliance with § 4(f) of the Department of Transportation Act does not mandate the identical conclusion as to NEPA provisions.
2. Public Hearing
Appellants raise five subissues concerning NEPA compliance. We summarily reject their first argument that the public hearing was inadequate since not conducted with an “approved, final EIS.” This court, in Lathan II, did not direct such a document to be the basis of a new hearing. Circulation of even a deficient draft EIS may be sufficient so long as it does not frustrate the goal of obtaining informed agency and public comment. National Wildlife Federation v. Adams, 629 F.2d 587 (9th Cir. 1980); Lathan II, 506 F.2d at 693. See also, Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1022-1023 (9th Cir. 1980). Regulations require the draft EIS to be circulated to enable informed comments at the public hearing. 23 CFR § 177.12.
3. Segmentation
Appellants argue in their next subissue that the proposed project did not involve an “adequate highway segment.” The leading case in this circuit is Daly v. Volpe, 514 F.2d 1106 (9th Cir. 1975), which set forth criteria that, when found, demonstrated the portion was suitable for consideration in an EIS for that highway segment. The four considerations are: (1) the section must be as long as practicable to permit consideration of environmental matters on a broad scope, (2) the section must have independent utility, (3) the length of the highway selected must assure an adequate opportunity for the consideration of alternatives, and (4) the segment should fulfill important state and local needs. Id. at 1109-1111; Lange v. Brinegar, 625 F.2d 812 (9th Cir. 1980).
In determining whether there was sufficient evidence to establish compliance with NEPA for the segment, we are bound by the findings of the trial court unless they are clearly erroneous. Id. at 815; Sessions, Inc. v. Morton, 491 F.2d 854, 858 (9th Cir. 1974). Appellants question only the first two criteria. We have examined the record, including the Findings of Fact and Conclusions of Law made by Judge Thompson. An adequate discussion of the Daly criteria is found, including that the termini of the project are both major cross-roads (1-5 and 1 — 405) and population centers (Seattle and the City of Bellevue). The court found the project would be able to serve its purposes without the construction of additional facilities, and that there were no pending proposals for major federal action regarding related projects. The Connecticut Street Viaduct had not reached the stage of a “project” and hence did not require the preparation of an EIS. In Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), the Supreme Court stated the mere contemplation of future action was not sufficient to require preparation of an EIS. In this case, the EIS covered an adequate highway segment.
4. Alternatives
Appellants assert the state defendants failed to develop alternatives and thereby violated NEPA. Section 4332(2)(C)(iii) requires alternatives to the proposed action be included in the EIS. However, this court has held the alternatives discussion to be subject to “reasonableness.” Life of Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974). The three alternatives complained of by the appellants are discussed by the trial court. The withdrawal and substitution alternatives are considered in the FEIS in six variations. In addition, two studies discussing this option are incorporated in the technical appendix. It is further evident that the local jurisdictions (Seattle, Bellevue, Mercer Island and King County) unanimously voted not to withdraw and substitute the funds elsewhere. Neither the Mayor’s second alternative nor the interim High Occupancy Vehicle study aid appellants’ argument. The Mayor’s 2-2-2 alternative was merely a variant of another fully discussed alternative which Brooks v. Coleman, 518 F.2d 17, 19 (9th Cir. 1975), concludes does not have to be addressed. The interim HOV study was not an alternative to the project, but rather improvements to occur before construction begins. We find the range of alternatives considered was sufficient to permit a reasoned choice, and complies with NEPA as the trial court found. Appellants have not shown the district court was clearly erroneous in its determination that the discussion of alternatives in the EIS was reasonable. See Vermont Yankee Nuclear Power Corporation v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Daly, 514 F.2d at 1111.
5. Planning Data Base
Appellants’ fourth subissue is that the transportation plan developed pursuant to 23 U.S.C. § 134 was not based on correct and accurate data. It is recognized that administrative consideration of evidence creates gaps between the time the record is closed and the decision is made. Vermont Yankee, 435 U.S. at 555, 98 S.Ct. at 1217, 55 L.Ed.2d at 486. There is an end “to the period during which an agency must reopen the record to consider new facts.” Nance v. Environmental Protection Agency, 645 F.2d 701, 708 (9th Cir.), cert. denied, sub nom. Crow Tribe of Indians v. E.P.A., - U.S. -, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981). The standard applied regards administrative action as being “judged by the information then available to it.” Vermont Yankee, 435 U.S. at 553, 98 S.Ct. at 1216, 55 L.Ed.2d at 485.
In Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973), we stated that even if a study contained information relating to environmental effects which would be of assistance to those commenting on an EIS, the mere fact that it is not included “is not enough to sustain a finding that the Secretary violated NEPA by acting prior to the issuance of the study.” Id. at 1281. In evaluating whether the EIS should have been delayed to await the new study, the factors to consider are: (1) the consequences of delay, (2) the present state of information relative to environmental factors, and (3) the relevance and degree of probative value of the information. Id.
The trial court found the demographic data unavailable, considered the above-mentioned factors, and concluded the preliminary information would not have significantly altered the conclusions already in the FEIS. We agree. We do not view this case as one requiring the reopening of the decision-making process to review later available data.
6. Impacts
Appellants’ final subissue involving NEPA concerns the adequacy of the discussion of impacts in the EIS. Under this heading, appellants object in five areas because they believe the impacts were “inadequately discussed.” What is required of an EIS is “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Trout Unlimited, 509 F.2d at 1283. When the question is the adequacy of the consideration, we examine to determine whether consideration of those factors was “arbitrary or capricious.” Nance, 645 F.2d at 712.
We have examined the EIS and conclude, as did the trial court, that the impacts of the project on city traffic, air quality, noise, aesthetics, and the social and economic effects were adequately considered. The issue of relocation housing was the subject of a stipulation between the parties and will not be addressed here. The EIS analyzes the effects of increased noise, including a chart demonstrating an increase in 10 decibels is perceived to be twice as loud as the sound if reduced 10 decibels.
Appellants argue the EIS is inadequate because it “ignored” three other impacts: energy consumption, effects of locating a ventilation facility in a residential neighborhood, and impacts on drivers using the project. The FEIS discusses the anticipated increases in both fuel, gasoline and diesel, and electricity from the construction and operation of the subject project. Appellants have failed to direct us to impacts, both significant and probable, to result from the project that render the EIS inadequate. The FEIS before us identifies and discusses the significant environmental impacts in sufficient detail and we agree with the conclusion of the district court, NEPA has been satisfied.
D. § 1983
Appellants’ final argument is that the district court erred in dismissing their claim for relief under 42 U.S.C. § 1983. The district court is correct in remarking that defendant State officials must be sued in their individual capacity in an action for monetary damages. Edeiman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). We have not found, in reviewing the record and pleadings, a request for relief in the form of damages. Nonetheless, the trial court’s dismissal can be upheld. Following our independent review, we find there is neither a basis in the arguments of the appellants nor in the record to support a § 1983 claim.
III. CONCLUSION
We have reviewed the action of the district court which, following a “hard look” at the record, dissolved the injunction. We find that action proper and further affirm the findings that the stringent § 4(f) standards and the procedures of NEPA have been satisfied by the appellees. In addition, appellants’ claim for relief under § 1983 was appropriately dismissed.
AFFIRMED.
. The organizations include: CARHT (Citizens Against R. H. Thompsen Freeway), Central Seattle Community Council Federation, Montlake Community Club, Ravenna Bryant Community Association, Mt. Baker Community Club, Les-chi Improvement Council, Friends of the Earth, Inc., Washington Environmental Council, Madrona Community Council, Seattle Urban League, and the Metropolitan Democratic Club.
See footnote 7 and accompanying text.
. The one remaining individual plaintiff is Diane Halverson. See footnote 7.
. The original Federal defendants included Neil Goldschmidt, the United States Secretary of Transportation, and Russell R. Train, the Environmental Protection Agency Administrator. The district court entered a summary judgment dismissing the defendant EPA and all issues raised under the Clean Air Act, 42 U.S.C. §§ 740Í, et seq. prior to trial.
The original state defendants included William A. Bulley, the Secretary of the Washington Department of Transportation, and the Washington Transportation Commission (the authority within WDOT responsible ultimately for determining transportation policies of the State and approving State funding for all highway projects).
. Section 4(f) refers to that section in the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (1970). See subsequent discussion in part B of this opinion.
. The Washington Department of Transportation (WDOT) supplied the Lathan II court, along with its briefs on appeal, a new draft EIS for the “Seattle Segment.” The court in La-than II declined to consider the adequacy of this document and remanded the matter to the district court.
. METRO is the Municipality of Metropolitan Seattle, the public agency which operates the transit system in King County.
. During the pendency of the appeal in Lathan II, a new action (Adler v. Brinegar) was filed seeking an injunction against the 1-90 project, alleging the same violations of NEPA, § 4(f) and § 128(a), as in the Lathan case. On defendants’ motion, the cases were consolidated for trial in the district court.
. The plaintiffs were dismissed for failure to appear at depositions which the court had previously ordered them to attend. As a result, none of the original plaintiffs in the Lathan case remain (only the organizations included as plaintiffs/intervenors remain of the Lathan case) and only one individual plaintiff remains in the Adler case.
. See footnote 3.
. For a thorough discussion of § 4(f), including legislative history, see Gray, Section 4(0 of the Department of Transportation Act, 32 Md. L.Rev. 326 (1973).
. Hereinafter, “§ 4(f) Analysis,” Volume IV: Environmental Analysis for 4(f) Determination.
. It is not evident from the “§ 4(f) Determination” (see infra, note 13) nor the Decision Paper on 1-90, Seattle, Washington, by the Secretary of Transportation, September 20, 1978, what standard the Secretary applied, though we presume he applied a correct standard until the contrary is proven. The Secretary cites to the FEIS/§ 4(f) Analysis in his “§ 4(f) Determination” which further supports the conclusion he applied the standard there enunciated.
It must be noted, the Decision Paper on 1-90 (hereinafter “Decision Document”) includes discussion of both § 4(0 and NEPA. As a result of this overlap, we look more closely at the “§ 4(0 Analysis" and the “§ 4(0 Determination” for resolution of the § 4(0 issues.
. Department of Transportation, Federal Highway Administration Section 4(f) Determination, King County, Washington, Interstate Route 90 Freeway [September 7, 1978] (hereinafter “§ 4(f) Determination,” approved the project and found no feasible and prudent alternative to the use of certain land. This thirteen-page document further excludes from the conclusion of use, five sites that the Environmental Analysis for 4(f) Determination, vol. IV of the Final Envir. Impact/Section 4(f) Statement had included as used. FEIS, vol. IV at 161-163 (hereinafter, “§ 4(f) Analysis”).
