Appendix — Modine Manufacturing Co. v. United States Environmental Protection Agency

Supreme Court brief1985

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Text

85 i 3 332) ‘] Supreme Court, Us.

FiLED

No.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1985

}

MODINE MANUFACTURING CO.,

Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

APPENDICES TO THE PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

THIRD CIRCUIT

RICHARD J. KISSEL

JEFFREY C. FORT

Counsel of Record

M. THERESE YASDICK

MARTIN, CRAIG, CHESTER &

SONNENSCHEIN

115 §. LA SALLE STREET

SUITE 2400

CHICAGO, IL 60603

(312) 368-9700

Counsel for Petitioner Modine

Manufacturing Co.

TABLE OF CONTENTS

JUDGMENT AND ORDER OF THE US.

COURT OF APPEALS FOR THE THIRD CIR-

CUIT IN MODINE MANUFACTURING CO. v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY, CASE NO. 84-3382 (MAY 17, 1985) .

ENVIRONMENTAL PROTECTION AGEN-

CY’S FINAL RULE CONCERNING PRE-

TREATMENT STANDARDS FOR THE MET-

AL FINISHING POINT SOURCE CATEGORY

(40 C.F.R. PART 433) (48 FED. REG. 32462-

32488) (JULY 15, 1983) (PERTINENT PRO-

EEF vcicchachs en tiatceciniinneicdiaaplilitzaiiasctactecesreenticses

SECTION 301(b) OF THE CLEAN WATER

ACT, 33 USC §1311(b) (1976 & SUPP. V.

SECTION 304(b) OF THE CLEAN WATER

ACT, 33 USC § 1314(b) (1976 & SUPP. V.

SECTION 307(b) OF THE CLEAN WATER

ACT, 33 USC § 1317(b) (1976 & SUPP. V.

PAGE

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pt a SIE ORE OSA talon, Pcp ro A

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UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 84-3382

MODINE MANUFACTURING COMPANY,

Petitioner

WILLIAM D. RUCKELSHAUS, Administrator,

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

and UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

On Petition for Review of Final Rule of

United States Environmental Protection Agency

Argued May 14, 1985

Before: HUNTER AND SLOVITER, Circuit Judges,

and COHEN, District Judge*

[A.]

JUDGMENT ORDER

After consideration of all contentions raised by both

Parties, it is

ADJUDGED and ORDERED that the Petition for Re-

view of Final Rule of the United States Environmental Protec-

tion Agency be and is hereby denied.

* Hon. Mitchell H. Cohen, United States District Court for the

District of New Jersey, sitting by designation.

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Costs taxed against petitioner.

By the Court,

/s/ Dotores K. SLOVITER

Circuit Judge

Attest:

/s/ Betty J. ROBINSON

Deputy Clerk

Dated: May 17, 1985

Certified as a true copy and is-

sued in lieu of a formal mandate

on June 10, 1985.

Test:

Chief Deputy Clerk, U.S. Court

of Appeals for the Third Circuit

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[B.]

Federal Register, Vol. 48, No. 137

Friday, July 15, 1983

Rules and Regulations

Pp. 32462-32488

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 413 and 433

[OW-FRL-2383-7]

Electroplating and Metal Finishing Point Source Categories;

Effluent Limitations Guidelines, Pretreatment Standards,

and New Source Performance Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: This regulation limits the pollutants that elec-

troplating/ metal finishing facilities may discharge to waters

of the United States or to publicly owned treatment works

(POTW). The Metal Finishing Regulations provide effluent

limitations based on “best practicable technology” and “‘best

available technology” and establish new source performance

standards and pretreatment standards under the Clean Water

Act. In addition, this rule amends the pretreatment stan-

dards for existing sources for the Electroplating Point Source

Category.

The preamble summarizes the legal authority, background,

technical and economic bases, and other aspects of the regu-

lation as well as a summary of comments on the proposed

regulation and on the record supporting the proposed regu-

lation. The abbreviations, acronyms, and other terms used in

the preamble are defined in Appendix A. (See

“Supplementary-Information” below for complete; table of

contents ).

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The final rule is supported by EPA’s technical conclusions

detailed in the Development Documeni for Effluent Limitations

Guidelines and Standards for ihe Metal Finishing Point Source

Category, June, 1983. The Agency’s economic analysis is found

in Economic Analysis of Effluent Standards and Limitations for

the Metal Finishing Industry, June 1983. Further supporting

materials are filed in the record supporting this rulemaking.

DATES: In accordance with 40 CFR 100.01 (45 FR 26048)

this regulation shall be considered issued for the purposes of

judical review at 1:00 p.m. Eastern time on July 29, 1983.

These regulations shall become effective August 29, 1983.

The compliance date for the BAT regulations is as soon as

possible, but no later than July 1, 1984.

