Appendix — American Mining Congress v. Thomas

Supreme Court brief1986

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No. q APR

Supreme Court, U.S.

LED

24 1986

- SPANIOL, JR:

LERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

AMERICAN MINING CONGRESS,

AMAX INC.,

ASARCO INCORPORATED,

St. JoE MINERALS CORPORATION,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Petition for Writ of Certiorari to the United States Court

of Appeals for the Fourth Circuit

APPENDIX

JAMES R. WALPOLE*

EDMUND E. HARVEY

JOANNE M. SALVATORE

CHADBOURNE & PARKE

1101 Vermont Ave., N.W.

Suite 900

Washington, D.C. 20005

(202) 289-3000

Of Counsel:

ROBERT A. EMMETT

DOUGLAS E. MCALLISTER REED SMITH SHAW & MCCLAY

AMERICAN MINING CONGRESS’ 1150 Conn. Ave., N.W.

1920 N Street, N.W. Washington, D.C. 20036

Washington, D.C. 20036 (202) 457-6100

Ol) ee Attorneys for Petitioners

*Counsel of Record

2 A Ie SE ES PST STDP SEPIA

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

on. oO oorem. .

TABLE OF CONTENTS

. Decision of the Court of Appeals for the Fourth

Circuit, December 26, 1985, in Nos. 84-1288(L),

es — vacances AabidsidssGlcdnudsaniodueiensannitdidcnaibauanabemuipudss

Order of the Court of Appeals for the Fourth

Circuit, January 24, 1986, denying petition for

rehearing and suggestion for hearing en banc

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. Order of the Court of Appeals for the Fourth

Circuit, August 2, 1985, granting petitioners’

unopposed motion for leave to file a supple-

mental appendix to their reply brief _.............

Affidavit from supplemental appendix of

petitioners’ Fourth Circuit reply brief _...........

. Order of the Court of Appeals for the Fourth

Circuit, April 16, 1985, upon motion for recon-

sideration, denying petitioners’ motions to sup-

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Order of the Court of Appeals for the Fourth

Circuit, March 1, 1985, denying petitioners’ mo-

tions to supplement the record _ .................00005

Order of the Court of Appeals for the Fourth

Circuit, August 23, 1984, consolidating cases for

briefing and oral argument _ ...............cceeeeeee eee

Portions of the Administrative Procedure Act, 5

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I. Portions of the Clean Water Act, 33 U.S.C. § 1314

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K. Portions of the Federal Register final regulations

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APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

No. 84-1288 (L)

Kennecott,

Petitioner,

versus

United States Environmental Protection Agency,

Respondent.

GTE Products Corporation,

Intervenor/Petitioner.

No. 84-1479

American Mining Congress,

AMAX, Inc., and ASARCO Incorporated,

Petitioners,

versus

United States Environmental Protection Agency,

Respondent.

No. 84-1487

St. Joe Minerals Corporation,

Petitioner,

versus

United States Environmental Protection Agency,

Respondent.

_—_

No. 84-1659

———_—— -

The Secondary Lead Smelters Association,

Petitioner,

versus

William Ruckelshaus, Administrator,

United States Environmental Protection Agency,

Respondent.

Gulf Coast Lead Company,

Intervenor/Petitioner.

—_———_—____

No. 84-1694

Mallinckrodt, Inc..,

Petitioner,

versus

United States Environmental Protection Agency,

Respondent.

—_——_—____

On Petition for Review of an Order of the

Environmental Protection Agency.

Argued: October 9, 1985 Decided: December 26, 1985

Before PHILLIPS, MURNAGHAN and

WILKINSON, Circuit Judges.

James R. Walpole (Susan L. Smith; Holland & Hart on

brief); Robert A. Emmett (Reed, Smith, Shaw & McClay

on brief); Kurt E. Blase (Edwin H. Seeger; Richard T.

Witt; Prather, Seeger, Doolittle & Farmer; Paul D. Fro-

hardt; Holland & Hart; Douglas E. McAllister, Assistant

Chief Counsel, American Mining Congress on brief) for

Group I Petitioners; Robert N. Steinwurtzl (Stephen E.

Roady; Mary Douglas Dick; Brown, Roady, Bonvillian &

Gold, Chartered on brief) for Group III Petitioners; Theo-

dore L. Garrett (Laird Hart; Covington & Burling on brief)

for Group IV Petitioners; Michael W. Steinberg, U. S.

Department of Justice; Steven E. Silverman, Office of Gen-

eral Counsel, U. S. Environmental Protection Agency (F.

Henry Habicht, II, Assistant Attorney General, Land and

Natural Resources Division; Dean K. Dunsmore; Scott

Slaughter; U. S. Department of Justice; Ellen Siegler; Of-

fice of General Counsel, U. S. Environmental Protection

Agency; Susan G. LePow, Assistant General Counsel, U.

S. Environmental Protection Agency on brief) for

Respondent.

WILKINSON, Circuit Judge:

Petitioners challenge the effluent limitations set by the

Environmental Protection Agency for the non-ferrous met-

als manufacturing industry. EPA established the limita-

tions in a rulemaking pursuant to the Clean Water Act

of 1977, 33 U.S.C. §§ 1251-1376 (1982).! Congress passed

the Clean Water Act as an amendment to the Federal

Water Pollution Control Act of 1972. The amendment pre-

‘The challenged regulations are codified at 40 C.F.R. § 421 (1985).

serves the fundamental purpose of the 1972 Act: “‘[t]o

restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.’’ 33 U.S.C. § 1251. In

setting effluent limitations for the non-ferrous metals in-

dustry, EPA acted to implement this congressional man-

date to clean up the nation’s navigable waterways. We

have reviewed with care petitioners’ challenges to these

regulations. We conclude, however, that EPA has properly

discharged the task it is required by Congress to perform.

The instant action reflects the tensions recurrent in

every case of environmental regulation. The first group of

petitioners here produce substantial amounts of the coun-

try’s primary copper, lead, and zinc. Others recycle dis-

carded lead batteries for a variety of uses, and still another

produces columbium-tantalum, of importance to the aero-

space, energy, and transportation industries. The indus-

tries contend that the effluent limitations adopted by EPA

in “he name of the Act are unachievable and will impose

widespread costs upon the industries themselves and upon

those who depend for their economic livelihood upon non-

ferrous metals use.

EPA in turn states that petitioners discharge massive

amounts of pollutants, over 3 million pounds annually, in-

cluding “‘some of the most toxic metals found in industrial

waste streams ... lead, cadmium, arsenic, antimony, and

zinc.’ It contends these pollutants create “a variety of

serious adverse health and environmental effects, including

cancer, brain damage, and kidney failure.’’ The effluent

limits are, in EPA’s view, based upon achievable technol-

ogies and must be met promptly to fulfill the basic pur-

poses of the Clean Water Act.

The record in this case is voluminous. The rulemaking

itself is highly technical. Petitioners have challenged EPA’s

choice of data, its statistical methods, and its economic

analysis. It is something of an understatement to say that

the expertise of the parties with regard to the non-ferrous

metals industry exceeds that of this court. Without sus-

pending our critical faculties, we nonetheless believe that

the benefit of the doubt in the battle of the data belongs

to the agency in which Congress has reposed responsibility

for administration of the Act, see 33 U.S.C. § 1251(d). In

addition, this court is bound by the general rules of de-

ference that run throughout administrative law. We may

not overturn the agency’s judgment simply because we

might have drafted different regulations; remand is limited

to those cases in which the agency has acted without rea-

sonable basis. American Meat Inst. v. EPA, 526 F.2d 442,

450 (7th Cir. 1975). -

We begin with the philosophy of the Clean Water Act.

The Act requires EPA to set effluent limitations for in-

dustries in two stages. As a preliminary matter, Congress

asked EPA to set limits based on the “best practicable

control technology currently available’’ (BPT). 33 U.S.C.

§ 1311(bX1\A). EPA defines BPT as “‘the average of the

best existing performance by plants of various sizes, ages

and unit processes within each industrial category or sub-

category. This average is not based upon a broad range

of plants within an industrial category or subcategory, but

is based upon performance levels achieved by exemplary

plants.”” EPA v. Nat’l Crushed Stone Ass'n, 449 U.S. 64,

76 n.15 (1980), quoting 39 Fed. Reg. 6580 (1974).

In the second stage, Congress directed EPA to set an

even more stringent standard, basing effluent limitations

on the ‘‘best available technology economically achievable”

(BAT) for an _ industrial category. 33 U.S.C. §

1311(bX2KAXCXD) and (F). The BAT standard reflects the

intention of Congress to use the latest scientific research

and technology in setting effluent limits, pushing industries

toward the goal of zero discharge as quickly as possible.

In setting BAT, EPA uses not the average plant, but the

optimally operating plant, the pilot plant which acts as a

beacon to show what is possible. See A Legislative History

of the Water Pollution Control Act Amendments of 1972,

93d Cong., 1st Sess. (Comm. Print 1973), at 798 (here-

inafter ‘Leg. Hist.’’). “The distinction between ‘best prac-

ticable’ and ‘best available’ is intended to reflect the need

to press toward increasingly higher levels of control... .”

Leg. Hist. at 170.

For the purposes of this case, the non-ferrous metals

industry was generally subject to BAT requirements. De-

fining Best Available Technology requires substantial tech-

nical expertise in evaluating both the efficiency of advanced

technologies and the adaptability of those technologies to

the production processes of the companies in this case.

Our review of the EPA rulemaking is appropriately cau-

tious. As this court has previously noted, ‘‘The scope of

our review is further colored by the policy of the Clean

Water Act and the sophisticated data evaluations man-

dated by that lengthy and complicated statute.... Fur-

ther, technological and scientific issues, such as those

presented in this case, are by their very nature difficult

to resolve by traditional principles of judicial decisionmak-

ing.”” Reynolds Metals Co. v. EPA, 760 F.2d 549, 558-59

(4th Cir. 1985).

We proceed, however, on the understanding that Best

Available Technology was the means chosen by Congress

to achieve ‘‘the national goal that the discharge of pol-

lutants into the navigable waters be eliminated by 1985,”

33 U.S.C. § 1251(aX1), a goal that implies some urgency

to the environmental task that Congress set. While Con-

gress was careful to require agency consideration of such

factors as the cost to industry of achieving appropriate

effluent reductions, it left EPA some latitude in defining

BAT, permitting in addition to enumerated criteria, the

consideration of “‘such other factors as the Administrator

deems appropriate.’’ See 33 U.S.C. § 1314(b\2\B).

To achieve a reasoned result in a dispute over technol-

ogies, EPA is bound to consider industry data, but it is

not bound to accept it. Any other resolution would un-

dermine the integrity of agency decision-making. For ob-

vious reasons, this court should be loathe to compel an

agency to accept data submitted by a regulated industry.

