# Petition for Writ of Certiorari — PPG Industries, Inc. v. United States Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0885%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 495 U.S. 910 ## Text Cr, aes as ae Supreme Court, U.S, Ua J Ge. FILED No. __ JAN 8 1990 SESEEPPEEPANIOL, JR, IN THE nto Supreme Court of the United States OCTOBER TERM, 1989 PPG INDUSTRIES, INC., Petitioner, Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT *ROBERT BRAGER SHELLEY V. LUCAS BEVERIDGE & DIAMOND, P.C. 1350 I Street, N.W., Suite 700 Washington, D.C. 20005 (202) 789-6000 MADELYN A. REILLY PPG INDUSTRIES, INC. One PPG Place Pittsburgh, Pennsylvania 15272 (412) 434-2430 Counsel for Petitioner PPG Industries, Inc. *Counsel of Record ee em PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203 B8 pj” QUESTIONS PRESENTED 1. Are effluent limitations ‘‘achievable’”’ and ‘‘at- tainable”’ within the meaning of Sections 301(b\2\A) and 304(bX2\A) of the Clean Water Act (‘‘Act’’) when no plant, not even the two plants identified by the Environmental Protection Agency (‘‘EPA’”’ or “‘Agency’’) as the best plants in the regulated indus- try, can comply with all of the limitations? 2. Are effluent limitations ‘‘achievable’”’ and “‘at- tainable’’ within the meaning of the Act when they fail to account for all technological variability, thus assuring that unavoidable exceedances will occur at even the best plants that properly operate and main- tain EPA-designated pollution control technology? ii — LIST OF PARTIES Petitioner is PPG Industries, Inc.* Parties sup- porting this petition are: The Dow Chemical Company; Chemical Manufacturers Association; National Paint and Coatings Association; Synthetic Organic Chemical Manufacturers Association, Inc.; * PPG Industries, Inc.’s subsidiaries and affiliates are: Ace Insurance Company, Ltd.; Ampaspace S.r.].; Arkansas Chemi- cals, Inc.; Asahi-Penn Chemical Company, Ltd.; AZDEL, Inc.; Beiletech Corp.; Deutsche Pittsburgh Corning GmbH; Disvica, C.A.; Dongju Industrial Co., Ltd.; Exel, Ltd.; Glaskontoret A/ S; Glass Plaza Associates; Glasunit A/S; Guangdong Float Glass Co. Ltd.; Industrie Vernici Italiane S.p.A.; Inveca-Pittsburgh C.A.; J.M. Eltzroth & Associates, Inc.; Lenhardt Machinenbau GmbH; Nippon Pittsburgh Corning, K.K.; PPG Fiber Glass Cor- poration; PPG Crystal A.G. (PPG Crystal S.A.); PPG Glasexco S.A.; PPG Glass (UK) Ltd.; PPG Iberica, S.A.; PPG Industries Foundation; PPG Industries (France) S.A.; PPG Industries, Inc. (Alaska); PPG Industries Taiwan Ltd.; PPG-Nanchang Chemical Technology Development Corporation, Ltd.; PPG Scandinavia A/ S; PPG-Siam Silica Company, Limited; PPG Sweden AB; PPG Vernate Pennitalia S.p.A.; P.T. Asahimas Subentra Chemical Co., Ltd.; Pennvasia Limited; Pittsburgh Corning Corporation; Pittsburgh Corning Europe N.V.; Pittsburgh Corning France S.A.R.L.; Pittsburgh Corning Gesellschaft mbH; Pittsburgh Corning International Sales Company Limited; Pittsburgh Corn- ing Nederland B.V.; Pittsburgh Corning Scandinavia AB; Pitts- burgh Corning (Schweiz) AG; Pittsburgh Corning (United Kingdom) Limited; Pittsburgh Plate Glass Company (Alabama); Pittsburgh Plate Glass Company (Delaware); Pittsburgh Plate Glass Company (Maine); Quantum Technologies, Inc.; Separations Technology, Inc.; Silenka B.V.; Silenka Deutschland G.M.B.H.; Silenka France; Silenka U.K. Ltd.; Societe Industrielle, Com- merciale et Financiere de Peintures; Taiwan Chlorine Industries Ltd.; Tatung Coatings Co.; VFG-Sudamtex, C.A.; and Vidrio C.A. ill Air Products Manufacturing Corporation and Air Products and Chemical, Inc.; Akzo Chemicals, Inc.; Allied-Signal, Inc.; Dixie Chemical Company, Inc.; E.I. du Pont de Nemours & Co.; Ethyl Corporation; FMC Corporation; Goodyear Tire & Rubber Company; Hoechst Celanese Corporation and Hoechst Celanese Chemical Group, Inc.; Koppers Company, Inc.; LaRoche Chemicals, Inc.; M & T Chemicals, Inc.; Monsanto Company; Rubicon, Inc.:; Sherex Chemical Company, Inc.; Sterling Chemicals, Inc.; Texas Eastman Company, a division of Eastman Kodak Company; Union Carbide Corporation; and W.R. Grace & Company. Other parties to the case below were: United States Environmental Protection Agency; Borg-Warner Specialty Chemicals, Inc.; Courtoulds Fibers, Inc.; Gulf Coast Waste Disposal Authority; The Lubrizol Corporation; and Natural Resources Defense Council. iv TABLE OF CONTENTS QUESTIONS PRESENTED. ............ccccscccccssesscceseseeees i BI Ee IEE bteiieniicietanindcesitibintegeinidn cate ii A. Statutory Background ...........c..cceeeeeeee. B. Regulatory Background ........0..ccceeeeeeeeee C. The Court’s Decision ................ccccscccosees REASONS FOR GRANTING WRIT. ...........cccceeseeeeeeee 1] I. THE COURT’S FAILURE TO REQUIRE EPA TO DEMONTRATE THAT THE BEST PLANTS IN THE INDUSTRY CAN COMPLY WITH THE BAT LIMITATIONS CREATES A CONFLICT WITH FOURTH, NINTH, EIGHTH, AND D.C. CIRCUIT PRECEDENT ON AN ISSUE OF FUNDAMENTAL IMPORTANCE TO THIS AND 1 2 2 STATEMENT OF THE CASE. .....sccccsecccscsssesssesscsseens 2 3 4 7 OTHER RULEMAKING PROCEEDINGS ........ ll A. The Decision of the Court Below Creates a Conflict Among the Circuit Courts .... 