The compliance date for New Source Performance Stan-

dards (NSPS) and Pretreatment Standards for New Sources

(PSNS) is the date the new source begins operations. The

compliance date for Metal Finishing Pretreatment Standards

for Existing Sources (PSES) is February 15, 1986 for metals

and cyanide. Metal Finishing PSES establishes two levels of

toxic organic control; the less stringent must be met by June 30,

1984 for most plants and by July 10, 1985 at plants also subject

to Part 420 (Iron and Steel); the more stringent must be met by

February 15, 1986. In addition, Electroplating PSES requires

toxic organic control by July 15, 1986.

Under Section 509(b)(1) of the Clean Water Act judicial

review of this regulation can be obtained only by filing a

petition for review in the United States Court of Appeals within

90 days after these regulations are considered issued for the

purposes of judicial review. Under Section 509(b)(2) of the

Clean Water Act, the requirements of the regulations may not

be challenged in later civil or criminal proceedings brought by

EPA to enforce these requirements.

aon —_ ws ae

ee ee

SO A ad se a ecligahas Stata Cea cine a hee he

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Reporting provisions in 40 CFR 413.03 and 433.12 will be

reviewed by OMB under the paperwork reduction act and are

not effective until approved.

* ~ * * *

I. Legal Authority

This regulation is being promulgated under the authority

of Sections 301, 304, 306, 307, 308, and 501 of the Clean Water

Act (the Federal Water Pollution Control Act Amendments of

1972, 33 U.S.C. 1251 er. seg., as amended by the Clean Water

Act of 1977, Pub.L. 95-217) (the “Act”) and as further

amended. This regulation is also being promulgated in re-

sponse to the Settlement Agreement in Natural Resources

Defense Council, Inc. v. Train, 8 ERC 2120 (D.D.C. 1976), as

modified, 12 ERC 1833 (D.D.C. 1979), modified by Order

dated October 26, 1982.

II. Background

C. Overview of the Industry

There are 13,500 plants in the electroplating/ metal finish-

ing industry. Many discharge wastewaters from several metal

finishing operations other than, and in addition to, elec-

troplating. Part 413 (electroplating) currently applies only to

flows from the six specified electroplating processes. These Part

433 (metal finishing regulations) will apply to those elec-

troplating streams and also to wastestreams from most other

metal finishing operations within the same plants. The Part 433

PSES will apply only to plants already covered by Part 413;

however Part 433 will often cover additional wastewater within

the same plants. Thus, the Part 433 limits on discharge of toxic

metals, toxic organics, and cyanide will apply to most facilities

in the electroplating/ metal finishing industry.

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The industry can be divided into the sectors indicated on

Table I. Facilities are either “captives” (those which in a

calendar year own more than 50% ( area basis) of the materials

undergoing metal finishing); or “job shops” (those which in a

calendar year do not own more than 50% (area basis) of

material undergoing metal finishing).

Captives can be further divided by two definitions: “in-

tegrated” plants are those which, prior to treatment, combine

electroplating waste streams with significant process waste

streams not covered by the electroplating category; “non-

integrated” facilities are those which have significant waste-

water discharges only from operations addressed by the elec-

troplating category. Many captives (50%) are “integrated”

facilities. Whereas captives often have a complex range of

operations, job shops usually perform fewer operations. In

theory job shops can be divided like captives; in actuality,

however, approximately 97% of all job shops in this industry

are “non-integrated”.

Finally, the entire industry can be divided into “direct”

and “indirect” dischargers. “‘Directs” discharge wastewaters to

waters of the United States and are subject to NPDES permits

incorporating BPT, BAT, and BCT limitations or NSPS. “In-

directs” discharge to POTWs and are subject to PSES or PSNS.

As discussed above, the electroplating/metal finishing in-

dustry is currently covered by Part 413 PSES for the Elec-

troplating Category promulgated on September 7, 1979, and

amended on January 28, 1981. The effect of today’s amend-

ments is to create a new category—Metal Finishing (Part —

433)—and to shift most electroplaters to it, replacing their

current PSES with new limits which apply uniformly to dis-

charges from their electroplating and other metal finishing

operations. This meets industry’s requests for equivalent limits

for process lines often found together and greatly reduces the

need to rely on the Combined Waste Stream Formula for

integrated metal finishing facilities. Direct discharger and new

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source requirements are also being issued as part of the metal

finishing regulations.

Indirect discharging job shop electroplaters and independ-

ent printed circuit board manufacturers, however, would be left

under the existing Part 413 PSES for Electroplating and are

exempted from Part 433. This is consistent with a 1980

Settlement Agreement in which the National Association of

Metal Finishers (NAMF), and the Institute for Interconnecting

and Packaging Electronic Circuits (IIPEC) agreed not to

challenge the Part 413 PSES in return for the 1981 amendments

and EPA’s commitment that the Agency did not intend to

develop signiiicantly more stringent standards for those plants

fox the next several years.

TABLE 1.—BREAKDOWN CF THE

ELECTROPLATING/ METAL FINISHING INDUSTRY

[ Number of plants per sector 13,470]

Job

shops

and Captive facilities ( 10,000 )

IPCBM'

(3,470) Nonintegrated Integrated

Indirect 3,061 job & 3,750 3,750

dischargers IPCBM noninte- integrated

(10,561). indirect. grated captive.

captive.

