Opposition Brief — PPG Industries, Inc. v. United States Environmental Protection Agency

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IN THE —_—__-—_—_--

Supreme Court of the Gnited States

OCTOBER TERM, 1989

PPG INDUSTRIES, INC..,

Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR INTERVENOR RESPONDENT IN OPPOSITION

David Doniger’

Robert W. Adler

Jessica C. Landman

Natural Resources Detense

Council

1350 New York Avenuc, N.W.

Washington, DC 20005

(202) 783-7800

Attorneys for Intervenor

Respondent NRD¢

February 7, 1990

" Counsel of Record

TABLE OF CONTENTS

Page

ge By ee yy |), rr l

SUMMARY OF ARGUMENE 2.2 cecs cc neccescuce 4

I. VACATING THE OCPSF RULE WOULD ALLOW

THE CONTINUED RELEASE OF MILLIONS OF

POUNDS OF POLLUTANTS INTO THE NATION’S

WE cos ROS ae PERE ER Cee 2

II. INDUSTRY’S ATTACKS ON EPA’S METHODOLO-

GY AND TREATMENT TECHNOLOGY DO NOT

ESTABLISH THAT THE EFFLUENT LIMITATIONS

ee |) ee 9

A. EPA’s BAT Limitations Are Extremely

er re ee ee or ee 9

B. EPA’s Effluent Limitations Do Not Presume

ge eS AG ee ey eS tn ots 4 11

II]. ASSERTIONS THAT PARTICULAR DISCHARGERS

CANNOT MEET THE NATIONWIDE CATEGORI-

CAL LIMITATIONS ARE PROPERLY THE SUBJECT

OF A VARIANCE REQUEST RATHER THAN AN

ATTACK ON THE CATEGORICAL RULE ...... 12

Ce Soe boos a ee ene cae eae 6 eae ee ee 14

PE Ras ne ie de ee eee SCR a ee 15

TABLE OF AUTHORITIES

Page

CASES:

American Petroleum Inst. v. EPA, 661 F.2d 340

ee ee. | Peer rr eres oe ee ee ree 11

BASF Wyandotte Corp. v. Costle, 598 F.2d 637

‘gs ra rr er ee er Le 13

Chemical Manufacturers Association v. EPA, 870 F.2d 177

+ oS PPeeerrrrrrer rrr oe rower 3 |

Chemical Manufacturers Association v. EPA, 885 F.2d 253 |

+ Re A re erage ct ht ole ae 4

Chemical Manufacturers Association v. NRDC, 470 U.S. 116

(Pre era Gg a 12-13

E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112

tpl!) Pee eee eee eee oe re oe yee ee 12

EPA v. National Crushed Stone Association, 449 U.S. 64

(i, Pera ar ara ye et vie ae 12

EPA v. California ex rel. State Water Resources Board,

S96 US. B00 CIF). oo ccdee phere paeredens 12

Kennecott Copper Corp. v. EPA, 612 F.2d 1232

(BS errr ee er tren aa ge 13

Kennecott Copper Corp. v. EPA, 780 F.2d 445

(4th Cir. 1985), cert. denied sub nom. American

Mining Congress v. Thomas, 107 S.Ct. 67 (1986) ....... 9

Natural Resources Defense Council v. Train, 8 E.R.C.

2120 (D.D.C. 1976), modified 12 E.R.C. 1833

{ety ot 2) nara ema ara merc en paeerernoy an 2, 6

United States Steel Corp. v. Train, 556 F.2d 822

CP CO. TST) oc 6 ce oa oe ee eee eee 11

Weyerhaeuser Co. v. Costle, 590 F.2d 1011

(OOS, Cle. TOT) as ccc enue ew ee eee 11, 13

——— a |

STATUTES:

Me pe EPERCMAMA) 2... www cc ce ee ccc ews 9, 13

ee l

RN ee 3

ae ee enwvsweoeeveceen l

ee 7

ee 3

REGULATIONS AND FEDERAL REGISTER NOTICES:

ee 1]

a 3

CE cc eter ees ea senscuce 2, 6-8

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

PPG INDUSTRIES, INC.,

Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR INTERVENOR RESPONDENT

NATURAL RESOURCES DEFENSE COUNCIL’

IN OPPOSITION

THE PETITION FOR A WRIT OF CERTIORARI

SHOULD BE DENIED

PRELIMINARY STATEMENT

A decade and a half after the Clean Water Act required EPA

to promulgate categorical effluent limitations and pretreatment

standards to control the release of toxic pollutants from major

' The Natural Resources Defense Council, Inc. (NRDC) has no parent companies,

subsidiaries or affiliates.

industries,’ EPA finally issued rules to control toxics from one of the

nation’s largest polluting industries—factories that produce organic

chemicals, plastics and synthetic fibers (known collectively as the

OCPSF industry).”

The Natural Resources Defense Council‘ has a longstanding

interest in the OCPSF rule. After EPA’s initial failure to regulate

toxic pollutants from the OCPSF and other major industries, NRDC

sued EPA over the agency’s failure to implement fundamental Clean

Water Act programs. This lawsuit culminated in 1976 in a detailed

Consent Decree under which EPA agreed to promulgate these and

other regulations.°

Under the original Consent Decree, the OCPSF regulations

were due in 1979. That deadline was extended on multiple occasions.

See note 4 supra. After EPA missed even these extended deadlines,

Congress set its own December, 1986 deadline for issuance of the

OCPSF rules. Water Quality Act of 1987, P.L. 100-4, 101 Stat. 7,

section 301(f). Final regulations were not promulgated until Novem-

ber 19, 1987. 52 Fed. Reg. 42522.

The final regulation governs wastewater treatment and discharge

requirements for approximately 1,000 industrial facilities that

? Effluent limitations apply to factories that discharge their wastes directly into surface

waters, 33 U.S.C. §1314, while pretreatment standards apply to industries that

discharge pollutants into public sewage treatment plants. 33 U.S.C. §1317.

