EFFLUENT STANDARDS AM) WATER QUALITY INFORMATION
ADVISORY COMMITTEE
SUMMARY OF CONTENTIONS OF INDUSTRY IN LITIGATION
PENDING UNDER SECTIONS 304(b) AND
306 OF PUBLIC LAW 92-500
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
November 11, 1975
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A \
$ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
%pro^ WASHINGTON, D.C. 20460
Nov. 11, 1975
EFFLUENT STANDARDS AND WATER QUALITY
INFORMATION ADVISORY COMMITTEE
The Honorable Russell E. Train
Administrator
U.S. Environmental Protection Agency
Waterside Mall West
Washington, D. C. 20460
Dear Mr. Train:
This report has been prepared to provide guidance to the
Agency and to the Effluent Standards and Water Quality Information
Advisory Committee (ES&WQIAC) on substantive issues raised in
current litigation on industrial point source limitations.
You will recall that the ES&WQIAC had advised of basic sub-
stantive inadequacies of proposed industrial point source effluent
limitations in special communications to you since September
25, 1973. Unfortunately, there is little evidence that action
was taken by the Agency in the utilization of the information
provided, or responses to our concerns. By September 1975, some
two years after the initial ES&WQIAC appraisal of inadequacies
in industrial effluent limitations, the EPA is faced with more
than 243 cases of litigation involving many of the issues cited
by the Committee.
The impact of this litigation on implementation of PL 92-500
is of major concern to the Committee as well as the resulting
costs incurred by the consumer and taxpayer. Delays in achieving
the objectives of PL 92-500 have long term environmental effects
seriously impacting on the quality of the Nation's waters.
Furthermore, litigation costs of industry are passed on to the
consumer. Similar costs for the Government are borne by the
taxpayer including the costs of operating the judicial system.
In consideration of the impact of delays in implementation of
PL 92-500 and costs incurred, an equitable and timely resolution
of the litigation is critical.
Hopefully this report will assist the Agency on focusing
on an evaluation and resolution of issues on which the current
£fjpve/~ litigation is based.
f/-^
77^
Respectfully,
irtha Sager
Chairman
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FOREWORD
A primary responsibility of the Effluent Standards
and Water Quality Information Advisory Committee (ES&WQIAC)
under Sec. 515 of PL 92-500 is to provide information
and advice to the Administrator'of EPA on implementation
of Sections 304(b), 306 and 307 of PL 92-500. Guide-
lines/limitations when promulgated by EPA were appealed
by many industries. Both the technical and legal issues
raised in the resulting litigation have a significant
effect on the implementation of PL 92-500.
The objective of this ES&WQIAC study was to prepare an
analysis of the recurring points raised by industry in
litigation related to guidelines/limitations promulgated
by EPA. Such an analysis and understanding of all
substantive issues and their validity can focus atten-
tion and effort on remedial action. Specifically the
analysis is designed to provide guidance and assist
in establishing priorities for ES&WQIAC in key areas
for its future advisory duties on: Phase II and Group II
industries; approaches for review and revision of
promulgated standards; and needs for developing new
procedures and approaches as a result of court action.
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TABLE OF CONTENTS
1. Foreword
2. Summary of Contentions of Industry in Litigation
Pending Under Sections 304(b) and 306 of
Public Law 92-500
3. Appendix - ES&WQIAC Past Recommendations to EPA
on Substantive Issues now in Contention
-Reviewers' Comments on this Report
- ES&WQIAC Membership
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ES&WQIAC
SUMMARY OF CONTENTIONS OF INDUSTRY IN LITIGATION
PENDING UNDER SECTIONS 304(b) AND
306 OF PUBLIC LAW 92-500
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SUMMARY OF CONTENTIONS OF INDUSTRY IN LITIGATION
PENDING UNDER SECTIONS 304(b) AND
306 OF PUBLIC LAW 92-500
Introduction
The substantive issues in the lawsuits challenging
guideline/limitations promulgated under Sections 304(b)
(and, necessarily, 301) and 306 of PL 92-500 are of
vital interest to the Effluent Standards And Water Quality
Information Advisory Committee (ES&WQIAC).
More than 243 cases have been filed by industry under
304(b) and 306 of PL 92-500 in Federal courts, most of
which are filed in Federal ^ircuit Courts of Appeal.