The Secretary concluded that the proposed 1-90 project would use: Sturgus Park, Judkins Playground, Luther Burbank Park, Lake Washington, Lacey V. Murrow Memorial Bridge and Plaza, Laurence J. Colman Elementary School and Playground, Colman Playground and Playground Building, Our Lady of Mount Virgin Church, LaTumer House, Mount Baker Ridge Tunnels, Residence at 1371 31st Avenue South, Apartment House at 2415 S. Irving Street, Residence at 2231 60th Avenue Southeast, Jeffrey Martine House, and the Residences at 8107 and 8115 Southeast 28th Street.
The Secretary excluded Jose’ Rizal Park, Lincoln Landing Park, Sweyolocken Park, Residence at 1323 Hiaw.atha Place South and the Residence at 1409 Lakeside Avenue South.
Both the district court and the appellants discuss the figure involving use as “21”— though the number found in vol. IV of the Final Envir. Impact/Section 4(f) Statement is 23 (the last site includes 2 residences).
. Appellees assert appellants’ concern over irrelevant factors is confused because their support for the position comes from the “Decision Document” rather than the “§ 4(f) Determination."
. This opinion should not be read broadly as commending the method of discussing alternatives employed here, but rather as a statement relating to the function of the appellate process and the responsibilities of the participants thereto. Absent support, bold assertions that factors considered were not truly unusual and therefore did not justify a conclusion of non-prudence, warrant little attention.
. Additionally, the definition of a final EIS under 23 CFR § 771.3 states it is the same as the draft EIS, but includes “appropriate revisions to reflect comments received from circulation of the draft EIS and the public hearing process.”
. 23 U.S.C. § 134 provides that proposed projects should be “based on a continuing comprehensive transportation planning process carried on cooperatively” by the State and local communities in the area, and that proposed projects take due consideration of their social, economic and environmental effects.
Though this section is not part of NEPA, appellants bring the two together by asserting the inadequate transportation plan data was used in the EIS, though more current and accurate data was available.
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.05339805825242718, Costs: 0.05825242718446602
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TONE, Circuit Judge.
This is a review of effluent limitations promulgated by the Administrator of the Environmental Protection Agency under the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., 86 Stat. 816 et seq. (hereinafter “the Act”). Petitioner is the American Meat Institute (“AMI”), whose members operate slaughterhouses and meat-packing plants throughout the country. The regulations under review limit the quantities of various pollutants which these plants can discharge into waterways. Our jurisdiction is invoked under § 509(b) of the Act.
The Statute
The objective of the Act “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Section 101(a). The Act sets as national goals the elimination by 1985 of all “discharge[s] of pollutants into the navigable waters,” and the achievement by 1983, “wherever attainable” of a water quality adequate to maintain aquatic life and allow recreational use. Id.
As intermediate steps to the 1985 goal, § 301(b) of the Act requires the achievement
(1) by July 1, 1977 of “effluent limitations for point sources which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act”; and
(2) by July 1, 1983 of “effluent limitations for categories and classes of point sources . . . which (i) shall require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants, as determined in accordance with regulations issued by the Administrator pursuant to section 304(b)(2) of this Act
For convenience, we shall refer to the technology which must be used by 1977 as the 1977 technology, and to that which must be used by 1983 as the 1983 technology.
The 1977 and 1983 technologies are to be defined by the Administrator under § 304. Subsection (b) of that section provides that “[f]or the purpose of adopting or revising effluent limitations under this Act,” the Administrator is to publish “regulations, providing guidelines for effluent limitations.” These guidelines are to be promulgated within one year after enactment of the Act, “after consultation with appropriate Federal and State agencies and other interested persons,” and they are to be revised at least annually, if appropriate. The guidelines are to identify, in terms of specific pollutants, “the degree of effluent reduction attainable through the application of” the 1977 and 1983 technologies. Thus, subdivision (1) of § 304(b), referring to the 1977 criterion, requires identification of “the degree of effluent reduction attainable through the application of the best practicable control technology currently available for classes and categories of point sources.” Subdivision (2), referring to the 1983 criterion, requires identification of “the degree of effluent reduction attainable through the application of the best control measures and practices achievable including treatment techniques, process and procedure innovations, operating methods, and other alternatives for classes and categories of point sources . . . .”
In connection with both the 1977 and 1983 criteria, the guidelines are to specify “factors to be taken into account” in determining the applicable technology. These factors are to include, for the 1977 technology, “consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application,” and, for the 1983 technology, “the cost of achieving such effluent reduction.” For both the 1977 and 1983 technologies the factors are to include “the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques [and], process changes,” as well as “non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate . . . § 304(b)(1)(B) and (2)(B). Finally, the guidelines are to “identify control measures and practices available to eliminate the discharge of pollutants from categories and classes of point sources, taking into account the cost of achieving such elimination of the discharge of pollutants.” § 304(b)(3).
To complement §§ 301 and 304, which govern existing sources, § 306 requires the Administrator to promulgate “regulations establishing Federal standards of performance for new sources” within certain categories of sources. These regulations are to cover only plants on which construction began after publication of proposed new-source regulations for that category.
Section 402 adds to the regulatory scheme a permit system for discharges which replaces the permit system formerly administered by the Army Corps of Engineers under the Act of 1899, 30 Stat. 1152, 33 U.S.C. § 407. Permits may be granted by the Administrator provided the discharger complies with all the requirements of the Act, including those of §§ 301, 302, and 306. The Administrator may delegate his permit-granting authority to the states, if they provide sufficient assurances that they will enforce these requirements.
Background of the Regulations
The regulations before us cover the “Red Meat Processing Segment of the Meat Products Point Source Category.” The common characteristic of the plants in this segment of the meat industry is that they all slaughter animals (but not poultry) and produce fresh meat, which may be sold as whole, half, or quarter carcasses, or as smaller meat cuts. Plants that produce only fresh meat are called slaughterhouses; those that also produce cured, smoked, canned, or other prepared meat products are called packinghouses. Both types of plants usually perform some by-product processing, such as rendering (separation of fats and water from tissue), blood processing, and hide processing.
EPA employed North Star Research Institute to study the industrial processes used by slaughterhouses and packinghouses, the wastes generated, and the treatment technologies in use or available to these plants, and to recommend, inter alia, effluent limitations under § 301(b). North Star proceeded to study relevant literature and information on the meat industry it had previously gathered for EPA. In conjunction with AMI, it prepared questionnaires which were distributed to slaughterhouses and packinghouses. From the responses to the questionnaires and information acquired from various other sources, North Star classified the plants into four subcategories and attempted to identify those in each subcategory having the most effluent control. To verify the questionnaire responses, selected plants from these groups were inspected and monitored to a very limited extent. In June 1973, North Star submitted to EPA a report in which the information North Star had gathered was collected and summarized, and analyses and recommendations were presented.
After reviewing the North Star report, distributing copies to industry representatives, and receiving their comments, EPA revised the report and published the revision as a Draft Development Document in October 1973. The standards recommended in this document were then incorporated into proposed regulations, which the agency published the same month. Proposed EPA Reg. 40 C.F.R., part 432, 38 Fed.Reg. 29858 (Oct. 29, 1973).
After publication of the proposed regulations, EPA received further comments. On February 28, 1974, it promulgated the final regulations which are the subject of this review proceeding. 40 C.F.R., part 432, 39 Fed.Reg. 7894. In addition, a revised version of the October 1973 Draft Development Document was published under date of February 1974 as the Final Development Document (hereinafter sometimes cited as FDD).
The Regulations
The regulations classify slaughterhouses and packinghouses into the following four subcategories:
(1) simple slaughterhouses, which slaughter animals and perform a limited number, usually no more than two, by-product processing operations (subpart A, §§ 432.10 — 432.16);
(2) complex slaughterhouses, which slaughter animals and perform several, usually three or more, by-product processing operations (§§ 432.20 — 432.36); and
(3) low-processing packinghouses, which not only slaughter animals but process meat from animals killed at that plant into cured, smoked, canned, and other prepared meat products, normally processing less than the total kill (§§ 432.30-432.36); and
(4) high-processing packinghouses, which not only slaughter animals but process meat from both animals killed at the plant and animals killed elsewhere (§§ 432.40 — 432.46).
For existing sources in each subcategory, the regulations set forth “[e]ffluent limitations guidelines” for 1977, which are apparently intended to constitute both guidelines under § 304(b) and effluent limitations under § 301(b), 40 C.F.R. §§ 432.12, 432.22, 432.32, 432.42. The same is true of the 1983 standards. 40 C.F.R. §§ 432.13, 432.23, 432.33, 432.-43.
The regulations limit the discharge of “BOD5,” “TSS,” and ammonia, in addition to other pollutants not involved in this proceeding. Two of these terms require explanation:
BOD5. The initials “BOD” stand for “biochemical oxygen demand” and describe pollutants which, when they decompose, deplete oxygen necessary to support aquatic life. BOD5 is BOD measured over a five-day period.
TSS. The initials “TSS” stand for “total suspended solids,” which are particles of organic and inorganic matter suspended in the water or floating on its surface.
The regulations permit the discharge of certain amounts of BOD5 and TSS per 1,000 pounds (or per 1,000 kilograms) of live weight killed (“LWK”). The 1983 ammonia standard is set in terms of milligrams of ammonia per liter of effluent (mg/1), which shows the concentration of ammonia in the effluent. The regulations challenged in this case are the existing source limitations for 1977 and 1983 relating to BOD5 and TSS, and those for 1983 relating to ammonia.
These limitations are set out in the following table:
A. Simple B0D5
slaughter- TSS houses Ammonia
B. Complex B0D5
slaughter- TSS houses Ammonia
C. Low B0D5
processing TSS packinghouses Ammonia
D. High B0D5
processing TSS packinghouses Ammonia
1977 1983
Maximum Maximum Dally Daily
Average Average
for 30 for 30
Consecutive Consecutive Days Days
.12 .03
.20 ’ .05
— 4.00
.21 .04
.25 .07
— 4.00
.17 .04
.24 .06
— 4.00
.24 .08
.31 .10
— 4.00
The maximum discharge for any individual day is twice the maximum daily average for any 30 consecutive days.
I.
Jurisdiction and EPA’s Authority To Promulgate Effluent Limitations Under § 301
At the threshold, we are met with a challenge to our jurisdiction. AMI’s petition for direct review of the existing source regulations is grounded on § 509(b)(1), which provides in pertinent part as follows:
“Review of the Administrator’s action . (E) in approving or promulgating any effluent limitation or other limitation under section 301, 302, or 306 . . . may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business . . . .”
We thus have jurisdiction to review the existing-source regulations before us if they are “effluent limitation[s] . under section 301.”
The regulations unquestionably fall within the statutory definition of effluent limitations. Section 502(11) defines “effluent limitation” as “any restriction established by a State or the Administrator on quantities, rates, and concentrations” of discharges from point sources. Furthermore, the preambles to both the proposed and final regulations state that the regulations are promulgated pursuant to § 301 and § 304(b). 39 Fed.Reg. 7894 (1974) (final regulations); 38 Fed.Reg. 29858 (1973) (proposed regulations). Thus, on the surface, there would appear to be no question that the regulations are “effluent limitations” and “promulgated under § 301.”
