# Opposition Brief — 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%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 495 U.S. 910 ## Text Supreme Court, U.S. EILED APR 2 1990 No. 89-1079 . POSEPH F. — IR a eel Jn the Supreme Court of the United States OcTOBER TERM, 1989 PPG INDUSTRIES. INC... PETITIONER V. UNITED STATES ENVIRONMENTAL PROTE¢ AGENCY, ET Al TiN NV PLIITION FOR A WRIT OF Cl ; ED STATES COURT OF APP i LAIE FIFTH CIRC! BRIEF FOR THE FEDERAL RESPONDENT IN OPPOSITION Davio J. A» Mf é i Me] Mi N HM oas/usy ex } | 7 (; I | ' ile tel kK (; Bi ' fad ‘ IKI Pr. G j Pile / nvironiiental Prote ion Leese } NWushineton. De JU460 m BEST AVAILABLE COP OLESTIONS PRESENTED 1. Whether EPA acted arbitrarily in basing certain effluent limitation standards under the Clean Water Act, 33 U.S.¢ 1251 ef seg., on the average of actual data from two plants, where the reviewing court found that the limitations are achievable through use of the model pollution control technology 2. Whether EPA acted arbitrarily in establishing variability limitations for those standards by using statistical model ing techniques that account for the full range of variability that can reasonably be expected at plants that properly operate the model technology, where the reviewing court found that discharges that exceed the variability limits eithes would result from correctable problems or would be excused by the regulatory upset defense contained in 40 C.F.R }22.41(n) 2 | | 3 [| Argument C ONCIUSIOI 4 TABLE OF AUTH { 2 1)? \/ 6 | }4 1975) 4 1/)l¢ aad /) j S4 I i) ( }>Y | ) r / EPA 40 | { i ( ( 1976) + { j ly ] id i PA. ¢ } j ( 1YOS1) ) PP } j on, | $4 (Y ( 1YSU) ‘ BASF Wyandotte ( I ( SYS | ‘ i 7 yy L ich +++ { (| YA) + CPC 4 / frain, 540 F.2d 1329 (& 1/6) lel 1 430 U.S. 966 (1977) ii Nf ( ers ASS? VR DC, 470 | 16 (1985S) Py { f Refine | / ee l¢ S94 | | i 5 \ i7/ 7) } Crs \ Crushed Stone -4 $49 | 64 ds()) | f (111) ( aces Continued Pay PMC Corp. vs. EPA, 539 F.2d 979 (4th Cir 1976) io, 23 Georgia-Pacific Cor EPA, 671 b Jd 1235 (9th ( a JU) lt Hooker Chemicals & Pl Cory Train, 33 fF Jd 620 (2d Cir. 1976) }4 Viarathon Ou Co. vy. EPA, 564 b 2d 1253 (9th Cn }O77) IY 0. 2] National | @ is PPA, 627 b.2d 416 (DD ( 11 }O()) y cu of Amert Nn, S4Ob 2d TERS (Jth Cay QT) ‘i. 7 ‘ S 5‘ ( | / 6&1 Jd RII 071] ( 1Y ) 13} IY) | if ( ( ”) | 1 VOLT «th ¢ ( ; ‘ ; | ( \ \ } ( }} | ( i Wa ve 4a | +2 | ( 1 *S1(4) MeL SN bai icb) ss A PablabyelyeA) 33 US Lah icbyMlieA) et | ae \ ( hallibyoyVky) | J osu) Pablo yA) ' 6 et Osa bah deny dye) , 33 | 1a} 4cay4) 33 | S .( Ls14cb) ‘ US. merciless > tae bsl4dcb) LJ ; { ~~ 4 U.S 4 | 3 Y | u'.S.¢ y1 ( Li S( | VI Miscellaneous — Continued: Page pp. 42,564-42,565 20 p. 42,565 20 pp 4? 565-42 .5$66 ] p. 42,580 5 p. 42,581 . H.R. Rep. No. 189, 99th Cong., Ist Ses (1985) j > Rep No. 414, 92d Cong st Sess. (1971) Hn the Supreme Court of the Cited States : 2 1 (ER | RA] 199 BRIEF FOR THR FEDERAL RESPONDENT IN OPPOSTTION OPINIONS BELOW IL RISDIC TION STATEMENT \ discharges in two, Increasingly stringent, stages. First, EPA o establish etfluent limitations based on the “best prac- ticable control technology currently available” (BPT). 33 U.S.C. 1311(0b)(1)(A), 1314(b)(1)(B). These limitations are (oO represent the “average of the best” treatment technology available in the industrial category involved. Pet. App. 45a; EPA v. National Crushed Sione Ass’n, 449 U.S. 64, 76 n.15 (1980). The OCPSF regulations establish limitations on discharges of conventional pollutants based on the BPI standard.° [he second, more stringent, set of effluent limitations ts to be based on the “best available technology economically achievable” (BAT). The BAT effluent limitations are to be set at a level that “will result in reasonable further progress toward the national goal ot eliminating the discharge of all pollutants.” 33 U.S.C. 1311(b)(2)(A). Thus, “[t}]he distine- tion between ‘best practicable’ [BPT] and ‘best available’ [BAT] is intended to reflect the need to press toward in- creasingly higher levels of control.” Congressional Research Service, 4 Legislative History of the Water Pollution Con- trol Act Amendments of 1972, 93d Cong., Ist Sess. 170 (1972) {hereinatter Leg. Hist.|. BAT effluent limitations “should at a minimum be reterenced to the best performer In any industrial category.” Leg. Hist. 1468-1469; S. Rep. No. 414, 92d Cong., Ist Sess. 50 (1971); see, e.g., Amnerican Paper Inst. v. Train, 543 F.2d 328, 346 (D.C. Cir.), cert. dismissed, 429 U.S. 967 (1976). The OCPSF regulations Conventional pollutants are measured, iter alia, by biochemical enh demand (BOD)—-which measures the oxygen required by Heal organisms to assimilate the biodegradable portion of a waste inder deroble conditions — and by totai suspended nontilterable solids (ESS) —which measures the dispersed insoluble inorganic and organic ompounds in the NASTCWaAEel 33 4 1314(a)(4); 1() ¢ | R 40] 16 4 establish effluent limitations for toxic pollutants based on the BAT standard.? For direct dischargers, the effluent limitations are im- plemented and enforced through individual “national pollu- tant discharge elimination system” (NPDES) permits issued pursuant to the Act. 33 U.S.C. 1342. Each NPDES permit contains numerical discharge limits and other specific terms and conditions governing the activities of the discharger to which it applies.4 2. The Regulatory History. The OCPSF regulations, codified at 40 C.F_LR. Pt. 414, apply to approximately 1000 plants that produce a wide variety of organic chemicals, plastics and synthetic fibers. 