Analyses of the points repeatedly raised by industry
in this current litigation will provide the ES&WQIAC
with guidance for future advisory duties with regard
to remedial action on Phase II industries; reviews and
revisions of initial effluent limitations as required
under the statute; and with respect to new procedures
and approaches directed under the court actions themselves.
Litigation Procedure
There are ten Federal Circuit Courts geographically
distributed throughout the U.S. and one in the District
of Columbia.
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Section 509 of PL 92-500 provides that certain
sections of the law, including Section 301 but excluding
Section 304(b), must be appealed in a Federal Circuit
Court. (In cases where the law gives no directive,
the Administrative Procedure Act governs appeals. These
appeals are filed in Federal District Courts, of which
each state has at least one.)
The procedure for appeal is as follows: the petitioner
files notice of appeal with the court. After the
notice of appeal is filed, EPA compiles and submits
the record (6,000 pages in No. 74-1261 in the Fourth
Circuit), and the petitioner's brief is filed. Many
cases pending involving the same regulations may be
consolidated - a joint brief may be filed arguing the
jurisdictional issues common to all, and each petitioner
may file a separate brief on its individual issues.
For example, one brief in the vital petroleum refining
category is confined to jurisdictional issues, deferring
the "...highly complex scientific and technical issues
underlaying the validity of EPA's so called 'guidelines
for effluent limitations'." (Petitioners brief, Tenth
Circuit No. 75-1404, American Petroleum Inst. et. al.,
vs. EPA, pg. 6.)
In hearing the case, the Agency's actions are presumed
to be correct by the courts. The opposition must show
that the Agency's action was arbitrary and capricious
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o/ and the record before the court shows no reasoned rationale
for the Agency's conclusions. To show that EPA did
" ' not follow the statutory plan of PL 92-500 is necessary
for each petitioner's effective opposition, and this
underlies all of the points reported here.
Scope Of Study
This preliminary study was confined to analysis of
contentions in petitioners' initial briefs for EPA's Phase I
industries in the Federal Circuit Courts of Appeal, without
regard to their validity, or to the position taken by
Government reply briefs, or to the resolution of the
contentions by the courts.
No effort has been made in the study to distinguish
contentions under 1977 "best practicable treatment"
standards, from those related to 1983 "best available
treatment economically achievable" standards, or for new
source standards.
The cut-off date for consideration of briefs was
August 1, 1975 and this analysis includes all briefs
obtainable prior to this date - 48 briefs consisting of
243 cases.
Discussion Of Analysis
Each brief was carefully reviewed to determine the
nature of the contentions. Through this analysis,
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16 substantive issues of special interest to ES&WQIAC
were isolated:
Jurisdictional Issues;
304(b) Factors Ignored;
Opportunity for Comment Insufficient;
Data Base Inadequate;
Technology Transfer Improper;
Technology Unavailable;
Subcategorization Ineffective;
Lack of Rationale for Specific Decisions;
Variance Clause Unsatisfactory
Definition of Process Waste Water Unrealistic;
Exemplary Plant Concept Misused;
Contractors' Recommendations Disregarded;
Cost Considerations Disregarded;
Other Government Agencies Disregarded;
Energy Requirements Disregarded; and
Non-Water Quality Impacts Disregarded.
Figure 1 presents the results of analysis of the briefs
by industrial sector, court and specific brief for each
of the 16 substantive issues identified. ( These issues
raised in the litigation have not been weighed to reflect:
(1) the importance of the industry in gross national
product; (2) the importance of the issue to the particular
industry; or (3) the number of petitioners who may have
joined in the brief.)
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Figure #1
Key Issues
PHASE I
SOWARY OF CONTEST I ON OF INDUSTRY
LITIGATION PENDING UKDER SECTIOKS
304(b), and 306 OF PUBLIC LAW
92-500.
Industrial Sector. Court, and Briefs.
= £
PART 406 GRAIN MILLS
X. Eight Circuit: No. 74-1447
CPC International Inc.,
< s :=
2. Eifiht Circuit: No. 74-1448
CPC International Inc., et.al.,
No. 74-1449 Penick & Ford Ltd.
xixrxixi i i i i"~r
St
FAIT 407 CANNED AND PRESERVED FRUITS AND VEGETABLES
1. District of Coluobia Circuit; No. 74-1464,
74-1513, 74-1480 American Frozen Food Inst. «.