Nevertheless, and although the parties agree that the Administrator had authority to establish these regulations under § 301, his authority has been challenged by amici curiae, who argue that he had authority to issue such regulations as § 304(b) guidelines but not as § 301 effluent limitations. If this is so, our jurisdiction would at best be questionable, since § 509(b)(1), the source of our jurisdiction, does not provide that § 304(b) guidelines are directly reviewable. We therefore must consider whether the Administrator has authority to promulgate existing-source regulations under § 301. While ordinarily we would not allow amici to inject new issues into a case, our continuing duty to satisfy ourselves of our jurisdiction requires us to consider their argument.
Amici assert that individual effluent limitations must be established for each existing point source through the permit-issuing process of § 402, using regulations promulgated under § 304(b) as guidelines. Thus, effluent limitations would be set on a case-by-case basis, rather than being prescribed by regulations covering entire subcategories. Under this view, the Administrator lacked the authority to establish across-the-board effluent limitations by regulation, so the regulations were not properly issued as § 301 limitations and are therefore not reviewable here. In essence, this was the position adopted by the Eighth Circuit in CPC International Inc. v. Train, 515 F.2d 1032, 1037 (8th Cir. 1975). In that case, the court held that it lacked jurisdiction to review similar regulations promulgated for a different point source category. The Third Circuit, in American Iron and Steel Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), has reached an opposite result, as have several district courts. E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1253 (W.D.Va.1974), appeal pending, No. 74--2237 (4th Cir.); American Paper Inst. v. Train, 381 F.Supp. 553, 554 (D.D.C.1973), appeal pending, No. 74-1544 (D.C.Cir.); American Petroleum Inst. v. Train, No. 74-F-8 at 6 (D.Col., April 8, 1975).
In EPA’s view, the Act calls for the setting of across-the-board effluent limitations pursuant to § 301(b), based on guidelines prescribed pursuant to § 304(b). The permit-issuing process, according to EPA, is a mechanism for verifying compliance by each plant and individualizing the effluent limitations to the extent required by the peculiarities of individual point sources.
In choosing between these conflicting views, we are guided by the teaching of the Supreme Court in Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), which arose under the Clean Air Amendments of 1970, 42 U.S.C. § 1857a et seq. The courts of appeals had given varying interpretations of that Act, all of which differed from the one adopted by the agency. Noting that “[t]he disparity among the courts of appeals rather strongly indicates that the question does not admit of an easy answer,” the Court said that while the agency’s construction was not “the only one it permissibly could have adopted, ... it was at the very least sufficiently reasonable that it should have been accepted by the reviewing courts,” 421 U.S. at 75, 95 S.Ct. at 1480, and, further, “sufficiently reasonable to preclude the Court of Appeals [in that case] from substituting its judgment for that of the Agency.” Id. at 87, 95 S.Ct. at 1485. Our inquiry then is not whether the agency’s interpretation of § 301 is the only permissible one, but rather whether it is sufficiently reasonable to preclude us from substituting our judgment for that of the agency.. See also, McLaren v. Fleischer, 256 U.S. 477, 480-481, 41 S.Ct. 577, 65 L.Ed. 1052 (1921).
The heart of the controversy is the interpretation of §§ 301, 304, and 509(b). As we have already noted, in providing for direct review in the courts of appeals of “the Administrator’s action . in approving or promulgating any effluent limitation . . . under section 301,” § 509(b)(1) appears to contemplate that the Administrator will adopt effluent limitations under § 301. While § 301 itself does not expressly direct the Administrator to promulgate effluent limitations, subsection (a) of § 301 provides that “[e]xcept as in compliance with this section . . the discharge of any pollutant by any person shall be unlawful”; subsection (b) requires the achievement of certain “effluent limitations for point sources” by 1977 and other “effluent limitations for categories and classes of point sources” by 1983 — language difficult to reconcile with the view that individual effluent limitations are to be set when each permit is issued; and subsection (e) adds that “[e]ffluent limitations established pursuant to this section or section 302 of this Act shall be applied to all point sources . .” Finally, the first sentence in § 304(b) provides that “[f]or the purpose of adopting or revising effluent limitations under this Act the Administrator shall . . . publish . . . guidelines for effluent limitations . . . .”
In addition to these provisions, the language of several other sections of the Act relating to effluent limitations supports EPA. Section 302(a) allows, under certain circumstances, stricter effluent limitations than the “effluent limitations required under section 301(b)(2).” See also § 302(c). Section 303(d)(1)(A) requires each state to “identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1) . . . are not stringent enough to implement any water quality standard applicable to such waters.” And § 309(a)(3), (c), and (d) prohibit violations of “section 301, 302 ., or . . of any permit condition or limitation implementing any of such sections in a permit issued under section 402 of this Act . . . .” See also § 316(b) and (c). The reference to limitations in these sections, while not specifying how or by whom they are to be established, is nonetheless “further support for the position that Congress intended the section 301(b) limitations to have an independent existence” apart from the permit process. American Iron and Steel Institute v. EPA, supra, 526 F.2d at 1039.
Under § 401(a)(1), applicants for any federal license must obtain state certification that they comply with § 301 or that “there is not an applicable effluent limitation . . . under sections 301(b) and 302 . . .” We find this language especially significant because it cannot be construed as referring to §§ 301(a), (c) or (f), the explanation the Eighth Circuit gave for other references to “effluent limitations under § 301.” CPC International Inc. v. Train, supra, 515 F.2d at 1042-1043. In addition, § 505(f), which defines “effluent standard or limitation under this Act” for purposes of § 505 (the citizen suit provision), includes in the definition, “(2) an effluent limitation or other limitation under section 301 or 302 of this Act,” and “(6) a permit or condition thereof . .” We agree with the courts in American Iron and Steel Institute v. EPA, supra, 526 F.2d at 1038, and E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1251 (W.D.Va.1974), appeal pending, No. 74-2237 (4th Cir.), that under the interpretation of the Act urged by amici here subsections (2) and (6) of § 505(f) would be redundant, and disagree with the Eight Circuit (CPC International Inc. v. Train, supra, 515 F.2d at 1043) that the reference to § 301 in § 505(f)(2) is to § 301(f). In summary, the most natural reading of the language of the Act is that § 301 is a source of authority to promulgate effluent limitations, independent of the § 402 permit procedure.
The legislative history also contains support for the EPA position. Senator Bentsen, a member of the Public Works Committee that reported out the original version of the Act, stated during the Senate debate:
“In phase I, for point sources of pollutants, effluent limits shall be established not later than January 1, 1976 [now July 1, 1977], which comply with specifically defined levels of effluent control and treatment. As defined in section 301(b)(1) of the bill, and as elaborated in the regulations which we anticipate the Administrator shall issue pursuant to sections 301 and 304, these . . . goals shall be at least the ‘best practicable control technology currently available’ for [industrial] point sources . . . .” Quoted in Congressional Research Service, A Legislative History of Water Pollution Control Act Amendments of 1972, at 1283 (1973) (emphasis added) (hereinafter “Leg.Hist.”).
The Senate Report stated specifically that, “pursuant to subsection 301(b)(1) (A) and section 304(b)” the Administrator is to interpret “best practicable” as a “basis for specifying clear and precise effluent limitations.” Leg.Hist. 1468. Also, during Senate consideration of the conference committee report, Senator Muskie, the principal author of the Act, explained:
“[T]he conference agreement provides that each poluter within a category or class of industrial sources will be required to achieve nationally uniform effluent limitations based on ‘best practicable’ technology no later than July 1, 1977. This does not mean that the Administrator cannot require compliance by an earlier date; it means that these limitations must be achieved no later than July 1, 1977, that they must be uniform, and that they will be final upon the issuance of a permit under section 402 of the bill.” Leg.Hist. at 162 (emphasis added).
In a written explanation prepared by Senator Muskie and submitted by him to the Senate during the debate on the conference report, he indicated that “practicability” and “availability” are not to be determined on a plant-by-plant basis. Rather, he explained, the conferees intended that
“the factors described in section 304(b) [cost, age of equipment, type of manufacturing process, engineering aspects of pollution control techniques] be considered only within classes or categories of point sources and that such factors not be considered at the time of the application of an effluent limitation to an individual point source within such a category or class.” Leg.Hist. 172.
Cf. Leg.Hist. 169-170, 254-255. It is unnecessary to multiply these examples. Those we have given are- sufficient to show the reasonableness of the EPA position.
Much of the remaining legislative history, including some cited by the Eighth Circuit, CPC International Inc. v. Train, supra, 515 F.2d at 1039-1040, is ambiguous. The ambiguity derives from § 502(11), which defines “effluent limitation” to mean any restriction on discharges established by the Administrator or a state, “including schedules of compliance.” Consequently, statements in the legislative history about the role of the states in setting “effluent limitations” can be read to refer either to target limitations or to schedules of compliance.
The EPA position represents a reasonable accommodation of the policies embodied in the Act. On the one hand, nátionwide effluent limits will insure the uniformity Senator Muskie and others stressed. See Leg.Hist. 132, 162, 170, 309, 466-467, 517, 577, 711, 1219, 1405. On the other hand, the states will retain a major role in regulating water pollution, in accord with § 101(b) of the Act. In administering the permit system, the states will have to specify schedules of compliance and determine in some cases whether a variance is justified or whether stricter discharge controls are needed to achieve water quality standards. Thus, the EPA position gives weight to both the policy of uniformity and that of federalism.
EPA’s interpretation also avoids anomalies that would result from acceptance of the Eight Circuit’s interpretation of the Act in the CPC case. Under the CPC interpretation, individual EPA permits (§ 402) based on the nationally-uniform guidelines would be directly reviewed in the court of appeals, § 509(b)(1)(F); yet the nationwide guidelines themselves would be reviewed in the first instance by the district court. CPC International Inc. v. Train, supra, 515 F.2d at 1038. Similarly, variances from the 1983 effluent limitations (§ 301(c)) would be directly reviewable in the court of appeals, 515 F.2d at 1043; but the effluent limitations themselves, which apply to “categories and classes” of point sources, would be reviewed initially by the district court. These results conflict with the congressional purpose of using direct review in the courts of appeals to insure expeditious and consistent application of effluent guidelines. See E. I. DuPont de Nemours & Co. v. Train, supra, 383 F.Supp. at 1253-1254. Cf. Leg.Hist. 1503.
We conclude that the position chosen by the EPA “was ‘correct,’ to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the ‘correct’ one.” Train v. Natural Resources Defense Council, Inc., supra, 421 U.S. at 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731. We therefore sustain EPA’s interpretation of the statute, and find that it had the authority to issue effluent limitations under § 301 and that we have the authority to review the regulations under § 509(b)(1).
II.