> Earlier regulations setting wastewater treatment requirements for the OCPSF

industry were remanded to EPA by the U.S. Court of Appeals for the Fourth Circuit

in 1976. See 52 Fed. Reg. 42522, 42526 (November 5, 1987). Thus, until the new

OCPSF rule was promulgated in 1987, industry-wide treatment requirements for this

industry were not in effect.

* NRDC was a Petitioner in the case below, successfully challenging some portions

of the OCPSF rule as unduly lenient. NRDC also was an intervenor respondent and

filed briefs in Opposition to industry efforts to weaken the OCPSF rule.

> Natural Resources Defense Council v. Train, 8 E.R.C. 2120 (D.D.C. 1976), modified

12 E.R.C. 1833 (D.D.C. 1979) (hereafter “NRDC Consent Decree’’). The Consent

Decree was modified repeatedly by unpublished orders, including orders dated

October 26, 1982, August 2, 1983, January 6, 1984, July 5, 1984, January 7, 1985,

April 24, 1986, and January 8, 1987, to reflect further delays in EPA’s regulatory

program.

manufacture OCPSF products. 52 Fed. Reg. at 42525. EPA estimates

that the regulations, once implemented, will result in the annual

reduction of approximately 24 million pounds of toxic pollutants and

108 million pounds of conventional pollutants® discharged into the

Nation’s rivers, lakes and coastal waters.

The final rule was developed in a massive administrative

rulemaking that stretched over ten years. Multiple opportunities

were provided for the industry and other parties to comment on

EPA’s proposal, generating a rulemaking record in excess of 600,000

pages. Chemical Manufacturers Association v. EPA, 870 F.2d 177,

184 (Sth Cir. 1989) (hereinafter “CMA I’”).’

The rule was challenged by a massive coalition of individual

companies and trade associations, as well as NRDC.* Industry

petitioners initially filed eighteen briefs totalling over 700 pages in

an effort to discredit and invalidate EPA’s national effluent stan-

dards for the entire OCPSF industry, based on a series of largely

technical arguments.’ This broadside challenge was almost entirely

unsuccessful. In a detailed opinion that spans 90 pages of the

Federal Reporter, the Fifth Circuit systematically reviewed and

rejected all of industry’s initial arguments, while remanding portions

of the rules in response to NRDC’s challenges. See generally CMA

1. Undaunted, industry Petitioners filed Petitions for Rehearing with

respect to many major issues in the case (including those that are

the subject of this Petition for Writ of Certiorari). Once again, the

® “Conventional pollutants” include biological oxygen demand (BOD), suspended

solids, fecal coliform bacteria, pH and oil and grease. 33 U.S.C. §1314(a)(4); 44 Fed.

Reg. 44501 (July 30, 1979).

? 9,000 pages from this record were excerpted into a Joint Appendix for the case,

cited here as “J.A.” Pages cited from the J.A. are appended hereto.

g ppe

* NRDC filed its Petition in the Second Circuit; industry Petitions were filed in the

Fifth Circuit. By lottery conducted pursuant to 33 U.S.C. §$1369(b)(3), the cases

were reviewed in industry’s forum of choice.

* Ultimately, over 3,000 pages of briefs were filed. CMA J at 184. By contrast, while

NRDC challenged selected portions of the rule, it asked for narrow relief only with

respect to the deficient portions of the rule, and asked that the rules be held in place

pending remand. /d.

Fifth Circuit systematically reviewed and rejected all but one of the

industry claims.” Chemical Manufacturers Association v. EPA, 885

F.2d 253 (Sth Cir. 1989) (hereinafter “CMA IT’).

Now, Petitioner PPG Industries once again seeks to paint a large

mural with a fine brush. Relying largely on hypertechnical challenges

to EPA’s methodology for calculating these toxics limits, PPG asks

once again to have this entire, long-awaited rulemaking invalidated.

This latest challenge is highly ironic. After trying to invalidate EPA’s

entire rulemaking based on narrow technical arguments, the rest of

the OCPSF industry has decided to go about the task of complying

with rules that should have been issued years ago. For its part, while

continuing to believe that many aspects of the rule are unduly

lenient, NRDC has elected not to petition this Court to review

those parts of NRDC’s case not accepted by the Fifth Circuit.

However, based on the alleged inability of two plants to meet

effluent limitations for two pollutants, PPG continues to ask that

the entire OCPSF rulemaking be invalidated. PPG has had more

than its fair day in court, and this persistent frontal assault on EPA’s

rules should be stopped in its tracks.

SUMMARY OF ARGUMENT

In order to avoid burdening the Court with redundant papers,

NRDC relies on Respondent EPA to address PPG’s specific,

technical arguments. Instead, NRDC’s brief will concentrate on

several broad themes. First, PPG’s attempt to invalidate the entire

OCPSF rule would result in serious continued harm to human health

and the environment.

Second, industry’s broadside assertion that the OCPSF regula-

tions are not achievable must be judged in the context of a rulemak-

ing in which EPA was, in NRDC’s judgment, overly conservative in

its editing procedures and statistical methodology. This caution

produced excessively lax effluent standards for both toxic and

conventional pollutants. NRDC’s rulemaking comments on these

concessions to industry were consistently rejected by EPA. Thus, the

EPA's rule was remanded with respect to selected pollutants.

final standards are easily achievable by the pertinent categories of

dischargers.

Third, at bottom, PPG’s arguments relate to complaints that

individual facilities are unable to meet EPA’s industry-wide, categori-

cal limitations. These arguments are misplaced in the context of a

national rulemaking. The only question here is whether the industry-

wide limitations are achievable by the applicable categories as a

whole. Congress, with the repeated approval of the Supreme Court,

has provided that individual plant differences be accommodated by

statutory variance provisions, particularly through the so-called

fundamentally different factors (FDF) variance, rather than in the

categorical standards.