PART 414 ORGANIC CHEMICALS
1. Fourth Circuit: No. 74-1453
Union Carbide Corporation ... ...
2. Fourth Circuit: No. 74-1448 and Nos. 74-1489,
74-1714, 74-1725, 74-1829, 74-1830, 74-1831,
74-1854, 74-1855, 74-1870 Monsanto Company .
PART 415 INORGANIC CHEMICALS
1. Fourth Circuit: No. 74-1261
E.I. Du Pont de Nemours & Company - — , ....
XTxl rx3Xl^<^rxrx^R»<^CxTxTx!l
2. Fourth Circuit: No. 74-1296 FMC Corporation;
No. 74-1298 Dov Chemical. Union Carbide, Monsanto,
and Hercules; No. 74-1357 E.I. Du Pont de Nemours;
No. 74-1671 Cities Service, Diamond Shaarock, PPG
Industries, and BASF Wyandotte Corporation
3. Fourth Circuit? No. 74-1303 FKC Corporation;
Mo. 74-1588 Diamond Shamrock Corporation _
4. Fourth Circuit: No. 74-1589 PPG Industries;
No. 74-1590 BASF Wyandotte Corporation —
5. Fourth Circuit: No. 74-1290 Allied Chemical Corp.;
Ko. 74-1302 01in Corporation; No. 74-1304 American
Cyanaaid Coapany; No. 74-1670 Cities Service Company -
6- Fourth Circuit? No. 74-1406 Stauffer Chemical Company
7, Fourth Circuit: Ho. 74-1297 American Cyanamid Company;
Ko. 74-1299 Allied Chemical Corporation; No. 74-1300
01in Corporation; Ko. 74-1404 Stauffer Chemical Company
1 1 I
IXIXXXIXI I 1X1 txx
ixixixixi i ixi i ixi ixixr
XI I I 1 I I T I LI 1 I 1
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Fourth Circuit: No. 74-1741 N.L. Industries, Inc.
Cxi i CxlXTxIXlXI I IXI
9. Fourth Circuit: No. 74-1301 Dow Chemical Company,
Union Carbide Corp., Monsanto Company, Hercules,
and Manufacturing Chemists Association.