52 Fed. Reg. 42,522, 42,525 (1987). In these regulations, EPA promulgated effluent limitations guidelines and standards for 3 conventional pollutants and 63 toxic pollutants for new and existing plants ’ foxte pollutants are those listed in accordame with 33 U.S.C. 1317(and). See 40 CLELR. 401.15. * Because the discharge limitations are established through national wWemaking and are unitormly applicable throughout an entire industrial category, EPA has established a system for addressing claims that a particular plant should not be held to the national effluent limitation guidelines and standards. See Chemical Manufacturers Ass'n. NRDC, 470 US. 116, 134-133 (1985); EPA 8. National Crushed Stone Ass'n, 449 US. at 80. Under that system, EPA may grant a “fundamentally different factor” (PDE) sanance, and establish for a particular facility an alternative to the otherwise appheable nauonal effluent limuation guideline. 40 C FR. Pt. 125, Subpt. D Congress codified this approach in the 1987 amendments to the Ac, rccogmzing the EDE procedure as the appropriate way to consider unique factors applicable to a particular taciity, thus asoning undue comphcation and delay in establishing national etflucmt eumdelines and vandards HER Rep No 189, 99th Cong, Ist Sess. 26 (1985) An EDI variance Will be vranted if the applicant “demonstrates to the satistac fon of [EPAY” that the crtena set tomhin JEU SO PEO and (8) are met that discharge directly and indirectly into the national waters.’ /d. at 42,580, 42,581. Implementation of these regulations will remove more than 100 million pounds of pollutants annually trom those waters. /d. at 42,537, 42,539, 42,548. a. EPA selected different model pollution control technologies to establish effluent limitations for the different types of pollutants discharged by plants within the OCPSF category. See, e.g., 52 Fed. Reg. 42,536-42,544 (1987). These model technologies were used to establish the particulars level of control required by the Act through the use of actual data and various analytical and statistical modeling techni- ques. EPA collected raw data trom certain OCPSF plants that had used a selected model technology in the past, and edited the data based upon various general criteria to eliminate plants or sets of data that were unusable, or that represented inadequate performance. See, e.g., id. at 42,533-42,536, 42,539-42,540.° A “long-term average” con- centration of the discharge levels for each pollutant achievable by the data base plants over time was then calculated trom the edited data base. EPA expects that facilities will design and operate their ircalment systems to achieve pollution release levels below or al the appropriate long-term average; however, EPA > The desclopment of these limitations required a very technical and comples rulemaking process. Over an eleven-year period, EPA relied upon more than 59,000 data pomts reflecting actual discharges from esting plants sce R.114,686-R. 115,047 and R.15,316-R.115,563), per- formed numerous studies, received more than 15,000 pages of public comments on agency proposals, and produced 2,500 responses to these comments. The process resulted in an administrative record comprised of approximately 600,000 pages. Pet) App Ja, 234; 52 bed. Reg. 42526-42531, 42,554 (1987) © This editing ensured, to the extemt practicable, that the selected plants represented an adequate level of Control tor use in establishing thie Usnsatatsennis establishes limitations at substantially higher levels to allow for tluctuations in discharge levels that may reasonably oc cur above and below the long-term average. Therefore, EPA routinely establishes two variability factors for each pollu tant to reflect the maximum expected deviations that may occur during One-day and monthly periods if the mode! technology ts operated properly. This factor, which ts always greater than one, ts then multiplied by the long-term average for each pollutant to obtain the actual limitations: the “max imum for any one day” and “maximum tor monthly aver age” limitations and standards tor each pollutant in 40 C.F.R. Pt. 414. Pet. App. 87a. EPA calculates variability factors by using statistical modeling techniques that extrapolate from the edited data base to estimate the probability of every theoretically poss ble discharge. The daily maximum and monthly maximum average variability factors are calculated from statistical distribution curves developed for each pollutant. These distribution curves are generated by various mathematical equations using values calculated trom the actual data. C.A App. 3877, 3907-3911, 4438-4441, 4448-4461. The distribu tion curves are thus hypothetical constructs that describe the probability that any given discharge level —trom just above Zero to infinity — will occur; although any discharge level is theoretically possible, extremely high levels are ex ceedingly