Direct 409 job & Ci diceieeaiceed (2).

dischargers IPCBM

(2,909). directs.

' Independent printed circuit board manufacturers.

22,500 captive directs.

The Metal Finishing Category covers plants which perform

one or more of the following six operations: electroplating,

electroless plating, anodizing, coating (phosphating, chromat-

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ing, and coloring), chemical etching and milling, or printed

circuit board manufacture. If a plant performs any of those six

operations then discharges from the 46 operations listed in

Appendix C are covered by these standards.

In some cases another industrial category may cover

wastewater discharges from a metal finishing operation. In

such cases the more specific standards of the other Part(s) will

apply to those wastewater streams which appear to be covered

by both regulations. For example, if a plant performs coating

operations in preparation for painting and also performs elec-

troless plating as part of a porcelain enameling process, then

these Part 433 standards would apply to discharges from the

coating operation; while Part 466 ( porcelain enameling) would

apply to discharges from the second operation.

The following regulations will take precedence over metal

finishing (Part 433) and electroplating (Part 413) when such

an overlap occurs:

Nonferrous metal smelting and refining (40 CFR Part

421)

Coil coating (40 CFR Part 465)

Porcelain enameling (40 CFR Part 466)

Battery manufacturing (40 CFR Part 461)

Iron and steel (40 CFR Part 420)

Metal casting foundries (40 CFR Part 464)

- Aluminum forming (40 CFR Part 467)

Copper forming (40 CFR Part 468)

eS "“~ Plastic molding and forming (40 CFR Part 463)

In addition, EPA is excluding from the metal finishing

(Part 433) regulation: (1) Metallic platemaking and gravure

cylinder preparation conducted within printing and publishing

facilities; and (2) existing source job shops and independent

printed circuit board manufacturers which introduce pollutants

into a publicly owned treatment works. As noted above, the

standards do not apply to facilities unless they perform at least

one of the following: electroplating, electroless plating, anodiz-

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ing, coating, chemical etching and milling, or printed circuit

board manufacture.

The most important pollutants of concern found in metal

finishing industry wastewaters are: (1) toxic metals (cadmium,

copper, chromium, nickel, lead, and zinc); (2) cyanide; (3)

toxic organics (lumped together as total toxic organics); and

(4) conventional pollutants (TSS and oil and grease). These

and other chemical constituents degrade water quality, endan-

ger aquatic life and human health, and in addition corrode

equipment, generate hazardous gas, and cause treatment plant

malfunctions and problems in disposing of sludges containing

toxic metals.

These plants manufacture a variety of products that are

constructed primarily of metals. The operations, which involve

materials that begin as raw stock (rods, bars, sheet, castings,

forgings, etc.), can include the most sophisticated surface

finishing technologies. These facilities include both captives

and job shops. They vary greatly in size, age, number of

employees, and number and type of operations performed.

They range from very small job shops with less than 10

employees to large facilities employing thousands of production

workers. Because of differences in size and processes, produc-

tion facilities are custom tailored to the individual plant. Some

complex products may require the choosing these pollutants

included the frequency of their occurrence in water, their

chemical stability and structure, the amount of the chemical

produced, and the availability of chemical standards for mea-

surement. ;

In addition to the original 129 toxic pollutants (of which

three are now considered nonconventional pollutants), EPA

checked for the presence, frequency, and concentration of

xylenes, alkyl epoxides, gold, fluoride, phosphorus, oil and

grease, TSS. pH, aluminum, barium, iridium, magnesium,

molybdenum, osmium, palladium, platinum, rhodium, ruthe-

nium, sodium, tin, titanium, vanadium, yttrium, and total

phenols.

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The criteria used to select plants for sampling visits were:

(1) A large percentage of the plant’s effluent discharge should

result from the manufacturing processes listed in Appendix C;

(2) the physical layout of plant plumbing should facilitate

sampling of the wastewater type under study; (3) the plant

must have waste treatment in place; (4) the mix of plants

visited should contain discharges to both surface waters and

publicaly owned treatment works; and (5) the selected plants

should provide a representative geographical distribution to

avoid a data base that concentrates on a unique geographical

condition. EPA sampled 210 facilities to identify pollutants in

plant wastewaters. Before visiting a plant, EPA reviewed all

available data on manufacturing processes and waste treat-

ment. We selected representative points at which to sample the

raw wastewater entering the treatment systems and the final

treated effluents. Finally, we prepared, reviewed, and ap-

proved a detailed sampling plan showing the selected sample

points and the overall sampling procedure.