That does not imply we are blind to the capacities of

agencies to enthrone their own agendas and dismiss con-

tending views. In considering petitioners’ challenges to the

non-ferrous metals rulemaking, we ask whether EPA’s

technical judgments find support in the record and whether

they reflect the rule of reason, not the imposition of fiat.

The deference to the technical expertise of the Admin-

istrator supplements the deference generally required of

courts reviewing administrative actions. The Administrative

Procedure Act (APA) specifies that a court may overturn

an agency action only if it is ‘‘arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2KA). The court best acts as a check on agency

decisionmaking by scrutinizing process and by determining

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, Inc. v.

Volpe, 401 U.S. 402, 416 (1971). Whether the agency has

provided notice and an opportunity to comment, and has

fairly considered all significant data and comments, is the

heart of the judicial inquiry. Chocolate Mfrs. Ass'n v. Block,

755 F.2d 1098 (4th Cir. 1985). Once the agency has been

found to follow the prescribed course of procedure, its

“choice of scientific data and statistical methodology”’ is

entitled to respect. National Ass'n of Metal Finishers v.

EPA, 719 F.2d 624, 657 (8rd Cir. 1983), rev'd on other

grounds sub nom. Chemical Mfrs. Ass'n v. NRDC, —_U.S.

__._, 105 S.Ct. 1102 (1985).

EPA did not approach casually the task of non-ferrous

metals rulemaking. In 1977, the agency began gathering

data for the proposed rules which it published on February

17, 1983. 48 Fed. Reg. 7032-7126. Data was obtained from

plant visits, plant samplings, studies of scientific journals,

and consultations with industry. Three hundred and nine-

teen firms, operating 416 facilities, received questionnaires

from EPA asking for information on flow rates, production

rates, wastewater treatment, and costs. Jd. at 7044. Each

plant visited by EPA also received an opportunity to com-

ment on the trip report prepared by the agency. Various

of the petitioners met with EPA both before and after

publication of the proposed rules.

The resulting record ran 24,000 pages. EPA solicited

public comment on all aspects of the regulations, high-

lighting points on which the agency wanted additional in-

formation. Jd. at 7073. The initial comment period lasted

eleven weeks. EPA reopened the comment period twice

and accepted late-filed comments from one of the

petitioners. 48 Fed. Reg. 50906 (Nov. 4, 1983); 48 Fed.

Reg. 52604 (Nov. 21, 1983).

The agency considered the comments and contacted each

petitioner with follow-up inquiries. The comments led EPA

to re-examine its selections of model technologies and data

bases. EPA likewise considered additional data on the

treatment of lead and ammonia, as well as continuing to

request and evaluate data from plants that had not pre-

viously submitted data. The long process of gathering data

and the ongoing dialogue with the industry culminated in

the final rule promulgated March 8, 1984.

We do not imply, in detailing this lengthy consideration,

that a matter of the magnitude and complexity of non-

ferrous metals rulemaking deserved anything less. We note

only that an appellate court cannot be oblivious to the

expenditure of effort that preceded its consideration and

that, if the process has been a fair one, a time does come

when rulemaking may cease and compliance must com-

mence.

Il.

For the purposes of this appeal, petitioners have been

grouped according to industry. The first group of

petitioners are Kennecott, American Mining Congress,

AMAX, Inc., ASARCO Incorporated, St. Joe Minerals Cor-

poration, and GTE Products Corporation (hereinafter

“Kennecott”’). Together these companies are responsible

for much of the United States production of primary cop-

per, primary lead and primary zinc. Their plants process

ore mined from the ground to produce the primary base

metals.

Kennecott objects to the non-ferrous metals rulemaking,

arguing that the agency’s data base was flawed, that

petitioners were not given the opportunity to comment on

part of the model technology, sulfide precipitation, and

that EPA incorrectly calculated flow allowances. After

carefully considering petitioners’ numerous and specific ob-

jections, we have concluded that EPA acted within the

bounds of its discretion when it set effluent limits for the

primary metals industry.

When it set effluent limits for the primary metals in-

dustry, EPA used as its model technology a waste treat-

ment process called lime, settle and filtration (L,S&F).

Briefly, this treatment technique works in the following

way: adding lime to wastewater increases tie pH; it makes

the wastewater more alkaline. At different pHs, different

metals precipitate, that is, emerge from solution and be-

come suspended as solids in the wastewater. Eventually,

most solids settle at the bottom of the tank. The precip-

itate can then be disposed of separately from the waste-

water. The wastewater is often subsequently filtered

through coal or sand in order to remove additional sus-

pended solids.

10a

A number of industries use lime and settle. Beginning

in the late 1970’s, EPA collected data from six such in-

dustries (aluminum forming, battery manufacturing, sec-

- ondary lead, coil coating, copper forming, and porcelain

enameling). After deleting unreliable data, EPA compiled

the Combined Metals Data Base (CMDB). The agency then

used the CMDB to calculate achievable effluent limitations

for several related industries, including the primary base

metals industry.

Kennecott objects to EPA’s use of the CMDB. It argues

that the CMDB data was limited, that the wastewaters of

CMDB plants differed significantly from those of the pri-

mary metals plants, and that EPA should not have rejected

data submitted by the primary metals industry.

Kennecott’s basic objection is that EPA used data from

the waste treatment systems of other industries (the

CMDB) rather than using data submitted by the primary

metals industry. Specifically, Kennecott makes the follow-

ing argument: EPA’s data base was limited, containing

only 300 raw and treated data points from nineteen plants.

EPA did not obtain samples from any given plants over

a long term; therefore, the data cannot accurately reflect

long-term performance. Kennecott contends that long-term

data is necessary because fluctuations in pollutant concen-

trations occur even in properly operated treatment facil-

ities due to “seasonal changes in temperature and

precipitation, production surges or slow downs”’ and other

variables. Because EPA did not collect enough samples,

over a long enough period of time, Kennecott contends

that the data does not accurately reflect achievable con-

centrations. Therefore, Kennecott says, petitioners will not

be able to meet the effluent limitations.

In response, EPA notes that courts customarily defer

to an agency’s choice of data, and that in any case, EPA

could use the CMDB to predict long-term performance

accurately. On the first point, the agency is indisputably

lla

correct. This court has consistently given EPA a reason-

able leeway in its selection of data and statistical methods.

FMC Corp. v. Train, 589 F.2d 973, 986 (4th Cir. 1976).

“(W]e note that an agency’s data selection and choice of

statistical methods are entitled to great deference ... and

its conclusions with respect to data and analysis need only

fall within a ‘zone of reasonableness’.’’ Reynolds Metals,

760 F.2d at 559 (citations omitted). The question is thus

whether EPA acted reasonably in basing effluent limita-

tions for the primary base metals industry on the CMDB.

EPA contends that it does not necessarily need long-

term data to predict long-term performance. It notes that

the data base at issue here has been used in regulations

in a number of other metals industries. By using well-

established statistical methods, EPA could factor in the

variability one would expect in an optimally operating

plant. It is true that prediction of long-term performance

would not account for fluctuations resulting from opera-

tional failures. However, the agency argues that plants

with operating problems do not represent the Act’s goal

of Best Available Technology. FMC Corp. v. Train, 539

F.2d at 986. (“The purpose of these variability factors is

to account for the routine fluctuations that occur in plant

operation, not to allow for poor performances.’’) Moreover,

the agency contends that the addition of second-step sul-

fide precipitation to the model technology further reduces

the variability of lime and settle treatment. See subsection

IIB, infra. Courts have traditionally respected the agency’s

selection of a data base in the face of challenges that the

data failed to account for variable pollution loads, Ass'n

of Pac. Fisheries v. EPA, 615 F.2d 794, 812-13 (9th Cir.

1980); American Petroleum Inst. v. EPA, 540 F.2d 1023,

1035-36 (10th Cir. 1976). The number of data points here

is not insignificant, and there must exist some reasonable

termination point in the process of data collection.

Kennecott responds that even if EPA collected a suf-

ficient number of data points, the CMDB remains flawed.

12a

It argues that the CMDB wastewater is so different from

the wastewater in the primary metals industries that EPA

cannot use the CMDB to set effluent limits that would

apply to Kennecott. Without quantifying its claim, Ken-

necott says that the base metals industry has “huge

amounts of wastewater,” “‘tremendously high concentra-

tions of metals,” and a “‘very large variety of different

metals”” in the wastewater. EPA’s similarly unquantified

response is that the wastewaters in the CMDB industries

and those of the primary base metals industry are indeed

comparable. The agency agrees that the differences in con-

centration of metals may be statistically significant. How-

ever, there is evidence to show that the treatability of

wastewater depends on the solubility of the pollutants, not

on their concentrations. A difference in concentration of

influents would thus not affect the concentration of ef-

fluents. See Proposed Rules, 48 Fed. Reg. 7050 (Feb. 17,

1983). This judgment constitutes a reasonable basis for

EPA’s belief that the wastewaters are comparable. We

cannot say that EPA has acted arbitrarily or capriciously

in using the CMDB to set effluent limitations for the pri-

mary metals industries.

Finally, we do not believe that EPA acted arbitrarily

in rejecting the data submitted by the industry. EPA ex-

amined the data from petitioners’ plants and concluded

that six of the plants were not operating properly, and

the seventh was unrepresentative. EPA determined that

three plants were improperly operating one or more steps

of the lime and settle process; they had ineffective pH

adjustment, inadequate wastewater settling time, or lacked

wastewater equalization. Plants use equalization to send

more uniform loads of pollutants to the treatment system,

ensuring that the system is not overloaded. In three other

plants, patterns of extreme variability in treated effluents

suggested to EPA that the plants were not equalizing their

wastewaters properly. Finally, EPA considered that the

seventh plant was unrepresentative because nearly all of

13a

its wastewater came from sources not related to the man-

ufacturing processes covered by these regulations. We can-

not say, therefore, that EPA abused its discretion by

rejecting the industry data.

EPA had originally proposed lime, settle and filtration

as the BAT for treating wastewater in the primary base

metals industry. Commenters objected that they would not

be able to meet the proposed effluent limitations. In the

Final Rules, EPA responded that any plant unable to meet

the effluent limitations by using the model lime, settle and

filtration technology could add an additional step: sulfide

precipitation. While the APA requires the opportunity for

public participation in rulemaking, “‘[t]here is no question

that an agency may promulgate a final rule that differs

in some particulars from its proposal.’’ Chocolate Manu-

facturers, 755 F.2d at 1103-04. Kennecott objects, how-

ever, to the inclusion of sulfide precipitation on the grounds

that it was not given notice or the opportunity to com-

ment. Had it been given the opportunity, Kennecott says,

it would have filed comments detailing the reasons that

sulfide precipitation would not reduce effluent concentra-

tions to the required levels.