improbable, and often actually impossible. See thid Variability tactors are intended to provide meaningtul levels of control. They are thus calculated to retlect only the reasonable variations in pollution discharge levels in et fluent from a properly operated tacility, and not merels [he pot ont urse below which all of the statistical distribu balls, tf (ih percentile, represents an infinite discharve level i‘ \ Vp 994) il iad inie. I f caduifse phaol jr? sibl iti theoretically possible discharge levels, or Ones resulting trom poor operation. See 52 Fed. Reg. 42,564-42,565 (1987). Ac- cordingly, EPA consistently establishes the daily and month- ly variability factors at the 99th and 95th percentiles —/.e., the points on the curve of hypothetically possible discharges below which 99 and 95% of the daily and monthly average distributions fall, respectively. in the OCPSF industry, EPA calculated variability tac- tors that range from 1.22 to 15.7 for the daily maximum and maximum monthly average limitations (C.A. App. 3879-3882, 3920-3924). When multiplied by the long-term averages, the variability factors result in generous effluent limitations and guidelines, which provide facilities in the OCPSF category with very wide operating margins, permit- ting them to discharge at levels ranging up to 15 times the long-term average performances of the model facilities. In response to concerns that similar limitations previously calculated under the Act failed to account for variations that might occasionally occur despite exemplary operating and quality control procedures, EPA promulgated a regulatory “upset” defense in 1979. 44 Fed. Reg 32,854, 32. 863.* Accordingly, each NPDES permit issued by EPA now provides dischargers with an affirmative defense to prosecution tor any violation of the applicable limitations wherd the excess discharge is uncontrollable, provided that the criteria set forth in 40 C.F.R. 122.41(n) are satisticd See 52 Fed. Rev. 42,565-42,566 (1987) see Pl 1-2. ‘JOC FR. 122. 410001) specifies that on “uy an cxeephional incident in which there porary noncompliance with technology Based | lunitations because Of factors beyond the feasonadic rit ihe perimiitier \n upsel i snot include nom ipl fet caused by operational crror, improperly desixzt , »* ’ ? 4 ~ Drv | | EPA 08 PP y} 3 lL) ; | ‘ | > 4 | ; | IC] EPA | ; { ‘ ‘ a ;* j \ ; 7 sy | ) ; } ‘ t- | \ ‘ } ° ' ft i A j i ii i i ' ' ; ; | i il i i 1] rit i i , ’ ’ | ' , , iD1 rac i lia | i 1 uy IYI ;* ’ ’ ’ ritil ; ’ [} ' | ; ; aeneie } i sia : ' ‘ Mm monty averar« iia \ itty hs | ee "2 ; : } fart ‘ OY the one-term 1\ [cit iW cauii j } i 1 if l il 1maxim im monthly i l i tii ine danly maximum an ions TOr ea h pollutant All but two of the 308 da 1 pol from these two plants tell within each of the limitatior ? ’ ; |) +} iDO li il ; ( - 4 | | j Hig i] I j i | neated Wa iter and } il i pollutant tI {] I ) ] Pet Ap] iii it int ren 1 ft i Sica wh rin iumn, nd tl mperatul I | ! ! } 40) (198 /) all the PPG plant 913 data points tell below that limitation In the case of chloroform, the average of PPG plant 913 lata points was above the monthly average limitation, though the average of the Dow plant 415 data points fell below that limitation. 3 The Opinions Below. Twenty-eight industry peti- tioners (including individual companies and industry trade associations) and the Natural Resources Detense ¢ ouncil raised numerous challenges to the OCPSF regulations. The Court Ol appeals carefully reviewed these challenges, well aware that “judicial review ‘must be based on something more than trust and faith in EPA’s experience[;]’ a court may not respond to claims of technical expertise by ‘rub- ber stamping’ an agency decision as correct.” Pet: App. 28a (footnote omitted).'? The court then rejected all of the in- dustry petitioners’ arguments and the majority of those raised by NRDC, remanding a portion of the rule for S 913 tor chlorotorm was 129.2 micrograms per liter (ug/1), slightly above pecitically, the overall average discharge level trom PPG plant the promulgated monthly average chloroform limitation of 111 ug/| (The plant 913 averave figure is somewhat misleading, ‘ince it is based on one month during which the plant achieved the monthly average limitation, one month when it did not achieve that limitation, and a iiwle data point trom a third month that was above that limitation.) [he overall average discharge level tor chloroform at Dow plant 415, howeser, was 10.5 ug b. R. 115,500 Dow plant 415 had one daily TCE discharge of 85 ug 1, which ex ceeded the maximum daily limitation of 69 ug/L. Nevertheless, The Dow pant » lomz-tenn dverdave discharge level tor [TCE was only 16.1 ux a and PPG plant 913 had no daily TCE discharge level greater than the minimum detection level of 10 ug 1. R. 115,508; Pet. App. 112a 190a-1Y1a. (The court of appeals uses the term ppb, tor parts per billion Which os CQUIS ale nt to ue | ) \ considerable body of case law has evolved establishing the stand ards for judicial review of the methodology employed by EPA in pro mulvating ettlucnt limitations under the Act. Pet. App. 254-264 nn. 3s xY (CItIne Cases) } j i )* i cPA ’ | }>] gi % | ’ | i? | | af ot ri’ j j ; ' . 