11 B. This Issue Is Fundamental to This and Future Rulemakings Under the Clean Wet 20D naiiiedeia ee. 15 II. THE COURT’S HOLDING THAT EPA MAY PROMULGATE LIMITATIONS THAT PLANTS CAN BE EXPECTED TO EXCEED BECAUSE OF UNAVOIDABLE VARIABILITY IS AT ODDS WITH FOURTH, FIFTH, NINTH, AND D.C. CIRCUIT PRECEDENT ON AN ISSUE OF FUNDAMENTAL IMPORTANCE TO THIS AND OTHER RULEMAKING PROCEEDINGS ........ 16 CONE ATII ccncennsnvnsccsimnndanshncntaapanaiiaidipmilishinisianiis 20 TABLE OF AUTHORITIES Page Cases: American Petroleum Institute v. EPA, 661 F.2d I TIED ecthstcsnaswanecncsrnansnersssenenananss 10,16,19 Association of Pacific Fisheries v. EPA, 615 F.2d Be Ne le HED wecesivnnscscnsesepnevncsnsenseesesenanses passim Chemical Manufacturers Ass’n v. EPA, 870 F.2d Ee te IED cctssinstncesnenasnssesnessnsinsainninas passim Chemical Manufacturers Ass’n v. EPA, 885 F.2d EIR IID cetnenscecessssarsnceceresuvietensiinians passim CPC International, Inc. v. Train, 540 F.2d 1329 (8th Cir. 1976), cert. denied, 430 U.S. 966 TIP sssiiilphessdeicibinistsaacdonseanamibinchoesonnilaasacnivensun 3,12,13 FMC Corp. v. Train, 539 F.2d 973 (4th Cir REI bahia niuncersnrtenanwsnanpcnensnanseintatnssacenmsansnsnasnsas passim Marathon Oil Co. v. EPA, 564 F.2d 1253 SE MD, ~ BIO ED sicinranetsinanencncociesesesasitidaniunaniansvess passim National Lime Ass’n v. EPA, 627 F.2d 416 Se, SUED, SINE sanceniesesanconssatnanessnneniansessansonsecs passim Natural Resources Defense Council v. EPA, 859 F.2d ARTs BEPUIED snnvenciccsnssansnsisbsdvasasussnsseeces 20 Securities Industry Ass’n v. Board of Governors of the Federal Reserve System, 468 U.S. 137 RT Titi titsciiccchadlinnaineinndencinanencwiendepnaiaansonnsotexese 11-12 Southeastern Community College v. Davis, 442 U.S. TE il cncstindathiaidinaininneaaninsiiininnstnaranennensees 12 Tanners’ Council of America v. Train, 540 F.2d I: SNE scensherensscaninesedcmnienvannsnonnses passim Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. iia caaiclsainsnamatininssnssannnniwennxsien 10,16 Statutes: I in ies inanincanninnnievinndientennsecsanenion 2 SE MIA, AE TIUIIED ccncecsecccocnegssccoscccsssescvercosccsscensss 2 vi Table of Authorities Continued abe Page Oe eat, © TUR ID sccnnsiscissictnsidencmeenaae passim ee Wee Th I tintstcrctawsinanrnstoensrediieieenead passim Se eis II charcesccsiccshccncchaannshbabhecunicala ate 16 Se SEA: BD TRIE IIIOD ancosscisncsnnsnrensrhanaeeadsntciananes 5 i NIE EE PINE Andi constuinttnasicedasdercin acd ens 14 Regulations: A I Se i ee 17 Oe ee © I ii vinirsiniccmnscc 17 QD CPR. § UBRGUAWENT) occcsecccccnsecscscecceassscaszensere 17 lar ey ET pints ASnceacidsccsaceth eas 2 me UR, SE CIID a svenersesenssccsarieccaccsncntanaces 4,5,7 55 Fed. Reg. 80, 81 (1990) ........... By Jeera eater ore 16 IN THE Supreme Court of the Gnited States OCTOBER TERM, 1989 No. _— PPG INDUSTRIES, INC., Petitioner, We UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. PETITION FOR A WRIT OF: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Petitioner PPG Industries, Inc. prays that a writ of certiorari issue to review the judgment and opinions of the United States Court of Appeals for the Fifth Circuit entered on March 30, 1989 and October 10, 1989. OPINIONS BELOW “ The initial opinion of the United States Court of Appeals for the Fifth Circuit is reported in Chemical Manufacturers Association v. EPA, 870 F.2d 177 (5th Cir. 1989) (hereinafter “CMA I’), and is reprinted in the Appendix at p. la. The opinion of the United States Court of Appeals for the Fifth Circuit denying ing is reported in Chemical Manufacturers As- sociation v. EPA, 885 F.2d 253 (5th Cir. 1989) (here- 2 inafter “CMA II’’), and is reprinted in the Appendix at p. 178a. JURISDICTIONAL STATEMENT The -eriginal judgment in this case was entered on March 30, 1989. Petitioner’s motion for panel re- hearing was denied by the Fifth Circuit on October 10, 1989. This petition for a writ of certiorari has been timely filed pursuant to 28 U.S.C. § 2101(c). This Court’s jurisdiction to review the judgment and opin- ions of the Fifth Circuit is invoked pursuant to 28 U.S.C. § 1254(1). STATUTE AND REGULATION INVOLVED This case involves an EPA rulemaking under the Clean Water Act. 33 U.S.C. § 1251 et seg. The sta- tutory provisions relevant to this petition are Sections 301(a),(b) and 304(b) of the Act. 38 U.S.C. §§ 1311(a),(0) and 1314(b). These provisions are re- printed in the Appendix at p. 196a. The effluent lim- itations at issue here are codified at 40 C.F.R. Part 414, and are reprinted in the Appendix at p. 202a. STATEMENT OF THE CASE This petition for a writ of certiorari is before the Court because the court below found that a set of effluent limitations is ‘‘achievable” and “‘attainable’”’ within the meaning of Sections 301(bX2XA) and 304(bX2XA) of the Clean Water Act, 33 U.S.C. §§ 1311(bX2\A) and 1314(bX2XA), even though those limitations cannot be achieved by any plant in the industry, not even by the two “best” plants on whose performance the limitations were based. The Fifth Circuit conceded that its opinion conflicts