Sulfide precipitation works on the same principle as lime

and settle. When sulfide is added to wastewater, certain

pollutants precipitate out and become suspended as solids

in the wastewater. The wastewater is held in tanks until

most of the precipitated metals have settled to the bottom.

Filtration will remove additional suspended solids. When

sulfide precipitation precedes L,S&F, it is called ‘‘sulfide

pretreatment.’ When sulfide precipitation follows L,S&F,

it is called ‘‘sulfide polishing.”

Kennecott charges that EPA gave no indication that it

was considering using lime, settle and filter plus sulfide

precipitation as the model technology. An agency is, of

l4a

course, required to give notice “sufficiently descriptive to

provide interested parties with a fair opportunity to com-

ment and to participate in the rulemaking.’ Chocolate

Manufacturers, 755 F.2d at 1104. EPA listed six control

and treatment options in the proposed rules; sulfide pre-

cipitation was not among them. We note, however, that

the agency is not required to specify every precise proposal

that it may eventually adopt as a rule, Consolidation Coal

Co. v. Costle, 604 F.2d 239, 248 (4th Cir. 1979). EPA

actually did discuss sulfide precipitation in the Develop-

ment Document, which accompanied the Proposed Rules,

although Kennecott contends that these brief references

were insufficient to give notice, buried as they were amidst

a discussion of two dozen other treatment technologies.

As a result, Kennecott believes it was deprived of notice

and the opportunity to comment on sulfide precipitation.

EPA would characterize the sequence of events here

differently: EPA proposed limits, the primary metals in-

dustry commented that it would not be able to meet those

limits, and EPA added another treatment step so that

plants could more readily comply with the established ef-

fluent guidelines. EPA styles its introduction of sulfide

precipitation a ‘‘natural and logical outgrowth”’ of the com-

menting procedure. Cf. BASF Wyandotte Corp. v. Costle,

598 F.2d 637, 642 (1st Cir. 1979), cert. denied sub nom.

Eli Lilly & Co. v. Costle, 444 U.S. 1096 (1980). This de-

scription of events may, of course, mask a displeasing side

of agency behavior. It is not acceptable for an agency to

set unachievable limits, and then, when the industry ob-

jects, to pull a curative technology out of its hat. This

sort of conduct would frustrate the purpose of the pro-

cedural safeguards in the administrative process, and re-

place participatory rulemaking with rulemaking by ambush.

The question of adequate notice requires ‘‘careful consid-

eration on a case-by-case basis.”” BASF Wyandotte, 598 F.2d

at 642. Here, there is no indication that EPA acted in bad

faith and there is ample indication that the base metals

15a

industry should reasonably have known that EPA was con-

sidering sulfide precipitation. In the preamble to the pro-

posed rules, EPA specifically asked for comments on

alternative treatment technologies. In the associated De-

velopment Document, EPA included both lime and settle

and sulfide precipitation in its discussion of effective chem-

ical precipitation methods. EPA also discussed the advan-

tages and limitations of sulfide precipitation in some detail.

Finally, the Development Document contained several

charts on sulfide precipitation, including data on the per-

formance of sulfide precipitation-sedimentation systems and

a comparison of the solubilities of hydroxides and sulfides

of selected metals.

Just aS an agency may not ambush an industry by with-

holding a proposed technology until after the period for

comment, an industry may not remain silent during that

period only to complain upon appeal that it was deprived

of an opportunity to comment on what it might reasonably

have been apprised. This circuit has also noted that while

an agency may not bootstrap new technologies from the

comments, it may make “‘substantial changes’’ in its original

proposed rule if the changes are a “logical outgrowth’’ of

the original proposal and the notice and comments upon it.

American Paper Inst. v. EPA, 660 F.2d 954, 959 n.13 (4th

Cir. 1981). Accordingly, we hold that EPA did not violate

the requirements of the Administrative Procedure Act when,

in an attempt to respond to industry comments and com-

plaints, it added sulfide precipitation as a supplement to

the Best Available Technology on which its effluent limi-

tations were grounded.

There remains the question of whether EPA acted ar-

bitrarily in selecting sulfide precipitation as part of the

Best Available Technology. Kennecott argues that sulfide

precipitation will not reduce effluent concentrations to the

required levels. Specifically, Kennecott charges that data

from the model plants which currently use sulfide precip-

itation (Ashio, Japan; Boliden, Sweden; AMAX Ft. Madi-

l6a

son) cannot be used to predict achievable concentrations at

Kennecott’s plants, because conditions at the two groups

of plants are so different. Kennecott notes that the plant

in Ashio, Japan, for example, uses sulfide precipitation to

produce arsenic trioxide as an end-product, rather than to

treat wastewater. EPA replies that the ultimate disposition

of the solid precipitate is irrelevant, as long as the con-

centration levels of pollutants in the wastewater are ac-

ceptable.

The model technology may exist at a plant not within

the primary base metals industry. Congress contemplated

that EPA might use technology from other industries to

establish the Best Available Technology. Reynolds Metals,

760 F.2d at 562. Progress would be slowed if EPA were

invariably limited to treatment schemes already in force

at the plants which are the subject of the rulemaking.

Congress envisioned the scanning of broader horizons and

asked EPA to survey related industries and current re-

search to find technologies which might be used to de-

crease the discharge of pollutants. Leg. Hist. at 170.

To determine that technology from one industry can be

applied to another, the agency must:

(1) show that the transfer technology is available

outside the industry;

(2) determine that the technology is transferable

to the industry;

(3) make a reasonable prediction that the tech-

nology if used in the industry will be capable of

removing the increment required by the effluent

standards.

Tanner’s Council of America, Inc. v. Train, 540 F.2d 1188,

1192 (4th Cir. 1976) (using the standard set out by the

Eighth Circuit in CPC Int’l Inc. v. Train, 515 F.2d 1032,

1048 (8th Cir. 1975).

17a

EPA has demonstrated that sulfide precipitation—a

process it terms ‘familiar’ and “well established’’—is

available outside the primary base metals industry and that

the technology is transferable to that industry. The agency

notes that “‘the low solubility of metal sulfides” has made

sulfide precipitation a more effective treatment than the

conventional lime and settle process. We do not think it

disqualifying that the Ashio plant, for example, uses sulfide

precipitation to produce an end-product rather than to clean

its wastewater, so long as the process adequately reduces

pollutant concentrations in wastewater. Again, granting

the agency a proper measure of deference in technical

judgments, it was not arbitrary for EPA to decide that

sulfide precipitation would remove pollutants to the degree

required by the effluent limitations.

Kennecott discusses two other differences between the

sulfide precipitation process at the model plants and the

process at the primary base metals plants. Kennecott points

that the Ashio plant treats wastewater in batches, while

the primary base metals plants treat wastewater continu-

ously. EPA answers that the choice of the batch or con-

tinuous processes affects only cost, not effectiveness, and

that study demonstrates the installation and operation of

sulfide precipitation is economically achievable.

Kennecott also notes that all three model plants use

sulfide pretreatment, rather than sulfide polishing. Again,

EPA believes that the difference is irrelevant; whether

sulfide precipitation is the step before or after L,S&F will

not affect the achievability of the desired effluent limita-

tions. The critical matter, in the agency’s judgment, is the

application of the proper amount of precipitant and the

maintenance of proper levels of pH, factors entirely in-

dependent of the timing of wastewater treatment.

We hold that EPA had a reasonable basis for deciding

that the sulfide precipitation technology is transferable.

We are unable to conclude the agency acted arbitrarily or

18a

capriciously in selecting sulfide precipitation as part of the

Best Available Technology for the primary base metals

industry.

EPA expresses its effluent limitations as ‘“‘mass limits.”

EPA derives the mass limit by multiplying the maximum

concentration level of a pollutant times water flow. The

agency sets flow allowances as well as concentration limits

in order to prevent plants from avoiding ‘‘the regulatory

impact by diluting their effluent.’’ Weyerhaeuser Co. v.

Costle, 590 F.2d 1011, 1059 (D.C. Cir. 1978). In setting

flow allowances, the agency uses a “building block ap-

proach.”” That is, EPA sets a flow allowance for each

individual process step; the state or regional permit writer

then calculates the total flow allowance for each individual

plant by summing the allowances for each process step

used at that plant.

Kennecott contends that EPA improperly denied a flow

allowance for a step in the process of manufacturing pri-

mary lead called blast furnace slag granulation. In the

final rules, the BAT standard for blast furnace slag gran-

ulation is zero discharge. The New Source Performance

Standard (NSPS), which governs new plants, is also zero

discharge. Because Congress thought that new plants have

the opportunity to install the best and most efficient pro-

duction processes, NSPS is normally at least as stringent

as, if not more stringent than, BAT. American Iron and

Steel Inst. v. EPA, 526 F.2d 1027, 1058-59 (8d Cir. 1975).

Obviously, nothing can be more stringent than zero dis-

charge.

The blast furnace slag granulation step can be either

a wet or a dry process. Kennecott contends that dry slag

is not an option because it produces uncontrollable dust.

Therefore, plants use wet slag, which produces wastewa-

ter. Kennecott requests a flow allowance for this waste-

19a

EPA responds that zero discharge for blast furnace slag

granulation is appropriate because three of four existing

plants recycle 100 percent of their wastewater and thus

achieve zero discharge for reasons which are not site-spe-

cific. The agency did not abuse its discretion in concluding

that no flow allowance need be set for the blast furnace

slag granulation process step.

With regard to the NSPS, Kennecott lodges one addi-

tional objection. It says that the NSPS is based on py-

rometallurgical plants, but that new primary lead smelters

are likely to be hydrometallurgical. Kennecott admits that

no hydrometallurgical plant is in the process of being built

or even contemplated. When such a plant is built, it can

be designed according to EPA specifications. If zero dis-

charge is indeed impossible for a hydrometallurgical plant,

EPA has said that at that time, it will receive a petition

for a new rulemaking. 48 Fed. Reg. 8764 (Mar. 8, 1984).

On occasion, EPA sets catastrophic storm allowances.

These allowances permit a plant to discharge additional

wastewater under emergency circumstances. Some plants

hold liquid waste in “surface impoundments,” which are

simply natural or manmade depressions. A catastrophic

storm allowance permits a plant to discharge untreated

wastewater when a storm of a certain size strikes and

causes the surface impoundment to overflow. EPA has set

no catastrophic storm allowances for primary lead and zinc

plants. Copper smelters are permitted to discharge un-

treated wastewater if a “twenty-five year storm” occurs.