7 ' . j ; i i j } | i : ; " j } \ . ' ) Pp, pi 4 ‘ , the one, unusually high discharge value for TCE in the Dow plant 415 data base does not make the limitation unachievable. The court suggested that the atypical value resulted either trom an upset that was unlikely to recur or from quality-control problems within Dow’s control. Pet. App. 112a-113a, 190a-191la.'? Second, the court of appeals rejected petitioner’s premise that unless one plant can be shown to have achieved all the limitations for TCE and chloroform, the limitations are necessarily unachievable under the Act. The court thus upheld EPA’s interpretation of the statute that it is responsible for administering, con- cluding that the Act permits EPA to determine the “best” plant tor establishing limitations on a pollutant-by-pollutant basis. /d. at 112a-113a. For this reason, “an exceedance by one of the data-base plants ts irrelevant so long as another data-base plant demonstrates that the limitations are achievable.” /d. at 113a. Accord id. at 191a. [he court of appeals also rejected petitioner's claim that the wastestream matrices of the data base plants made the limitations unachievable. Pet. App. 113a-l14a. The court Ot appeals relied upon EPA’s determination that steam- stripper technology can be modified to account for a par- ticular plant’s wastestream matrix and that through the use of such properly designed technology all the OCPSF plants would be able to achieve the limitations for volatile pollutants. /bid b. Petitioner also argued below that EPA’s use of the 99th and 95th percentiles to establish variability factors will result in excess discharges that cannot be controlled by well- The court did not discuss whether the tailure of PPG plant 913 lo quite satisty the monthly average limitation tor chlorotorm meant that that plant could not achieve all the limitations. Nevertheless, the court's conclusion that there was no showing that Dow plant 415 could not meet the limitations tor all pollutants necessarily indicated that pets (ioners objections to those limitations were without 1 12 designed, well-operated facilities that employ model technology. It further contended that the regulatory upset defense (40 C.F.R. 122.41(n)) does not provide adequate relief Where uncontrollable exceedances occur because EPA allegedly edited, /.e., deleted, all data that would satisty that regulatory defense. The court of appeals rejected these arguments. It ex plained that the discharges represented in EPA’s model that exceeded the 99th and 95th percentiles of the average statistical distribution curves were reasonably excluded in [EPA’s variability tactor calculation, because EPA could reasonably assume that these points were isolated and ex treme departures trom normal pertormance that were due to quality-control problems. Pet. App. 90a-93a, 188a Where discharges exceed the 99th and 95th percentiles, the court reasoned that, it they result from quality control pro blems, they can be controlled, and if they cannot be con trolled, the regulatory upset detense ts available. /d. at 93a, 189a. Finally, the court reyected petiuioner’s contention that all individual data points that may have resulted trom upsets vere deleted trom the data base. /d. at 189a \ ARGUMENT Phe decision below ts correct and does not conthict with any decision of this Court or of any other court of appeals. Nloreover, the issues raised by petitioner are extremely nal row and technical, and turn on the precise record in this rulemaking. Thus, they do not merit review by this Court la [hic iVamen Of petuoner’s first argument Is that monthly-average chlorotorm and daily maximum [Ct nitations are not “achievable” within the meaning of 33 U.S.C. 1311M(b)(2)(A) and 1314(b)(2)(B) because no one the EPA data base comphed pertectly with the ations tor both pollutants. See note 11, supra. The court 13 of appeals, however, correctly held that the Dow plant’s single TCE discharge above the daily maximum limitation did not mean that the limitation was not achievable by that plant.'+ Therefore, petitioner’s argument, which is based on the claim that no one plant can meet all the limitations, amounts at bottom to an attack on this determination of the court below, a determination that is fully supported by the record. Petitioner’s objections to that narrow fact-based determination do not warrant review by this Court.'? b. There is, in any event, no merit to petitioner’s asser- tion that it was inappropriate for EPA to base the limita- tions for chloroform and TCE on an average of the data from two plants with good records in using the steam strip- per technology, rather than from a single best plant. It is natural that the data from two different plants will differ to some extent, and in such instances averaging of the two to develop technology-based limits is entirely reasonable. BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 655 (ist ‘+ The court below explained (Pet. App. 112a-113a, 190a-191a) that EPA could reasonably conclude that the sole Dow TCE discharge that exceeded the TCE limitation resulted trom an upset or a correctable quality control problem, in light of the plant’s long-term average TCE discharge level and “because on all other occasions