Finally, the Court should be especially wary of accepting PPG’s

invitation to translate quite specific, narrow attacks on an industry-

wide rule into a decision that would invalidate the rule in large part

or in its entirety. The OCPSF industry has gone 16 years since the

passage of the Act in 1972 without any applicable national regula-

tions. Congress has twice spoken about the need to regulate this

industry. EPA has spent more than ten years developing the OCPSF

rule, and at last has produced a rule which, despite its conservatism,

is a giant step forward in implementing the Clean Water Act by

substantially reducing the discharge of toxic pollutants into the

Nation’s waters. The time has come to end this debate and move on

to the task of complying with EPA’s regulations.

ARGUMENT

I. VACATING THE OCPSF RULE WOULD ALLOW THE

CONTINUED RELEASE OF MILLIONS OF POUNDS OF

POLLUTANTS INTO THE NATION’S WATERS

The OCPSF rule will eliminate significant quantities of both

conventional and toxic pollutants discharged by OCPSF facilities.

Over one and one-half million pounds of toxics from direct discharg-

ers,’ and 22.6 million pounds per year of toxics from indirect

'! Final Development Document for Effluent Limitations Guidelines and Standards

(continued...)

dischargers” (for a total of over 24 million pounds) reach U.S.

waters and public sewers each year. For conventional pollutants,

EPA estimates that the OCPSF industry currently discharges over

161 million pounds per year of BOD and suspended solids.”

Years of delay in issuing this rule have left a legacy of poisons

in OCPSF discharges. Even making the conservative assumption that

discharge levels have remained constant over time,’ the magnitude

of the impact on U.S. waters that has resulted from EPA’s delay in

completing the OCPSF rules is staggering. Approximately 204 million

pounds of priority toxic pollutants, and over 1.36 billion pounds of

conventional pollutants have found their way into U.S. waters and

Publicly Owned Treatment Works (POTWs) during the 8 1/2 years

that elapsed between the first date on which EPA promised to

complete the OCPSF rule” and the date on which the rule actually

was issued. Had this rule been adopted on schedule, approximately

9 1/2 million pounds of toxics would have been treated rather than

4. .continued)

for the Organic Chemicals, Plastics and Synthetic Fibers Point Source Category (EPA,

October 1987) (hereafter Dev. Doc.) at VIII-272, J.A. at 4220.

2 Dev. Doc. at VIII-274, J.A. at 4222.

8 Dev. Doc. at VIII-236, JA. at 4184. This industry’s conventional pollutant

discharges are 6 times those of both the petroleum refining and textile industries, 35

times those of the pharmaceuticals industry and 200 times those of leather tanners.

A Summary of the Benefit-Cost Analyses of the Final Effluent Limitation Guidelines

for the Organic Chemicals, Plastics and Synthetic Fibers Industry, EPA, 1987, J.A. at

6035.

4 In the absence of national, uniform standards for the OCPSF industry, EPA and

State permit writers have drafted permits for dischargers based on their best

professional judgment, or BPJ. EPA theorizes that BPJ permits have resulted in

improvements in waste treatment (and, presumably, smaller amounts of unchecked

discharges). See 52 Fed. Reg. at 42534.

8 The initial NRDC Consent Decree called for promulgation of the OCPSF rule in

June 1979. Natural Resources Defense Council v. Train, 8 E.R.C. at 2125-26 and

Appendix B.

discharged to surface waters; and over 191 million pounds of toxics

would not have found their way to U.S. POTWs.” Similarly, another

918 million pounds of conventional pollutants would have been

treated rather than discharged had the rule been in effect.

Vacating and remanding this rule would allow the OCPSF

industry to continue to operate without national standards for

another extended time period.” This would raise still more significant

water quality and human health concerns due to the continued

release into the environment of major quantities of toxic and

conventional pollutants. Many of these pollutants can cause death,

cancer, birth defects, brain damage or other serious health effects.

All of them are injurious to aquatic life.

In the absence of a BAT rule, direct dischargers will continue to

be subject to permits based on Best Professional Judgment, or BPJ.

33 U.S.C. §$1342(a). But experience has shown that these permits

do not result in pollutant reductions of a level comparable to a

national BAT standard. The record in this rule shows that, despite

years of BPJ permit-writing in the OCPSF industry, over two-thirds

of the remaining toxics directly discharged each year still remain to

be eliminated by implementation of BAT.” Indeed, in the Preamble

to the final rule EPA stated that “a large portion of the industry

See 52 Fed. Reg. at 42530. EPA anticipates a reduction from BAT implementation

of nearly 70%, from 1.6 million pounds to .49 million pounds per year.

'? Id. EPA anticipates a reduction from pretreatment implementation of over 99%,

from 22.6 million pounds to .08 million pounds per year.

' The rulemaking record in this case and other similar instances suggests a strong

likelihood of significant delay if EPA is required to begin rulemaking anew. The

Development Document discusses the lengthy history of the delay in promulgating

the OCPSF rule. EPA originally promulgated Phase | OCPSF rules in April of 1974

and Phase II rules in 1975 and 1976. Dev. Doc. at I-5, J.A. at 3430. The rules were

challenged, and remanded in part and withdrawn in part in 1976. Id. Since 1976 no

national standard has been in place. Jd. EPA took until 1983-seven years-even to

propose another rule after the 1976 remand. /d. at 14. EPA took an additional 4

2/3 years to promulgate the final rule. 52 Fed. Reg. 42522.