Based on this sampling plan, we then took samples at each

sample point for 1, 2 or 3 consecutive days. The samples were

divided into two analytical groups. Within each group the

samples were subjected to various analyses, depending on the

stability of the pollutants to be analyzed. The various levels of

analysis were conducted at: (1) Local laboratories, (2) EPA’s

Chicago laboratory, (3) contracted gas chromatography/mass

spectrometry (GC/MS) laboratories, and (4) the sampling’

contractor’s central laboratory. The sampling and analysis

methods are outlined in the Development Document.

The acquisition, preservation, and analysis of the water

samples followed the relevant methods set forth in 40 CFR 136.

Although the Agency has not promulgated analytical methods

for many organic toxic pollutants under Section 304(h) of the

Act, a number of these methods have been proposed for 40

CFR 136 (44 FR 69464, December 3, 1979; 44 FR 75028,

December 18, 1979).

—S eae.

» teal

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VI. Industry Subcategorization

In developing this regulation, the Agency considered

whether different effluent limitations and standards are appro-

priate for different segments of the metal finishing industry.

The Act requires EPA to consider a number of factors to

determine if subcategorization is needed. These factors include

raw materials, final products, manufacturing processes, geogra-

phical location, plant size and age, wastewater characteristics,

non-water-quality environmental impacts, treatment costs,

energy costs, and solid waste generation.

The metal finishing industry comprises 45 unit operations.

These processes generate wastewater that falls into five waste

groups, each requiring different treatment to reduce the dis-

charge of pollutants. The five groups are metals, cyanide,

hexavalent chromium, oils, and solvents, with significant toxic

organics pollutants potentially present in the last two.

These wastes occur in a wide variety of combinations.

Throughout the industry, however the wastestreams are alike in

one critical sense; they all respond similarly to the treatment

system which is already most widely used in the industry. That

system was selected as EPA’s model technology. Its major

components, i.e., precipitation and clarification, are used for all

waste streams. After isolated treatment of hexavalent chro-

mium, cyanide, and oil and grease, pollutants in these waste

Streams are further reduced by passage through the

precipitation-clarification system which is also used for metal-

bearing wastes.

The Agency has determined that the Metal Finishing Point

Source Category need not be subcategorized for regulation. A

set of concentration based limitations, based on the perform-

ance capabilities of the model technology, can be applied to all

metal finishing process effluents.

EPA has, however decided to exempt indirect discharging

job shops and independent printed circuit board manufacturers

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from the Part 433 PSES. This has an effect similar to placing

them in a separate subcategory. As noted above, this is

consistent with the 1980 Settlement Agreement in which the

National Association of Metal Finishers promised to withdraw

its legal challenge to those Part 413 PSES if EPA did not, for

the next several years, make them significantly more stringent.

The Agency considered, but decided against production

based standard. With the wide range of operations, product

quality requirements, existing process configurations, and diffi-

culties in measuring production, no consistent production

normalizing relationship could be found. Concentration based

limits, however, can be consistently attained throughout the

industry.

VII. Available Wastewater Control and Treatment Technology

A. Status of In-Place Technology

Installed control and creatment technologies in the metal

finishing industry generally consist of sc ae form of alkaline

precipitation and clarification installed at “end-of-pipe” to

remove metals. When cyanide or hexavalent chromium wastes

are present, these wastewaters are generally segregated and

treated upstream

B. Control Treatment Options

We examined the following control treatment options:

Option 1: Precipitation and clarification. Stream segrega-

tion for cyanide, hexavalent chromium and concentrated oily

wastes followed by cyanide destruction, chromium reduction

and emulsion breaking skimming as necessary. Solvent waste

segregation and removal by hauling.

Option 2: Option | plus filtration.

Option 3: Option | plus in-plant control for cadmium.

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VIII. General Criteria for Effluent Limitations

A. BPT Effiuent Limitations

The factors considered in defining best practicable control

technolgy currently available (BPT) include: (1) The total cost

of applying the technology relative to the effluent reductions

that result, (2) the age of equipment and facilities involved,

(3) the processes used, (4) engineering aspects of the control

technology, (5) process changes, (6) non-water-quality

environmental impacts (including energy requirements), (7)

and other factors, as the Administrator considers appropriate.

In general, the BPT level represents the average of the best

existing performances of plants within the industry of various

ages, sizes, processes, or other common characteristics. When

existing performance is uniformly inadequate, BPT may be

transferred from a different subcategory or category. BPT

focuses on end-of-pipe treatment rather than process changes or

internal controls, except when these technologies are common

industry practice.

The cost/benefit inquiry for BPT is a limited balancing of

costs versus benefits, committed to EPA’s discretion, which does

not require the Agency to quantify benefits in monetary terms.

See e.g., American Iron and Steel Institute v. EPA, 528 F. 2d

1027 (3rd Cir. 1975). In balancing costs against the benefits of

effluent reduction, EPA considers the volume and nature of

existing discharges, the volume and nature of discharges ex-

pected after application of BPT, the general environmental

effects of the pollutants, and the cost and economic impacts of

the required level of pollution control. The Act does not require

or permit consideration of water quality problems attributable

to particular point sources, or water quality improvements in

particular bodies of water. Therefore, EPA has not considered

these factors. Sce Weyerhaeuser Company v. Costle, 590 F. 2d

1011 (D.C. Cir. 1978).