with the Fourth Circuit’s decision in Tanners’ Council of Amer- ica v. Train, 540 F.2d 1188, 1192-94 (4th Cir. 1976), but expressly declined to follow the Fourth Circuit's decision. CMA II, 885 F.2d at 264; App. at 19la. The decision of the court below is also at odds with As sociation of Pacific Fisheries v. EPA, 615 F.2d 794 (9th Cir. 1980); CPC International, Inc. v. Train, 540 F.2d 1329 (8th Cir. 1976), cert. denied, 430 U.S. 966 (1977); and National Lime Ass’n v. EPA, 627 F.2d 416, 430-51 (D.C. Cir. 1980). Additionally, this petition is before the Court be- cause the court below held that effluent limitations are achievable even though they are set at a level that can be expected to result in exceedances for each pollutant 1% of the time (for daily maximum limita- tions) and 5% of the time (for monthly average lim- itations), and the limitations provide no affirmative defense even though the exceedances are unavoidable. In analogous circumstances, other circuits have deemed EPA regulations to be unattainable. National Lime, 627 F.2d at 430-44; Marathon Oil Co. v. EPA, 564 F.2d 1253, 1271-74 (9th Cir. 1977); FMC Corp. v. Train, 5389 F.2d 978, 985-86 (4th Cir. 1976). This petition should be granted because the decision below creates a conflict among the circuits and raises important and recurring issues concerning develop- ment of regulations under the Clean Water Act. A. Statutory Background Sections 301(bX2XA) and 304(bX2XA) of the Clean Water Act require EPA to promulgate regulations, known as “effluent limitations guidelines,’ which are sets of numerical limitatior.s restricting the amounts of pollutants that may be discharged from various categories or classes of industrial facilities. 33 U.S.C. §§ 1311(bKX2KA) and 1314(bX2XA). These limitations reflect the reduction of pollutants that is achievable using the “best available technology” (“BAT’’). Jd. The Act requires BAT effluent limitations to be “achievable” and “attainable” by the class or cate- gory of regulated plants. Jd. As a matter of established practice, when devel- oping BAT limitations for a category or class of fa- cilities, EPA identifies the best technology available to treat a set of pollutants and determines whether any plants in the regulated industry effectively use that technology. If no plant in the regulated industry does so, the Agency looks to other industries and, through modeling and technical analyses, transposes that technology to the industry being regulated. Where, as here, some plants in the industry already effectively use the EPA-designated technology, the ~~~Agency collects and analyzes data from those plants to determine what pollutant reductions are possible. Data representing BAT-level performance are re- tained, while data not representing BAT-level per- formance are excluded from EPA’s data base. Based on the data retained in EPA’s data base, the Agency then promulgates two limitations (a daily maximum limitation and a monthly average limitation) for each regulated pollutant. B. Regulatory Background On November 5, 1987, EPA promulgated effluent limitations guidelines applicable to the more than 1000 plants in the organic chemicals, plastics, and synthetic fibers (“OCPSF’’) industry. 52 Fed. Reg. 42,522 (1987). Those limitations were challenged in the Fifth Circuit which had jurisdiction pursuant to 33 U.S.C. § 1369(b\1XE). The OCPSF Guidelines impose daily maximum and monthly average limitations for 66 pollutants. Twenty- eight of those pollutants are volatile compounds for which EPA properly designated a single technology— steam stripping—as BAT. 52 Fed. Reg. at 42,538-41. Steam stripping is a process in which wastewater is preheated to temperatures near boiling and then pumped into the top of a distillation column (usually 20 to 30 feet high). Superheated steam is continuously injected into the bottom of the column. When the steam contacts the wastewater, the volatile com- pounds evaporate out of the wastewater into the steam and exit through the top of the distillation column into a condenser. The compounds then are removed from the condenser and either recycled or incinerated. The cleansed wastewater exits at the bot- tom of the distillation column. BAT-level steam strippers typically remove more than 99% of all of the volatile compounds in the wastestream. A BAT-level steam stripper’s effective- ness in treating any single volatile compound, how- ever, depends on the characteristics of the wastestream (i.e., the nature, amounts, and interac- tions of the pollutants in the wastestream) and the stripper’s operating parameters. For example, in- creasing the temperature of the wastestream in the preheater or increasing the volume and temperature of the steam injected into the distillation column can enhance the stripper’s ability to remove certain pol- lutants but, depending on wastestream characteris- tics, can also impair the stripper’s ability to remove other pollutants. Consequently, steam strippers are operated to optimize overall removal of all of the volatile compounds in a particular plant’s wastes- tream. To develop the BAT steam stripping limitations, EPA reviewed performance data from many plants and then compiled a data base using data from the few plants that effectively use BAT-level steam strip- pers. As EPA has stated, the Agency then deleted certain data from its data base, retaining “‘only those data that are consistent with good or sound opera- tion.... In the case of all pollutants, EPA has se- leeted-only-a-very-smalt subset of the industry using the best available technology appropriately, and EPA has only used data that represented good perform- ance.’’ See EPA’s Response to Comments, reprinted in the Appendix at p. 259a. There were two plants in EPA’s data base whose steam strippers outperformed all of the others: PPG Plant 913 and Dow Plant 415.' Recognizing the su- perior performance of the steam strippers at PPG Plant 913 and Dow Plant 415, EPA relied almost exclusively on data from those two plants to establish the BAT steam stripping limitations for the 28 vol- atile compounds. Indeed, no data from either plant were excluded from the data base during EPA’s rig- orous data editing process. Both the data themselves ‘The performance of the steam strippers at Plants 913 and 415 was exemplary: Many of the volatile pollutants found in those plants’ wastestreams prior to treatment could not even be detected after treatment, and at no time at either plant did the total of all volatile compounds in the wastestream after treat- ment exceed 1 part per million (“‘ppm’”’). Indeed, at both plants the total of all volatile compounds averaged less than a quarter of a part per million after treatment. | and EPA’s method for editing those data demonstrate | that PPG Plant 913 and Dow Plant 415 have BAT- level steam strippers; as EPA stated in the preamble, “only data representing BAT-level design and oper- ation were retained for purposes of developing limi- tations.”’ 52 Fed. Reg. at 42,540. In light of the statutory command that limitations be achievable and attainable by the category or class of plants being regulated, 33 U.S.C. §§ 1311(b\(2\A), 1314(bX2\A), one would have expected EPA to es- tablish effluent limitations that could be attained by the two best steam strippers in the industry. How- ever, neither plant can achieve the limitations for all pollutants. As the court below noted, a comparison of the BAT-level performance data with the limita- tions demonstrates that “‘PPG plant 913 exceeded the monthly average limit for chloroform, and Dow plant 415 exceeded the daily maximum limitation for tri- chloroethylene ....’’ CMA I, 870 F.2d at 238; App. at 112a. C. The Court’s Decision The court below acknowledged that neither PPG Plant 913, Dow Plant 415, nor any other plant in EPA’s data base can comply with the full set of steam stripping limitations, but deemed this ‘‘irrelevant’’ as a matter of law. CMA I, 870 F.2d at 239; App. at i13a. According to the court, PPG Plant 913’s ina- bility to achieve the chloroform limitation was “‘ir- relevant” because Dow Plant 415 could do so, while Dow Plant 415’s inability to achieve the trichloroe- thylene (“TCE”) limitation was ‘‘irrelevant’’ because PPG Plant 913 could do so. Jd. The court’s conclusion was based on its holding that, as a matter of statutory construction, EPA could demonstrate that an entire ™ set of limitations is achievable by selecting perform- ance data from different plants for different pollu- tants, and can ignore as “‘irrelevant’’ data demonstrating that no plant can attain the full set of limitations. Jd. The Fifth Circuit did not find that PPG Plant 913 can alter its performance to achieve the chloroform limitation, and there is no basis in the record that would support such a conclusion. Regarding Dow Plant 415, the Fifth Circuit erroneously hypothesized that “EPA could reasonably conclude’ that Plant 415’s inability to achieve the TCE limitation was either due to an upset or a quality control problem. CMA I, 870 F.2d at 238-39; App. at 112a. The court did not and could not base such a conclusion on the record, however, because EPA did not reach this con- clusion.? Indeed, because EPA excluded from the data base all data reflecting upsets and quality control problems, but did not edit any TCE data from Dow Plant 415, EPA must have concluded that the TCE exceedance did not result from an upset or quality 2The absence of such a conclusion is especially noteworthy because Dow Plant 415 was the subject of a comprehensive, month-long EPA study. The Agency was at the plant monitoring operations, sampling steam stripper influent and effluent, and analyzing the data at all times during the study, including the day on which the elevated TCE reading occurred. The study resulted in a 350-page Agency report on Plant 415’s perform- ance, yet the report nowhere mentions a steam stripper upset or quality control problem. At other plants studied by EPA, the Agency identified upsets and quality control problems and edited the cata base accordingly. Had an upset or quality control prob- lem occurred at Dow Plant 415, EPA would have noted that fact in the record and edited the resulting data