PART 416 PLASTICS AND SYNTHETICS
1. Fourth Circuit: No. 74-1386 FMC Corporation
2. Fourth Circuit: No. 74-1400 American Cyanamid Corp.
No. 74-1502 Union Carbide Corporation; No. 74-1503
Hercules, Inc.; No. 74-1765 FMC Corporation
3. Fourth Circuit: No. 74-1504 Olin Corporation;
No. 74-1763 Celanese Corporation; No. 74-1764
Union Carbide Corporation
4. Fourth Circuit: No. 74-1505 Monsanto Company;
No. 74-1729 E.I. Du Pont de Nemours; No. 74-1761
Monsanto Company; No. 74-1762 E.I. Du Pont de
Nemours
PART 418 FERTILIZER MA.NUFACTUTING
1. Fifth Circuit: No. 74-2761 and Nos. 74-2760, 74-2762,
74-2763, 74-2792, 74-2793 Agrico Chemical Company
2. Sixth Circuit: No. 74-1755 and Nos. 74-1756, 74-1852,
74-1854, 74-1861, 74-1894, 74-1935, 74-1853, 74-1855,
74-1862, 74.-1895, 74-1934 Vistron Corporation, et.al.,
3. Ninth Circuit: No. 74-2272 J.R. Simplot Company
4. Ninth Circuit: No. 74-2273 J.R. Simplot Company —
PART 419 PETROLEUM REFINING
1. Tenth Circuit: No. 75-1404 American Petroleum Inst.
PART 420 IRON* AND STEEL
1. Third Circuit: No. 74-2256 CF&I Steel Corporation
XXI txl "T^<3 fxl
><3 CxJ I I I I I I I Cxi 1 T
XO^l CxrtxJXCXXI^l txTxtxl txTX)
XI I ExlXJXlXExl I fcx-l^xl tx3 rxS
2. Third Circuit: No. 74-1640 American Iron and Steel
Institute, United States Steel Corp., National Steel
Corp., Republic Steel Corp., Wheeling-Pittsburgh Steel
Corporation, Inland Steel Company, Armco Steel Corp.,
Jones and Laughlin Steel Corp.; No. 74-1642 Bethelem
Steel Corp., Interlake Steel, Inc., and Alleghany Ludlura
Industries, Inc.; No. 74-1962 Sharon Steel Corp., The Babcock
6 Wilcox Company, Crucible Inc.t Cyclops Corp., Detroit Steel
Corp., Atlantic Steel Company, Lone Star Steel Company, Con-
tinental Copper & Steel Industries, Inc., The Tluken Coiepany,
Shenango Inc.; No. 74-2006 Youngs town Sheet and Tube Conpany
M
Si S3
ooxxixixi
CXCX3X CXIXl
xixxixixixi cxTxlxlxi txn
XCXExtx] CxiXtxtXExTx] JxSX^XSXi
^ixixcxixixxxrxixixixjxxi ixr
Cxi fcx3xtx3 I txl tx3 xr>
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3. Third Circuit: Ho. 74-2006 Youngstown Sheet and Tube
Company — — -
PART 421 N0NFERR0US METALS
1. Fourth Circuit: No. 74-1760 Reynolds Metal Company
PART 422 PHOSPHATE MANUFACTURING
1. Second Circuit; No. 74-1683 Hooker Chemicals and
Plastics Corp., Stauffer Chemical Company and
Monsanto Company
2. Second Circuit: No. 74-1687 Hooker Chemicals and
Plastics Corp., Stauffer Chemical Company and
Monsanto Company '
[XI CXI
I 1X1X1 1—^1
3a
I CXCXl I IXCXI I I
I Ex3 bxXXtx-l rXiXI fcx^TXbgl
PART 423 STEAM ELECTRIC POWER GENERATING
1. Fourth Circuit: Nos.
I
I
74-2263,
74-2286,
74-2340,
75-1014,
75-1078,
75-1199,
75-1347
74-2264,
74-2298,
74-2341,
75-1020,
75-1078,
75-1201,
74-2096, 74-2188,
-2265, 74-2268, 74
74-2313, 74
74-2365, 74
¦2312,
2343,
•1021,
2315,
2366,
75-1022, 75-1047,
1095,
¦1091, 75-1094,
¦1223, 75-1255,
75-
75-
Appalachian Power Company, et,
74-2196, 74-2236
2269, 74-2270,
74-2339.
74-2396,
74-1074,
75-1198,
1345, 75-1346,
al.,
tiS KS SS SSH65H55I ¦¦ I55i S5n55l ¦¦ I5S< S5il65i ed
2. Fourth Circuit: No. 74-2096 Appalachian Power Company,
et al., (Addendum brief for petitioners Boston Edison
Conq>any, Florida Power & Light Company, New England Power
Company, Pacific Gas and Electrict Company, Public Service
Company of New Hampshire, San Diego Gas and Elcctrict
Company, and Southern California Edison Company) _____
3. Fourth Circuit: No. 75-1199 Central Power and Light
Company and West Texas Utilities Company
4. Fourth Circuit: No. 75-1078 Texas Utilities Generating
Company, Dallas Power & Light Company, Texas Electric
Service Company and Texas Power 4 Light Company
Fourth Circuit: No. 74-2339 Addendum Brief for Consolidated
Edison Company of New York, Inc.
6. Fourth Circuit: Nos. 74-2096, 74-2263, 75-1021 Appalachian
Power Company et al., (Addendum Brief for petitioners
Appalachian Power Company, Indiana & Michigan Electric
Company, Indiana & Michigan Power Company, Kentucky Tower
Company, Ohio Electric Company, Ohio Power Company)
txi ixcxixi i i i i b^ixixi -lsa
X1X1 I I I LX3X1 I I I
TxSXX
I I Ex3
XX
r T-1" Exi—isa
I 1 I 1X1 X3XX
IX 1 IX
CXI iXT 1X3X1X3 i XI tx ixiXI
-------
7. Fourth Circuit: No. 74-2096 Appalachian Power Company,
00
1
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The issues are necessarily interwoven and inter-
locked thus there is some inescapable overlapping in analysis.