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B. BAT Effiuent Limitations

The factors considered in defining best available tech-

nology economically achievable (BAT) include the age of the

equipment and facilities involved, the processes used, engineer-

ing aspects of the control technology, process changes, non-

water-quality environmental impacts (including energy require-

ments), and the costs of applying such technology (Section

304(b)(2)(B)). The BAT level represents the best economi-

cally achievable performance of plants of various ages, sizes,

processes, or other shared characteristics. As with BPT,

uniformly inadequate performance within a category or

subcategory may require transfer of BAT from a different

subcategory or category. Unlike BPT, however, BAT may

include process changes or internal controls, even when these

technologies are not common industry practice.

The statutory assessment of BAT “considers” costs, but

does not require a balancing of costs against effluent reduction

benefits (see Weyerhaeuser v. Costle, supra). In developing

BAT, however, EPA has given substantial weight to the reason-

ableness of costs. The Agency has considered the volume and

nature of discharges, the volume and nature of discharges

expected after application of BAT, the general environmental

effects of the pollutants, and the costs and economic impacts of

the required pollution control levels.

Despite this expanded consideration of costs, the primary

factor for determining BAT is the effluent reduction capability

of the control technology. The Clean Water Act of 1977,

establishes the achievement of BAT as the principal national

means of controlling toxic water pollution from direct dis-

charging plants.

C. BCT Effluent Limitations

The 1977 amendments added Section 301(b)(2)(E) to

the Act, establishing “best conventional pollutant control tech-

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nology” (BCT) for discharges of conventional pollutants from

existing industrial point sources. Section 304(B)(4) specified

the following as conventional pollutants: BOD, TSS, fecal

coliform, and pH. The Administrator designated oil and grease

as “conventional” on July 30, 1979, 44 FR 44501.

BCT is not an additional limitation but replaces BAT for

the control of conventional pollutants. In addition to other

factors specified in section 304(b)(4)(B), the Act requires that

BCT limitations be assessed in light of a two part “cost-

reasonableness” test. American Paper Institute v. EPA, 660 F.

2d 954 (4th Cir. 1981). The first test compares the cost for

private industry to reduce its conventional pollutants with the

costs to publicly owned treatment works for similar levels of

reduction in their discharge of these pollutants. The second test

examines the cost-effectiveness of additional industrial treat-

ment beyond BPT. EPA must find that limitations are “‘reason-

able” under both tests before establishing them as BCT. In no

vsse may BCT be less stringent than BPT.

EPA published its methodology for carrying out the BCT

analysis on August 29, 1979, (44 FR 50732). In the case

mentioned above, the Court of Appeals ordered EPA to correct

data errors underlying EPA’s calculation of the first test, and to

apply the second cost test. (EPA had argued that a second cost

test was not required).

BCT limitations for this industry were proposed on Octo-

ber 29, 1982 (47 FR 49176). They were accompanied by a

proposed methodology for the general development of BCT

limitations. BCT limits for this industry will be promulgated

with, or soon after, the promulgation of the final methodology

for BCT development. At that time EPA will respond to

relevant comments filed in either that rulemaking or in this one.

D. New Source Performance Standards

The basis for new source performance standards (NSPS)

under Section 306 of the Act is the best available demonstrated

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technology. New plants have the opportunity to design the best

and most efficient metal finishing processes and wastewater

treatment technologies. Therefore, Congress directed EPA to

consider the best demonstrated process changes, in-plant con-

trols, and end-of-pipe treatment technologies that reduce pollu-

tion to the maximum extent feasible.

E. Pretreatment Standards for Existing Sources

Section 307(b) of the Act requires EPA to promulgate

pretreatment standards for existing sources (PSES), which

industry must achieve within three years of promulgation.

PSES are designed to prevent the discharge of pollutants which

pass through, interfere with, or are otherwise incompatible with

the operation of POTW’s.

The legislative history of the 1977 Act indicates that

pretreatment standards are to be technology-based, analogous

to the best available technology for removal of toxic pollutants.

The General Pretreatment Regulations which serve as the

framework for the final metal finishing pretreatment standards

are in 40 CFR Part 403, 46 FR 9404 (January 28, 1981).

EPA has generally determined that there is pass through of

pollutants if the percent of pollutants removed by a well-

operated POTW achieving secondary treatment is less than the

percent removal by the BAT model treatment system. A study

of 40 well-operated POTW’s with biological treatment and

meeting secondary treatment criteria showed that regulated

metals are typically removed at rates varying from 20 to 70%.