'% See 52 Fed. Reg. at 42530. Toxics discharges are expected to decrease from 1.6

million Ibs/yr. to .49 million Ibs/year when the rule is implemented, a decrease of

about 70%.

does not have well-designed, well-operated BAT treatment in

place.” Clearly, existing BPJ permits have not been achieving

pollutant reductions commensurate with the best available technolo-

gy.

The absence of a national pretreatment rule will have an even

more profound impact on water quality. The lack of pretreatment

standards over the past decade has given indirect dischargers a

virtual regulatory free ride. Because they are not subject to national

permitting regulations (and with only the general pretreatment

program regulations and “local limits” imposed by POTWs to control

their activities) indirect dischargers have poured enormous quantities

of toxic pollutants largely unchecked into POTWs. EPA found that

most indirect dischargers had installed no pretreatment other than

simple physical/chemical treatment, and many had installed virtually

no treatment at all. As a result of years of non-regulation, the

quantity of pollutants attributable to indirect dischargers is wholly

disproportionate to their share of the OCPSF industry as a whole:

whereas indirect dischargers represent 42% of the plants in the

industry,” they are responsible today for an estimated 93% of the

toxics discharged.”

For this reason, a wholesale remand of the pretreatment

standards would be enormously harmful to the environment. It would

leave that 93% of still-unregulated toxics beyond the reach of the

categorical standards. Unlike direct discharges, which must comply

with BPJ permit limits, absent national pretreatment standards

indirect discharges are subject to no minimum technology-based

requirements.”

»” 52 Fed. Reg. 42557.

21 §2 Fed. Reg. 42526.

2 22.6 million pounds, versus 1.6 million pounds from direct dischargers. 52 Fed.

Reg. at 42530.

™ Moreover, a remand would continue to place indirect dischargers at an unfair

competitive advantage in relationship to the directly-discharging OCPSF facilities.

Industry's free ride, of course, is inappropriately on the shoulders of publicly-financed

treatment facilities and their ratepayers.

Il. INDUSTRY'S ATTACKS ON EPA’S METHODOLOGY AND

TREATMENT TECHNOLOGY DO NOT ESTABLISH THAT

THE EFFLUENT LIMITATIONS CANNOT BE ACHIEVED

A. EPA’s BAT Limitations Are Extremely Conservative

PPG attacks the OCPSF regulation under the rubric of achiev-

ability—that is, PPG claims that the limitations established by the

regulation cannot be achieved using the model technologies.

Throughout this litigation, EPA has more than adequately defended

its specific statistical techniques and selection of technologies

challenged by industry.

There is, however, a larger point that has concerned NRDC

from the outset of this rulemaking, and should help the Court

consider industry's challenges in the proper context. EPA has been

far “kinder and gentler” to industry than necessary under the Clean

Water Act. By importing several exceedingly conservative assump-

tions into its selection of methodologies and technologies, EPA has

raised the BAT limits imposed by the OCPSF regulation so that they

are easily achievable.

The record is replete with examples of EPA’s generous treat-

ment of the OCPSF industry in light of the Clean Water Act’s

command that BAT limitations force innovative technology that “will

result in reasonable further progress toward the goal of eliminating

the discharge of all pollutants.” 33 U.S.C. §1311(b)(2)(A).* The

legislative history of the Clean Water Act and subsequent case law

implement this technology-forcing mandate by specifying that BAT

regulations should be based on the single best performer in the

industry, or the “optimally operating plant... Kennecott Copper

Corp. v. EPA, 780 F.2d 445, 448 (4th Cir. 1985), cert. denied sub

nom. American Mining Congress v. Thomas, 107 S.Ct. 67 (1986);

1972 Leg. Hist. at 1468-69.

4 See also, A Legislative History of the Water Pollution Control Act Amendments of

1972, Cong. Research Service, Comm. Print No. 1, 93d Cong., Ist Sess., 170, 1460

This Committee Print contains two volumes and will hereafter be cited as “1972 Leg.

Hist. at a

Despite these admonitions, EPA set limits that do not represent

the single best performer, but instead reflect averages from groups

of mediocre to good performers. For example, EPA set limits on

most toxic pollutants based on the median of a group of good

performers rather than the best plant. See Dev. Doc. at VII-142,

J.A. at 3842. During the rulemaking, NRDC commented that this

technique was overly conservative and indeed contrary to the Clean

Water Act. NRDC Comments at 21 (Dec. 1985), J.A. at 1961. EPA

nevertheless exercised extreme caution and persisted in this tech-

nique in the final rule.

Similarly, in calculating the variability factors for each BAT

pollutant, EPA excluded from the data base information from the

best performing plants—that is those plants that consis-tently treated

pollutants so well that they could not be detected in the plant

effluent. J.A. at 5178-82. The result is that long-term averages and

variability factors include data only from the worst 30% of a large

set of plants in EPA’s BAT data base.

Also, when a pollutant was undetectable in a plant’s effluent

because it had been treated to below the level of detectability, EPA

assigned the pollutant a value equal to the minimum detectability

level. Consequently, the highest possible value was assigned to all

nondetectable pollutants rather than the actual value, thus inflating

the averages ultimately calculated by EPA. NRDC also objected to

this type of editing technique, without effect. NRDC Comments at

11-12 (Aug. 17, 1983), J.A. at 406-407.

The effect of these conservative assumptions and techniques was

to produce BAT limits far above what the best performer in the

industry can in fact achieve. NRDC believes this is contrary to the

requirements of the Clean Water Act, but refrained from challenging

the regulations on these grounds because of its desire to see

nationwide, categorical regulations for the OCPSF industry in place

at long last. PPG should not be permitted to upset the rule by

nitpicking with other aspects of EPA’s methods when EPA was

overly conservative in the first place.