One paragraph or one sentence may raise several overlapping
issues. For example, " EPA's cost analysis of achieving
the sodium metal guideline limit is unintelligible because
it assigned no cost for the key element of suspended solid
removal to meet the 1977 guideline. The abatement costs
for 1983 are incomplete because EPA overlooked certain
effluent streams. EPA's energy figures are out of date,
incomplete, and unsupported." (Petitioner Brief, Fourth
Circuit No. 74-1406, Stauffer Chemical Co. vs. EPA pg. 12.)
Several of the issues separated out are basic. If
the data upon which the EPA based its regulations was poor;
if the EPA did not follow Section 304(b) in setting up
standards, substituting the so-called "variance clause";
if it did not give a reasoned rationale for its general
procedure and its specific findings, then its final
decision could only be correct by happy accident.
Through analysis of the issues a pattern emerged
of protest of lack of sufficient data upon which to base
decision, lack of a reasoned rationale for decision, both
in general and in particular, misuse of the exemplary
plant concept, rigidity of single number limitations.,
lack of an opportunity for effective comment on proposed
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regulations, and similar deficiencies which the ES&WQIAC
has pointed out to the EPA Administrator in numerous
comments since the Committee's inception. Examples of
ES&WQIAC1s concerns and advice to the Administrator on
these issues are contained in the Appendix.
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APPENDIX
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
September 25, 1973
EFFLUENT STANDARDS AND WATER QUALITY
INFORMATION ADVISORY COMMITTEE
EFFLUENT STANDARDS AND WATER QUALITY INFORMATION ADVISORY COMMITTEE
EVALUATION OF CURRENT METHODS FOR ESTABLISHING EFFLUENT LIMITATIONS
FOR INDUSTRIAL POINT SOURCES DISCHARGE
The Committee has found the current procedures for establishing
effluent limitations guidelines for point source industrial discharges
to be un-scientific in their disregard of the following items and/or
variables:
1. Little consideration has been given to the erroneous and/or incomplete
data on which many of the initial draft contractors' reports were based.
2. Little consideration has been given to great differences in individual
facilities among generic industries with regard to RAW WASTE LOAD:
SIZE OF PLANT: AGE AND TYPE OF PROCESS EQUIPMENT NOW OPERATING IN A
GIVEN PLANT: CLIMATIC AND GEOGRAPHIC LOCATION FACTORS.
3. Lack of consideration of difference between SOLUBLE AND SUSPENDED BOD.
4. ECONOMIC EQUITY has been disregarded with respect to instructions in
Sec. 304(b) involving cost of application of practical and available
technology? particularly as these relate to SMALL PLANTS within
generic industries.
5. SPECIFIC EXAMPLES where these items have not been given adequate
consideration are to be found in the following studies and published
proposed limitations:
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ELECTROPLATING
ORGANIC CHEMICALS
SEAFOOD PROCESSING
PLASTICS AND SYNTHETICS
INORGANIC CHEMICALS
CEMENT
FRUITS AND VEGETABLES
MEAT PACKING
STEAM ELECTRIC POWER
IRON AND STEEL
(Others not cited here)
6. Little consideration for some industrial sectors has been given to
utility of the guidelines to actual permit conditions in regions.
7. THEREFORE, ES&WQIAC has developed a scientifically defensible
method for establishing industrial point source effluent limitations,
which method is described in detail in the attached document.
In conclusion, the ES&WQIAC, recognizing the serious need to
establish scientifically defensible bases for standards, regulations and
guidelines promulgated through the Federal Register, strongly recommends
adoption and publication of the analytical procedure described in the
attachment. It is generally held that this recommended approach will
guarantee a more equitable treatment for both industry and public
concerns in determining the impact of Federal Regulations technologically,
economically, and from a timetable for implementation viewpoint. The
Committee seeks the guidance and direction of the Administrator in the
operational direction and implementation of its proposal since this
responsibility falls beyond the scope of its immediate mission.
Marftha Sager, Chairm^pr
Effluent Standards and Water Quality
Information Advisory Committee
Dated: September 25, 1973
Attachment:
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ROBERT C. BARNARD
FRCO D TURNACE
R. MICHAEL DUNCAN
DONALD L. MOfiCAN
CHARLES O. MAMArriE, JR.
J. CUOCNC MARAN5
ROIOCnT PART N£ftS
MATTHEW HALE
WASHlNOTON COWH5CL
DOUGLAS E. KLIEVER
RICHARD OtC. HINDS
DANIEL B. SILVER
KENNETH L. BACHMAN, R.