from the Agen- cy’s data base. ee ey enna it control problem. See 52 Fed. Reg. at 42,540; infra pp. 17-19. Despite EPA’s determination that all of the data from PPG Plant 913 and Dow Plant 415 “‘repre- sent[ed] BAT-level design and operation,” 52 Fed. Reg. at 42,540, and despite the fact that this data demonstrate that neither plant can achieve all of the OCPSF limitations, the court below upheld the limi- tations. This decision presents a direct, acknowledged conflict with the Fourth Circuit’s decision in Tanners’ Council and is at odds with Justice (then Judge) Ken- nedy’s opinion in Association of Pacific Fisheries, the Eighth Circuit’s decision in CPC International, and the D.C. Circuit’s decision in National Lime. Petitioner prays that the Court will grant this petition and resolve this conflict. Additionally, all of the OCPSF limitations (i.e. those based on other technologies as well as those based on steam stripping) are unattainable because of the methodology used by EPA to develop the OCPSF limitations. In developing the limitations, EPA rec- ognized all technology has its limits, and even the best designed and operated pollution control technol- ogy will experience fluctuations (or ‘‘variability’’) in performance. As the court below stated, [t]he same plant using the same treatment method to remove the same toxic does not always achieve the same result. Tests con- ducted one day may show a different con- centration of the same toxic than are shown by the same test the next day. This varia- bility may be due the inherent inaccuracy of analytical testing, i.e., ‘‘analytical variabil- 10 ity,’ or to routine fluctuations in a plant’s treatment performance. CMA I, 870 F.2d at 228; App. at 89a. To prevent the occurrence of unavoidable exceedances, EPA must allow for all of the variability inherent in use of the EPA-designated technology. Rather than do so, however, EPA used a statistical methodology that allows for only 99% of the inherent variability for the daily maximum limitation for each pollutant and only 95% of the inherent variability for the monthly average limitation for each pollutant. As all courts addressing the issue have held, when EPA does not allow for 100% variability, unavoidable ex- ceedances will result. See American Petroleum Insti- tute v. EPA, 661 F.2d 340, 350-53 (5th Cir. 1981); Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1056-58 (D.C. Cir. 1978); Marathon Oil, 564 F.2d at 1266; FMC Corp., 539 F.2d at 985-86. Consequently, other courts have required EPA to provide an affirmative defense or otherwise account for the unavoidable ex- ceedances that result from EPA’s use of less than 100% variability factors. See National Lime, 627 F.2d at 430-51; Marathon Oil, 564 F.2d at 1271-74; FMC Corp., 539 F.2d at 985-86. However, the court below upheld the limitations even though EPA did not pro- vide an affirmative defense or otherwise account for the expected unavoidable exceedances. Petitioner prays that the Court will grant this petition and re- solve this additional conflict. 11 REASONS FOR GRANTING WRIT I. THE COURT’S FAILURE TO REQUIRE EPA TO DEM- ONSTRATE THAT THE BEST PLANTS IN THE INDUS- TRY CAN COMPLY WITH THE BAT LIMITATIONS CREATES A CONFLICT WITH FOURTH, NINTH, EIGHTH, AND D.C. CIRCUIT PRECEDENT ON AN IS- SUE OF FUNDAMENTAL IMPORTANCE TO THIS AND OTHER RULEMAKING PROCEEDINGS. A. The Decision of the Court Below Creates a Conflict Among the Circuit Courts. Prior to this case, every court addressing the issue has held that limitations are not ‘‘achievable’’ within the meaning of the Act, 33 U.S.C. § 1311(b\2 A), when the record indicated that no plant in the reg- ulated industry was able to achieve all of those lim- itations using the EPA-designated technology. To justify its unprecedented opinion to the contrary, the court below noted that BAT limitations may be based on the performance of ‘“‘the single best performing plant in an industrial field.” CMA I, 870 F.2d at 239; App. at 113a. Instead of requiring the Agency to demonstrate that the single best performing plant or plants can achieve all of the limitations, however, the court below held that achievability can be based on the performance of identical technology at different “best” plants ‘‘on a pollutant-by-pollutant basis.’’® Jd. 3’ The court provided no statutory interpretation to support this conclusion, but relied solely on “‘deference’”’ to EPA’s alleged construction of the Act. CMA I, 870 F.2d at 239; App. at 113a. This alleged interpretation of the Act was neither ar- ticulated in the record nor in the Agency’s brief, but was raised for the first time by the Department of Justice at oral argument. As such, the interpretation is a post hoc rationalization that ‘is entitled to no deference. See Securities Industry Ass'n v. Board 12 The court unjustifiably concluded that as long as a hypothetical ‘‘best’’ plant—created by taking perform- ance data for different pollutants from different plants—theoretically could achieve the full set of lim- itations, then it is irrelevant that no actual plant can do so. This holding ignores the technological