A twenty-five year storm is a storm of such magnitude

that it is likely to occur only once per quarter century.

Kennecott can no longer challenge the catastrophic storm

allowances for zinc and copper. EPA denied the cata-

strophic storm allowance for zinc in a 1975 rulemaking;

the BAT and BPT allowances for copper were set in 1975

20a

and 1980. See 40 Fed. Reg. 8528 (Feb. 27, 1975); 40 Fed.

Reg. 8524 (Feb. 27, 1975); 45 Fed. Reg. 44929 (July 2,

1980). Petitioners failed to raise their objections within the

ninety days specified by the Clean Water Act. 33 U.S.C.

§ 1369(b\1).

Kennecott is free to challenge the denial of a storm

allowance for the primary lead industry, but we do not

find its arguments persuasive. EPA did not set a cata-

strophic storm allowance for primary lead plants because

surface impoundments are not part of the model technol-

ogy. 48 Fed. Reg. 7048-49 (Feb. 17, 1983). EPA made a

conscious decision to discourage impoundments because of

associated problems: the risk of groundwater contamina-

tion and the danger that heavy pollutants will be dis-

charged all at once. Given EPA’s reservations about

impoundments and the fact that impoundments are not

part of the model technology, EPA did not act arbitrarily

in refusing to grant an allowance for catastrophic storms.

EPA also did not set allowances for non-scope flows,

that is, wastewater which is not generated by the man-

ufacturing process but comes from other sources like em-

ployee showers or handwashing. The preamble to the Final

Rules asks permit writers to consider non-scope flows when

they write permits for individual plants. 47 Fed. Reg. 8778

(March 8, 1984). Kennecott is concerned that because EPA

does not specifically authorize allowances for non-scope

flows in the body of the regulations, permit writers will

erroneously deny allowances. However, EPA did not set

allowances for non-scope flows because these flows are so

idiosyncratic. We do not believe that EPA was required

to list site-specific sources as a separate subpart of the

final regulations. Individual plants will, of course, be able

to challenge the flow allowances set by permit writers.

Finally, Kennecott says that it was denied notice and

the opportunity to comment on the Pretreatment Stand-

2la

ards for Existing Sources (PSES) BAT applies to plants

which are ‘‘direct dischargers,’’ that is, plants whose waste-

water goes directly into the waterways. Indirect dischargers

are plants which discharge waste which is treated by a

sewage plant before it reaches public waterways. Indirect

dischargers are subject to PSES, rather than to BAT. Be-

cause many pollutants either pass through or interfere with

the operation of sewage treatment plants, EPA frequently

sets PSES equal to BAT.

EPA failed to propose PSES for the primary zine and

lead subcategories because it did not realize there were

any indirect dischargers. When EPA learned from the

comments that there were indirect dischargers, EPA set

PSES equal to BAT. Because EPA had previously dis-

closed its methodology for establishing BAT, and because

it was foreseeable that PSES would be the same as BAT,

we cannot say that EPA failed to provide adequate notice.

Il.

The next petitioners represent the secondary lead in-

dustry, which recycles lead, principally from discarded bat-

teries, in four steps. First the batteries are cracked, then

the various parts are separated or “‘classified’’ by im-

mersing the battery parts in water. In this step, for ex-

ample, plastic and rubber are separated from the lead

plate. In the third process step, the lead which has been

removed from the batteries is smelted. Plants use wet air

pollution control systems (“‘scrubbers’’) to control the emis-

sion from smelting. Finally, the lead is refined and cast.

At this stage, plants often use another wet air pollution

system, “‘kettle scrubbers.’’ Each of these process steps

results in a wastewater stream contaminated by lead and

other pollutants.

The Secondary Lead Smelters Association (SLSA) rep-

resents eighty-five percent of U.S. secondary lead smelting

capacity. SLSA has challenged the non-ferrous metals rule-

22a

making, arguing that filtration is not economically achiev-

able, that EPA’s data base was flawed, and that EPA

incorrectly set flow allowances. We have considered its

objections and conclude that SLSA has failed to show that

EPA acted arbitrarily or capriciously in setting effluent

limits for the secondary lead industry.

EPA used multimedia filtration as the last step in the

combination of techniques which represent BAT for the

secondary iead industry. SLSA contends that multimedia

filtration is not economically achievable, and that EPA has

already considered and rejected filtration in rulemakings

for five other industries.

According to SLSA, EPA significantly underestimated

the total cost of filtration by failing to include the costs

of larger treatment facilities and remodeling. In its Eco-

nomic Development Document, EPA considered the pos-

sible adverse economic impacts of filtration, including

possible plant ciosures, loss of business to foreign com-

petition, increased cost of production, decreased return on

investment, and rising unemployment. This court will not

undertake its own economic study, but must uphold the

regulations if EPA has established in the record a rea-

sonable basis for its decision. Courts generally allow EPA

some leeway in its analysis of costs. Kennecott Copper

Corp. v. EPA, 612 F.2d 1232, 1238 (10th Cir. 1979); BASF

Wyandotte, 598 F.2d at 656. Here we must find that EPA

has built a record sufficient to support its decision that

multimedia filtration is economically achievable.

It is true that EPA has not required filtration for other

industries. It is well settled, however, that such inter-in-

dustry comparisons are not determinative. American Meat

Inst., 526 F.2d at 466; Portland Cement Ass’n v. Ruck-

elshaus, 486 F.2d 375, 389 (D.C. Cir. 1973). The question

is whether filtration should be required for the secondary

23a

lead industry, not whether it should be required for some

other industry. As the District of Columbia Circuit has

noted: “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, in-

dustry procedures, and record for decision.” Jd. at 389.

This court does not have before it the records of the

rulemakings for the five other industries; we are, there-

fore, reluctant to launch comparisons of model technol-

ogies established for one industry with those established

for another.”

The cost of installing and operating a model technology

is not, however, a matter that Congress has permitted the

agency to ignore. The statute requires EPA to take into

account the cost of achieving effluent reduction. 33 U.S.C.

§ 1314(bX2\B). Furthermore, the agency has the duty to

explain its cost analysis fully. Pacific Fisheries, 615 F.2d

at 820.

Here, EPA did execute a careful analysis of compliance

costs and their economic impact. The agency used data

from the secondary lead industry to estimate the produc-

tion and capacity of each plant, and then computed prob-

able revenues from those production and capacity figures.

Taking into account wastewater flows and treatment tech-

nology already in place, the agency calculated compliance

costs for each plant in the secondary lead industry. EPA

*The fact that the agency may undertake such comparisons in es-

tablishing BAT for a particular industry poses no anomaly. As we have

noted, such comparisons are consistent with the agency’s statutory

mandate and, in any event, the agency must establish transferability.

See section IIB, supra.

Moreover, we discern a difference in terms of the statutory purpose

between an industry pleading comparisons as a basis for the most lenient

effluent guidelines and the agency utilizing comparisons in assessing the

Best Available Technology.

24a

next compared compliance costs to revenues for each plant.

If the compliance costs exceeded one percent of the rev-

enues, EPA went on to determine whether the plant could

remain profitable in the long run, and whether it could

absorb the necessary costs during the first few years of

compliance.

EPA also calculated changes in cost of production, in-

crease in price, and changes in return on investment, and

compared compliance investment costs to average capital

expenditures. On completion of its economic analysis, EPA

concluded that no plants would be forced to close because

of increased costs, and that the regulations would not have

a significant adverse impact on employment, foreign trade

or the secondary lead smelting industry. Recognizing the

importance of this issue to those plants and businesses

affected, we nonetheless conclude that EPA acted in ac-

cordance with its statutory mandate in assessing the costs

of BAT compliance. °

SLSA’s next request is that the effluent limitations for

lead be remanded for consideration of additional data. In-

itially, EPA based the effluent limitations for lead on three

data points from one battery manufacturing plant, Johnson

Controls. EPA then added to its data base 201 points from

an integrated battery manufacturing/secondary smelting

facility, General Battery. SLSA argues that EPA was

wrong to use this data, while rejecting data submitted by

the industry. We find that EPA did not act arbitrarily

with regard to its choice of data.

Specifically, SLSA claims that the wastewaters from

the plants EPA used differ significantly from industry

wastewater. SLSA says that secondary lead wastewater

has higher concentrations of lead. Secondary lead raw

wastewater contains 11-92 milligrams per liter of lead.

The untreated wastewater at Johnson Controls contained

25a

lead in concentrations of 1.0-1.45 mg/l. However, lead

concentrations at General Battery ranged from 21-41

mg/l in the EPA sampling and 0.96-301 mg/l in the

plant’s self-sampling. We conclude that EPA was not

unreasonable in basing its effluent limits on the General

Battery data. Had EPA set limits using only the Johnson

Controls data, we might well decide this question dif-

ferently.*

EPA also acted within its discretion when it rejected

data submitted by the secondary lead industry. EPA said

that the data submitted by petitioners did not contain

paired influent/effluent points or effluent pH ranges. As

a result, EPA felt it was unable to determine whether

petitioners’ data represented exemplary operation. We can-

not find that the agency’s rejection of the secondary lead

industry data on a matter committed to its expertise is

unfounded or arbitrary.

The question of whether the secondary lead industry can

achieve cadmium limitations set for other industries is not

ripe for review. EPA has not set cadmium limitations for

the secondary lead industry. When EPA decides to forego

general regulations in favor of having limits set by indi-

vidual permit writers, the agency has made a considered

decision to set particular limitations on a plant-by-plant

basis. For this court to deal with the issue of cadmium

limitations on appeal as if it were a general rulemaking

matter would be to flout the agency’s approach to the

problem.

The requirement of ripeness is designed ‘“‘to protect

agencies from judicial interference until an administrative

‘The agency's euphemistic assertion, without accompanying figures,

that Johnson Controls’ wastewater ‘‘contained lead at concentrations

comparable to the lower end of the range of secondary lead plants”

is not appreciated. Such representations serve to obscure, not to clarify.

26a

decision has been formalized and its effects felt in a con-

crete way by the challenging parties.’’ Abbott Laboratories

v. Gardner, 387 U.S. 136, 148-49 (1967). In determining

whether a challenge to an administrative regulation is ripe

for review, the court must ask first whether the issue is

appropriate for judicial resolution, and second whether the

parties will suffer hardship if judicial review is denied. /d.

at 149.

Here the matter we are asked to review is doubly spec-

ulative. We do not know whether the individual permit

writers will choose to regulate cadmium at all. Further,

it is unclear that a permit writer who does choose to set

limits for cadmium will do so by applying standards from

other industries to particular secondary lead plants. Cf

NAMF, 719 F.2d at 654-55.