POTWs with only primary treatment have even lower rates of

removal. In contrast, BAT level treatment by metal finishing

industrial facilities can achieve removals of approximately 97%

or more. Thus it is evident that metals from this industry do

pass through POTW’s. As for toxic organics, data from the

same POTWs illustrate a wide range of removal, from 0 to

greater than 99%. Overall POTW’s have removal rates of toxic

organics which are less effective than the metal finishing TTO

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technology basis of no dumping of toxic organic wastes. The

POTW’s effluent discharge of specific toxic pollutants ranged

from 0 to 4.3 milligrams/liter. Many of the pollutants present

in metal finishing wastes, at sufficiently high concentrations, can

inhibit biodegradation in POTW operations. In addition, a

high concentration of toxic pollutants in the sludge can limit

POTW use of sludge management alternatives, including the

beneficial use of sludges on agricultural lands.

Section 307 of the Clean Water Act provides that POTW’s

may grant credit to indirect dischargers, based on the degree of

removal actually achieved at the POTW. EPA has General

Pretreatment Regulations regulating POTW’s authority to grant

such credits.

A Federal Register notice of September 28, 1982 ex-

plained EPA’s latest data and proposed national removal

credits for well operated POTW’s achieving the national secon-

dary treatment limits. See 47 FR 42698. That proposal is not

being relied on in this rulemaking; however if such credits are

available the costs of today’s standards could be substantially

reduced.

F. Pretreatment Standards for New Sources

Section 307(c) of the Act requires EPA to promulgate

pretreatment standards for new sources (PSNS) at the same

time that it promulgates NSPS. These standards are intended

to prevent the discharge of pollutants which pass through,

interfere with, or are otherwise incompatible with a POTW.

New indirect dischargers, like new direct dischargers, have the

opportunity to incorporate the best available demonstrated

technologies—including process changes, in-plant controls, and

end-of-pipe treatment technologies—and to select plant sites

that ensure the treatment system can be adequately installed.

Therefore, the Agency sets PSNS after considering the same

criteria considered for NSPS. PSNS will have effluent reduc-

tion benefits similar to NSPS.

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IX. Summary of Final Regulations

In the electroplating/metal finishing industry, the pollh

tants of concern are cadmium, chromium, copper, lead, nicke

silver, zinc, cyanide, toxic organics, TSS, oil and grease, an

pH. The treatment option selected for each effluent limitatio:

pretreatment standard and new source performance standard

based on the criteria specified in the Clean Water Act. Th

technologies are discussed in more detail in the Developme:

Document for this rulemaking.

A. Part 433

The pollutants being regulated under BPT limitations a1

cadmium, copper, chromium, nickel, !ead, silver, zinc, tot:

cyanide, TSS, oil and grease and pH. Total toxic organi

(TTO) is also being regulated. Compliance with the TTO lim

basically involves not dumping concentrated toxic organ

wastes, e.g., solvent degreasers and paint strippers. Othe

sources are generally small, infrequent, and of low concentr:

tions.

For BPT, EPA is setting limits achievable by technolog

based on precipitation and clarification for all metal finishin

effluents. In addition, for cyanide or hexavalent chromium th

technology basis incorporates techniques to destroy cyanide an

reduce hexavalent chromium to its trivalent state. The:

effluent limitations reflect the average of the best existin

control technologies widely used in the industry and remov

approximately 97.6 percent of the raw waste of toxic metals an

cyanide, and 99 percent of the toxic organics discharged. Th

technology is consistent with that used as a basis for PSES fc

the electroplating industry (January 28, 1981, 40 FR 9462) an

the March 28, 1974, suspended, BPT limitations. The limit:

tions are derived in the manner discussed in the followin

section. They are generally more stringent than those found i

currently effective electroplating pretreatment regulations, b:

cause EPA is now using a revised and updated data base.

A-19

For BAT, EPA is establishing limitations for the toxic

pollutants and at a level equivalent to BPT. The Agency

seriously considered setting BAT and BAT-level PSES limita-

tions based on BPT level technology plus filtration. Filtration

would have led to an additional capital cost of almost $1.2

billion. In light of the statutory mandate to consider cost in

setting BAT, EPA decided to reject the filtration option,

because of its very high aggregate cost on a nationwide basis.

We did not select in-plant cadmium control because it can

require significant re-engineering of process water flow and of

product and equipment handling, on a plant-by-plant basis.

The changes vary widely and in many cases could be difficult

for existing plants to apply. The compliance date for BAT is no

later than July 1, 1984, the maximum time allowed by the Act.

For NSPS, EPA is establishing limitations based on

BPT/BAT technology plus in-plant control of cadmium. This

additional control takes advantage of a new plant’s ability to

achieve effluent reductions of 69% beyond BAT cadmium

levels. The pollutants regulated under NSPS are the same as

those regulated under BPT limitations.

For PSES in the Metal Finishing Category, limitations are

based on technology equivalent to BAT and BPT. The

pollutants regulated under this PSES are the same as the toxic

pollutants regulated under BPT (BAT) limitations. A study of

40 well-operated POTWs with biological treatment and meet-

ing secondary treatment criteria showed that regulated metals

and cyanide are typically removed at rates varying from 20 to

70%. POTWs with primary treatment have even lower rates of

removal. In contrast, metal finishing PSES-level treatment can

achieve removals of approximately 97%. Thus it is evident that

metals and cyanide from this industry do pass through POT Ws.

