Cerro Copper Products Co. v. Ruckelshaus

• Decision Date: 01 July 1985
• Docket Number: Nos. 83-3053,84-1457,s. 83-3053
• Parties: CERRO COPPER PRODUCTS COMPANY and Village of Sauget, Petitioners, v. William D. RUCKELSHAUS, Administrator, United States Environmental Protection Agency, and United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1060

766 F.2d 1060

22 ERC 2230

CERRO COPPER PRODUCTS COMPANY and Village of Sauget, Petitioners, v. William D. RUCKELSHAUS, Administrator, United States

Environmental Protection Agency, and United States

Environmental Protection Agency, Respondents.

Nos. 83-3053, 84-1457.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 13, 1984.

Decided July 1, 1985.

Joseph Wright, Jr., Martin, Craig, Chester & Sonnenschein, Chicago, Ill., for petitioners.

Dov Weitman, Atty. Office of Gen. Counsel, U.S. Environmental Protection Agency, for respondents.

Before ESCHBACH and COFFEY, Circuit Judges, and DOYLE, Senior District Judge. ^*

COFFEY, Circuit Judge.

The petitioners, Cerro Copper Products Co. and the Village of Sauget, Illinois, seek review of certain regulations promulgated by the Environmental Protection Agency concerning the pretreatment of wastewater discharge from industrial copper-forming facilities. We deny the petition for review.

I

In 1972 and 1977, Congress amended the Clean Water Act ("Act") in an effort to control water pollution and "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251(a) (1982). The Act presently provides that direct dischargers--those who expel wastewater directly into navigable waters--must comply with the "best practicable control technology currently available" by July 1, 1977, to limit pollutants within their wastewater discharge, commonly referred to as effluent. 33 U.S.C. Sec. 1311(b)(1)(A). The Act further provides that by July 1, 1984, the direct dischargers must comply with the more stringent standard of "best available technology economically achievable" in regulating effluent pollutants. 33 U.S.C. Sec. 1311(b)(2). In addition, the Act provides that indirect dischargers--those whose wastewater passes through a publicly owned treatment works plant ("POTW")--pretreat their wastewater discharge before passing it along to the POTW for further treatment. Congress directed the Environmental Protection Agency ("EPA") to administer, implement, and enforce the provisions of the Act, and in this capacity, the EPA is to establish "pretreatment standards for introduction of pollutants into treatment works ... which are publicly owned for those pollutants which are determined not to be susceptible to treatment by such treatment works or which would interfere with the operation of such treatment works." 33 U.S.C. Sec. 1317(b)(1). Congress instructed the EPA to "establish national pretreatment standards for toxic pollutants based on the best available technology economically achievable, or any more stringent effluent standards...." H.R.Conf.Rep. No. 830, 95th Cong., 1st Sess. 87, reprinted in 1977 U.S.Code Cong. & Ad.News 4326, 4424, 4462.

The requirement that indirect dischargers remove pollutants from their effluent through pretreatment procedures, before introducing such wastewater into the POTW, creates the potential for unnecessary, duplicative wastewater treatment procedures if the POTW is capable of efficiently removing those same pollutants. Thus, in an effort "to avoid treatment for treatment's sake," see Senate Comm. on Environment and Public Works, 95th Cong., 2d Sess., Legislative History of the Clean Water Act of 1977, at 343 (Comm.Print 1978), the Act provides that:

"[i]f, in the case of any toxic pollutant under subsection (a) of this section introduced by a source into a publicly owned treatment works, the treatment by such works removes all or any part of such toxic pollutant and the discharge from such works does not violate that effluent limitation or standard which would be applicable to such toxic pollutant if it were discharged by such source other than through a publicly owned treatment works, and does not prevent sludge use or disposal by such works in accordance with section 1345 of this title, then the pretreatment requirements for the sources actually discharging such toxic pollutant into such publicly owned treatment works may be revised by the owner or operator of such works to reflect the removal of such toxic pollutant by such works."

33 U.S.C. Sec. 1317(b)(1). This statutory removal credit program allows indirect dischargers to modify the pollutant levels within their wastewater discharge based upon the degree of pollution reduction achieved by the POTW. In effect, the indirect dischargers, when pretreating their wastewater, are not required to remove those pollutants that can be efficiently treated and removed by the POTW. The statutory removal credit program ensures that the combination of pretreatment by the indirect discharger and further treatment by the POTW achieves "at least that level of treatment which would be required if the industrial source were making a direct discharge." H.R.Conf.Rep. No. 830, 95th Cong., 1st Sess. 87, reprinted in 1977 U.S.Code Cong. & Ad.News 4424, 4462.