The Standard of Review
We begin our discussion of the merits by noting the relevant standard of review. Under § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), agency action in an informal rulemaking proceeding is to be sustained unless “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See also Camp v. Pitts, 411 U.S. 138, 141-142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). This standard requires us to determine whether “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). We are not to set the effluent limitations ourselves or substitute our judgment for the agency’s. Id.; Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 402 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Rather, we are to determine whether the limitations set by the agency are “the result of reasoned decision-making.” Essex Chemical Corp. v. Ruckelshaus, 158 U.S.App.D.C. 360, 486 F.2d 427, 434 (1973), cert. denied sub nom., Appalachian Power Company v. EPA, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). If the basis stated by the agency for its decision is insufficient, we may not supply another that the agency itself has not chosen to rely on. SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 494 (1943), 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); FPC v. Texaco Inc., 417 U.S. 380, 395-396, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974). We must, however, “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974).
III.
The 1977 BOD5 and TSS Limitations
AMI’s first challenge is directed at the 1977 effluent limitations, which require application of “the best practicable control technology currently available.” For guidance in interpreting that term, EPA looks to Senator Muskie’s written explanation to the Senate, referred to at note 18, supra, in which he stated as follows:
“In defining ‘best practicable’ for any given industrial category, the Committee expects the Administrator to take a number of factors into account. These factors should include the age of the plants, their size, the unit processes involved, and the cost of applying such controls.
“The Administrator should establish the range of ‘best practicable’ levels based upon the average of the best existing performance by plants of various sizes, ages, and unit processes within each industrial category. In those industrial categories where present practices are uniformly inadequate, the Administrator should interpret ‘best practicable’ to require higher levels of control than any currently in place if he determines that the technology to achieve those higher levels can be practicably applied.
“ ‘Best practicable’ can be interpreted as the equivalent of secondary treatment for industry, but this interpretation should not be construed to limit the authority of the Administrator.” Leg.Hist. 169-170.
This, we think, is a reasonable view of the Administrator’s responsibility. The “best practicable technology” will normally be defined based on the average performance of the best existing plants. If, however, the Administrator concludes that present practices in an industrial category are uniformly inadequate, he may require levels of control based on technology not presently in use in the category (or, it would seem, technology in use only by a single plant), if he determines, by applying the criteria listed in § 304(b)(1)(B), that this technology can be practicably applied throughout the category. One of these criteria is the cost of applying the proposed technology in relation to the resulting effluent reduction. With these principles in mind, we turn to AMI’s challenges to the 1977 standards.
A.
Technology Relied on by EPA for Achievement of 1977 BOD5 and TSS Standards
It appears from the EPA comments introducing the final regulation, 39 Fed. Reg. 7896 (February 28, 1974), that the 1977 effluent limitations are based primarily on the technology of biological treatment through a three-lagoon system. This is considered “secondary” treatment, that is, treatment which takes place after the waste water has passed through “primary,” in-plant treatment systems. In a three-lagoon system, waste water from the plant flows first into the anaerobic lagoon, where organic matter in the effluent is partially consumed by anaerobic bacteria (bacteria that do not require free oxygen). To increase oxygen levels in the waste water, it is then mechanically aerated in the aerated lagoon. The water then flows to the aerobic lagoon, where most of the remaining organic matter is consumed by aerobic bacteria (bacteria that do need oxygen). After being held there for a relatively long period, the waste water is discharged.
EPA estimates, based on a sampling survey, that 63% of the slaughterhouses and packinghouses discharging into waterways already have lagoon systems. FDD 125. Apparently, many of these systems do not include mechanical aeration. The cost-benefit analysis made by EPA is based on the cost of adding mechanical aeration to those lagoon systems. 39 Fed.Reg. 7896. Other treatment systems mentioned in the comments were not subjected to the cost-benefit analysis required by § 304(b). Because only the three-lagoon system has been cost-justified, it is the only technology that can be considered “practicable” as that term is defined in § 304(b).
B.
The Effect of Climate and Temperature on the Efficiency of Aerobic and Anaerobic Lagoon Systems
AMI’s first argument, aimed at the 1977 effluent limitations for all four subcategories of plants, is that, while the proposed lagoon system qualifies as practicable, it cannot achieve the limitations on a year-round basis because of seasonal and climatic effects. Winter conditions, according to AMI, impair the efficiency of both anaerobic and aerobic lagoons, while algae growth in the summer increases BOD5 and TSS.
(1) The Effect of Winter Temperatures on the Anaerobic Lagoon
The optimum temperature for an anaerobic lagoon is approximately 90 °F. Cold temperatures cause it to function less efficiently by slowing bacterial activity. The issue is the magnitude of this effect. AMI relies on an authority which says that removals are reduced to 70%. It conceded in its submittal to the agency, however, that the effect of winter temperatures on the anaerobic lagoon is small.
EPA argues that winter temperatures are counteracted by the heat of incoming waste water (80-100 °F.) and by the insulating grease cover that forms over the pool. An article concerning the Wilson plant at Cherokee, Iowa, reports that the grease cover on the anaerobic pool, after taking some time to build up, insulated the effluent and maintained satisfactory temperatures. The anaerobic pond at that plant operated at a 92% level of efficiency in February 1970 EPA’s conclusion is also supported by data on other plants supplied by the State of Iowa, which show, for example, that at one plant the anaerobic temperature on two dates in January 1972 was 77-78°F.
AMI has not satisfactorily refuted this evidence. Nor has it otherwise demonstrated that whatever decrease in anaerobic removals does take place in winter will affect the efficiency of the system as a whole sufficiently to prevent attainment of the standards. AMI’s own graph, submitted for the purpose of showing seasonal effects at American Beef’s plant at Oakland, Iowa, indicates that over a two-year period the plant met the BOD5 limitation in all but one of the coldest winter months (December through February). EPA also points to data from other plants which show that the 1977 limitations were met for extended periods that included winter months. These data are especially significant because they do not show the direct correlation AMI suggests between removal efficiency and cold weather. Finally, even assuming that cold weather reduces the efficiency of the anaerobic lagoon, overall system efficiency would be impaired only slightly, because a lagoon system as a whole responds much less to changed conditions than any of its parts.
We conclude that there is firm record support for EPA’s conclusion on the effect of cold weather on the efficiency of the anaerobic lagoon.
(2) The Effect of Winter Temperatures on the Aerobic Lagoon
Like anaerobic lagoons, aerobic lagoons operate less efficiently in winter. Cold temperatures inhibit aerobic microorganisms, and ice and snow covers reduce the oxygen content of water. EPA argues that these difficulties can be ameliorated by increasing detention time, thereby giving the microorganisms more time to work, by using additional aerobic ponds, or by using submerged aerators. We agree with AMI that EPA’s argument as to these countermeasures is inadequately supported by the record.
The record does suggest, however, that winter conditions do not make compliance with the 1977 standards impossible, since some plants have succeeded in complying with the BOD5 standards in winter. One such plant was the Wilson plant at Cherokee, Iowa, which maintained a 45% level of aerobic removal of BOD5 in February. The American Beef plant at Oakland, Iowa, also met the BOD5 limitations during the winter months, as did several other plants. AMI’s argument that some of these plants should be disregarded because they did not discharge in some winter months is unsound. As counsel for EPA pointed out during oral argument, a plant which does not discharge during a given period may be continuing its operations while storing its effluent. Our examination of the record confirms that the plants in question continued operations during periods when they did not discharge. The time of release is unimportant, so long as the effluent is successfully treated before release.
Neither party has submitted information on TSS removal in winter. The data on BOD5 removal indicates, however, the incorrectness of AMI’s basic postulate that aerobic activity is sharply reduced during cold weather. Moreover, AMI’s own submittal indicates that TSS concentrations in winter are comparable to those in summer, and we conclude below that the TSS limitations are attainable in summer.
Thus, although the record support for EPA’s position with respect to the effect of cold weather on aerobic ponds is less conclusive than the evidence concerning anaerobic ponds, we think it is still sufficient, bearing in mind the restricted scope of review under the “arbitrary and capricious” standard.
(3) The Effect of Summer Weather on Aerobic Lagoons
Warm weather promotes the growth of algae. On the basis of comments in the record by industry representatives, state pollution authorities, and others about the effect of algae on aerobic lagoons, AMI argues that algae growth increases TSS and BOD5 counts. Two of these comments refer in general terms to problems at individual plants without giving detailed supporting data; another comment is heavily qualified and inconclusive; and the others are purely conclusory.
EPA states that the Illini Beef plant at Genesco, Illinois, and the Swift plant at Glenwood, Iowa, were able to meet the standards during summer months, as was the Routh plant at Sandusky, Ohio. AMI does not respond directly to these assertions, and, from our examination of the record we conclude that data from these plants fail to show the correlation between summer weather and TSS predicted by AMI.
With respect to BOD5, EPA cites data from five plants that complied with the 1977 effluent limitations during the summer. AMI does not contest the figures regarding summer performance for two of these plants (Wilson, Cherokee, and Swift, Glenwood) but argues that Illini Beef and another plant should be disregarded because EPA itself, as shown in the Final Development Document, excluded them from consideration. The fifth plant was not mentioned or relied on by EPA in the Final Development Document. AMI also points out that a sixth plant, American Beef, failed to meet the standards during the summer. Nevertheless, the ability of even two plants using the proposed technology to meet the BOD5 and TSS standards in summer demonstrates that the standards are attainable in warm weather and is sufficient to overcome AMI’s weakly supported position.
In summary, we find sufficient basis in the record for the Administrator’s conclusion that temperature changes do not render the 1977 effluent limitations unattainable by the 1977 technology he designated.
C.
Record Support for 1977 BOD5 and TSS Limitations
We next consider AMI’s argument that the 1977 effluent limitations are arbitrary and capricious because they are not supported by the record. Limitations for three of the four subcategories were based on the performance of exemplary plants in each subcategory. AMI accepts this method but contests the reliability and significance of the figures used. Limitations for the fourth subcategory, high-processing packinghouses, were based on statistical techniques. AMI concedes that this approach is “not necessarily wrong,” but urges that EPA erred in implementing it.
(1) Simple Slaughterhouses BOD5.
EPA set B0D5 limitations for simple slaughterhouses as the average of the performance of four plants. Data for one of these, Cornwell at Pureellville, Virginia, must be disregarded because the plant did not use the 1977 technology-
Data for the second plant, Collins Packing at Greenfield, Ohio, was derived from questionnaire responses. While the questionnaire responses for most other plants contain data collected at regular intervals over long periods, those submitted by Collins consisted of the results of only two tests. AMI argues that the results of one of these tests were so low as to raise a question about its reliability, and that the other test showed the plant’s effluent level to be over the standard. EPA’s figures show that if the second test alone were used, the plant would be only .0034 lb. BOD5/1000 lbs. LWK over the limitation, and AMI does not dispute this figure in its reply brief. The determination of whether the first test should be rejected because the result is unexpectedly low is peculiarly within EPA’s expertise, and we shall not substitute our judgment for that of the agency. Hence, we accept Collins as support for the standard.
The third plant was Iowa Beef at La-Mars, Iowa. AMI argues that data from this plant should have been disregarded because
“[t]he [aerobic] lagoon was only treating the portion of the waste that did not leak out and could accordingly provide the remaining waste a better degree of treatment. This plant cannot be considered representative of plants that must treat full strength full volume wastes.”