B. EPA’s Effluent Limitations Do Not Presume Violations

EPA’s chronic use of conservative assumptions and statistical

techniques similarly defuses industry’s complaint that effluent

limitations based on 95% and 99% statistical certainty for BPT and

BAT respectively presume a certain amount of noncompliance,

allegedly exposing dischargers to unfair civil and criminal liability. In

fact, as EPA amply notes in its brief, EPA’s use of variability factors

and the provision of an “upset” defense insulate industry from

possible violations. See 40 C.F.R. §122.41(n). Well-operated plants

should have no trouble avoiding violations of effluent limitations.

Indeed, this precise issue already has been resolved in EPA’s favor

in a number of cases.”

In fact, however, EPA understates its case. Because the BPT

and BAT effluent limitations were calculated with a high degree of

conservatism, dischargers should have even less trouble meeting the

limits set by EPA. BPT limits are supposed to be defined by the

“average of the best” dischargers in the industry. Yet EPA deter-

mined BPT based on average or below-average, rather than average

of the best, treatment effectiveness. BAT limits are supposed to be

defined by the single best performer in the industry. Yet as ex-

plained above, EPA defined BAT by reference to averages and

variability factors. Ironically, industry now claims that the very

Statistical techniques used in these averaging calculations impose an

unfair burden and dictate limits that cannot be met at all times.

Thus, for example, the 99% degree of certainty for BAT now

complained about by industry in fact improperly reflects 99%

certainty about average—rather than the statutorily-mandated

best—treatment capability. Rather than complaining about unfair

treatment obligations, industry should be thanking EPA for bending

over backwards to employ highly conservative calculations.

* E.g, American Petroleum Inst. v. EPA, 661 F.2d 340, 350-53 (Sth Cir. 1981);

Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1056-58 (D.C. Cir. 1978); United States

Steel Corp. v. Train, 556 F.2d 822, 841-42 (7th Cir. 1977).

Ill. ASSERTIONS THAT PARTICULAR DISCHARGERS CANNOT

MEET THE NATIONWIDE CATEGORICAL LIMITATIONS

ARE PROPERLY THE SUBJECT OF A VARIANCE REQUEST

RATHER THAN AN ATTACK ON THE CATEGORICAL RULE

PPG argues that two individual plants cannot meet specific

limitations for two pollutants (one each). Similar arguments were

raised by other Petitioners below with respect to equally narrow

claims that now have been abandoned. This argument ignores

Congress’ directive that EPA create uniform, nationwide categorical

standards, and account for plant-specific diversity through one of the

many carefully crafted variance procedures Congress inserted in the

Act.

From the inception of the 1972 amendments that became the

Clean Water Act, EPA and NRDC took the position that EPA was

required to issue nationwide, categorical effluent standards on an

industry-wide basis. By contrast, industry asserted that limits should

be set on a plant-by-plant basis. This controversy produced the

Supreme Court’s seminal decision in E.J. duPont de Nemours & Co.

v. Train, 430 U.S. 112 (1977), which charted the course of Clean

Water Act implementation. In upholding the EPA/NRDC view, the

Supreme Court relied heavily on the substantial legislative history

demonstrating that in 1972 Congress intended to jettison the failed

procedure of setting effluent limits on a site-specific, water quality

basis in favor of technology-based limitations by industrial category,

and to apply the limits uniformly to all dischargers in each category.

Id. at 121, 126-127, 129. See generally, 1972 Leg. Hist. at 169, 1422-

26, 1460, 1468; EPA v. California ex rel. State Water Resources Board,

426 U.S. 200, 202-205 (1976).

More specifically, the Supreme Court sanctioned categorical

effluent limitations “as long as some allowance is made for variations

in individual plants, as EPA has done by including a variance clause

in its 1977 limitations.” 430 U.S. at 128.

The Supreme Court has subsequently reaffirmed the categorical

statutory scheme in the context of uniform limitations, tempered by

variances, applied to both direct and indirect dischargers. EPA v.

National Crushed Stone Association, 449 U.S. 64, 80 (1980); Chemi-

cal Manufacturers Association v. NRDC, 470 U.S. 116, 131-133

(1985). In the latter case, the Court specifically noted that variance

provisions were included so that categorical rules would not be

overturned because EPA neglected to consider plant-specific

differences in the national rulemaking. /d. at 133.

Following the Supreme Court’s lead, numerous Courts of Appeal!

have relied on the availability of an FDF variance to reject chal-

lenges to nationwide, categorical limits based on_plant-specific

factors. See, e.g., Kennecott Copper Corp. v. EPA, 612 F.2d 1232,

1244-45 (10th Cir. 1979); BASF Wyandotte Corp. v. Costle, 598 F.2d

637, 656 (1st Cir. 1979), cert. denied, 444 U.S. 1096 (1980); Weyer-

haeuser Co. v. Costle, 590 F.2d 1011, 1040-41, 1048 n. 56 (D.C. Cir.

1978).

Finally, in 1987 Congress embedded the FDF variance procedure

in the Clean Water Act, thus codifying EPA’s consistent practice and

the Supreme Court’s pronouncements. 33 U.S.C. §1311(n). Congress

was quite specific that the FDF variance is intended as a “safety

valve” that enables plant-specific variations to be separately accom-

modated outside the categorical rulemaking process. According to

the Congress,

[There are two approaches for responding to a facility with valid

grounds for arguing that it is fundamentally different from other

facilities in its category. One possibility is to develop a separate

subcategory within the regulation, undertake a separate data

collection and analysis effort and then repropose and issue the

final rule. The other alternative is to leave the national rule in

place and use the FDF determination procedure to establish

alternative technology-based limitations for the facility that

accurately reflect its situation. The subcategorization approach

would add further complications and require potentially substantial

additional time in developing what are already extraordinarily

complex and detailed national regulations. By contrast, the FDF

determination procedure allows both implementation of the

national rule and consideration of individual petitions claiming

unique factors.

H.R. Rep. No. 189, 99th Cong., 1st Sess. 26 (1985).