limits inherent in simultaneously steam stripping numerous pollutants from multi-pollutant wastestreams. See su- pra pp. 5-6. Moreover, the decision of the court below is con- trary to all applicable precedent; it directly conflicts with the Fourth Circuit’s decision in Tanners’ Coun- cil, 540 F.2d at 1192, and is at odds with the Ninth Circuit’s decision in Association of Pacific Fisheries, 615 F.2d at 816-20; the Eighth Circuit’s decision in CPC International, 540 F.2d at 1338-40; and the D.C. Circuit’s decision in National Lime, 627 F.2d at 430- 51. In Tanners’ Council, 540 F.2d at 1190-92, the court found that by using the EPA-designated tech- nology, some plants could meet the limitations for one pollutant (TSS) and other plants could meet the lim- itations for another pollutant (BOD), but no plant could meet the limitations for both pollutants.‘ Had the court in Tanners’ Council determined the achiev- ability of the tannery limitations by selecting per- of Governors of the Federal Reserve System, 468 U.S. 137, 143- 44 (1984). Moreover, this deference was improper because any such EPA “‘interpretation” would be contrary to law. South- eastern Community College v. Davis, 442 U.S. 397, 411-12 (1979). ‘ Similarly, Dow Plant 415 can meet the limitations for chlo- roform, PPG Plant 913 can meet the limitations for TCE, but neither plant can meet the limitations for both pollutants, even though both plants use the identical EPA-designated technology. CMA I, 870 F.2d at 238-39; App. at 113a. 13 formance data for different pollutants from different plants, those limitations would have been upheld. However, the Fourth Circuit did not assess the lim- itations’ achievability on a pollutant-by-pollutant basis, but instead remanded the tannery limitations because the entire set of limitations must be ‘‘achievable by the affected plants.’’ Tanners’ Council, 540 F.2d at 1192. In Association of Pacific Fisheries, 615 F.2d at 817, Justice (then Judge) Kennedy stated that the ‘“‘best”’ plants in the industry must be able to achieve all of the limitatiuns with EPA-designated technology. The technologies at issue in Association of Pacific Fish- eries were dissolved air flotation (‘“‘DAF’’) and aerated lagoons; EPA had designated each technology as BAT for different types of plants. When discussing DAF plants, the court stated that ‘EPA is ... charged with the burden of showing that .. . the best existing DAF units can meet the limitations.’ Id. (emphasis added). Because all the limitations were met by ‘“‘the best existing DAF units,” those limitations were up- held. Jd. However, because EPA had no data showing that two of the limitations could be achieved with aerated lagoons, the limitations for those two pollu- tants were remanded to EPA. /d. at 819. According to the Ninth Circuit, all of the limitations must be achievable by the best plant or plants. In CPC International, the Eighth Circuit found that the model plant could meet the limitations for one pollutant (BOD), but not the other (TSS), and no plant could meet both limitations. Rejecting EPA’s reliance on other evidence that allegedly implied that the TSS limitations could be achieved, the court struck down the TSS limitations and suggested that EPA set those 14 limitations at levels achievable by the model plant. 540 F.2d at 1338-40. In National Lime, 627 F.2d at 480-51, the D.C. Circuit struck down standards of performance for lime manufacturing plants that had been promulgated pur- suant to Section 111 of the Clean Air Act, 42 U.S.C. § 7411. The court held that EPA had not demon- strated that those standards were achievable when one out of the three best plants using the EPA-des- ignated technology could not achieve the standards. The court stated: [i]f, for unexplained reasons, one-third of the tested plants initially chosen by EPA for their well-controlled systems fail to meet the standard, the conclusion is just as plausible that the standard is not achievable as that the plants chosen did not have well controlled systems. It is up to EPA to dispel such doubts, and they have not done so here. Id. at 444. Rather than require EPA to “‘dispel such doubts” here, the court below simply deemed “‘irrel- evant” the fact that neither “‘best”’ plant can achieve all of the limitations.® 5 The court below tacitly admitted that PPG Plant 913 cannot achieve the limitations, but stated that ‘‘the industrial petitioners have failed to demonstrate that the Dow Plant is incapable of meeting the BAT, limitations.’”” CMA I, 870 F.2d at 239; App. at 112a. The court’s decision thus impermissibly shifted the bur- den of proof from EPA to petitioner. The Act requires that effluent limitations be achievable, 33 U.S.C. § 1311(bX2XA), and, as this Court has held, “‘[i]t is the proponent of a rule or order who has the burden of proof in administrative proceedings.” Industrial Union AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 653 (1980). Accordingly, EPA must demonstrate, based 15 B. This Issue Is Fundamental to This and Future Rule- makings Under the Clean Water Act. Not only does the decision