This argument rests on two unarticulated assumptions: first, that wastes leak out faster than water, so that the concentration of waste is decreased by leakage; and second, that aerobic lagoons treat large volumes of waste water less effectively than small volumes. We find no support for these assumptions in the record, and conclude that EPA was justified in utilizing the data from LaMars. This data showed that the plant was .01 lb. BOD5/1000 lbs. LWK over the standard, but since EPA used an averaging process to set the standard for this subcategory, at least one of the numbers averaged must be greater than the average.
Data for the fourth plant, Swift & Company at Glenwood, Iowa, came both from the North Star tests and the State of Iowa. Although AMI originally argued that the North Star tests did not show compliance with the 1977 limitation, it did not refute in its reply brief EPA’s showing to the contrary. The parties also disagree about whether the state data show the plant to be in compliance during some of the months it discharged. Neither side reveals its calculations, but our own show that the plant was in compliance for 20 consecutive months, as EPA contends. AMI also argues that Swift’s performance should be discounted because the lagoon system was “relatively new,” but the record contains no basis for the implication that efficiency decreases with age. We conclude that the 1977 BOD5 limitation for simple slaughterhouses, even considering the performance of only the three plants which qualify is adequately supported by the record.
TSS.
The TSS limitations for simple slaughterhouses are based in part on treatment systems at three of the four plants on which the BOD5 limitations for this subcategory were based. The Final Development Document states that the three plants operated at 97% efficiency and that assuming an average raw waste load, this would be sufficient to meet the TSS limitations. FDD 142 — 143. We agree with AMI that the record does not support the 97% figure for these three plants.
EPA does not, however, rely solely on this figure. The Final Development Document places primary emphasis on the actual discharge levels at the three plants. While Swift, Glenwood violated the 1977 limitations during the North Star tests, Iowa State data show that plant to be in compliance for four of the five months in 1972 for which complete data are available. EPA says that Collins was' also well below the 1977 limitations, but the supporting data for this statement is not in the record. (Two other plants were able to attain the 1977 limitations, but EPA did not' rely on these plants as support for the standards because their operations are “very unusual.”)
Meager as the foregoing evidence may seem, AMI itself, in its final submission during the rule-making process, recommended the TSS limitation EPA ultimately adopted. It did so “[o]n the basis of results obtained from several exemplary well operated lagoon systems in various parts of the United States.” We think EPA could reasonably conclude that this limitation was attainable.
(2) Complex Slaughterhouses BOD5.
EPA based its effluent limitations for complex slaughterhouses on five plants. We are unable to determine from the record whether one of these, Tama Beef at Tama, Iowa, complied with the limitations. The record shows that none of the remaining plants used full 1977 technology. Assuming, as appears to be correct, that mechanical aeration will produce the 40% efficiency claimed by EPA, two of the plants, Missouri Beef at Rockport, Missouri, and Iowa Beef at West Point, Iowa, could apparently meet the standards easily by adding the aeration step called for by the 1977 technology. The other two plants also support the attainability of the limitation. AMI admits that one of these, American Beef, met the standards for 15 months out of a two-year period, and that the other, Armour at Sterling, Illinois, did so for over three-quarters of a two-year period. We conclude that there was sufficient basis for the B0D5 standard for complex slaughterhouses.
TSS.
EPA contends that one complex slaughterhouse studied, American Beef, achieved the 1977 TSS limitation of .25 kg/1000 kg LWK. See FDD 143. According to AMI, however, North Star tests showed violations at this plant on two of the three test days. One violation was admittedly slight (.01 lb./1000 lbs. LWK over the limit). As to the second alleged violation, AMI points to a test result of .86, greatly in excess of the limit. EPA counters that the latter test result was actually .086, and attributes AMI’s figure to a misreading of the record due to illegibility. EPA maintains that this figure is consistent with other data in the record and results in an average discharge for the three test days of .19, well under the .25 limit.
In its reply, AMI shifted its attack, arguing that EPA improperly relied on the North Star data rather than data obtained from the questionnaires. EPA responded at oral argument that the questionnaire data was “suspect” because “concentrations of suspended solids were in the range of a 100 milligrams per liter.” This explanation was unsupported by reference to the record or expert authority, and we have found no support for it in the record.
EPA’s rejection of questionnaire data on this occasion is inconsistent with its preference for data of that kind in other instances in which that data and test data were at odds. In these other instances EPA chose to rely on data from questionnaires and state tests rather than on conflicting North Star tests, on the theory that data collected frequently over extended periods were more reliable than the isolated tests conducted by North Star. We find this approach reasonable and within EPA’s discretion to adopt, but once adopted it should have been applied consistently, unless EPA could provide a reasoned and record-supported explanation for not doing so. EPA has failed to explain satisfactorily why it took a contrary approach on this single occasion.
EPA also attempts to support the TSS limitation with data from five simple slaughterhouses, which it contends met the complex slaughterhouse limitations and had comparable raw waste loads (i. e., volumes of effluent after in-plant treatment). Of these five plants, Corn-well must be disregarded because it did not use the 1977 technology. The raw waste load for two other plants, Collins and Iowa Beef, was less than half the average waste load for complex slaughterhouses, and that for both Illini Beef and Swift, Glenwood was 19% below the average. We thus have trouble finding that any of these four plants furnishes a basis for comparison.
In sum, when we read EPA’s asserted rationale for the 1977 TSS limitation for complex slaughterhouses against the record, we must conclude that EPA has not supplied a reasoned basis for that limitation. We therefore remand the limitation to EPA for further consideration.
(3) Low-Processing Packinghouses BOD5.
EPA refers to five plants in support of the BOD5 standard for low-processing packinghouses. Two of the plants do not use lagoon systems. One of these must be disregarded completely, and the other is relevant only to demonstrate best practicable technology for plants currently using anaerobic contact. On the other hand, the Wilson, Cherokee plant fully complies with the 1977 limitations, as does the Routh Packing plant at San-dusky, Ohio, though its operations are in some respects atypical. The Iowa Beef plant could also be brought within the standards by the addition of mechanical aeration, in view of the fact that the plant qualifies for an adjusted limitation because it uses imported hides. We conclude that EPA’s effluent limitation is sufficiently supported.
We are unpersuaded by AMI’s argument that in setting the standards for low-processing packinghouses below those for complex slaughterhouses, EPA contravened “the definitions and the inherent nature of these categories.” Because packinghouses perform the functions of slaughterhouses, together with additional processes that add to the raw waste load, AMI says the limitation for packinghouses should be higher rather than lower.
Since meat packing operations in low-processing packinghouses contribute relatively little to the waste load, they may be ignored for present purposes. The dispute therefore focuses on the amount and nature of by-product processing done by plants in the two subcategories. EPA contends that the by-product processing done by low-processing packinghouses is “less extensive” than that done by complex slaughterhouses. AMI argues that the contrary is true, and we find the record to be inconclusive. Nor does the record contain information on whether plants in one subcategory tend to use processes that produce a higher waste load than those used by plants in the other subcategory.
What does appear clearly from the questionnaire data in the record is that, whatever the reason, the average raw waste load is much lower for low-processing packinghouses than for complex slaughterhouses. AMI attacks this data as inaccurate, in part because it conflicts with North Star test data (which was available for only two plants in these subcategories). As we said earlier, EPA could properly rely on the questionnaire data even when North Star samplings were inconsistent with that data. We see no reason to believe that industry members would submit inaccurate data, especially when doing so might cause stricter limitations.
TSS.
Because treatment systems for other plants in this subcategory performed “rather poorly,” EPA relies solely on the Routh plant as support for its TSS limitation for low-processing packinghouses. We interpret this as a finding that, with the exception of this plant, technology in this subcategory was uniformly inadequate — a finding which EPA was entitled to make. See p. 453, supra. EPA maintains that its “determination to establish the effluent limitation at a level that is double the level being achieved by a major plant is reasonable.” Relying on questionnaire data, EPA says the Routh plant’s TSS emissions were less than half the 1977 limitation.
AMI makes two arguments concerning Routh: first, that Routh did not use the 1977 technology; and second, that it was an atypical plant. The first argument was not raised by AMI until its reply brief, where it stated in a footnote that Routh “does not actually employ ‘best practicable control technology’ since it has a series of dissolved air floatation units rather than an anaerobic lagoon.” We would not find this persuasive, even if the argument were timely. (See note 44, infra.) The record demonstrates that Routh’s dissolved air floatation units, combined with other primary treatment, reduced TSS levels from 2.87 to .79, a reduction of 72%. This is a lesser reduction than is ordinarily achieved by an anaerobic lagoon, which, according to the Final Development Document, can remove up to 95% of TSS. Our own inspection of the record confirms that anaerobic lagoons are able to achieve removal rates well over 75%. For instance, North Star tests at Ulini Beef showed a 96.4% removal rate for TSS. Even the American Beef plant, one of the poorer performers with regard to TSS removal, obtained 78% anaerobic removal. Thus, Routh replaced the anaerobic component of the 1977 technology with an apparently less efficient component, but was still able to meet the standards.
AMI also attacks the Routh plant as atypical. The Final Development Document states that
“[t]he degree of secondary processing conducted at any packinghouse is somewhat variable, although a large number of by-product recovery operations are typically practiced.” FDD at 26.
Most low-processing packinghouses apparently do blood or hide processing and inedible rendering, but Routh does none of these. Also, Routh’s raw waste load was below average for a low-processing packinghouse, though waste load varied greatly among such plants. See FDD 43. Despite these atypical features, EPA could reasonably find that a limitation twice that attained by Routh could be attained by other low-processing packinghouses, especially since Routh used a technology less efficient than that recommended for 1977.
(4) High-Processing Packinghouses BOD5.
High-processing packinghouses vary greatly in the quantity of off-site kill processed. For this reason, the method used by the Administrator to set effluent limitations for this subcategory was different from that used for other subeategories. He applied “the exemplary treatment technology proven in use by plants in the other three subcategories to the average raw waste values” for high-processing packinghouses. FDD 144. Using a statistical equation relating raw waste BOD5 to LWK and processed product production, he determined the raw waste BOD5 for plants having a .55 ratio of processed products to on-site kill. He then assumed a removal efficiency of 98.5% based on the performance of various secondary treatment systems, and calculated BOD5 limits for these plants based on the 98.5% figure. Other high-processing packinghouses were given an additional allowance over this base figure.
AMI contends that the 98.5% figure is incorrect because the standards for the other categories require only 98.0% removal. EPA answers that “98.5 percent was found to be a reasonable intermediate point between average and exemplary performance of several biological systems, including anaerobic-aerated-aerobic lagoons . . . .” While this statement is vague, there is support for the 98.5% figure in the record. A' table in the Final Development Document of removal values for various biological systems shows average values of 95.4% for two-lagoon systems and 98.3% for three-lagoon systems, with the best plants reaching 98.9% and 99.5% respectively. FDD 94A. EPA was entitled to base its effluent limitations on the average of the best plants, rather than on the average of all plants, in the subcategories from which the exemplary technology was borrowed. Accordingly, selecting the 98.5% figure, which is lower than the average of the best plants, was not arbitrary or capricious.