As for toxic organics, data from the same POTWs illustrates a

wide range of removal, from 0% to greater than 99%. Overall

POTWs have removal rates of toxic organics which are less

effective than the metal finishing TTO technology basis of no

A-20

dumping of toxic organic wastes. The POTWs effluent dis-

charge of specific toxic pollutants ranged from 0 to 4.3 mg/1.

Many of the pollutants present in metal finishing wastes at

sufficiently high concentrations can inhibit biodegradation in

POTW operations. In addition, a high concentration of toxic

pollutants in the sludge can limit POTW use of sludge manage-

ment alternatives, including the beneficial use of sludges on

agricultural lands.

The compliance date for the metal finishing PSES is

February 15, 1986 for metals, cyanide, and TTO. Agency

analysis indicates that facilities can plan, design, and install the

necessary equipment in 3i months, which will be allowed by

the specified compliance date. There is also a June 30, 1984

compliance date for an interim toxic organic limit, which can be

met by in-house management and handling controls.

For PSNS, limitations are based on technology equivalent

to NSPS. The pollutants regulated under PSNS are the same as

the toxics regulated under NSPS. As with PSES, these pollu-

tants are necessary for control in PSNS to prevent pass through,

interference, and sludge contamination.

« * * * *

XVII. Variances and Modifications

Federal and State NPDES permits to direct dischargers

must enforce these effluent standards. The pretreatment limita-

tions apply directly to indirect dischargers.

The only exception to the BPT effluent limitations is EPA’s

“fundamentally different factors” variance. See E. I. duPont de

Nemours and Co. v. Train, supra; Weyerhaeuser Co. v. Costle,

supra. This variance recognizes characteristics of a particular

discharger in the category regulated that are fundamentally

different from the characteristics considered in this rulemaking.

Although this variance clause was set forth in EPA’s 1973-1976

industry regulations, it need not be included in this regulation.

See 40 CFR Part 125.30.

A-21

Dischargers subject to the BAT limitations are also eligible

for EPA’s “fundamentally different factors” variance. BAT

limitations for nonconventional pollutants may be modified

under Sections 301(c) and 301(g) of the Act. These statutory

modifications do not apply to toxic or conventional pollutants.

According to Section 301(j)(1)(B), applications for these

modifications must be filed within 270 days after promulgation

of final effluent limitations and standards. See 43 FR 40859

(Sept. 13, 1978). These Part 413 and Part 433 regulations do

not regulate any non-conventional, non-toxic, pollutants. If any

of the regulated pollutants are declared non-toxic, and non-

conventional in the future, then dischargers may seek 301(c) or

301(g) modifications.

Indirect dischargers subject to PSES are eligible for the

“fundamentally different factors” variance and for credits for

toxic pollutants removed by POTW. See 40 CFR 403.7;

403.13; 46 FR 9404 (January 28, 1981). Indirect dischargers

subject to PSNS are only eligible for the credits provided for in

40 CFR 403.7. New sources subject to NSPS are not eligible

for EPA’s “fundamentally different factors” variance or any

statutory or reguiatory modifications. See E. J. duPont de

Nemours v. Train, supra.

XVIII. Implementation of Limitations and Standards

* * * « *

B. Indirect Dischargers

For indirect dischargers, PSES and PSNS are implemented

under National Pretreatment Program procedures outlined in

40 CFR Part 403. The table below may be of assistance in

resolving questions about the operation of that program. A

brief explanation of some of the submissions indicated on the

table follows:

A “request for category determination request” is a written

request, submitted by an indirect discharger or its POTW, for a

A-22

certification on whether the indirect discharger falls within

particular subcategory listed in a categorical pretreatment star

dard. This assists the indirect discharger in knowing just whic

PSES or PSNS limits it will be required to meet. See 40 CF

403.6(a).

A “request for fundamentally different factors variance”

a mechanism by which a categorical pretreatment standar

may be adjusted, making it more or less stringent, on a case-b:

case basis. If an indirect discharger, a POTW, or any intereste

person believes that factors relating to specific indirect di:

charger are fundamentally different from those factors consic

ered during development of the relevant categorical pr

treatment standard and that the existence of those facto:

justifies a different discharge limit from that specified in th

categorical standard, then they may submit a request to EP.

for such a variance. See 40 CFR 403.13.