The secondary lead industry will likewise suffer no real

hardship as a result of this court’s denial of judicial review

at this juncture. If a permit writer does set cadmium limits

for a secondary lead plant, the plant is free to seek review

of the permit. See Diamond Shamrock Corp. v. Costle, 580

F.2d 670 (D.C. Cir. 1978). Given the double contingency,

and the fact that secondary lead smelting plants enjoy an

avenue of relief in the event of future injury, we decline

to address this matter in the present litigation.

SLSA’s next contention is that EPA erred when it set

or failed to set flow allowances for the various steps in

the secondary lead smelting process. As noted above, sec-

ondary lead smelters recycle batteries to produce lead in

four steps: battery cracking, battery classification, smelt-

ing, and refining. During smelting, plants use furnace wet

air pollution control. The refining process produces par-

ticulate matter, which is controlled by a kettle wet air

pollution control system. Each process step produces a

wastestream. Some plants recycle most, if not all, of the

27a

wastewater produced by the battery classification process

and the two air pollution control processes. EPA did not

set a flow allowance for the battery classification process

step. SLSA challenges this lack of flow allowance, and, in

addition, challenges as too low the flow allowances for the

battery cracking process step, furnace wet air pollution

control, and kettle wet air pollution control. We find that

EPA’s decisions as to flow allowances were not arbitrary

or capricious, and uphold the regulations.

EPA did not set a flow allowance for battery case clas-

sification because it had obtained data from plants which

reuse 100 percent of the wastewater from this process

step. SLSA contends that recycling wastewater ‘“‘dirties’’

equipment, necessitating continuous maintenance. Con-

gress, however, required EPA to search out the Best

Achievable Technology, and to strive for zero discharge.

Two secondary lead plants recycle 100 percent of their

battery classification wastewater by running it through

lime, settle and filtration. Since all secondary lead plants

have a lime, settle and filtration system, EPA believes all

secondary lead plants can achieve 100 percent recycle and

zero discharge for battery classification. EPA thus did not

act arbitrarily in denying a flow allowance for the battery

classification process step.

SLSA also contends that the flow allowance for the

battery cracking process step is too low. SLSA says that

EPA wrongly excluded data from two plants, and based

its data on plants with unrepresentatively low flows. Ac-

cording to EPA, twenty of the thirty-five plants with this

wastestream currently meet the flow allowance limit set

for battery cracking. EPA contends that it rejected data

from two plants with excessively high flows, because it

could find no technical justification for the high flows. The

agency can reject data it reasonably believes to be unre-

liable. American Meat Inst., 526 F.2d at 457. While it is

not free to reject data arbitrarily, it may do so if it rea-

sonably concludes that the plant is not operating effi-

28a

ciently. The standard set by Congress is high; there is no

room for data from plants which are not functioning op-

timally.

EPA also set comparatively low flow allowances for both

kettle and furnace wet air pollution control systems. SLSA

again argues that both low allowances are too low, and

therefore not achievable by secondary lead smelters. Spe-

cifically, SLSA says that, in setting flow allowances for

kettle scrubbers, EPA erroneously excluded data from two

plants. EPA says that plants which use kettle scrubbers

recycle the water used and then periodically discharge the

water in order to flush out the system. EPA received data

from three plants and used the lowest rate to set the flow

allowance, after deciding that there was no technical jus-

tification for the two higher rates. We cannot say that

EPA did not duly consider all the data, or that the agency

acted unreasonably in setting the flow allowance on the

basis of the best performance.

SLSA next objects that the furnace air pollution control

flow allowance is too low. EPA received data from eight

plants, but based the flow allowance on data from only

three plants. Again, EPA’s action was consistent with Con-

gress’ instruction to base effluent limitations on the Best

Available Technology. Two plants recycle all of their fur-

nace air pollution control wastewater. EPA based its flow

allowance on a ninety percent recycle rate. We cannot say

that EPA acted unreasonably in setting the flow allowance

for furnace air pollution control systems.

In sum, EPA did not abuse its discretion in either set-

ting or failing to set flow allowances for any of the steps

in the secondary lead smelting process.

IV.

The last petitioner is Mallinckrodt, which produces co-

lumbium and tantalum salts. Columbium and tantalum are

used in the aerospace, energy, and transportation indus-

29a

tries. There are five companies in the United States which

process columbium and tantalum. Three integrated plants

process ore to make salts, and then process the salts to

produce metal. Mallinckrodt processes raw material to

make columbium and tantalum salts, which are then used

by the fifth firm to make metal.

Mallinckrodt complains that EPA failed to provide ad-

equate notice and opportunity to comment on the ammonia

standards and on flow allowances. We find, however, that

EPA did meet the notice and comment requirements. In

addition, Mallinckrodt charges that EPA was arbitrary and

capricious in promulgating rules on the basis of inadequate

data. We find that EPA was neither arbitrary nor capri-

cious, and accordingly deny Mallinckrodt’s petition.

Mallinckrodt uses a process known as “‘steam-stripping”’

to reduce the levels of ammonia in wastewater. EPA set

effluent limitations for ammonia, using steam-stripping as

the model technology. EPA based the ammonia concen-

tration standard on data from a single plant in the iron

and steel industry. In its comments, Mallinckrodt objected

that the data was insufficient. In connection with a related

rulemaking, EPA had obtained data from a zirconium-

hafnium plant that also used steam stripping. EPA ex-

amined the zirconium-hafnium data to see what levels of

ammonia concentration were achievable.

Mallinckrodt argues that EPA’s failure to publish the

data from the zirconium-hafnium plant deprived Mallinck-

rodt of the opportunity to comment. Had it been given

the opportunity, Mallinckrodt says, it would have pointed

out that Mallinckrodt’s wastewater has significantly greater

quantities of fluorides and sulfates than does the zircon-

ium-hafnium wastewater. Mallinckrodt says that the fluor-

ides and sulfates interfere with the ability of steam

stripping to release ammonia, hence it will not be able to

30a

achieve the effluent limitations based on the zirconium-

hafnium data. According to EPA, however, the iron and

steel] data continued to be the basis for the final regula-

tions; the zirconiun-hafnium data was used only to confirm

the limits.

The requirement of notice and an opportunity to com-

ment is designed to ensure that interested persons are

apprised of the ‘subjects and issues’’ before the agency.

American Iron and Steel Inst. v. EPA, 568 F.2d 284, 293

(3rd Cir. 1977). This requirement should not, however, be

maneuvered to block enforcement of a regulation indefi-

nitely. The case law establishes that an agency may pro-

mulgate a rule which differs from the proposed rule,

without re-opening the comment period. ‘“‘The requirement

of submission of a proposed rule for comment does not

automatically generate a new opportunity for comment

merely because the rule promulgated by the agency differs

from the rule it proposed, partly at least in response to

submissions.” International Harvester Co. v. Ruckelshaus,

478 F.2d 615, 682 (D.C. Cir. 1973). Were the law other-

wise, rulemakings might never be terminated.

The reviewing court must in turn strike a balance be-

tween ensuring public participation and not obstructing the

passage of valid regulations. “‘The essential inquiry is

whether the commenters have had a fair opportunity to

present their views on the contents of the final plan. We

must be satisfied, in other words, that given a new op-

portunity to comment, commenters would not have their

first occasion to offer new and different criticisms which

the Agency might find convincing.”” BASF Wyandotte, 598

F.2d at 642 (footnote omitted).

Had it been given the opportunity to comment on the

zirconium-hafnium data, Mallinckrodt would have dis-

cussed fluoride and sulfate interference. However, as Mal-

linckrodt itself concedes. other commenters discussed the

possibility of fluoride/sulfate interference when they com-

3la

mented on the iron and steel data. Mallinckrodt com-

mented on the iron and steel data; it could have raised

the issue of fluoride/sulfate interference at that point. We

cannot conclude that by its use of the zirconiun-hafnium

data EPA deprived Mallinckrodt of meaningful notice and

opportunity to comment on the effluent limits for am-

monia.

Mallinckrodt challenges the flow allowances for the co-

lumbium-tantalum industry, on the grounds that it did not

have notice or an opportunity to comment on the nor-

malizing parameter, and that EPA did not use data from

one of Mallinckrodt’s plants. Neither of Mallinckrodt’s con-

tentions with respect to flow allowance merits remanding

the regulations. In the proposed rules, EPA had calculated

the permissible flows according to the amount of end-prod-

uct. That is, a plant was entitled to discharge more waste-

water if it produced more salts or metal. In the final rules,

EPA made flow allowances proportional to the amount of

raw material used. Mallinckrodt complains that it was

never given an opportunity to comment on EPA’s decision

to normalize flow on the basis of raw concentrate rather

than end-product. Mallinckrodt says that the final rules

would permit it to disharge only 218 pounds of ammonia

per year, as opposed to the 1,219 pounds per year per-

mitted by the proposed rules.

EPA replies that Mallinckrodt’s flow allowance dropped

not because of the change in normalizing parameters but

because EPA obtained more flow data and realized that

the original flow allowance was too high. EPA changed

the normalizing parameter in response to other comments.

However, Mallinckrodt’s flow allowance would have

dropped dramatically even if EPA had not changed the

normalizing parameter. Therefore, the pertinent question

is whether EPA acted arbitrarily in excluding Mallinck-

rodt’s data when it calculated the flow allowance.

32a

To set the flow for concentrate digestion wet air pol-

lution control, EPA obtained data from three plants, num-

bered 507, 509 (Mallinckrodt’s plant) and 519. Plant 519

used the same air pollution control for two separate proc-

esses; EPA concluded that it could not base a flow allow-

ance for one process on the data from plant 519. Plant

509 discharged fifteen times more wastewater than plant

507. EPA says that the two plants were similar in many

respects and that although Mallinckrodt had many oppor-

tunities to do so, it never pointed out any process differ-

ences during the rulemaking. EPA decided that plant 509’s

flow rate was excessive, and based the standard on plant

507.

Here, EPA was setting the standard according to BPT

(best practicable technology), rather than BAT. BPT is

normally the average of the best performing plants. How-

ever, since EPA had data from only three plants, and one

set of data was clearly unusable, it was not unreasonable

for EPA to set limits according to the better remaining

performer. See National Crushed Stone, 449 U.S. at 76

n.15.

The objections made to the EPA regulations by

petitioners have been numerous. We have considered those

we believe to be the most substantial, and we find them

insufficient to establish a case of arbitrary behavior on the

part of the agency. The technical intricacy of the judg-

ments at issue reminds us again of the constraints and

limitations of judicial review and of the heavy obligations

imposed upon agency specialists to bring to their tasks a

sense of fairness as well as a briefcase of expertise.