This Court should relegate to the FDF variance procedure all

challenges to the categorical rule based on unique plant circum-

Stances, in accordance with the direction of Congress and the

Supreme Court. Indeed, most of the Petitioners who have asserted

claims based on plant-specific factors already have variance applica-

tions pending before EPA. See EPA Addendum at A.

CONCLUSION

For the above reasons, PPG’s frontal assaults on EPA’s OCPSF

regulation should be rejected, and the Petition for Certiorari should

be denied. The public already has waited far too long for the

industry that discharges the largest quantities of pollutants into the

Nation’s rivers, lakes and coastal waters to be regulated by nation-

wide water pollution controls.

Respectfully submitted,

David Doniger’

Robert W. Adler

Jessica C. Landman

Natural Resources Defense Councii, Inc.

1350 New York Avenue, N.W.

Washington, DC 20005

(202) 783-7800

Attorneys for NRDC

February 7, 1990

* Counsel of Record

No.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

PPG INDUSTRIES, INC.,

Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR INTERVENOR RESPONDENT IN OPPOSITION

APPENDIX

David Doniger’

Robert W. Adler

Jessica C. Landman

Natural Resources Defense

Council

1350 New York Avenue, N.W.

Washington, DC 20005

(202) 783-7800

Attorneys for Intervenor

Respondent NRDC

February 7, 1990

” Counsel of Record

TABLE VI11-107 (CONT

BAT WASTEWATER TORIC POLLUTANT LOADI NGS

Raw WASTE CmRENT BAT OPTICN | BAT CPTiow i! BAT CPTIOW II!

Cue ne ae LOAD (L8S/TR) LOAD(.8S/7TR) (QAO (LBS/TR) LGAD(L8S/TR) LOAD(L. 8S/T8)

6b GIS-(2-ETHYLWEXYL) PMTMALATE 187707 6210 $402 $402 1346

67 BUTYLBEMTZYL PRTMALATE 4986 2769 2616 2616 sr?

oe Ol -w-QUTTL PHTMALATE 99106 7306 Sas ‘Sse 930

Cad Ol -m-GCCTYL PHTMALATE 7167 1%! Ts.) * 686 ™

OLETHYL PMTMALATE &327 3877 2738 2735 "17

ry OIMETHY, PHTMALATE 323733 4539 1067 1067 1067

72 BE NZ0¢ A) AMT MRACE ME 27 0! i) ‘7 ie)

"3 BERZOC An )PYREME 1004 636 $17 $17 $i?

™% BENZO-8- F UORANT HEME 7O3 $01 6a Fo) 65

Le) BE uZOC KF _UORAMT WEWE ms ee a wee Mee

% Cua Sime 2239 1201 V32 932 932

77 ACEMAPUT WY. Et 134631 Cae 2347 2847 2847

i.) an) WRACEME 75063 6226 217% 217% 217%

” GEM ZOC Ga! PERL EME 2066 965 927 929 929

80 * URE ME 4062467 57 2867 2867 2867

8) Pwe MAM T MRE WE 309952 3308 2110 2110 2110

a2 OL BEMZOCA AMT WRACE WE 2040 492 ve 438 38 458

as (MDEWOC 1, 2,5-C,O)PYREME 820 567 $s? $57 $$7

Ly prrtue 5359 2099 Se 139 1459

S PERCHLOROE THY EME 73217 zr Wn 1279 1279

Ly 'O.UEME 4077645 33313 $497 $497 $497

a7 TRICHLOROET HY Eme 261515 398s 2237 iss 1738

SB CuLOROE TWYLEME 65897 28808 28789 28808 28808

1% amTimomy (TOTAL) 3e039 10765 93589 o3se 9359

119 CumoniUuM (TOTAL) e5 7868 SO0es 59519 59519 59519

120 coppee = ( TOTAL) 3027365 66908 sisse $1389 $1389

121 CYANIDE (TOTAL) 5567735 78017 19561 19561 19561

‘22 EAD (TOTAL) 3662889 ‘4-80 10508 1osos 10508

‘28 Zime TOTAL) 18105273 808370 257668 121707 121707

ereererws Si eel wre seeeee eseuee

151846052 1SOTRAO 710316 490MS 434261

vill-272

-4222-

TABLE VI11-108¢COMT.)

PSES WASTEWATER TOXIC POLLUTANT LOAD 1 NGS

RAW WASTE CURRENT PSES CPTICH IV

Cuepee CHEAME LOAD(L8S/TR) LOAD(LBS/TR) LOAD(LBS/TR)

77 ACEMAPHT HYLENE 8739 69 251.2

78 Am T MRACE WE 1716 1650 135.5

la] BENZO( GH! PERYLEWE 121 114 $2.4

80 FLUORE NE 3229 27 128.9

81 PHEMANT MRE WE 6960 baat 136.2

Be PYRENE 1743 1647 112.4

ss PERCHLOROE THYLENE 460 bee 145.1

8 TOLUENE 914921 0 FE 1180.2

87 TRICHLOROE TKYLEWE 11932 11388 222.2

t CMLOROE THYLENE 26519 26226 1706.0

116 amTimomy (TOTAL) 6736 6417 1671.6

129 copper (TOTAL) 27984 2709650 T3594 . |

121 CYAMIDE (TOTAL) 4200150 4055380 3.5

422 LEAD (TOTAL) 124487 112139 2453.0

124 MICKEL (TOTAL) 54665 S3e9 2424.6

128 pal la (TOTAL) $25758 438K9 9775 .6

eeseeeae susesece sseseere

28093735 27568540 81378.5

VIIl-276

-4184-

TABLE VIII-98.