the Dow plant was able to perform within the limitations.” /d. at Il2a. (> The court’s reliance on EPA’s expertise when interpreting sampl- ing data (Pet. App. 190a-191a) is unexceptional. See, e.g., United States Steel Corp. v. Train, 556 F.2d 822, 842 (7th Cir. 1977) (“EPA * * * is entitled to use its expertise in pollution-control technology in judg- ing the reliability or representative quality of particular data” (citing cases)). Moreover, the court’s decision ts entirely consistent with other cases. See, e.g., American Petroleum Inst. v. EPA, 540 F.2d 1023, 1034 (10th Cir. 1976) (limitations upheld where compliance 90, 80 and 70% of the time), cert. denied, 430 U.S. 922 (1977); American Meat Inst v. EPA, $526 F.2d 442, 458-459 (7th Cir. 1975) (limitations upheld where one plant met them during 15 months out of a two-year period and the other did so for three-quarters of a two-year period) 14 Cir. 1979), cert. denied, 444 U.S. 1096 (1980).'® Nor was that approach really detrimental to petitioner; petitioner’s argument Overlooks the tact that averaging the PPG and Dow plant data necessarily increased the chlorotorm limita- tions above those that would have resulted were the Dow plant alone, with its lower chlorotorm discharge levels, utilized as the single “best” plant tor developing those limits. See note 11, supra; ct. Pet. App. 90a.'’ c¢. Petitioner also contends that the decision of the court below is wrong as a matter of law, on the theory that the Act prohibits EPA trom. selecting the best plant tor estabiishing BAT ettluent limitations on a pollutant-by- pollutant basis. But the plain language of the relevant Statutory provisions (33 U.S.C. 1311(b)(2)(A), 1314(b)(2)(B)) contains no such prohibition, which would be illogical and inconsistent with the statutory purpose. © Because the data obtained trom each plant was averaged to develop | | the chloroform and TCE limitations, it was inevitable that some of that data would he above the average. It is accordingly scarcely surprising that some of ihe data trom either plant may exceed the limitations that are based upon the average of the data '” The Second Circuit in Alooker Chenmucals & Plastics Corp. \. Trav 337 F.2d 620, 633 (1976), addressing the use of averaving to devel | BPT limitations, identified the central tlaw in the type of argumei peuuioner makes here Phe fallacy of Pethhboners’ argument ts the assumption thal sion of an industrial plant within the category “best existin stitutes an implied determination that the plant’s techno! “best practicable” and that the plants’ ettluent discha the maximum achievable [within the relevan. time trame] See also American Meat Inst. \. EPA, 526 F.2d at 457. Sim petitionel here areues that Decause Its plant is among the be | formers, is performance is the maximum achievable | BAI technology. This argument, reyected in Flooker Chenucals in the BP I content, Is even less persuasive in the context of BAT “should at a minimum be referenced to the best pertorme lev ll 1468-1459) iia a 15 Moreover, none of the cases on which petitioner relies sup- ports its contention or conflicts with the decision below. i. Arequirement that a single best plant be selected for establishing the limitations for all the pollutants regulated under BAT would be illogical and inconsistent with the structure and goals of the Act. This is particularly evident when different pollutants have to be treated by different technologies. See 52 Fed. Reg. 42,539-42,544 (1987). In this situation, a plant may utilize entirely separate technologies (oO treat two different pollutants, with the treatment of one pollutant having no bearing on the treatment of the other. There is no reason, in such a situation, why EPA should be required to identify a single best performer for both pollutants if no one plant’s treatment is exemplary for both. The analysis is no different where, as here, the treat- ment technology is the same for two pollutants.'® There is sull no reason why EPA should be required to identify a single plant as the best performer for both pollutants, unless the treatment or presence of one pollutant somehow im- pairs the treatment of the other, /.e., wastestream characteristics interfere with the proper treatment of both pollutants. See, e.g., 52 Fed. Reg. 42,540-42,544 (1987). EPA properly considered these technical concerns (/bid.; C.A. App. 3732),'% and its conclusion that wastewater between treatment of multiple * The Act does not distinguish pollutants by a single technology and by separate technologies, and there is NO basis tO Maintain, as petioner does, that the Act requires that a single plant meet all of the imitations in the former situation. The statutory ianvuage simply does not support such a restriction on EPA’s e\pert judgment ‘EPA also considered the costs tor various types of steam-strippelr upevrades in its determination that the BAT limitauions are achievable. Surreply CoA. Addendum Exh. 14 16 matrices do not preclude compliance with the limitations was properly upheld. Pet. App. lida. Throughout the rulemaking proceedings, petitioner has provided absolute ly no technical information to rebut these tindings Pherefore, this issue does not warrant review by this Court.