Im this case the Environmental Protection Agency con-

ducted its rulemaking in conformity with the Administra-

tive Procedure Act and the Clean Water Act. To the best

of this court’s belief, the regulations here were properly

promulgated and will assist the protection of human health,

33a

nutriment, and recreation which the Congress envisioned

as the legacy of cleaner waterways.

The petitions are accordingly

DENIED.

3da

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

——

No. 84-1288

KENNECOTT,

Petitioner,

versus

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

GTE Propucts CORPORATION,

Intervenor/Petitioner.

FILED:

JANUARY 24, 1986

No. 84-1479

AMERICAN MINING CONGRESS, AMAX, INnc.,

and ASARCO INCORPORATED,

Petitioners,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

35a

No. 84-1487

St. Jo—E MINERALS CORPORATION,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

No. 84-1659

THE SECONDARY LEAD SMELTERS ASSOCIATION,

Petitioner,

versus

WILLIAM RUCKELSHAUS, Administrator

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

GuLF Coast LEAD COMPANY,

Intervenor.

Petitioner

No. 84-1694

MALLINCKRODT, INC.

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

36a

ORDER

The petitions of Group | Petitioners: Kennecott, Amer-

ican Mining Congress, AMAX, Inc., ASARCO, Inc. and

St. Joe Minerals Corporation; Group III Petitioners: The

Secondary Lead Smelters Association, Inc. and Gulf Coast

Lead Company, Inc.; and Group IV Petitioner: Mallinck-

rodt, Inc. for rehearing and suggestions for rehearing in

bane were submitted to this Court. As no member of the

Court requested a poll on the suggestions for rehearing

in bane, and

As the panel considered the petitions for rehearing and

is of the opinion that they should be denied,

IT IS ORDERED that the petitions for rehearing and

suggestions for rehearing in banc are denied.

Entered at the direction of Judge Wilkinson with the

concurrence of Judge Phillips and Judge Murnaghan.

For the Court,

/s/JOHN M. GREACEN

John M. Greacen

CLERK

37a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1288(L)

KENNECOTT,

Petitioner,

versus

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

GTE Propucts CORPORATION,

Intervenor for Petitioner.

FILED:

AUGUST 2, 1985

No. 84-1479

AMERICAN MINING CONGRESS, et al.,

Petitioners,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

No. 84-1487

—_—_——

St. JOE MINERALS CORPORATION,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

No. 84-1629

THE ALUMINUM ASSOCIATION, INC.,

Petitioners,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

No. 84-1630

ALUMINUM RECYCLING

ASSOCIATION,

Petitioner,

versus

U. S. ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

39a

No. 84-1659

THE SECONDARY LEAD SMELTERS

ASSOCIATION,

Petitioner,

versus

WILLIAM RUCKELSHAUS, etc.,

Respondent.

Gulf Coast Lead Company,

Intervenor for Petitioner

No. 84-1694

MALLINCKRODT, INC.,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER

Upon consideration of Group I petitioners’ unopposed

motion for leave to file a supplemental appendix as an

addendum to their reply brief;

IT IS ORDERED that the motion is granted.

FOR THE COURT—BY DIRECTION

/s/JOHN M. GREACEN

John M. Greacen

CLERK

40a

APPENDIX D

[Appendix 4 in Petitioners’ Reply Brief]

AFFIDAVIT OF DOUGLAS E. McALLISTER

1. My name is Douglas E. McAllister. I am the Assistant

Chief Counsel, American Mining Congress (AMC), 1920 N

Street, N.W., Suite 300, Washington, D.C.

Since 1979, I have had primary AMC staff responsibility

relating to the Environmental Protection Agency’s (EPA)

Nonferrous Metals Manufacturing Effluent Limitations

Guidelines (Phase I). In this capacity I served as the pri-

mary coordinator between the AMC member companies

and EPA representatives. I assisted the AMC working

group that developed comments on EPA’s proposed Phase

I regulations and submitted the comprehensive AMC data

base from seven primary nonferrous metals facilities owned

by AMC member companies.

2. On December 16, 1983, a representative of St. Joe

Minerals Company and I telephoned the EPA Project Of-

ficer and inquired about the status of EPA’s analysis of

the AMC data base. (See R. 44622; JA 1854). He said EPA

was contemplating the possibility of adding sulfide precip-

itation to the “‘best available technology’’ (BAT) designa-

tion in the final regulations. He did not indicate in this

conversation that EPA would adopt sulfide precipitation

without first allowing AMC to examine and comment on

any supporting data. This was the first time EPA notified

AMC of any possibility that sulfide precipitation technology

would be added to the regulations. At that time we re-

quested from the Project Officer any and all available in-

formation on sulfide precipitation; no information was

supplied prior to adoption of the final regulations.

3. On January 5, 1985, I, along with members of the

AMC working group, had a conference telephone call with

the EPA Effluent Guidelines Branch Chief and Project

4la

Officer. We inquired about the results of EPA’s analysis

of the AMC data base. During this conference call, we

were told that EPA had decided to add sulfide precipi-

tation to lime, settle and filtration as the designated BAT

in the final regulations.

We inquired about the basis for the Agency’s reliance

on sulfide precipitation and were told that a “‘couple of

facilities in the nonferrous metals industry” use sulfide

precipitation technology. The Agency representatives also

referred to the inorganic chemicals development document,

the metals finishing development document, the nonferrous

metals development document and data EPA obtained from

the Boliden smelter in Sweden.

We were told that EPA was conducting bench-scale tests

using sulfide precipitation on wastewater samples taken

from the Kennecott smelter and the data from this test

might be used to support EPA’s designation of sulfide

precipitation as BAT. We requested and were promised a

copy of the report of this testing.

We were also told, for the first time, that EPA intended

to adopt sulfide precipitation without providing any op-

portunity for comment. EPA failed to include a record of

this conference call in the Administrative Record. My con-

temporaneous notes of this conversation are incorporated

herein as Attachment A.

4. AMC did not receive a copy of the Kennecott report

until May 16, 1984, over 2 months after the final regu-

lations were issued. See Attachment B. To the best of my

knowledge, no AMC member company received a copy of

the Kennecott report prior to that time. Kennecott itself

did not receive the report until after it filed a Freedom

of Information Act request. See Attachments C and D.

4?9

—

/s/DOUGLAS E. MCALLISTER

Douglas E. McAllister

Subscribed and sworn to before

me this 12th day of July, 1985

/s/IBECKY RAE BAGGERUD

Notary Public

My commission expires:

My commission expires August 14, 1989

43a

Attachment A

(Handwritten Notes of Mr. McAllister]

Q: Using battery long term data for pb?

Attachment A

Basis of sulfide precip.? data? transferability?

Costing info on sul. precip.?

Kenn sampling -

CF CALL W/ Berlow & Hall

1/5/84 Robbins

Crosser

Janeck

1- Promul Jan’ 31 - will do it. Berlow

Hall

2- Bottom line: of 7 plants McAllister

3 pass tech. screen based on design

(Sauget, Boss, Monaca)

Thrown out Port Nickel - all rainfall

ASARCO Corpus: stormwater

Herculaneum: underdesigned clarifiers

no equalization

3- For 3 plants: LS, LSF cannot meet #’s

Primary zn: Sauget can’t meet b/c influent conc.

high. preleach contributes

Monaca - ammonia complexation

Boss - high influent - something else going

on.

3 facilities doing a lot worse than norm - (CMDB)

Boss - ” ” . #8 in other category

(from a concentration ” . other categories

standpoint) in Ernie division.

(ineld. those not using

CMDB).

44a

: need add’! technology: sulfide precipitation.

gen'lly-[produces hazardous sludge, removal not signifi-

cant, expensive

Here- thinks it will have sig. removal

L&S&S, sulfide & settle filter

] 2 3

To handle selection

problem.

- Ft. Madison

- tungsten (EPA has

some data)

Couple of facilities in NF industry - Copper refining

Does not

Port Nickel know re

DEM get copy - Inorganic chemicals Dev. Doc. CD, zn

Phase I

- Metal Finishing - address sulfide (Dev.

Doc)

- addressed in NF Doc in terms of rel-

ative removal.

- Sweden - Bleden - Batelle

pb - #s modified as result of F.R. notice, battery 2° pb

Costing done on sulfide tech.

disposal of haz. waste sludge

precip & sed. step. (Doubled L&S greenfield #’s)

capital costs

will refine #’s later this mo.

sodium sulfide used by EPA

optimum sul. precip occurs at 7 or higher pH.

sludge disposal - cost figured generally across the board

Kennecott - arsenic problem. EPA looking to get AS

down.

Bench scale tests. Done in time for pro-

mulgation.

Fither-or, if then,

Data may be used gen’lly to support sul. precip. #’s.

Ravan- end of week of 1/16.

Each plant analyzed individually

Long term mean, 10 day, 30 day.

Then reacted to range.

Changes in proposal requiring reproposal.

EPA attys think these changes do not require reproposal

#’s are same as proposed.

These plants have difficulty : add'l technology.

No closures. No line closures.

No serious economic consequences.

Cost effectiveness #’s aren’t finished yet.

Non-building block flows -

Not likely that language will end up in regulation itself

but will be in preamble.

Aluminum Forming is happy with way its handled there.

F.R. printing policy & guidelines.

Not anywhere near 100,000,000

46a

Attachment B

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

MAY 16 1984

Mr. Douglas McAllister

American Mining Congress

1200 18th Street, N.W.

Washington, D.C. 20036

Dear Mr. McAllister:

Please find atteched the results of the Kennecott treata-

bility study that you have requested. If you have any tech-

nical questions regarding this study, please feel free to

contact me.

Sincerely,

/sIJAMES R. BERLOW

James R. Berlow, P.E.

Project Officer

Metals & Machinery Branch (WH-552)

Enclosures

47a

Attachment C

PRATHER SEEGER DOOLITTLE & FARMER

1101 Sixteenth Street, N.W.

Washington, D.C. 20036

March 19, 1984

BY HAND DELIVERY

Mrs. Jeralene Green

Freedom of Information Officer (A-101)

Room 227D - West Tower

U.S. Environmental Protection Agency

401 M Street, S.W.

Washington, D.C. 20460

Re: Freedom of Information Act Request

Dear Mrs. Green: .

On behalf of Kennecott, I request. pursuant to the Free-

dom of Information Act, 5 U.S.C. § 552, and Environ-

mental Protection Agency regulations, Part 2 - Public

Information, Subpart A - Requests for Information, 40

C.F.R. § 2.100, et. seg., that the following materials be

made available for inspection and copying:

Any and all information, records, raw data, test results,

analysis and evaluation concerning Radian Corporation’s

sampling and bench scale testing f sulfide precipitation

on wastewater samples collected at Kennecott’s Utah Cop-

per Division in December, 1982.

