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Subject

Comments: EPA Docket ID No. OW-2005-024

Please find attached comments to be filed on the subject docket. Please

let the undersigned know if there are any difficulties in the
transmission.

Thank you.

John E. Arnett

Government Affairs Counsel

Copper and Brass Fabricators Council

1050 17th Street NW, Suite 440

Washington, DC 20036

202-833-8575

202-331-8267 (fax)

arnettje@aol.com

**COPPER AND BRASS FABRICATORS COUNCIL, INC.**

# 1050 Seventeenth Street, NW, Suite 440

Washington, DC 20036

202-833-8575

arnettje@aol.com

December 13, 2005

Water Docket

Docket ID No. OW-2005-024

U.S. Environmental Protection Agency

Mailcode 4101T

1200 Pennsylvania Avenue, NW

Washington, DC 20460

> RE: **[Availability of and Procedures for Removal Credits; EPA Docket
> ID No. OW --2005-024; Federal Register Notice 70 Fed. Reg. 60199,
> October 14, 2005.]{.underline}**

Dear Sirs:

On behalf of the Copper and Brass Fabricators Council, Inc. ("Council"),
set forth below are comments in response to the Office of Water's
advance notice of proposed rulemaking and request for comments,
"Availability of and Procedures for Removal Credits," published in the
October 14, 2005, Federal Register at 70 Fed. Reg. 60199. (Hereafter
"ANPR"). The Council welcomes the opportunity to comment on the agency's
procedures for calculating removal credits for Publicly Owned Treatment
Works (POTWs).

The Copper and Brass Fabricators Council is a trade association that
represents the principal copper and brass mills in the United States.
The 20 member companies (see attached appendix A for a list of member
companies) together account for the fabrication of more than 80% of all
copper and brass mill products produced in the United States, including
sheet, strip, plate, foil, bar, rod, and both plumbing and commercial
tube. These products are used in a wide variety of applications, chiefly
in the automotive, construction, and electrical/electronic industries.
Many Council member companies qualify as small businesses (750 employees
or less) under the definitions of the Small Business Administration,
classified within the 1997 North American Industrial Classification
System code 331421, "Copper rolling, drawing, and extruding."

On May 20, 2004, in response to an Office of Management and Budget
request for nominations of regulations for reform, the Council submitted
eight regulatory nominations, seven of which were environmentally
related. One of those seven nominations was removal credits for POTWs
and is summarized as follows:

**[Removal Credits for POTW's:]{.underline}**

**Agency**: U.S. Environmental Protection Agency.

**Citation**: 40 C.F.R. 403.7

**Authority**: Clean Water Act, 33 U.S.C. 1251-1387

**Description of Problem**: Under the provisions of the Clean Water Act,
limits are place on the amount of a pollutant that an industrial water
discharger in a particular industrial category is allowed to discharge.
In many cases, the effluent from the industrial discharger is sent to a
publicly owned treatment work (POTW) and the effluent undergoes further
treatment. As provided by statue and under procedures outlined in 40
C.F.R. 403.7, POTWs with the capability to remove pollutants may apply
for authorization to grant "removal credits" to facilities which
discharge to the POTW, for the purpose of avoiding the unnecessary
expense of treating the effluent twice. The effect of the removal credit
is to grant to the NPDES permit holder a higher limit on the subject
pollutant than would otherwise be allowed, with no increase in the level
of that pollutant ultimately discharged by the POTW to the waterways.
Removal credits are most critical to indirect, categorical dischargers
(those facilities, usually small businesses, which discharge to a POTW)
whose volumes are too small to justify the investment in treatment
equipment dedicated to their operations. If POTWs do not have removal
credit authority, then the small indirect discharger is prevented from
trucking waste to the POTW, even though the POTW has the capacity to
treat the waste in question and the industrial discharger does not. As a
result, the small discharger is required to invest in dedicated
treatment facilities that are not economical to operate due to small
volume, and POTWs lose a potential revenue stream. The problem arises
from the unreasonable procedures established in 40 C.F.R. 403.7, which
make it extremely difficult to obtain removal credits, and require
testing procedures that do not accurately reflect the actual pollutant
removal capability of the POTW. For example, 40 C.F.R. 403.7(b) requires
that the POTW calculate the removal rate based on the average of the
*lowest* half of the removal measurements taken according to listed
procedures. As a result, many qualified POTWs are not granted removal
credit authority, many are discouraged from even applying, and
industrial users of the POTW must treat the effluents prior to the POTW
treating the effluent, creating expenses with no benefit.

