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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 495 U.S. 910

## Text

Freep |
89=10 79 | FER 7 3959

IN THE —_—__-—_—_--

Supreme Court of the Gnited States

OCTOBER TERM, 1989

PPG INDUSTRIES, INC..,
Petitioner,
V.
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

ii

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 |

il

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,

V.

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.

2

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.

3

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.

4

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.

5

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...)

6

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.

7

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%.

8

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

10

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.

11
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).

12

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

13

(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

14

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

15

No.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

PPG INDUSTRIES, INC.,
Petitioner,

V.

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? 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 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 ) aonve Ouvanvis NV aM 40 VWaAa 40
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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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he BAT
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---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0885%3A3. Public record. Not legal advice.