A “baseline monitoring report” is the first report a

indirect discharger must file following promulgation of a star

dard applicable to it. The baseline report includes: an i

dentification of the indirect discharger; a description of i

operations; a report on the flows of regulated streams and th

results of sampling analyses to determine levels of regulate

pollutants in those streams; a statement of the discharger

compliance or noncompliance with the standard; and a descriy

tion of any additional steps required to achieve complianc

See 40 CFR 403.12(b) ‘

A “report on compliance” is required of each indire

discharger within 90 days following the date for complianc

with an applicable categorical pretreatment standard. Th

report must indicate the nature and concentration of all regi

lated pollutants in the facility’s regulated process wastestream

the average and maximum daily flows of the regulated stream

and a statement of whether compliance is consistently beir

achieved, and if not, what additional operation and maint

nance and/or pretreatment is necessary to achieve complianc

See 40 CFR 403.12(d)

A-23

A “periodic compliance report” is a report on continuing

compliance with all applicable categorical pretreatment stan-

dards. It is submitted twice per year (June and December) by

indirect dischargers subject to the standards. The report shall

indicate the precise nature and concentrations of the regulated

pollutants in its discharge to the POTW; the average and

maximum daily flow rates of the facility; the methods used by

the indirect discharger to sample and analyze the data, and a

certification that these methods conformed to those methods

outlined in the regulations. See 40 CFR 403.12(e)

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A-25

i C. Applicability and Compliance Dates

In the electroplating/metal finishing industry some facil-

vities are subject to the Electroplating Category (Part 413)

and/or the Metal Finishing Category (Part 433). Table 3

below illustrates which of the regulations are applicable to the

4 various types of facilities. Facilities are subject only to Part 433

+ (metal finishing) for BPT, BAT, NSPS, and PSNS. For PSES,

“facilities generally fall within the applicability of both Parts,

although, for each pollutant, only one Part will apply at a given

itime. There are two exceptions: (1) Existing indirect dis-

‘charging job shops and IPCBMs have been exempted from the

Part 433 Metal Finishing PSES, and (2) metal finishing

wastewaters at iron and steel mills are exempted from the Part

4413 Electroplating PSES.

TABLE 3.—APPLICABILITY

Metal

finishing at

iron and

Job shops} IPCBM | Captives} steel mills'

PSES:

Electroplating ( Part 413)....... ee etre: aN

= Metal Finishing (Part 433) 000.) 0... | cesseeeee _ ane ) ee

BPT, BAT, NSPS, PSNS:

Metal Finishing....................... ES Recs a

' Electroplating process wastewater at iron and steel mills was

xcluded from the Electroplating PSES by 40 CFR 413.Q1. Flows

om the metal finishing processes at those plants are covered by 40

FR 433.

The compliance dates for the two categories are presented

Table 4. BPT, BAT, PSNS, and NSPS compliance dates are

Specified by the Clean Water Act. The compliance dates for

lectroplating PSES were set in the Federal Register on

A-26

September 28, 1982. See 47 FR 42698. Today’s regulation

allows facilities 3 years to comply with the Electroplating PSES

for toxic organics consistent with the Settlement Agreement

with NAMF. For metal finishing, the Agency is allowing 31

months for compliance with all parameters. In addition an

interim TTO limit has been established for compliance by June

30, 1984; except for metal finishing wastewaters from plants

which are also subject to Part 420 (iron and steel), which must

comply by July 10, 1985. This last exception is pursuant to a

settlement agreement with the steel industry in which EPA

agreed that pretreatment requirements would apply tc steel

discharges in July 1985. It is possible that control of TTO in

metal finishing waste streams could, in some cases, leaci steel

facilities to install treatment technology on the discharge from

their steel processes. Therefore, EPA has decided to allow

plants covered by Part 420 until June, 1985 to comply with the

TTO limit.

A-27

TABLE 4.—COMPLIANCE DATES

Regulation Compliance date

Electroplating PSES for ............... April 27, 1984 (for nonintegrated

plants ).

Metals aad Cyanide (Part 413)...| June 30, 1984 (for integrated

plants).

Electroplating PSES (Part 413) | July 15, 1986.

for TTO2

Metal Finishing BPT ( Part 433). | As soon as possible.

Metal Finishing BAT. .................. July 1, 1984.

Metal Finishing PSES for TTO' | June 30, 1984 (except for plants

covered by Part 420); July 10,

1985 (for plants covered by

Part 420).

Metal Finishing PSES for Metals, | February 15, 1986.

Cyande and TTO2

Metal Finishing NSPS and

PSNS. From commencement of dis-

charge.

' For these facilities the first TTO limit is based on management

practices only.

2 Thus TTO limit is based on management practices followed by

percipitation/clarification.

D. Enforcement

A final topic of concern is the operation of EPA’s enforce-

= ment program. This was an important consideration in devel-

oping this regulation. EPA deliberately sought to avoid

standards which would be exceeded by routine fluctuations of

well-designed and operated treatment systems. These stan-

dards were developed so as to represent limits which such a

plant would meet approximately 99% of the time.

The Clean Water Act is a strict liability statute. EPA

emphasizes, however, that it can exercise discretion in deciding

to initiate enforcement proceedings ( Sierra Club v. Train, 557

A-28

F. 2d 485, 5th Cir., 1977). EPA has exercised, and intends 1

exercise, that discretion in a manner that recognizes an

promotes good-faith compliance.

* * ~ x *

PART 433—METAL FINISHING POINT SOURCE