**Proposed Solution**: The regulations governing removal credits should
be revised to more accurately reflect the total removal by the POTW. The
overall procedures in 403.7 for a POTW to apply for removal credit
authority should be modified to facilitate the granting of the authority
when justified.

**Estimate of Economic Impacts.** National cost impact is not
determined. The impact is especially onerous on smaller manufacturers
who legitimately should be able to rely on the capability of the POTW to
remove certain pollutants. For any POTW, several small businesses being
served may each be required to install and operate unnecessary on-site
treatment facilities because the POTW has not been granted authority to
grant removal credits for pollutants that the POTW is fully capable of
removing.

We appreciate that the Agency has responded to this nomination with the
October 14 ANPR and request for comment on possible solutions to the
problem discussed in our nomination. We will more fully discuss the
problem with the present standard, and discuss the requirements for
potential solutions.

**I. The Current Regulations Do Not Treat Direct Dischargers and
Indirect Dischargers/POTWs with the Parity Required by the Clean Water
Act.**

The Clean Water Act (CWA) provided for removal credits to avoid the very
serious and unnecessary cost burden of redundant treatment of wastes by
POTWs and the indirect discharger. To avoid this wasteful cost, the CWA
requires that the POTW be authorized to give credit to the indirect
discharger for removal of pollutants achieved by the POTW. In this way,
the combined removal of the POTW and the indirect discharger are equated
to the amount of pollutant removal by a direct discharger operating
under an applicable technology standard. As will be made clear in the
following, the present removal credit regulation does not create the
required parity between the discharges of direct dischargers and
indirect dischargers/POTWs.

The Agency has requested comment on options to amend the consistent
removal provisions of the regulation that would simplify or improve the
process for obtaining removal credits and still be consistent with prior
court decisions. This is in response to the court's decision in [NRDC v.
EPA,]{.underline} 790 F.2d 289 (3^rd^ Cir. 1986), where the court held
that the EPA's definition of consistent removal based on an average of
all test results was invalid. [Id.]{.underline} at 305. The court
reasoned that averaging all test results from the POTW's pollutant
reduction assured that the combined discharge from the industrial source
and the POTW would satisfy a given standard only 50% of the time.
[Id.]{.underline} at 300. The court emphasized that the CWA, while
encouraging removal credits, required that the combination of indirect
discharger/POTW discharge meet the same standard as the direct
discharger. [Id.]{.underline} at 301.

It is clear from the above that the court was concerned about the parity
of treatment of direct discharger and the combined treatment of the
indirect discharger and the POTW. Further, the court was quite concerned
about the effect of isolated concentration discharges exceeding a daily
limit. Ironically, the current system of compliance enforcement for
direct dischargers is very different from the indirect discharger under
the 1981 version of the removal credits regulation currently in effect,
primarily because compliance demonstrations for direct dischargers do
not eliminate from consideration the best 50% of the compliance sampling
results. But that is precisely what it does for the POTW portion of the
combined indirect discharger/POTW removal. In addition, the indirect
discharger/POTW unit is disadvantage because, when considering the
possibility of high excursions best illustrated by the \"Daily Maximum\"
limitations, there is not a linking of the least removal from the POTW
to the day of highest discharge from the indirect discharger.

To illustrate, assume that a direct discharger were required to sample
three consecutive days on two different occasions during a year. The
average of those three results would be used to determine compliance
with the Monthly Average Limit and the highest single day\'s discharge
would be used to compare to the Daily Maximum Limit used to protect
against a concentrated discharge. Each of the two sampling events is
imputed to represent the performance of the facility over the previous
six months. The best two days of data are only disregarded for the Daily
Maximum Limit compliance demonstration. They are not ignored for the
Monthly Average Limit. By contrast, under the current rules, indirect
dischargers are treated in a largely opposite manner. The best 50% of
the effluent removal measurements are ignored when calculating the
Monthly Average Limit compliance, while the effect of the worst removal
performance on a Daily Maximum result is diluted by averaging it in with
five other monthly sampling results. Hence, the indirect dischargers are
held to a stricter standard than direct dischargers, and the parity
envisioned by the Congress in the CWA is not achieved.