Please contact me by telephone (296-0500) as soon the

Initial Determination, required by \pril 2, 1984, has been

made.

Thank you for your help.

Yours very truly,

/s/RICHARD |. WITT

Richard T. \Vitt

Attorney fo: Kennecott

RTW:jsw

48a

Attachment D

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

APRIL 17, 1984

Richard T. Witt, Esq.

Prather, Seeger, Doolittle, & Farmer

1101 Sixteenth Street, N.W.

Washington, D.C. 20036

RE: Freedom of Information Act Request of

Kennecott Copper Co. RIN-840-84

Dear Mr. Witt:

This letter responds to your request of March 19, 1984,

on behalf of Kennecott Copper Co., for ‘(ayny and all

information, records, raw data, test results, analysis and

evaluation concerning Radian Corporation’s sampling and

bench scale testing of sulfide precipitation on wastewater

samples collected at Kennecott’s Utah Copper Division in

December, 1983.”’

Although this information is not in the Agency’s posses-

sion, and so at this time is not an “Agency record’’ for

purposes of the Freedom of Information Act, the Agency

has decided to grant your request. This information is part

of the administrative record to the nonferrous metals phase

I rules. We are now in the process of compiling, collecting,

indexing and printing the record. The particular infor-

mation you request is being collated as part of that proc-

ess.

This process will not be completed by April 16. The

Agency, in fact, is not required to file the administrative

record until May 14. The certified index to the record also

need not be filed until sometime in May. We are trying

to collate the bench-scale data on sulfide precipitation more

rapidly so you can receive it before we file the entire

49a

record or the certified index. However, the personnel in-

volved in preparing the record are all also involved in

developing other regulations that are subject to court-man-

dated deadlines. Accordingly, we cannot promise precisely

when we will be able to supply this information to you,

beyond stating that we will try and furnish it before the

record is filed.

You may appeal this initial determination by sending a

written appeal to the EPA Freedom of Information Of-

ficer, A-101, 401 M Street, S.W., Washington, D.C 20460.

Any appeal must be filed within 30 days of receipt of this

letter.

Sincerely yours,

/sISTEVEN SCHATZOW

Steven Schatzow, Director

Office of Water Regulations &

Standards (WH-551}

50a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

—

No. 84-1288(L)

—_——_——_

KENNECOTT,

Petitioner,

versus

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

GTE PrRopUCTS CORPORATION

Intervenor/P.

FILED:

APRIL 16 1985

No. 84-1479

AMERICAN MINING CONGRESS, et al.,

Petitioners,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

No. 84-1487

5la

ST. JOE MINERALS CORPORATION,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION \AGENCY,

Respondent.

No. 84-1629

THE ALUMINUM ASSOCIATION, INC.,

Petitioners,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

No. 84-1630

ALUMINUM RECYCLING ASSOCIATION,

Petitioner,

versus

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

No. 84-1659

————

THE SECONDARY LEAD SMELTERS ASSOCIATION,

Petitioner,

versus

WILLIAM RUCKELSHAUS, etc.,

Respondent.

GULF Coast LEAD COMPANY,

Iniervenor/P.

No. 84-1694

MALLINCKRODT, INC.,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER

Upon consideration of Group I petitioners’ motion for

reconsideration of the court order entered March 1, 1985,

which struck portions of petitioners’ briefs and denied

petitioners’ motions to supplement the record;

IT IS ORDERED that the motion is denied.

Entered at the direction of Judge Phillips with the con-

currence of Judge Hall and Judge Murnaghan.

FOR THE COURT,

/s/JOHN M. GREACEN

John M. Greacen

CLERK

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

__—_—

No. 84-1288(L)

——_

KENNECOTT,

Petitioner,

versus

U.S. ENVIRONMENTAL PROTECTION AGENCY.

Respondent.

GTE Propucts CorRPORATION,

Intervenor/P.

FILED:

MARCH 1, 1985

—<—<___

No. 84-1479

AMERICAN MINING ConcrREss, et al.,

Petitioners,

vvrsus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

54a

No. 84-1487

St. JoE MINERALS CORPORATION,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

No. 84-1629

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

No. 84-1630

versus

THe ALUMINUM ASSOCIATION, INC.,

ALUMINUM RECYCLING ASSOCIATION,

Petitioner,

Respondent.

Petitioners,

Respondents.

Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

No. 84-1659

Respondent.

55a

THE SECONDARY LEAD SMELTERS ASSOCIATION,

Petitioner,

versus

WILLIAM RUCKELSHAUS,etc.,

Respondent.

GULF COAST LEAD COMPANY,

Intervenor/P.

No. 84-1694

MALLINCKRODT, INC.,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

No. 84-1782

NRC, INc.,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER

Upon consideration of the motions of the Group I and

the Group III petitioners to supplement the record and

their motions for extension of time to reply to respondent’s

motion in opposition tl the motions to supplement and its

motion to strike;

aaa ai iy Ie

56a

IT IS ORDERED that the motions are denied.

Entered at the direction of Judge Phillips with the con-

currence of Judge Hall and Judge Murnaghan.

FOR THE COURT,

/s/JOHN_M. GREACEN

John M. Greacen

CLERK

57a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1288(L)

KENNECOTT,

Petitioner,

versus

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

GTE Propucts CoRPORATION,

Intervenor/Petitioner

FILED:

AUGUST 23, 1984

No. 84-1479

AMERICAN MINING CONGRESS,

AMAX, INnc., and ASARCO INcoRPORATED,

Petitioners,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

58a

No. 84-1487

St. Jo—E MINERALS CORPORATION,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

Respondent.

No. 84-1629

THE ALUMINUM ASSOCIATION, INC.,

KAISER ALUMINUM & CHEMICAL CORPORATION,

and REYNOLDS METALS COMPANY,

Petitioners,

versus

_ UniTep STaTES ENVIRONMENTAL PROTECTION AGENCY and

WILLIAM D. RUCKELSHAUS, Administrator,

Respondents.

No. 84-1630

ALUMINUM RECYCLING ASSOCIATION,

Petitioner,

versus

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

No. 84-1659

THE SECONDARY LEAD SMELTERS ASSOCIATION,

Petitioner,

versus

WILLIAM RUCKELSHAUS, Administrator

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

No. 84-1694

MALLINCKRODT, INC.,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

No. 84-1782

NRC, INc.,

Petitioner,

versus

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

ORDER

Pursuant to Local Rule 28,

60a

IT IS ORDERED that the above-styled cases are con-

solidated for briefing and oral argument. A briefing sched-

ule will be established upon receipt of the certified list.

The petitioners will be grouped into four interest groups

at the time the briefing schedule is established and each

interest group will be allowed to file a separate brief and

reply brief. All parties will coordinate in the filing of a

single joint appendix and all parties to a side shall share

the time allowed for oral argument provided by the Fed-

eral Rules of Appellate Procedure. All future materials

filed in these consolidated cases shall be marked with the

lead docket number—No. 84-1288(L).

For the Court—By Direction.

/s/JoHN M. GREACEN

John M. Greacen

CLERK

6la

APPENDIX H

UNITED STATES CODE

CHAPTER 5—ADMINISTRATIVE PROCEDURE

se ee

§ 553 Rulemaking

ses *& & &

(b) General notice of proposed rule making shall be pub-

lished in the Federal Register, unless persons subject

thereto are named and either personally served or oth-

erwise have actual notice thereof in accordance with law.

The notice shall include—

(1) a statement of the time, place, and nature of public

rule making proceedings;

(2) reference to the legal authority under which the

rule is proposed; and

(3) either the terms or substance of the proposed rule

or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this

subsection does not apply—

(A) to interpretative rules, general statements of

policy, or rules of agency organization, procedure, or

practice; or

(B) when the agency for good cause finds (and in-

corporates the finding and a brief statement of rea-

sons therefor in the rules issued) that notice and public

procedure thereon are impracticable, unnecessary, or

contrary to the public interest.

62a

give interested persons an opportunity to participate in

the rule making through submission of written data, views,

or arguments with or without opportunity for oral pres-

entation. After consideration of the relevant matter pre-

sented, the agercy shall incorporate in the rules adopted

a concise general statement of their basis and purpose.

When rules are required by statute to be made on the

record after opportunity for an agency hearing, sections

556 and 557 of this title apply instead of this subsection.

ses 2%

APPENDIX I

FEDERAL WATER POLLUTION CONTROL ACT,

AS AMENDED BY THE CLEAN WATER ACT OF

1977

(Commonly Referred to as Clean Water Act)

se ee

Sec. 304 INFORMATION AND GUIDELINES

(b) For the purpose of adopting or revising effluent lim-

itations under this Act the Administrator shall, after con-

sultation with appropriate Federal and State agencies and

other interested persons, publish within one year of en-

actment of this title, regulations, providing guidelines for

effluent limitations, and, at least annually thereafter, re-

vise, if appropriate, such regulations. Such regulations shall

ses ee *&

(2) (A) identify, in terms of amounts of constituents and

chemical, physical, and biological characteristics of pollu-

tants, 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 al-

ternatives for classes and categories of point sources (other

than publicly owned treatment works: and

se ee

64a

APPENDIX J

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 421

[(OW-FRL-2289-1]

Nonferrous Metals Manufacturing Point Source

Category; Effluent Limitations Guidelines,

Pretreatment Standards, and New Source

Performance Standards

AGENCY: Environmental Protection Agency [EPA]

ACTION: Proposed regulation.

x** * * *

VII. Available Wastewater Control and Treatment Tech-

nology

A. Control Technologies Considered

The control and treatment technologies available for this

category include both in-process and end-of-pipe treat-

ments. These technologies were considered appropriate for

the treatment of nonferrous metals manufacturing waste-

water and formed the basis of the regulatory options. These

control and treatment technologies are discussed in greater

detail in Section VII of the General Development Docu-

ment. The applicability of each of the technologies to spe-

cific sources of wastewater is discussed in the subcategory

supplements.

65a

In-process treatment includes a variety of water flow

reduction steps and major process changes. The following

in-process treatments are considered for this proposal:

Recycle. Recycling of processing water is the practice

of treating and returning water to be used again for the

same purpose. Total recycle can be achieved (in theory)

through the use of reverse osmosis. In establishing PSES

for secondary copper, EPA considered complete recycle

and reuse of process wastewater after treatment with iime

precipitation, and sedimentation to remove suspended sol-

ids and metals. EPA also considered partial recycle of

process water by using cooling towers and holding tanks.

In doing so, we considered that it may be necessary to

discharge a bleed stream to purge dissolved and suspended

solids that tend to accumulate in the system.