In June 1978, the EPA promulgated regulations implementing the general wastewater pretreatment standards for indirect dischargers and setting forth the guidelines to be followed by indirect dischargers and POTWs in qualifying for removal credits. See 43 Fed.Reg. 27,736 (1978), amended 46 Fed.Reg. 9404 (1981), codified at 40 C.F.R. Secs. 403.1-403.16 (1984). The EPA, in accord with Congressional intent, designed the comprehensive regulations:

"(a) To prevent the introduction of pollutants into POTWs which will interfere with the operation of a POTW, including interference with its use or disposal of municipal sludge; (b) to prevent the introduction of pollutants into POTWs which will pass through the treatment works or otherwise be incompatible with such works; and (c) to improve opportunities to recycle and reclaim municipal and industrial wastewaters and sludges."

40 C.F.R. Sec. 403.2 (1984). The regulations require that pollutants introduced into POTWs by indirect dischargers "shall not Pass Through the POTW or Interfere with the operation or performance of the works." 40 C.F.R. Sec. 403.5(a). The regulations direct POTWs "with a total design flow greater than 5 million gallons per day (mgd) and receiving from Industrial Users pollutants which Pass Through or Interfere with the operation of the POTW ... to establish a POTW Pretreatment Program...." 40 C.F.R. Sec. 403.8(a). The EPA defines pretreatment as "the reduction of the amount of pollutants, the elimination of pollutants, or the alteration of the nature of pollutant properties in wastewater prior to or in lieu of discharging or otherwise introducing such pollutants into a POTW." 40 C.F.R. Sec. 403.3(q). Thus, the POTW must formulate a pretreatment program to ensure that the pollutant levels within the wastewater discharge of those industrial facilities who use the POTW are in compliance with the EPA standards.

The regulations further provide that the POTW may revise the pretreatment program for an industrial user in order to reflect the POTW's removal of pollutants. To qualify for these "removal credits," the POTW must have an EPA-approved pretreatment program and must submit periodic data to the EPA concerning the quantity and quality of the POTW's normal influent and effluent flow. See 40 C.F.R. Sec. 403.7(b), (d). The EPA will approve the revised pretreatment program and grant removal credits only where "the POTW demonstrates Consistent Removal of each pollutant for which the discharge limit in a categorical Pretreatment Standard is to be revised...." 40 C.F.R. Sec. 403.7(b). Indeed, the removal credit will be granted only for the actual removal of the pollutant mass by the POTW, not for a reduction in the concentration of the pollution through dilution of the wastewater. See Senate Comm. on Environment and Public Works, 95th Cong., 2d Sess., Legislative History of the Clean Water Act of 1977, at 461 (Comm.Print 1978). See also 40 C.F.R. Sec. 403.6(d). If the POTW's pretreatment standards meet with EPA approval and the POTW establishes that it is capable of removing pollutant mass from the wastewater of an indirect discharger, the POTW is authorized to issue revised effluent pollutant limitations for the indirect discharger. This revised discharge limit is calculated through a mathematical formula; dividing the EPA's pretreatment standard for a given pollutant by the sum of one minus the POTW's consistent removal rate of that pollutant. ¹ For example, if the EPA's pretreatment standard is one pound of pollutant discharge for every thousand pounds of mass used in the manufacturing process, and the POTW can remove 75% of that pollutant, then the revised discharge limit for the indirect discharger would be four pounds of pollutant discharge for every thousand pounds of mass used in the manufacturing process. The POTW would remove 75%, or three of the four pounds of the pollutant, thus bringing the wastewater into compliance with the EPA's pretreatment standard of one pound of pollutant for every thousand pounds of discharged mass.

The EPA regulations also provide that each industrial discharger of water pollutants within the United States will be classified within an industrial category. The EPA is to promulgate individual pretreatment standards for each industrial category, specifying the quantity and concentration of pollutants that indirect dischargers may release to their respective POTWs. See 40 C.F.R. Sec. 403.6. Realizing that "it may be necessary on a case-by-case basis to adjust the limits in categorical Pretreatment Standards, making them either more or less stringent, as they apply to a certain Industrial User," the EPA included "a fundamentally different factors" ("FDF") variance for each industrial category. 40 C.F.R. Sec. 403.13(b). According to the EPA:

"[a]ny interested person believing that factors relating to an Industrial User are fundamentally different from the factors considered during development of a categorical Pretreatment Standard applicable to that User and further, that the existence of those...