*! li. Petitioner’s claim of a contlict in the decisions ts in correct. In making this claim, petitioner places principal reliance on a brief observation in Janners’ Council of tynerica Vv. Train, 540 F.2d 1188 (4th Cir. 1976). But that case is readily distinguishable trom this one. In the first place, that court was interpreting the less stringent BP | limitations; the court itself emphasized that the statutory standards tor the two limitations are quite different. /d. al ‘ 1195. Moreover, the COUTL 1D launners’ ( ouncil address ul an entirely ditterent issue trom the ones involved in the 17 present case — whether EPA, in establishing limitations for a given industrial category had sufficiently substantiated its decision to rely on technology from a different category with dissimilar wastes. The court’s observation that “[a] few plants [in the regulated industrial category] are presently capable of meeting the limitations for some, but not all of the pollution parameters” (/d. at 1193) was made in the con- text of its consideration of whether EPA had satisfied the established technology transfer requirement—that EPA “make a reasonable prediction that the technology, if used in the industry, will be capable of” meeting the limitations. Id. at 1192 (citing cases). Because the court found that the record betore it contained “no evidence” to support EPA’s conclusion that the affected industry could consistently meet the promulgated limits by the use of the designated technology, it remanded the case to EPA for further pro- ceedings. /d. at 1193-1194. In sum, the dictum in 7anners’ Council does not establish the general principle urged by petitioner, even in the BPT context; it is plainly not in con- flict with the conclusion of the court below regarding the BAT limitations at issue here. Phere is likewise no merit to petitioner’s additional claim (Pet. 12) that the decision below is “at odds with” Associa- tion of Pacific Fisheries v. EPA, 615 F.2d 794 (9th Cir. L980); CPC Intl, Inc. v. Train,’ 540 F.2d 1329 (8th Cir. 1976), cert. denied, 430 U.S. 966 (1977); and National Lime iss’n Vv. FPA, 627 F.2d 416 (D.C. Cir. 1980). As the court below observed (Pet. App. 191a), neither Pacific Fisheries nor CPC Inrl, Inc. is inconsistent with the instant case. ‘Here, in contrast [to those decisions], at least one plant can meet every BAT limitation.” /bid. In addition, in Pacific Fisheries the court remanded one part of the regulation under consideration there to the agency simply because the study on which EPA had relied in establishing the relevant limitation was insufficient: “[t}he study measured the OO 18 BOD; and TSS contained in the wastewater before entry to the lagoon * * * , but the record reveals only the reduc- tion in BODs in the effluent leaving the lagoon. * * * {T]here is no indication as to whether the TSS andO & G levels would be sufficiently reduced” to comply with the limitations on those pollutants. 615 F.2d at 819. Similarly, in CPC Int'l, Inc., the court analyzed the data upon which EPA relied, and found that “the TSS standard proposed by the EPA finds no support from [those data]” 540 F.2d at 1339,? 2. Petitioner’s second principal challenge concerns EPA’s determination of the variability factors for use in calculating the OCPSF effluent limitations guidelines and standards. Petitioner contends that EPA’s use of the 99th and 95th percentile approach to establish variability factors will result in exceedances that cannot be controlled by well- designed, well-operated facilities that employ model technology. It further contends that the regulatory upset defense (40 C.F.R. 122.41(n)) does not provide adequate relief where uncontrollable exceedances Occur because EPA © allegedly edited, /.e., deleted, all data that would satisfy that defense. 22 National Lime Ass'n involved regulations based on a different methodology to account for variability under a quite dissimilar statutory provision: Section 111 of the Clean Air Act (42 U.S.C. 7411). In con trast to the Clean Water Act, the Clean Air Act contains no general Variance provision (see note 4, supra), so Section 111 standards must account for “all variations of operating conditions being considered aryWhere in the country” 627 F.2d at 433 (italics omitted). According- ly, the court in Navional Lime Ass'n criticized EPA’s exclusion trom its data base of the data trom a plant that did not achieve the stand- ards selected, although it held that this alone did not necessarily make the standard unachievable. /d. at 444. Moreover, three plants in the data base upon which EPA relied did achieve all those standards. /bid Even under petitioner’s interpretation of the Clean Water Act, that tact would have justitied BAT-based limitations under that Act. 19 The decision below is correct. It does not conflict with any decision of this Court or any of the many court of ap- peals decisions that have already addressed this issue.?3 Peti- tioner essentially disputes the highly specific fact-based fin- dings that were made by EPA and upheld by the court of appeals, based upon a thorough analysis of EPA’s editing criteria contained in the rulemaking record. There is no need for further review by this