TSS.
AMI made no complaint of the 1977 TSS limitation for high-processing packinghouses in its opening brief, aside from of its general attack concerning the effect of temperatures on lagoon systems, which we disposed of above. EPA’s answering brief noted this omission and made no argument with reference to the TSS limitation. In its reply brief, however, AMI challenged the TSS limitation as “purportedly based on suspended solids removals achieved in the three other categories,” and stated that “if those limitations must be reconsidered, as we contend, the high-processing packinghouse limitations should be reconsidered also.” The challenge not only comes too late, but is also too general to permit serious evaluation. Accordingly, we sustain the 1977 TSS limitation for high-processing packinghouses.
IV.
The 1983 Standards
The distinction between the “best practicable” standard governing the 1977 technology and the “best available . . . economically achievable” standard governing the 1983 technology, according to Senator Muskie, “is intended to reflect the need to press toward increasingly higher levels of control in six-year stages.” Leg.Hist. 170. While some factors, are relevant to setting both standards (see § 304(b)(1)(B), (2)(B)), the 1983 effluent limitations are to be based on “a broader range of technological alternatives,” including techniques “which exist in operation or which can be applied as a result of public and private research efforts.” Leg.Hist. 170. No formal cost-benefit analysis is required in determining the “best available” technology, though the Administrator is to take cost into consideration. In addition, “rather than establishing the range of levels in reference to the average of the best performers in an industrial category [which is the norm for the 1977 technology, see p. 453, supra], the range should, at a minimum, . be established with reference to the best performer in any industrial category.” Id. In light of the stringent effluent limitations contemplated by the Act for 1983 and the declared national policy of eliminating the discharge of all pollutants by 1985 (§ 101(a)), we believe that the EPA must be upheld if it can show the existence of some technology which, if implemented, may reasonably be expected to achieve the 1983 standards.
AMI’s position is that EPA’s standards for BOD5, TSS, and ammonia concentration are unattainable by the 1983 technology designated by EPA, and therefore cannot stand. We turn now to these arguments.
A.
Technology Relied Upon by EPA for Achievement of the 1983 BOD5 and TSS Standards
The 1983 standards contemplate the implementation of a number of additions and improvements to “secondary” systems, which typically will be the three-lagoon systems on which the 1977 standards are based. Three of these “tertiary” or advanced treatment techniques are the subject of AMI’s criticism: land disposal, sand filtering, and microstraining.
Land disposal is an alternative to discharge into waterways or public treatment systems. It involves disposing of waste water by distributing it through irrigation systems over relatively flat land, surrounded by dikes, upon which a cover crop of grass or hay may be grown. Barring underground seepage, land disposal totally eliminates the discharge of pollutants into public waters and is therefore highly preferable to other treatment systems. As AMI points out, however, in some locales land shortages or soil conditions may prevent use of land disposal, and in others freezing and lack of ground cover may prevent use of that technique in winter. AMI also contends that the EPA underestimated the amount of land necessary for effective disposal.
A sand filter is a specially-prepared bed of sand or similar filter medium through which waste water passes and from which BOD5 and TSS are removed, either by raking the upper layers, through an under-drainage system, or by backwashing. AMI maintains that this technique is ineffective in removing algae, and that, aside from this problem, it is incapable of removing a sufficient proportion of the BOD5 and TSS allowed by the 1977 standards to meet the 1983 standards.
Microstrainers are partially submerged rotating drums which remove BOD5 and TSS through use of a fine mesh fabric. AMI contends that they too are incapable of extracting algae, that they are a recent innovation on which performance data is sparse, and that no record estimate of their efficiency is based on a reliable source.
The points raised by AMI are not without substance. EPA, in fact, has recognized that land disposal will not be universally available and has suggested its use only as a practical and efficient alternative. Also, while the EPA now appears ready to defend the efficiency of microstrainers, the Final Development Document notes the paucity of information on their reliability in full-scale operation. FDD 100. The defect in AMI’s argument, however, is that it fails to consider additions to the 1977 technology other than the three just examined.
In particular, in-plant or “primary” techniques may be used to reduce the level of effluent in the water stream at an early stage, thereby reducing the efficiency at which tertiary systems such as sand filters must operate in order to attain the standards. One of these primary techniques is dissolved air floatation, which involves releasing a mixture of compressed air and liquid into the waste water stream to force small particles to the surface. When used with an alkalinity control and chemical flocculation, which causes the particles to aggregate, dissolved air floatation is capable of removing 90% of BOD5 and 98% of TSS, according to unconverted EPA statistics. Various other in-plant controls and modifications, such as improved handling of viscera, paunch, and blood wastes, all demonstrated as technically feasible, are also described in the Final Development Document.
As to the problem of algae, AMI has submitted no data to show that algae growth in aerobic lagoons will result in excessive TSS in plants utilizing the in-plant controls and modifications and the extensive primary treatment EPA requires. On the other hand, EPA has suggested one method of reducing the algae content of the effluent discharged from the lagoons, namely, by locating the intakes for discharge pipes about a foot below the lagoon’s surface, since algae tend to float on the surface. Also, it-notes that the authority relied upon by AMI in its analysis of the effectiveness of sand filters actually indicates that they are capable of removing 33 to 45% of algae content. We conclude that EPA’s conclusions and the resulting 1983 limitations are based on a reasoned analysis of the record, with one exception. Since the 1983 TSS limitations are based in part on the 1977 limitation, the 1983 limitation for complex slaughterhouses should be reconsidered in light of our holding with respect to the 1977 TSS limitation for this subcategory.
B.
1983 Ammonia Standards
A final pollutant which EPA seeks to control by 1983 is ammonia. According to the Final Development Document, the concentration of ammonia in plant waste water ranges from 7 to 50 mg/1 before treatment, rising to a level of 100 mg/1 or more after treatment in an anaerobic lagoon.
In the preamble to the effluent limitations, EPA states as follows:
“The ammonia limitation was derived from engineering judgment as to the reliable capability of the air stripping method of ammonia control. It would appear that the limitation is a reasonable current estimate of the capability of ammonia stripping techniques for controlling this parameter.”
In its brief in this court, however, EPA abandons sub silentio its reliance upon ammonia stripping and relies upon nitrification as the technology by which the effluent limitations can be met, adding that “use of ammonia towers [stripping] is not necessary to meet the standard. Nevertheless, ammonia towers are effective under proper conditions and may be utilized by the industry to meet the standard.”
We first examine ammonia stripping, the technology on which EPA originally said it based the limitations. Ammonia stripping removes ammonia from liquid waste by exposing it to an ammonia-free gas such as air. After adjusting the alkalinity of the waste water, it is pumped to the top of a stripping tower and allowed to flow downward, while a counter-current of air introduced at the bottom of the tower flows upward. The method is capable of removing up to 98% of ammonia content. Reaching this efficiency, however, requires a level of air flow that is extremely costly to maintain. Moreover, removal efficiencies begin to drop once the temperature falls below 68° F., according to at least one record reference. Housing the tower and heating the air prior to introducing it into the tower are mentioned in the Final Development Document as means of dealing with the temperature problem but are characterized elsewhere in the record as impractical and extremely expensive. AMI notes finally that stripping towers are subject to scaling — the buildup of a calcium carbonate scale on the tower baffles, eventually reducing the tower’s efficiency— which is very difficult or impossible to remove in hard water areas. Thus, while some of the problems connected with ammonia stripping were recognized in the Final Development Document, neither it nor EPA’s brief suggests techniques which are likely to solve those problems. And, though counsel for EPA stated at oral argument that the agency has not abandoned this technique, we think that the difficulties are of a sufficient magnitude to preclude EPA from relying on this technique alone to meet the standards, at least on this record.
Since EPA based the ammonia limitations on technology not shown to be feasible, remand is necessary. We cannot sustain the regulation on a basis which counsel now asserts but which the agency did not rely upon in formulating the regulation. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). It is nevertheless appropriate to go on to express, for EPA’s consideration on remand, our views on the shortcomings of the present record with respect to nitrification, the method EPA relied upon in its brief before this court. Nitrification is the process of decomposing ammonia molecules by oxidizing their nitrogen into nitrites and nitrates, which are then usually converted to nitrogen and nitrogen oxide by a denitrification process. As noted above, the concentration of ammonia in waste water after it passes the anaerobic lagoon stage is 100 mg/1 or more. Hence, in order for nitrification to meet the 1983 limitation of 4.0 mg/1, the process must be capable of reducing the amount of ammonia content by at least 96%. The three studies in the record on which EPA relies to support the capability of the nitrification technique to reach 1983 standards show reduction of final ammonia concentrations below 4.0 mg/1, but the ammonia level of the influent (or liquid flowing into the processing unit) in each case was significantly less than 100 mg/1, yielding removal efficiencies of 10 to 90%. Counsel for EPA stated at oral argument that the problem with ammonia removal was not in percentage reduction but rather in achieving the base level, implying that a treatment process capable of achieving, for example, a 2 mg/1 effluent could do so regardless of the ammonia concentration of the influent. Perhaps this is so, and if it is, perhaps the point would be obvious to an expert. Since we, however, lack the expertise necessary to make such a judgment and the record is barren on the point, we are unable to uphold EPA, particularly in light of record evidence that the best available ammonia-removing technology applied to influents with 100 to 150 mg/1 ammonia yields a final effluent of 10 to 15 mg/1, substantially in excess of the 1983 standards. We therefore remand the 1983 ammonia standards for reconsideration and development of data adequately supporting whatever standards are ultimately adopted.
V.
Effluent Limitations in Issue Compared With Subsequently Issued Meat Processing Standards
Approximately six months after promulgating the regulations under review here for slaughterhouses and packinghouses, EPA issued proposed standards for meat-packing plants, i. e., plants that process meat but do not do their own slaughtering. 39 Fed.Reg. 31486 (August 28, 1974). Because few meat processors have their own waste treatment systems, EPA- used data from its study of slaughterhouses and packinghouses in establishing the meat processing standards. AMI complains that “EPA set meat processing standards, especially 1983 meat processing standards, at levels which are significantly more lenient than those appealed by AMI in this proceeding,” and that “it is arbitrary and capricious for EPA to reach two different conclusions as to achievable limitations based upon the same data.”
We do not have before us the record on which the regulations for the meat processing industry were based, and an intelligent comparison of the two industries and the regulations for each is impossible in the absence of full records for both industries. Moreover, as the court said in Portland Cement Association v. Ruckelshaus, supra, 486 F.2d at 389,
“Inter-industry comparisons of this kind are not generally required, or even productive; and they were not contemplated by Congress in this Act [the Clean Air Act], ... It would be unmanageable if, in reviewing the cement standards, the court should have to consider whether or not there was a mistake in the incinerator standard, with all the differences in parties, practice, industry procedures, and record for decision.”