below create an unac- ceptable conflict among the circuits, but the issue raised is one of fundamental importance to this and to future EPA rulemaking proceedings under the Clean Water Act. The ultimate premise underlying technology-based limitations is that they can be achieved through use of the EPA-designated tech- nology by the category or class of plants subject to regulation. See 33 U.S.C. § 1311(b)2XA). Where, as here and in most industries, plants have multi-pollu- tant wastestreams, the EPA-designated technology must be able to attain simultaneously all of the lim- itations. Permitting EPA to demonstrate the achiev- ability of limitations that are based on a single technology with performance data from different plants for different pollutants negates this achieva- bility requirement. The correct view, adopted by all of the other circuits that have addressed the issue, is to require EPA to demonstrate, with performance data from the best plants using the EPA-designated technology, that all of the limitations are achievable by the best plant or plants. This conflict should be resolved now because the issue posed will recur in numerous future rulemaking proceedings under the Clean Water Act. Promulga- tion of effluent limitations under the Clean Water Act is an ongoing process; the Act requires EPA to re- view and, where appropriate, revise, effluent limita- tions for the more than 50 existing industrial categories on an annual basis, and requires EPA to on evidence in the record, that the OCPSF industry can achieve the limitations. 16 promulgate limitations for new categories of sources as well. 33 U.S.C. § 1814(m). For example, EPA has recently announced its intention to develop limitations for five new industrial categories; to revise limitations for three existing industrial categories; to study eight industries to determine whether limitations are war- ranted; and to review limitations for three existing categories to determine whether they should be re- vised. 55 Fed. Reg. 80, 81 (1990). Unless the conflict among the circuits is resolved, EPA can be expected to follow the inappropriate course of action the Agency pursued here when it develops future effluent limitations. Accordingly, petitioner prays that the Court will grant this petition. II. THE COURT’S HOLDING THAT EPA MAY PROMUL- GATE LIMITATIONS THAT PLANTS CAN BE EX- PECTED TO EXCEED BECAUSE OF UNAVOIDABLE VARIABILITY IS AT ODDS WITH FOURTH, FIFTH, NINTH, AND D.C. CIRCUIT PRECEDENT ON AN IS- SUE OF FUNDAMENTAL IMPORTANCE TO THIS AND OTHER RULEMAKING PROCEEDINGS. EPA has admitted that it set all of the OCPSF limitations using variability factors of 99% for the daily maximum limitations and 95% for the monthly average limitations. Consequently, EPA admittedly failed to allow for 1% and 5% of the variability in- herent in the use of EPA-designated technology. As every circuit addressing the issue has found, this fail- ure will result in corresponding (1% and 5%) instances of noncompliance. See American Petroleum Institute, 661 F.2a at 351; Weyerhaeuser, 590 F.2d at 1056-58; Marathon Oil, 564 F.2d at 1266; FMC Corp., 539 F.2d at 986. Indeed, EPA has itself acknowledged this fact, stating: ‘‘a discharger running a properly operated and maintained treatment facility has a 95-99% chance 17 of complying with its permit limits in any single mon- itoring observation.” See EPA’s “Training Manual for NPDES Permit Writers” at p.17, reprinted in the Appendix at p. 26la. Thus, EPA’s use of 99% and 95% variability factors in the OCPSF limitations can be expected to result in unavoidable exceedances for each pollutant 1% and 5% of the time, despite ap- propriate use of the EPA-designated technology. Plants are required to comply with the OCPSF lim- itations 100% of the time, are strictly liable if they fail to do so, and must report all exceedances to EPA. 33 U.S.C. § 1311(a); 40 C.F.R. § 122.41(a) and (1X6),(7). Consequently, when EPA has failed to account for all technological variability, other circuit courts have re- quired EPA to provide an affirmative defense or oth- erwise account for the inevitable and unavoidable noncompliance. See National Lime, 627 F.2d at 430- 51; Marathon Oil, 564 F.2d at 1272-74; FMC Corp., 539 F.2d at 986. Nevertheless, the court below upheld EPA’s use of 99% and 95% variability factors without a corresponding affirmative defense, stating incor- rectly that the resulting 1% and 5% instances of non- compliance represent either upsets for which the upset defense is available,* or quality control problems for which no defense is required. CMA I, 870 F.2d at 229-30; App. at 112a. * An upset is ‘‘an exceptional incident in which there is un- intentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the rea- sonable control of the permittee.” 40 C.F.R. § 122.41(nX1). A permittee who has violated technology-based permit limitations as the result of an upset can use the upset defense as an af- firmative defense to liability. See id. at § 122.41(n). 