Court. Each court of appeals that has reviewed EPA’s methodology in establishing variability factors has recog- nized that EPA’s use of the percentile approach is designed (oO result in meaningful controls on daily maximum and max- imum monthly average releases, while accounting for only reasonable fluctuations in treatment. The limitations are not designed to reflect extreme hypothetical discharge levels, Or even to permit poor performance that can be controlled by quality control measures. See, e.g., Weyerhaeuser Co. V. Costle, 590 F.2d at 1057. EPA’s percentile approach im- plements the important goal of ensuring that vigilant at- tenuion is paid to the reduction of controllable variations in treatment levels on a daily and monthly basis through the use of proper maintenance and quality control measures. [bid.; see, e.g., United States Steel Corp. v. Train, 556 F.2d ‘See American Petrolewn Inst. \. EPA, 661 &.2d 340, 350-353 (Sth Cur. IYS1); Corn Refiners Ass'n v. Costle, 594 b.2d 1223, 1224-1226 (Sth Cir. 1979); Weverkaeuser Co. s. Costle, 890 b.2d 1011, 1056-1058 (D.C. Cir. 1978); Onited States Steel Corp. \. EPA, 556 F.2d 822, 841-842 (7th Cir. 1977); Marathon Oil Co. v. EPA, 564 F.2d 1253, 1266-1274 (Yth Cir. 1977); CPC Inv, Inc. \. Train, 540 &.2d 1329, 1336-1338 (sth Cir. 1976), cert. demed, 430 U.S. 966 (1977); American Petrolewn Insts. EPA, 540 &.2d 1023, 1035-1036 (LOth Cir. 1976), cert. denied, 430 US. 922 (1977); EMC Corp. \. EPA, 539 F.2d 973, 985-986 (4th Car. 1976). 20 at 842; American Petroleum Inst. v. EPA, 540 F.2d at 1036; 52 Fed. Reg. 42,564-42,565 (1987); C.A. App. 2987-3004. The court of appeals recognized that even “well-operated plants occasionally will experience quality control prob- lems.” Pet. App. 190a. As the court concluded, it is reasonable to expect that the extreme discharges represented by one percent and five percent of the statistical distribu- tions will either be controllable by better quality control practices and plant operations, or will be subject to the upset detense. /bid.; see 52 Fed. Reg. 42,564, 42,565 (1987). This fact-based determination does not warrant review by this Court. Contrary to petitioner’s claim, EPA’s use of variability factors is consistent with each of the court of appeals deci- sions that has considered this issue. As the courts have recognized, given EPA’s statistical methodology “[t}here is always a theoretical chance that a plant achieving the limita- tions on a long-term basis will exceed the monthly and daily limits.” American Petroleum Inst. , 540 F.2d at 1035-1036.?7 74 The Ninth Circuit explained in Merathon Oil Co. \. EPA, 564 F.2d 1253, 1272 (1977), that establishing a limitation that assured 100%% comphance “would probably be so liberal as to be worthless as a con- trol standard.” See pp. 6-7 & note 7, supru. Petitioner makes much of the contention that EPA’s percentile method of establishing variability factors results in a predictable non- compliance rate, citing, wiler alia, a“ Training Manual tor NPDES Per- mit Writers.” Pet. Br. 17; Pet. App. 26la. That document, developed by an outside contractor in May 1987, states on its title page that “[t}he material in this manual is for instructional purposes only{;] [jt * * * does not necessarily represent official policy of the U.S. EPA.” In any event, the manual, which ts not part of the administrative record below and was accordingly struck trom the record by the court of appeals, is a general document for permit writers; if was not intended to ad- dress the specific practices employed in the OCPSF rulemaking. It is, however, irrelevant whether EPA’s methodology is construed to result in a predicted noncompliance rate, or, as the court below 21 ~ Most of the cases on which petitioner relies were decided prior to 1979, when EPA promulgated the regulatory upset defense. At that time, EPA addressed this matter through the exercise of its enforcement discretion alone. Most of the courts of appeals upheld EPA’s approach, approving its policy of not bringing enforcement actions where rare exceedances that could not be controlled occur, and recognizing that limitations should be adequately stringent to require facilities to control extremes in variability.> The Ninth and the Fourth Circuits, however, in the cases upon which petitioner relies (Pet. 17, 19), remanded cer- tain technology-based limitations because EPA had not for- mally provided relief to offset the possibility of an uncon- trollable exceedance.?° In Marathon Oil, 564 F.2d at 1272, the court required that EPA provide relief for “ ‘excursions’ when they actually occur, by determining whether exemplary use of [the model technology] could have avoided the ex- cursion.” Similarly, in FMC Corp., $39 F.2d at 985-986, the Fourth Circuit required EPA to provide relief for possi- ble exceedances. In 1979, EPA promulgated the upset concluded (Pet. App. 190a), simply to reflect the possibility of uncon- trollable exceedances or Occasional quality control problems. See, e.g., American Petroleum Inst., 540 F.2d at 1036. Under either approach, the availability of the upset defense affords adequate relief for uncon- trollable exceedances. >> See Weverhueuser, 590 F.2d at 1056-1058; United States Steel Corp., 556 F.2d at 841-842; Corn Refiners Ass'n, 594 F.2d at 1224-1226; CPC Intl, Inc., 540 F.2d at 1336-1339; American Petroleum Inst., 540 F.2d at 1035-1036. 