We have decided in parts III and IV of this opinion that the challenged 1977 and 1983 standards for BOD5 and TSS for the Meat Products Point Source Category (with the exception of TSS for complex slaughterhouses) have adequate record support. The fact that less stringent limitations have been set for another category does not require further justification for the present ones.
VI.
Conclusion
To summarize, we have decided that we have jurisdiction to review directly the existing source regulations challenged here. We have also found that temperature and climatic effects do not render the 1977 limitations unattainable, and that, with the exception of the TSS limitation for complex slaughterhouses, the 1977 limitations are based on a reasoned analysis supported by the record. Finally, we have found that the 1983 limitations for BOD5 and TSS are adequately supported (with the same exception), but that the limitation for ammonia is not.
The only remaining problem is that of fashioning a remedy. The statutory deadline for promulgating existing source standards has passed, and the deadline for compliance with the 1977 standards is fast approaching. In order to expedite the case, we remand it to the EPA with the instructions set forth below, and retain jurisdiction pending the remand. CPC International Inc., supra, 515 F.2d at 1050 (citing cases).
EPA may conclude, on reconsideration, that evidence in the existing record on which it did not previously rely is adequate to support the limitations. If so, it may issue a clarifying explanation and reissue the limitations without further hearings, notice, or opportunity for comment. See South Terminal Corp. v. EPA, 504 F.2d 646, 665 (1st Cir. 1974), and cases cited therein. On the other hand, it may decide to seek new data or to reconsider the limitations themselves. If so, it must follow the procedural requirements of the Act. In either event, if the petitioner is dissatisfied with the agency’s final action with respect to any effluent limitation, it shall have 21 days to file any objection to the effluent limitation in this court. The objection will then be heard by this panel of the court on an accelerated briefing schedule.
We remand for expeditious consideration by the EPA, pursuant to these instructions, of the 1983 ammonia limitations and the 1977 and 1983 TSS limitations for complex slaughterhouses. With these exceptions, we uphold the challenged effluent limitations.
Affirmed in part, remanded in part.
. Sections of the Act are referred to in this opinion by their designations in the Statutes at Large. The parallel United States Code citations for the sections to which most frequent reference is made are as follows:
Section 301 — 33 U.S.C. § 1311,
Section 304 — 33 U.S.C. § 1314,
Section 306 — 33 U.S.C. § 1316,
Section 402 — 33 U.S.C. § 1342,
Section 509 — 33 U.S.C. § 1369.
. The requirements of subsection (b) take the form of exceptions to § 301(a), which forbids the discharge of pollutants except in compliance with specified provisions of the Act. The provisions specified are § 301 itself (Effluent Limitations), § 306 (National Standards of Performance), § 307 (Toxic and Pretreatment Effluent Standards), § 318 (Aquaculture Projects), § 402 (National Pollutant Discharge Elimination System), and § 404 (Permits for Dredged and Fill Material).
For another description of the provisions of the Act relating to the adoption of effluent regulations, see National Resources Defense Council, Inc. v. Train, 510 F.2d 692, 695-697 (D.C.Cir. 1975); see also Stream Pollution Control Board v. United States Steel Corp., 512 F.2d 1036, 1041-1042 (7th Cir. 1975).
. A “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, [etc.], from which pollutants are or may be discharged.” § 502(14).
. Publicly-owned treatment works are regulated differently under § 301. Existing plants must adopt “secondary treatment” as defined by the Administrator under § 304(d)(1). By 1983, public treatment works must comply with § 201(g)(2)(A), which calls for use of the “best practicable waste treatment technique.” Special provisions govern industrial dischargers that use public treatment systems rather than discharging directly into waterways. If the public treatment system has adopted secondary treatment, the industrial discharger need only meet the pretreatment requirements of § 307. Some 55% of the packinghouses and slaughterhouses discharge into public treatment systems; the regulations under review here apply primarily to the remaining 45% but potentially could apply to plants discharging into municipal systems that do not utilize secondary treatment.
. Although § 304(b) called for publication of final guideline regulations within one year after the effective date of the Act, which would have been October 18, 1973, EPA failed to do so, presumably because of the staggering proportions of its task. In an action to require EPA to comply with the statutory deadline, the United States District Court for the District of Columbia ordered the agency to issue regulations for the Meat Products Point Source Category by February 16, 1974. National Resources Defense Council, Inc. v. Train, 6 ERC 1033 (D.D.C.1973). The court of appeals reversed the district court’s holding that the October 18 deadline applied to categories of point sources, which unlike the meat product category, were not listed in § 306(b)(1)(A), 510 F.2d 692, 704 et seq. (D.C.Cir. 1975), but affirmed as to those categories that were so listed.
. Public-owned treatment works are excepted from § 304(b).
. The Administrator has additional duties that are not involved in this case. For example, § 307 requires him to adopt pretreatment standards for certain toxic substances.
. While the Act refers to the Administrator as the official to whom responsibilities are delegated, he of course carries out his duties through the agency, which is the first named respondent here and on whose behalf the respondent’s brief has been filed. We will hereafter refer to EPA and the Administrator interchangeably.
. According to the Final Development Document, “[t]he major criterion for the establishment of the categories” was the oxygen demand of the plant waste water; “[o]ther criteria were the primary products produced and the secondary (by-product) processes employed.” FDD 1. The sub-categories are-defined in the regulations, however, only in terms of function and extent of by-product processing.
. The regulations also cover new sources. For each subcategory there is a section prescribing new source standards of performance pursuant to § 306, 40 C.F.R. §§ 432.15, 432.25, 432.35, 432.45, and a section prescribing pretreatment standards pursuant to § 307, 40 C.F.R. §§ 432.16, 432.26, 432.36, 432.46. Neither the new source nor the pretreatment regulations are challenged in this proceeding.
. The application must be filed within 90 days. § 509(b)(1). Action which could be reviewed under this provision is not subject to judicial review in any later enforcement proceeding. § 509(b)(2).
. CPC International Inc. and the American Petroleum Institute filed briefs attacking the Administrator’s authority; the National Resources Defense Council filed briefs in support of the Administrator. References in the text to “amici” refer only to CPC and American Petroleum Institute.
. EPA argues that we would still have jurisdiction to review the regulations because of the close interrelationship between § 301 limitations and § 304(b) guidelines, and because bifurcated review of the limitations and guidelines would frustrate an important purpose behind the judicial review provisions of the Act — expeditious and consistent application of effluent limitations. See Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); E. I. DuPont de Nemours v. Train, 383 F.Supp. 1244, 1253-1254 (W.D.Va.1975), appeal pending, No. 74-2237 (4th Cir.). Cf. National Resources Defense Council, Inc. v. Train, 519 F.2d 287, 290 (D.C.Cir. 1975). We need not reach this point in view of our conclusion as to § 301. In American Iron and Steel Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), cited infra, p. 449, et seq., the court (p. 1045, et seq.) reviewed effluent regulations issued under both § 301(b) and § 304(b) and found that they did not meet the requirements of § 304(b). It is not contended in the case at bar that the requirements of § 304(b) were not complied with.
. Both EPA and amici apparently assume that rejection of EPA’s interpretation of § 301 would require a radical change in the way the Act is now administered. This is far from clear. Admittedly, if amici’s view of § 301 were accepted, effluent limitations applicable to a particular source could not be set until the permit issuance proceeding, but it does not necessarily follow that, before issuing the permit, EPA would be forced to gather and analyze data on the individual characteristics of each plant. Instead, EPA could perhaps include minimum effluent limitations in the guidelines and place the burden on the applicant of justifying a higher effluent limitation. In effect, the applicant would be required to apply for a variance from the standard set by the guideline. A similar regulation could be established to govern EPA approval of state-issued permits. A strong argument, at least, could be made for the validity of this approach under § 501(a), 33 U.S.C. § 1361(a), which gives EPA the power to make “such regulations as are necessary to carry out” its functions. See United States v. Storer Broadcasting Co., 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956); National Petroleum Refiners Ass’n v. FTC, 157 U.S.App.D.C. 83, 482 F.2d 672, 692 (1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1475, 39 L.Ed.2d 567 (1974). In short, the issue here is not whether EPA’s whole approach to administering the statute is wrong, but simply whether it has misinterpreted the particular method by which it was to carry out its functions.
. Section 301(c) provides for variances from the 1983 standards for individual plants. The Act itself does not contain a comparable provision with respect to 1977 standards (perhaps because Congress contemplated they would be less rigorous) but the regulations do provide for variances from the 1977 standards. 42 C.F.R. §§ 432.12, 432.22, 432.32, 432.42.
. Amici have urged us to distinguish Train on the ground that there the agency’s statutory interpretation was contemporaneous with Congress’ consideration of the legislation, whereas here EPA actually expressed a contrary view during hearings on the Act and now urges an interpretation it adopted only some time after the Act was passed. We think, however, that this distinction is not substantial enough to overcome the strong policy announced by the Supreme Court in Train in favor of according great deference to EPA’s interpretation of the statutes it administers, having in mind the complexity and technical nature of the statutes and the subjects they regulate, the obscurity of the statutory language, and EPA’s unique experience and expertise in dealing with the problems created by these conditions.
. The Eight Circuit in CPC International Inc. v. Train, supra, 515 F.2d at 1038, also attempted to distinguish between “standards” and “limitations.” Section 316(b)’s reference to “[ajny standard established pursuant to section 301” tends to undermine that position.
. Remarks by Senator Muskie, made in a similar context before passage of the Clean Air Act, have been held to be “entitled to significant weight.” Amoco Oil Co. v. EPA, 163 U.S.App.D.C. 162, 501 F.2d 722, 734 (1974).
This opinion has been circulated among all judges of this court in regular active service, in view of the conflict between our holding in Part I and that of the Eighth Circuit in CPC International Inc. v. Train, supra, 515 F.2d 1032, and no judge has requested that the issue decided in Part I be reheard in banc.
. This is a minority of all plants. See note 4, supra.
. A. S. Johnson, “Meat,” in Industrial Waste-Water Control 49 (C. F. Gurnham ed. 1965).
. AMI’s submittal states:
“[I]n the winter months, the biological activity of the anaerobic lagoon is reduced slightly as the result of colder water temperatures.”
. Hester & McClurg, “Operation of a Packing Plant Waste Treatment Plant” (1970) (paper presented at the 25th Purdue Industrial Waste Conference). This article was not listed in the initial certified list EPA filed in lieu of the record under Rule 17(b), Fed.R.App.P., but EPA has filed a motion to supplement that list. The affidavit supporting the motion states that the materials in question were actually before the agency but were accidentally deleted in compiling the list. Since AMI had an opportunity in its reply brief to respond to these materials, it has not been prejudiced by EPA’s delay in designating these materials. Accordingly, we grant EPA’s motion.