CHARLES F. LETTOW
SARA D. SCHOTLANO
ERIC SCHWARTZ
STEPHEN ZAMORA
DOUGLAS T- ROBERTON
JOHN S. WAGNCY
HENRY J. PLOO, «/R.
EDWARD G- MODELL
Cleary, GoTTLiEb, Steen a Hamilton
12BO CONNECTICUT AVENUE, N. W.
WASHINGTON, D, C. 20036
AREA CODE: 2O2- 2 23- 2 I 51
Cable Aoorcss
Clcaagolaw Washington
October 21, 1975
OEOROE W. CALL
COUNSEL
NEW YORK OFFICE
ONE STATE STREET PLAZA
NEW YORK lOOOl
PARIS OFFICE
+ \ AVENUE ©L FR1EDLAN0
7SOOB PARIS FRANCE
BRUSSELS OFFICE
RUC OC LA LOI, 33
• 0*0 BRUSSELS, BELGIUM
WINCHESTER HOUSE
77 LONDON WALL
LONDON EC2N IDA, ENGLAND
TELEX. 6B76B9
Dr. Martha Sager
Chairman
U. S. Environmental Protection Agency
Washington, D. C. 20460
Dear Dr. Sager:
I have your letter of September 14, 1975, together
with a copy of a proposed report on the "guideline" litiga-
tion. I have two suggestions for the Committee's consideration.
(1) I am becoming increasingly impressed with the
importance of the determination of the correct variability
factor for use in the regulations. EPA has not adopted a
standard method for determining variability. Consequently,
there is no uniformity in the way variability is calculated.
The counterpart of a variability determination is a determina-
tion of the allowance that will be made for the statistically
projected number of times a plant will exceed a number in the
regulation when the variability is calculated on a 95% or
even 99% confidence level. We have referred to these incidents
as "excursions" although they are more accurately described as
incidents which are forecast to occur because of the stastical
methodology used to determine variability. This, of course,
has great consequences on enforcement and the issue of penalties
for violations.
(2) The definition of BPCTCA may have to be reconsidered
if the Courts in the litigation set EPA's requlations aside.
The time to identify and install technology to achieve a July l,
1977 objective after the regulations have been validly issued
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Dr. Martha Sager October 21, 1975
following a remand will be very short. What might have been
conceived as "best practicable" when a plant had a three year
lead time, is no longer practicable when the lead time is
reduced to 18 months or less.
I shall be interested in seeing the final report.
Very t^uly yours,
Robert C. Barnard
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Popham, Haik, Schnobrich, Kaufman & Doty, Ltd.
WAVNE G. POPHAM
RAYMONO A, HAIK
ROGER W. SCHN08RICH
DENVER KAUFMAN
DAVJp S. OOTV
ROBERT A. MINISH
ROLTE A. WORDEN
G. MARC WHITEHEAD
BRUCE D. WJLLlS
FREDERICK S. RICHARDS
RONALD C. ELMQUIST
G. ROBERT JOHNSON
GARY R. MACOMBCR
FnEDERJCK C. BROWN
BRUCE D. MALKERSON
JAMES R. STOLEN
JAMES B. LOCKHART
A 3 A A IDS CENTER
MINNEAPOLIS, MN 55402
October 27, 1975
612 -335- 9331
, 1 I I"
IVI r \
\ ;
Mr. Martin W. Brossman \
Executive Director ES&WQIAC
Environmental Protection Agency
Crystal Mall Building #2
Room 821
Washington, D.C. 20460
Re: ES&WQIAC's Report on Pending Litigation
Pursuant to Public Law 92-500
Dear Mr. Brossman:
I am in receipt of ES&WQIAC's draft report entitled
"Summary of Contentions of Industry in Litigation Pending
Under Sections 304(b) and 306 of Public Law 92-500." As
the attorney for the National Independent Meat Packers
Association, et al. in their challenge to the meat packing
guidelines filed in the Eighth Circuit Court of Appeals
and now filed as an action in the Federal District Court in
Omaha, I very much appreciate the opportunity to review and
comment upon said report.