SUMMARY OF LINER, MONITORING, AND

ADMINISTRATIVE RCRA BASELINE COSTS

Liner Cost Monitoring Cost Administrative Cost*

Plant No. Installed (S$) (S$) (S/year)

190 89,520 35,701 25,044

250 57,380 35,701 18,616

293 72,300 35,701 21,600

296 121,700 71,402 38,620

392 17,900 35,701 10,720

415 746,000 142,804 177,761

500 389,600 35,701 85,060

523 18, 360 35,701 10,812

662 1,083,000 107,103 238,021

683 418,900 71,402 98 ,060

695 3,834,000 285,608 823,922

819 116,600 35,701 30, 460

B44 113,200 35,701 29,780

851 223,200 5,701 51,780

876 81,260 35,701 23,392

908 286,900 35,701 64,520

1069 91,12 35,701 25,364

1133 49,200 35,701 36, 980

1494 479,400 71,402 110,160

1522 1,089,000 178,505 253,501

1656 5,057 33,701 8,152

1688 276,806 35,701 62,500

1753 758,600 71,402 166,000

1769 4,063,000 642,618 942,324

1797 81,380 35,701 23,416

1890 155,400 35,701 38,220

1911 248, 300 71,402 63,940

2070 59,72 35,701 19,084

2110 57,250 35,701 18,590

2123 12,640 35,701 9,668

2148 368 , 000 35,701 480,740

2227 915,000 71,402 197,280

2668 4,023 35,701 7,945

2297 2,828 35,701 7,706

2345 110,200 35,701 29,180

2390 10,870 be 9,314

2481 211,600 35,701 49,460

2527 114,900 35,701 30,120

2609 10,780 35,701 9,296

2673 73,250 35,701 21,790

2680 9,196 35,701 8,979

2739 669,000 35,701 140,940

*Administrative Cost = 20% of Liner Cost + 202% of Monitoring Cost

VIII-232

15d

Energy anc Kescurce

n~-

Consultants C

Table $-3

Summary of National Pollutanc Loaciags 2

‘roe Point Sources r

(in pounds per day)

Total Siclogical

Suspenced oxygen Priority Priority

Solids Demand Organic lnorganic

industry (TSS) (BOD) Pollutants Pollutants

Aluginus Forzing 72? < -- $3

Battery Manulacturing 12 _ -- é

Coal Mining 2,672,006 _ 133 7,601

Coal Coating 113 oo 0 ?

Copper Fors:ng 223 -- 12 3s

Eiectr3cal 2. 282 = 75 soe

Founcries 19? -< 2 ‘-

Inorganic Chefica.s 60.883 << -- °§7

tron @ Steel 133.47¢ -< 262 vee

Leather Tanning 1, Ses 1.173 6 67

Metal Finishing $4,346 -- 1$2 6.335

Nonferrous Metals 199 _ 3 332

Nonferrous Metals Foruing 18 -_- - :

Ore Myning 95,845 -- - 22.816

OcPsF” 398,349 248,956 2,367¢ 2, 696°

Pesticides -- —- -- --

Petroleum Refining 67,938? 35.150 10 796

Pharmaceuticals 9,888 7,670 §3 70

Plastics Molding @ Forming 3.000 2,604 124 95

Porcelain Enameling 179 -- -- 33

POTVs~ 7,284,450 7, 666.330 23.720 Zavdel

Pulp @ Paper 889,33 $41,732 3,335 8.166

Textiles 72.842 33.273 691 1.438

TOTAL: 10,719,860 8,333,688 33,096 67,262

. Figures taken from Summary of Effluent Characteristics and Guidelines fo:

Selected Industrial Point Source Categories: Tneustria. Status Sheets.

snteriga :ina@a Report. vol. 2, Office of water Regusacions anc Stancarcs. ~ S

. EPA, Feb. 1986.

> all industrial point sources are assumed (0 be at BAT with tne exception of

Pesticides (for which no data vere available) anc the OCPSF industry vnose

_ loadings are assumed to be current (i.e. with current treatment in place).

° poTY priority pollutant loadings are ‘taken from the Report to Congress on che

Discharge of Hazardous Vaste to Publicly Owned Treatment Vorms, Office o:

vater Aegucac:ons anc Stancarcs. U.3. SDA. Fed. 1386. 5S ams 30D Lsadings

4 were taken from EPA’s 1984 "Needs Survey."

OCPSP pollutant loadings, shown in Appendix A, assume 250 operating days per

year.

000173

15e

B. HISTORY OF OCPSF RULEMAKING EFFORTS

EPA originally promulgated effluent limitations guidelines and standards

for the organic chemicals manufacturing industry in two phases. Phase |.

covering 40 product/processes (a product that is manufactured by the use ofa

particular process -- some products may ve produced by any ot several proces-

ses), vas promulgated on April 25, 1976 (39 FR 14676). Phase Il, covering 27

additions] product/processes, ¥as promulgated on January 5, 1976 (41 FR 992)

The Agency also promulgated effluent limitations guidelines and standards for

the plastics and synthetic fibers industry in two phases. Phase I, covering

13 product/processes, vas promulgated on April S, 1974 (39 FR 12502). Phase

Il, covering eight additional product/processes, was promulgated on January

23, 1975 (40 FR 3716).

These ceguiations were challenged. and on february 10. 1976, the Court in

Union Carbide v. Train, 561 F.24 1171 (ath Cir. 1976), remanded the Phase |

organic cheaicals regulation. EPA also withdrew the Phase II organic ches-

icals regulation on April |. 1976 (#1 FR 13936). However. pursuant to an

agreement with the industry petitioners, ‘he regulations fer butadiene sanu-

facture vere left in place. The Court also remanded the Phase | plastics anc

synthetic fibers regulations in FMC Corp. ¥ Train, $219 F.24 973 (4th Cir.