18 The Fifth Circuit’s erroneous conclusion that the 1% and 5% exceedances resulted from upsets or qual- ity control problems was based on the court’s incor- rect assumption that the limitations were derived from all of the data collected from the data base plants (i.e., both the retained and the edited data), and that unreasonably high readings were excluded by setting the variability factors at 99% and 95% instead of at 100%. In fact, however, as the Agency has acknowl- edged, EPA first edited the data from the model plants to expunge all data “‘not representative of BAT technology performance,” including ‘‘treatment sys- tem upsets[,] equipment malfunctions[, and] perform- ance not up to design specifications.”” CMA II, 885 F.2d at 263; App. at 189a. Only after data repre- senting upsets and quality control problems had been deleted from the data base were the 99% and 95% variability factors applied to formulate the limitations. Consequently, the data points that fell above the 99 and 95 percentiles of the edited data could not have resulted from upsets or quality control problems, but represented normal, expected variability in perform- ance that occurs relatively infrequently, 7.e., 1% and 5% of the time. On rehearing, the court apparently recognized the correctness of this reasoning; its only response was to assert, incorrectly, that EPA edited only whole sets of data from improperly operated or maintained plants, but ‘‘did not use its editing criteria to exclude individual data points.’ Jd. This assertion is contra- dicted by the administrative record, which shows that EPA in fact edited individual data points representing inferior treatment from model plants whose data was otherwise used to set the limitations. For example, 19 EPA edited two days’ worth of data from a third company’s plant (Plant 725) ‘“‘because steam stripper performance for those two days was considered in- adequate.’’ However, the remaining data from that third plant were used to set the limitations. See De- velopment Document for Effluent Limitations Guide- lines and Standards for the OCPSF Industry, at p. VII-190, reprinted in the Appendix at p. 263a. The excluded data from this third plant may well have reflected an upset or quality control problem; the discharges were in excess of 3359 ppm and 1558 ppm. In contrast, Dow Plant 415’s daily maximum TCE exceedance was .085 ppm and PPG Plant 913’s monthly average chloroform exceedance was .129 ppm. These data were not edited, but were retained in the data base as data representing good perform- ance. Significantly, because the exceedances experi- enced by Plants 913 and 415 did not result from upsets, the upset defense is inapplicable. Because data representing inadequate performance were excluded from the data base prior to application of the variability factors, the 1% and 5% exceedances can be expected despite BAT-level performance. Since the limitations do not contain an applicable affirma- tive defense or otherwise account for these unavoid- able exceedances, the OCPSF limitations are not ‘achievable’ and ‘“‘attainable’’ within the meaning of the Act, and the decision of the court below sustain- ing them is at odds with decisions of the Fourth, Fifth, Ninth, and D.C. Circuits in FMC Corp., 539 F.2d at 936; American Petroleum Institute, 661 F.2d at 350-52; Marathon Oil, 564 F.2d at 1272; and Na- tional Lime, 627 F.2d at 430-51. 20 This issue is one of fundamental importance to this and future rulemaking proceedings under the Clean Water Act. As the D.C. Circuit recently stated, ‘‘[a] technology-based standard discards its fundamental premise when it ignores the limits inherent in the technology.”” Natural Resources Defense Council v. EPA, 859 F.2d 156, 208 (D.C. Cir. 1988). Moreover, as noted supra pp. 15-16, the Agency is both devel- oping effluent limitations for new categories of sources and reevaluating the limitations imposed on the more than 50 existing industrial categories al- ready subject to regulation. Unless the conflict among the circuits is resolved, EPA can be expected to fol- low, in the development of those limitations, the in- appropriate course of action the Agency followed here. Accordingly, petitioner prays that the Court will grant this petition. CONCLUSION This petition should be granted both to resolve the conflict among the circuits and to correct errors of fundamental importance to this and future rulemak- ings under the Clean Water Act. As a result of the decision below, the most important check on the Agency’s rulemaking authority under the Clean Water Act has been vitiated. Allowing that decision to stand will permit EPA to promulgate technology-based lim- itations without making any meaningful demonstra- tion that those limitations are achievable and attainable. Petitioner prays that the Court will grant this petition. 21 Respectfully submitted, ROBERT BRAGER SHELLEY V. LUCAS BEVERIDGE & DIAMOND, P.C. 1350 I Street, N.W. Washington, D.C. 20005 (202) 789-6000 MADELYN A. REILLY PPG INDUSTRIES, INC. One PPG Place Pittsburgh, Pennsylvania 15272 (412) 434-2451 Counsel for PPG Industries, Inc. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0885%3A1. Public record. Not legal advice.