I am particularly pleased in this regard since the
report generally confirms the position advanced by NIMPA, et al.
in both the Eighth Circuit and Omaha cases. In my opinion, the
number of pending actions involving effluent guidelines would be
dramatically reduced had EPA followed the advice of ES&WQIAC in
such matters as were set forth in the Committee's memorandum of
September 25, 1973, which document is appended to the draft
report.
In its brief to the Eighth Circuit, NIMPA specifically
referenced the Committee's criticisms in the available documenta-
tion indicating that EPA ignored such criticisms. In its
responsive brief, EPA, was in my opinion, less than candid when
it stated to the court that ES&WQIAC had realized that the
statutory deadline for implementation of effluent guidelines
prevented certain of the Committee's recommendations, e.g., the
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POFHAM, HAIK, SCHNOBRICH, KAUFMAN & DOTY, LTD.
Mr. Martin W. Brossman October 27, 1975
matrix system, from being utilized. I believe it is clear from
several documents which appear in the record for the meat packing
guideines that the closest one could come to EPA's interpretation
of the Committee's position would be to visualize the Committee
as simply throwing up its hands in frustration by reason of EPA's
failure to consult with or, at a minimum, to take into account the
Committee's criticisms. Quite obviously, this is the case in light
of the draft report and ES&WQIAC's testimony before the oversight
hearings in August, 1974.
My only recommendation with regard to the draft report is
to ensure that EPA's failure to utilize the Committee in the way
that Congress intended would be well-noted and well-documented
in a manner such that there can be no possible misinterpretation
for those who read the final report.
If I can be of any further aid to the Committee regarding
the pending litigation in which I am involved, please feel free
to contact me.
Sincerely,
(2>
G. Robert Johnson
GRJ/amj
cc: Mr. John Mohay
Stephen L. Schaeffer, Esq.
Mr. J. A. Chittenden
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REPORT OF EFFLUENT STANDARDS & WATER QUALITY INFORMATION ADVISORY COMMITTEE
TO CONGRESSMAN JIM WRIGHT'S HOUSE OVERSIGHT COMMITTEE, AUGUST 1974
The ES&WQIAC Members have been concerned with the following
critical issues with regard to the effluent limitations for
industrial point source discharges being developed by EPA under
Sections 304(b), 306, and 307 of PL 92-500; specifically:
(1) EPA's interpretations of definitive terminology and the
effects of these interpretations on the promulgated
limitations, i.e., Exenplary Plants; National Standard;
Guideline; Effluent Limitation; BPT; and, Zero Pollutant
Discharge.
(2) Hie effectiveness of the methodology selected by the
agency to develop industrial point source effluent
limitations; i.e., selection of a descriptive and
qualitative contractor's approach rather than a
quantitative mathematical methodology.
(3) Specific items which resulted because of the definitions
adopted by the agency and the application of the metho-
dology selected:
(a) % BOD reduction required of BPT by 1977;
(b) Factors excluded generally in establishing
subscategories in many of the promulgated regulations;
(c) Economic equities largely imbalanced in favor
of large "most exemplary plants";
(d) Lack of quantitative economic analysis of non-
water impacts and energy requirements in the
promulgated documents to date;
(e) Lack of economic and scientific substantiation with
regard for Section 307 and toxic materials effluent
discharges; and,
(f) Lack of cooperation by the Effluent Guidelines
Division with the Committee efforts to provide,
assess and evaluate scientific and technical
information for the administrator of EPA according
to the mandate for the ES&WQIAC in Section 515 of
PL 92-500.
SUMMARY:
Submitted by,
Martha Sager, Chairma(pK
Effleunt Standards and Water Quality
Information Advisory Committee
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EFFLUENT STANDARDS AND WATER QUALITY INFORMATION ADVISORY
COMMITTEE (ES&WQIAC)
Environmental Protection Agency, Washington, D. C. 20460
Crystal Mall Building #2, Room 821, Telephone (703) 557-7390
Chairman
Dr. Martha Sager
Executive Director
Mr. Martin W. Brossman
Legal Council
Mrs. Rose Mattingley
Members
Mr. Blair T. Bower
Prof. Don E. Bloodgood
Prof. William W. Eckenfelder, Jr.
Dr. Robert B. Grieves
Mr. Ramon Guzman
Mr. Robert McCall
Dr. Glenn Paulson
Dr. Lloyd Smith
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*U.S. GOVERNMENT PHINTING 0FFICE:197S 210-810/68 1-3
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