1976) and in response EPA withdrew doth the Phase I and II plastics and

synthetic fibers ceguiations on August ©, 1976 (41 FR 12587) except for the pH

lisitations. which had not deen addressed in the lawsui'. Consequently, on.

the regulations covering butadiene sanufacture for tne organic chemicals

industry and the pH regulations tor the plastics and synthetic fibers industry

have been in effect to date. These regulations were superseded by the reguia-

tions described in this report.

In the avsence of promulgated, effective effluent .imitations guidelines

and standards, OCPSF direct dischargers nave been issued National Pollutant

Discharge Eligination System (NPOES) permits on @ case-by-case basis using

best professional judgment (BPJ), as prov.ded in Section 602(a)(1) of the CeA.

Subsequent to the withdrawal/suspension of the national regulations cited

above, studies and data-gathering were initiated in order to provide a basis

15f£

ViI-142

~3842-

TABLE VII-6.

SOWRT OF THE LONG-TERM VEIGHTED AVERAGE EFFLUENT CONCENTRATIONS POR THE

FINAL BAT TOXIC POLLUTANT DATA BASE POR BAT SUBCATEPY OE

Mexian of Minumss of “~wamse of

Est. Lamg-_ Es. Lorg- Est. Lorg-

Poliutant Namper of Term Memns 8 erm Mearns lerm Means

‘“aper Pouuwwtant heme Plants (ppp) (ppp) (ppb)

creamer 3 10.000 10.000 23-00

Acryionitrile - 1.07 S).or 122.67

- bercene 10.0X x 16.6:

f Carpon letractuoride 10.000 10.0 10.0

Quorcveerzene 10.00 0. 10.0

4 lL... TriCuoross were «2. TH 30. AF. Mb

’ neachLororzene 19.0 10.a 10.0

.. 2Mcuorvevere 5-625 J 3228.32

1. 1.1-Tricuorcetnane oor 7 10.0

; neactuoroe ane io 8 . | I

- 1.3..-Tcuorcetmane as 10.0 30.0

Quorvetmare - so s.5 5

ne Cuorotors a aun > «3.0

Je ) Quorcerers. oar I a |

pon ... i cucresswerre «) et ag B.2

26 .. 1 cucresswere « «8 «3

Wy i cucrecsrgzare wv I jf

~” | nchuorceuw iane >. Ox ).a L.4

fe |. 2-Trans-di Cuorve ur iene ).OL 10.0 17 .67

33 . Di cuocrcvonens: 429 10.a 23.62

. |. 24 cuorcpropronane ¢ eo 23.39 23.0

’ |. i cuocrcvpropene 23.0% ya 63.2

o .. Dime Uy Lonero. - 10. 7% Oo 13.6

Ls 2. @Oisu trotoueane 6.832 x 107.67

¥ 2.6-Diru trotoaiuene 12.66" .o oes

r Eun loerwene - 10.08 J 10.m

” * vor inane abee 30.3 anne

“. Bis(2<duoroisopropy | )Eune: 5b . 6 6.4 6

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controls. It also lumped plants with *good* biological treatment

‘as discussed earlier, pp. 5-3) togetner with those with less

effective oiological treatment. EPA then repeated tne error :n

Lts BPT metnodology: it compared end-of-pipe effluent

concentrations witnout assessing one “improvement* nat in-p.ans

or post-biological treatment can provide. (Pages 15 co 18 of

tnese comments discuss the substantial improvemen:, at least f£9°°

conventional pollutants, ‘nat post-od1i0logical creacment can

provide. in-plant controls also supstantially itprove pant

influent, justifying, in EPA's view, 4 29 pod cucsff over sne Je

opo cutoff used for plants witnout sucn controls. 30 Fed. seg.

at 29080.)

The analysis cequired oy the statute, iowever, ts this: what

can a plant using effective in-plant controls, good siologica-

treatment, and post-bdiological treatment accomplisn? =PA dic not

segregate pants according to theirs effectiveness at eacn of

enese tnree treatment stages. Nor did EPA attempt => define cae

smprovement in effluent quality tnat exemplary ore-o1clogica. OF

post-s3i0logical treatment can provide. Hence, EPA nas 10%

4efined BAT at all. EPA must reanalyze its data case so nat EPA

can answer the question posed sy congress: wnat <-35 the “pest”

control(s) accomplish?

Third, EPA cased its proposed BAT effluent limits on the

median performance of all plants in tne data pase. In snort, EPA

took an average of the plants in its database, catnerc nan

pegging BAT to the oest performer. EPA also averaged variadility

factors. Sucn averaging patently violates tne law.

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consistently low effluent concentrations reflect low vari

and deleting this plant therefore falsely increases the

Salculated variability

3 Pretreatment

a. Definition of vass-through

EPA deleted 43 pollutants on the basis of a definiti

cass-through’ shat apoarently did not include examinatic

ipsets inhibitions, or sludge contamination ca@mium sh

Dut was not regulated for these porsblems + econtrast t

cesticides quideline sroposed regulation of the same soll

for directs and indirects

5 Pass-throucnh aleuiation

EPA defined pass-throuch as POTW removal 5 vcercent o

less than that achieved by BAT. A fixed 5 percent test 8

imappropriate because 5 percent may »e a large or small

oercentacge of raw waste load remova Jependina on the lev

dnick BAT is set Moreover, snere is no basis for che 5

iifference between removal rates As EPA recognizes inet

evelopment document actual 3AT removal rates are orobad

treater than those reported because of the location of BA

sampling points prior “0 Dbiclcogical creatzent 5 ‘I=-8

pass-through test should reflect this and require POTW gr

than required by BAT to avoid pass-through The comparis

the 50 POTW and OCPSF database is also statistically inco

as verformed because one study was Dased on the median of

removal efficiencies, whereas “he other was asec on “he

pairs.

abd; ’ _

oe m= &

on of

no ae

ould de

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r more

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he BAT

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The

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.