7¢ Petitioner also relies on the D.C. Circuit’s decision in National Lime. That decision, which reviewed regulations promulgated under the Clean Air Act, is simply inapposite. See note 22, supra. Significantly, the D.C. Circuitin Weverhaeuser, 590 F.2d at 1056-1058, upheld EPA’s approach under the Clean Water Act before the upset defense was promulgated. Nm i) defense to address these concerns. 44 Fed. Reg. at 32,863. Because the upset defense is available to offset uncon- trollable exceedances in the OCPSF category, EPA’s ap- proach in the rulemaking ts consistent with Marathon Oil and FMC Corp.?’ Petitioner additionally contends that the regulatory upset defense will not be available in case of an uncontrollable exceedance of the OCPSF limitations by a properly designed and operated facility, because EPA allegedly edited from the data base every instance to which the upset defense would apply before EPA selected variability factors. This argument is based upon the erroneous assumption that one of EPA’s “BAT technology performance” editing criteria, which identifies “treatment system upsets” as an example of unrepresentative performance (Pet. App. 189a (quoting C.A. App. 3883, 3885)), means that EPA edited all data points that would satisfy the highly taci-intensive regulatory upset defense.?° 2” Petitioner also asserts (Pet. 19) that the decision below is “at odds with” American Petroleum Inst., 661 F.2d at 347, decided atter the regulatory upset defense was promulgated. In that decision, the court reviewed challenges to technology-based wastewater regulations for the petroleum refining industry that were developed using EPA’s percen- tile approach. The court carefully reviewed the decisions in FIC Corp. and Marathon Oil, and concluded, in the context of the issues before it, that the regulatory upset defense satistied the concerns expressed in those cases. /d. at 350-353. Because the upset defense applies to the OCPSF regulations, the decision below and EPA’s regulations are con- sistent with American Petroleum Inst. 75 EPA could searcely have applied the regulatory upset criteria set forth in 40 C.F.R. 122.41(n)(3) to the thousands of data points it utilized to establish the OCPSF limitations — even had it wished to do so, tt lacked sufficient information to edit on such a basis. See, e.g., CA. App. 3872 (BPT editing). The detailed daily operating conditions ot the plants which submitted data were known only to the plant operators, not to EPA. C.A. App. 2987. See Pet. App. 189a-191a. EPA’s criteria for editing the plants and data setswere necessarily far more general 23 The court of appeals carefully reviewed EPA’s editing criteria and properly rejected this argument. /bid.?° In any event, the court below held that regardless of how EPA edited its data base, the regulatory upset defense re- mains available to PPG plant 913 (or any other facility) if petitioner can show that any such exceedance, if and when it Occurs, was beyond its control (Pet. App. 93a): If these data points result from quality-control prob- lems, the exceedances they represent are within the con- trol of the plant. If, however, the data points repre- sent exceedances beyond the control of the industry, the upset defense is available. In short, the appropriate time to make the factual inquiry as tO Whether a particular exceedance is uncontrollable is when the exceedance occurs and a specific factual record exists. Petitioner’s speculative concerns about the possibility of future reliance on the regulatory upset provision con- stitute no proper basis for challenging the entire OCPSF regulation in this Court. than petitioner’s argument assumes, and did not include a regulatory upset criterion. See, e.g., C.A. App. 3868-3873, 4428-4435; Surreply C.A. Addendum Exh. 16 (possible spills, upsets, and mechanical failures included in the edited BPT data base); 52 Fed. Reg. 42,540 (1987) (BAT editing); Surreply C.A. Addendum Exh. 15 (same). °¥ Petitioner seeks to contradict the court’s tindings by noting the only instance in which EPA edited two specific data points from a single plant’s data set. Pet. 19. EPA, however, edited these two data points because they resulted from improper Operation, not because they sauistied the regulatory upset provision. C.A. App. 3108, 3890. Moreover, and contrary to petitioner’s assertion, the fact that the PPG plant average tor chloroform and the single Dow plant data point for ICE were not edited trom the data base does not render the upset defense inapplicable to any future exceedances that may occur. 24 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. SEARR Solicuior General BARRY M. HARTMAN Deputy Assistant Attorney General* Davip J. KAPLAN Alforney E. DONALD ELLIOTI General Counsel SUSAN G. LEPOW Associate General Counsel RUTH G. BELI Assistant General Counsel BRIAN P. GRANI Atforney Environmental Protection Agency APRIL 1990 * The Assistant: Attorney General is disqualitied in this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0885%3A4. Public record. Not legal advice.