End-of-pipe treatment includes modules used to reduce

pollutant concentrations prior to discharge. The following

end-of-pipe treatments are considered for this proposal:

Chemical Precipitation. Chemical precipitation generally

involves adjusting the pH and adding a flocculationg agent

to precipitate out of solution metal ions (e.g., copper) and

certain anions (e.g., fluoride). The chemical commonly as-

sociated with this treatment is lime.

Sedimentation. Sedimentation is a process which re-

moves solid particles from a liquid matrix by gravitational

force. This is done by reducing the velocity of the feed

stream in a large volume tank or lagoon so that gravi-

tational settling can occur. This treatment when combined

with chemical precipitation is frequently referred to as lime

and settle treatment.

Ammonia Steam Stripping. Steam may be used to re-

move ammonia from process wastewater. Generally, the

steam is introduced into a separation column countercur-

rent to the process wastewater. The ammonia is absorbed

into the steam. In some instances it may be necessary to

66a

add an additional stripping stage in which the pH of the

wastewater is elevated in order to remove certain types

of ammonia compounds.

Cyanide Oxidation or Precipitation. With the addition of

oxidizing agents or complexing agents cyanide can either

be oxidized or complexed. Cyanide can also be precipitated

out of solution using ferrous or zinc sulfate. Cyanide pre-

cipitation is the more effective technology for removal of

cyanide complexed with metals such as iron.

Oil Skimming. Oil and other materials with a specific

gravity less than water often float unassisted to the sur-

face of the wastewater. Skimming removes these floating

wastes usually in a tank designed to allow floating debris

to rise while the water flows to an outlet located below

the floating layer. A variety of devices are used to remove

the floating layer from the surface.

Carbon Adsorption. The use of activated carbon to re-

move dissolved organics is one of the most efficient organic

removal processes available. The carbon removes contam-

inants from water by the process of adsorption or the

attraction and accumulation of one substance on the sur-

face of another. Activated carbon preferentially adsorbs

organic compounds and because of this selectivity is par-

ticularly effective in removing organic compounds from

aqueous solution.

Activated Alumina. Activated alumina may be used as

an end-of-pipe treatment process to further reduce con-

centrations of arsenic and fluoride below those in the ef-

fluent from a chemical precipitation and sedimentation

system.

Multimedia Filtration. Gravity mixed-media filtration

may be used as an end-of-pipe polishing step to reduce

concentrations of toxic metals. Rapid sand or pressure fil-

ters perform as well and may be used interchangably with

gravity mixed media filters.

67a

Reverse osmosis was considered for the purpose of

achieving zero discharge of process wastewater; however,

the Agency ultimately rejected this technology because it

was determined that its performance for this specific pur-

pose was not adequately demonstrated in this category nor

was it clearly transferable from another category. Acti-

vated alumina was also considered; however, this tech-

nology was rejected because it too was not demonstrated

in this category nor was it clearly transferable to nonfer-

rous wastewater.

B. Status of In-Place Technology

Current wastewater treatment practices in the nonfer-

rous metals manufacturing category range from no treat-

ment to treatment with chemical . precipitation,

sedimentation and filtration. Of the 134 discharging plants,

61 plants have treatment to remove metals and suspended

solids, four have technologies for oil removal, six practice

ammonia stripping and 22 practice end-of-pipe filtration.

The remainder of the dischargers did not report any treat-

ment for their nonferrous metals manufacturing waste-

waters.

Recycle using treatment of lime precipitation and sedi-

mentation is practiced at 20 plants. Three plants use fil-

tration while two other plants use ammonia stripping prior

to recycling process water.

C. Control and Treatment Options

EPA considered the following treatment and control op-

tions as the basis for BPT, BAT, BCT, NSPS, PSES, and

PSNS for facilities within the nonferrous metals manufac-

turing category:

Option A—End-of-pipe treatment consisting of lime pre-

cipitation and sedimentation, and preliminary treatment,

where necessary, consisting of oil skimming, cyanide pre-

cipitation, and ammonia steam stripping. This combination

68a

of technology reduces toxic metals and conventional and

nonconventional pollutant.

Option B—Option B uses the same end-of-pipe treatment

as Option A (lime precipitation and sedimentation) pre-

ceded by flow reduction of process wastewater through

the use of cooling towers for contact cooling water and

holding tanks for all other process wastewater subject to

recycle.

Option C—Option C uses the same in-process flow re-

duction as Option B and adds polishing filtration to the

end-of-pipe treatment included in Options A and B (pre-

liminary treatment, lime precipitation, sedimentation and

filtration). This result in a further reduction of toxic metals

and TSS.

Option D—Option D uses the in-plant flow reductions

and end-of-pipe treatment in Option C and adds treatment

of isolated waste streams with activated carbon adsorption

for removal of toxic organics and activated alumina for

reduction of fluorides and arsenic concentrations.

Option E—Option E consists of Option C flow reduction

and end-of-pipe technology plus activated carbon adsorp-

tion applied to the total plant discharge as a polishing step

to reduce toxic organic concentrations.

Option F—Option F consists of Option C flow reduction

and end-of-pipe technology plus reverse osmosis treatment

to attain complete recycle of all process wastewater.

** * * *

XXIV. Solicitation of Comments

EPA invites public participation in this rulemaking. We

ask that any perceived deficiencies in the record be ad-

dressed specifically. We also ask that any suggested re-

visions or corrections be supported by data.

69a

In addition to issues already addressed in the preamble,

EPA is particularly interested in receiving additional com-

ments and information on the following issues:

**x * * *

2. The Agency is continuing to seek additional data to

support these proposed limitations. The treatment effec-

tiveness data for lime precipitation and sedimentation and

lime precipitation, sedimentation and filtration technology.

This regulation are based on the results of Agency sam-

pling of the raw wastewaters and treated effluents from

a broad range of plants generating similar wastewaters

and (for filtration) on long-term self-monitoring. The

Agency invites comments on the treatment effectiveness

results, and the statistical analysis and underlying as-

sumptions discussed in Section VII of the Development

Document as they pertain to the nonferrous metals man-

ufacturing plants. The Agency specifically requests long-

term sampling data (especially paired raw wastewater-

treated effluent data) from nonferrous metals manufac-

turing plants having well-operated treatment systems us-

ing the treatment technologies relied upon for this

regulation, and also other equally effective treatment tech-

nologies.

xe * * *

70a

APPENDIX K

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 421

[OW-FRL 2289-1]

Nonferrous Metals Manufacturing Point Source

Category; Effluent Limitations Guidelines,

Pretreatment Standards, and New Source

Performance Standards

AGENCY: Environmental Protection Agency [EPA]

ACTION: Final rule.

** kk *

C. Technology Basis for Final Regulations

* eke kK *

Primary Copper Electrolytic Refining

** kK Kk *

Extensive effluent data submitted to the Agency by an

integrated copper refiner and smelter have indicated that

the proposed arsenic mass limitations based on lime and

settle treatment may not be achievable for this plant. The

Agency believes that the larger arsenic values in the plant’s

ore contribute significant quantities of arsenic to the treat-

ment system. Arsenic concentrations in excess of 100 mg/l

are common at this plant, making the combined metals

data base inappropriate. The Agency believes that the mass

limitations as proposed for the primary electrolytic copper

T7la

limitations as proposed for the primary electrolytic copper

refining subcategory and metallurgical acid plant subca-

tegory are achievable for this plant by adding sulfide pre-

cipitation to the model treatment technology. The Agency

thus has determined that the combination of sulfide pre-

cipitation, lime and settle, and multimedia filtration will

achieve the mass limitations promulgated and has included

this technology in its compliance cost estimates for this

one plant.

se ee *

Primary Lead

The Agency has amended the proposed BAT technology

basis for primary lead plants operating acid plants to in-

clude sulfide precipitation. The technology basis thus con-

sists of in-process flow reduction through recycle and end-

of-pipe lime and settle, sulfide precipitation (followed by

sedimentation), and multimedia filtration technology. Ex-

tensive treatment performance data submitted to the

Agency from a plant in this subcategory suggest that the

proposed BAT mass limitations may not be achievable. The

principal reason for not being able to attain the filtration

performance data is the inability to achieve the combined

metals data lime and settle values. However, the Agency

believes the addition of sulfide precipitation, in conjunction

with multimedia filtration, will achieve the treatment per-

formance values as proposed wastewaters. (Sulfide precip-

itation technology is discussed fully in Section VII of the

General Development Document.) Sulfide precipitation is

currently demonstrated at a primary molybdenum plant

with a metallurgical acid piant, and at a cadmium plant

in the primary zine subcategory. For those plants only

generating wastewater to meet industrial hygiene require-

ments, the technology basis does not include sulfide pre-

cipitation since these waste streams are not so

contaminated as to require the additional treatment.

72a

* * * * *

Primary Zinc

The Agency has amended the proposed BAT technology

basis for the primary zinc subcategory to include sulfide

precipitation. The complete technology basis thus consists

of in-process flow reduction through recycle and end-of-

pipe lime and settle, sulfide precipitation (followed by sedi-

mentation), and multimedia filtration technology. Exten-

sive treatment performance data submitted to the Agency

by a plant in the subcategory demonstrate that the pro-

posed BAT mass limitations may not be achievable. The

principal reason for not being able to attain the filtration

performance data is the inability to achieve the combined

metals data lime and settle values. However, the Agency

believes for the reasons given in Section V.B above that

the addition of: sulfide precipitation in conjunction with

multimedia filtration, will achieve the treatment perform-

ance values as proposed. Sulfide precipitation is currently

demonstrated at a primary molybdenum plant with a me-

tallurgical acid plant and at a cadmium plant in the pri-

mary zinc subcategory.

* ex *& * *

Metallurgical Acid Plants

The Agency has amended the proposed technology basis

for one copper acid plant and for all acid plants associated

with zinc and lead smelting to include sulfide precipitation.

The complete technology basis for this subcategory thus

consists of in-process flow reduction through recycle and

end-of-pipe lime and settle, sulfide precipitation (followed

by sedimentation), and multimedia filtration technology.

Extensive treatment performance data submitted to the

Agency by copper, lead, and zinc acid plants demonstrate

that the proposed BAT mass limitations are not achievable

largely due to inability to achieve the combined metals

data lime and settle values. However, for the reasons al-

Eee

—

73a

ready explained, the Agency believes that addition of sul-

fide precipitation, in conjunction with multimedia filtration,

will achieve the treatment performance values as proposed.

Sulfide precipitation is currently demonstrated at a pri-

mary molybdenum plant with a metallurgical acid plant,

and at a cadmium plant in the primary zinc subcategory.

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