. This means that at a typical low-processing packinghouse with a raw waste BOD of 8.1 kg/1000 kg LWK 7.45 kg/1000 kg LWK would be removed at the anaerobic lagoon, leaving only .65 kg/1000 kg LWK. To reach the 1977 limitation for low-processing packinghouses, the combined efficiency of the rest of the system would have to be only about 75%.
. The plant’s performance was also very poor in October and November of one year, which EPA says was caused by a change in equipment combined with operation in excess of the design capacity of the plant.
. If we assume for purposes of illustration that each component in a system is 100% efficient under optimum conditions, and that this efficiency is reduced to 50% in winter, then in winter the anaerobic pool would remove only 50% of the pollution, the aerated pool 50% of the remainder, leaving 25%, and the aerobic pool 50% of that, leaving 12'/2% of the initial effluent. The total removal efficiency would be 87!/2% even though each part of the system was working at only 50% efficiency. EPA’s brief contains a table which illustrates that a 10% decrease in anaerobic removal results in only a 1% decrease in total removals, assuming unimpaired functioning of the rest of the three-lagoon system.
. Neither additional aerobic ponds nor submerged aerators were included in EPA’s cost evaluation, and we are not directed to any evidence in the record as to their effectiveness or feasibility. EPA cites an article not contained in the record to support the feasibility ■ of longer detention, but we note that the article concludes by saying that longer detention is not effective “in regions where long periods of ice prevail.”
. According to the Florida Meat Packers’ Association, “In southern climates algae will grow in lagoons to the extent that T.S.S. will actually increase in some cases.”
. The development documents do not identify the exemplary plants on which the effluent limitations for each subcategory are based. They were identified by EPA during the pend-ency of this review proceeding in response to an informal request by AMI’s engineering consultants.
. The plant’s worst performances during the relevant period took place in September 1971 and April 1972. Raw waste in September contained 6877 lbs. BOD5, of which 99.7% was removed. This leaves 0.3% or 20.6 lbs. BOD5. Live weight killed was 660,000 lbs. The discharge in September was .03 lb. BOD5/1000 lbs. LWK, well under the .12 effluent limitation. A similar calculation for April 1972 gives a discharge of .11 lb. BOD5/1000 lbs. LWK, based on a removal rate of 98.9%, raw BOD5 of 6365 lbs., and LWK of 691,000 lbs. AMI also argued that months in which the plant did not discharge should be disregarded, an argument we rejected above (in the paragraph following note 26).
. One of the three plants (Cornwell) must be discarded because the technology used there was not cost justified. EPA used figures of 96.2% and 95.3% for the other two plants. The average of these two figures is 95.7%.
. Although the Final Development Document does not refer to AMI’s comment as a basis for the standard, it is clear from the comments ■ to the final regulation that EPA relied on industry comments in setting the final effluent limitations. 39 Fed.Reg. 7895, 7896. Cf. American Iron and Steel Institute v. EPA, supra, at 1050-1051.
. The data from the Wilson plant at Cherokee, Iowa, for February shows a 45% efficiency for the aerated pond, even though efficiency decreases in winter. Moreover, aerated lagoons are “generally designed to achieve an average BOD5 reduction of 50 to 60%,” as reported at an EPA industrial seminar on waste treatment systems. On balance, EPA’s 40% figure seems to be supported by the record.
. EPA argues that two months of violation were caused by equipment changes (see note 24, supra), that the pollution control system was overloaded, and that primary treatment was very poor.
. While we do not ordinarily consider arguments raised for the first time in a reply brief (see note 44, infra), AMI did challenge the basis for the standard in its opening brief, and presumably it would have advanced this additional theory at that time had EPA’s figures been legible. Only for this reason do we now make an exception and reach the merits of this argument. As noted in the text, EPA had a chance to respond at oral argument. Any additional justification which EPA might have for this limitation should be fully delineated on remand.
. In the Final Development Document (at 143), EPA states that two other plants were only 25-30% over the average. AMI contends that the figure should be higher, and EPA did not pursue the point.
. We have some difficulty in following both AMI’s and EPA’s calculations for Illini Beef and Swift. AMI assumes that the average waste load for complex slaughterhouses is 10.5 lbs./1000 lbs. LWK, while EPA places the figure at 10.9 lbs. The source cited by both, FDD 39, gives a figure of 9.6. EPA says that Swift’s raw waste load was 9.6 lbs./1000 lbs. LWK, while the data base summary, using questionnaire responses, quotes a raw waste load of 7.8 for Swift and 7.78 for Illini Beef. The figure given in the data base for each plant is approximately 19% below the 9.6 average for complex slaughterhouses.
. By adding mechanical aeration, the plant could achieve the 1977 limitation. EPA has cost-justified the incremental addition of mechanical aeration, as we observed earlier.
. The Routh plant is discussed in more detail in connection with the TSS standasds.
. The regulations provide for adjustments in the effluent limitations of plants that process hides or blood from, or perform rendering on, animals slaughtered elsewhere. See 40 C.F.R. § 432.12(b)-(e) (simple slaughterhouses); id. § 432.22(b)-(e) (complex slaughterhouses); id. § 432.32(b)-(e) (low-processing packinghouses); id. § 432.42(b)-(e) (high-processing packinghouses).
. According to the Final Development Document, “Secondary processes used interrelate with both the final products and waste characteristics; however, the kind of manufacturing process is more relevant than the specific by-product. The process by which a byproduct is made determines the waste load. Thus, it is the nature of the secondary processes rather than by-products themselves which define the categories. Unfortunately, there are a number of secondary manufacturing processes that can be used within each by-product area. Furthermore, there is no typical or usual combination of secondary manufacturing processes in the industry. Therefore, some other means of grouping plants by secondary manufacturing processes is required.” FDD 30.
. To accept AMI’s position, we would have to assume not only that industry members submitted inaccurate data, but also that for some unknown reason data for plants in one subcategory was less accurate than data from others.
. AMI again argues that the questionnaire data is undermined by North Star’s verification testing, an argument we have previously rejected.
. By combining Routh’s aerated and aerobic lagoons with an anaerobic lagoon, the typical low-processing packinghouse could easily meet the 1977 TSS standard. The average TSS level in raw waste from low-processing packinghouses is 5.9 kg/1000 kg LWK. The lagoon system at Routh has a removal efficiency of 94%. As shown in the text, a conservative figure for anaerobic removal is 70%. Thus, after anaerobic treatment only 1.77 kg TSS/1000 kg LWK would remain. Routh’s lagoon system would remove 94% of the remainder, leaving .106 kg/1000 kg LWK. The 1977 standard for low-processing packinghouses is .24 kg/1000 kg LWK.
. Our Circuit Rule 10 (1973) provides that “[a] reply brief shall present only matter in reply to questions discussed in appellee’s brief.”
. Since the 1983 BOD5 and TSS standards have been set at approximately 25% of the 1977 standards, AMI reasons correctly that whatever additional technology is utilized will have to maintain a removal efficiency of 75%. Estimates for sand-filter removal range between 40 to 90% for BOD5 and 60 to 75% for TSS.
. AMI also criticizes the use of “slow” sand filters, as opposed to “rapid” sand filters which operate under pressure, because of the maintenance problems (mainly, hand raking) connected with them. The solution to this problem would appear to be the use of rapid sand filters where slow sand filters are not feasible.
. EPA states in the Final Development Document (at 149) that it has given due consideration to the cost of the techniques to be utilized in achieving the 1983 limitations, as required by § 304(b)(2)(B). Since AMI does not here raise cost as an issue, there is no need for us to require further justification.
. The Final Development Document states (at 150) that “[t]he Best Available Technology Economically Achievable [the 1983 technology] includes that listed under the Best Practicable Control Technology Currently Available [the 1977 technology].” See also note 45, supra.
. The Final Development Document reports that ammonia stripping is “a well-established industrial practice in the petroleum refinery industry” and that the “only significant difference” in its application to meat-slaughtering plants would be the smaller size of stripping tower required. FDD 104. But other than these conclusory comparisons, the record is barren of information which would permit us to conclude that the technology employed in the petroleum industry might be capable of coping with meat-slaughtering-plant wastes or otherwise capable of meeting the limitations established for the meat product industry.
. EPA in its brief also cites two other studies not a part of the record, which we could not consider even if the validity of the standard turned upon nitrification efficiency. Cf. Amoco Oil Co. v. Environmental Protection Agency, 501 F.2d 722, 729 n.10 (D.C.Cir. 1974). EPA will, of course, be free to rely upon these additional studies in its reconsideration of the standard upon remand.
. Letter from T. Driscoll, OASES Wasterwater Treatment Systems, to D. Denker, Oscar Mayer & Co. (Jan. 18, 1974).
. These regulations, in proposed form at the time this case was briefed, have since been adopted with some modifications in final form. 40 Fed.Reg. 902 (January 3, 1975).
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The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion that discuss benefits and the percentage of paragraphs in the opinion that discuss costs. Please output a number between 0 and 1 depending on the percentages in each opinion. 0 represents that 0 percent of the paragraphs talk about benefits or costs. 1 represents that 100 percent of the paragraphs talk about benefits or costs. Please output two numbers, one for the percentage of paragraphs that discuss benefits, and one for the percentage of paragraphs that discuss costs. Also please give a rationale as to why you outputted the specific number.
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Benefits: 0.3823529411764706, Costs: 0.07352941176470588
| "MOORE, District Judge:\nThis case involves the addition of approximately 112,400 acres of land (“(...TRUNCATED)
| "The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion th(...TRUNCATED)
|
Benefits: 0.1111111111111111, Costs: 0.2333333333333333
| "OPINION OF THE COURT\nBefore VAN DUSEN, ADAMS and WEIS, Circuit Judges.\nVAN DUSEN, Circuit Judge.\(...TRUNCATED)
| "The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion th(...TRUNCATED)
|
Benefits: 0.1578947368421053, Costs: 0.02631578947368421
| "OPINION\nSPROUSE, Circuit Judge:\nThe Waterford Citizens’ Association (Citizens’ Association), (...TRUNCATED)
| "The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion th(...TRUNCATED)
|
Benefits: 0.2666666666666667, Costs: 0.04
| "ORDER\nPursuant to the opinion issued concomitantly with this order, we hereby enjoin any further a(...TRUNCATED)
| "The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion th(...TRUNCATED)
|
Benefits: 0.09615384615384616, Costs: 0.01923076923076923
| "SETH, Circuit Judge.\nThese are appeals from a judgment enjoining the defendants, Denver Urban Rene(...TRUNCATED)
| "The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion th(...TRUNCATED)
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Benefits: 0.03448275862068965, Costs: 0
| "KATZMANN, Circuit Judge.\nThe New York City Empowerment Zone was created pursuant to a Congressiona(...TRUNCATED)
| "The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion th(...TRUNCATED)
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Benefits: 0.2702702702702703, Costs: 0
| "SEYMOUR, Chief Judge.\nThe Pueblo of Sandia and various environmental groups brought suit for decla(...TRUNCATED)
| "The following is a judicial opinion. Please identify the percentage of paragraphs in the opinion th(...TRUNCATED)
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