**II. The Agency Should Attempt to Bring Direct Dischargers and Indirect
Dischargers/POTWs to Parity through Removal Credit Regulatory Change.**

The Council encourages the EPA to explore more fully the merits of any
methods proposed to calculate the removal by the POTW that would bring
the removal credit regulations into parity with the system of regulating
direct dischargers.

The present regulatory regime is overly burdensome in focusing on the
worst 50% of the removal results over a twelve-sample period. In
addition, contrary to the assertions in [NRDC**, **]{.underline} it is
not clear that eliminating the best 50% of removal rates and taking the
average of the remaining 50% results in the indirect discharger/POTW
combination being in compliance 75% of the time. It likely results in a
higher compliance rate. For example, if the twelve removal rate results
were eleven units of 10, and one unit of 30, the calculation would
require that the 30 and five tens be eliminated. The resulting average
of the remaining worst 50% would be 10. But this removal credit level
would result in a compliance rate of 100%. Clearly the assumptions made
in the removal rate calculations in the [NRDC]{.underline} case should
be reexamined.

The net result of any proposed change should be to bring direct
dischargers and indirect dischargers/POTWs into parity while encouraging
the reduction of redundant treatment. Thus, Congress' twin goals of
consistent removal and avoidance of redundant treatment would be served.

In making regulatory changes to removal credit procedures, the Agency
must guard against increasing the burden on either the POTW or the
indirect dischargers through any increase in sampling and testing
requirements. Most importantly, the Agency must guard against creating
any uncertainty or frequent changes in the standards that the indirect
discharger must meet.

**III. Conclusion.**

We thank the Agency for requesting comments on the issue of removal
credits and for seeking a solution to the problem raised by the
Council's regulatory reform nomination.

We would encourage the Agency to seek additional input from various
stakeholders to search for a comprehensive solution that works for all
parties concerned, while providing the greatest amount of reduction in
the pollutants discharged from indirect dischargers/POTWS. If necessary,
the Agency should solicit comments directly from parties directly
affected by any change in regulations, such as POTWs themselves.

If you have any questions, please feel free to contact the Council.

Sincerely,

John Arnett

Government Affairs Counsel

Copper and Brass Fabricators Council

**COPPER AND BRASS FABRICATORS COUNCIL, INC.**

**[MEMBERSHIP LIST]{.underline}**

**December 8, 2005**

**ANSONIA COPPER & BRASS, INC.**

P.O. Box 109

Ansonia, CT 06401

\(203\) 732-6673

**BRUSH ENGINEERED MATERIALS, INC.**

17876 St. Clair Avenue

Cleveland, OH 44110

\(216\) 383-6815

**CAMBRIDGE-LEE INDUSTRIES, INC.**

P.O. Box 14026

Reading, PA 19612

\(610\) 926-4141

**CERRO FLOW PRODUCTS, INC.**

P.O. Box 66800

St. Louis, MO 63166-6800

\(618\) 874-8670

**CERRO METAL PRODUCTS CO.**

P.O. Box 388

Bellefonte, PA 16823

\(814\) 355-6217

**CHASE BRASS & COPPER COMPANY, INC.**

P.O. Box 152

Montpelier, OH 43543

\(419\) 485-8956

**CHICAGO EXTRUDED METALS COMPANY**

1601 South 54^th^ Avenue

Cicero, IL 60804

\(708\) 656-7900

**DRAWN METAL TUBE COMPANY**

P.O. Box 370

219 Elm Street

Thomaston, CT 06787

\(718\) 894-1442

**EXTRUDED METALS**

302 Ashfield Street

Belding, MI 48809

\(616\) 794-4842

**HEYCO METALS, INC.**

1069 Stinson Drive

Reading, PA 19605

\(610\) 926-4131X-2100

**HUSSEY COPPER LTD.**

Washington Street

Leetsdale, PA 15056-1099

\(724\) 251-4238

**KOBE WIELAND COPPER PRODUCTS, LLC**

P.O. Box 160

Pine Hall, NC 27042

\(336\) 427-6611

**METALS AMERICA**

135 Old Boiling Springs Road

Shelby, NC 28150

\(215\) 517-6000X-125

**THE MILLER COMPANY**

290 Pratt Street

Meriden, CT 06450-1010

\(203\) 639-5234

**MUELLER INDUSTRIES, INC.**

8285 Tournament Drive, #150

Memphis, TN 38125

\(901\) 753-3201

**OLIN CORPORATION**

427 N. Shamrock Street

East Alton, IL 62024-1174

\(618\) 258-2054

**OUTOKUMPU AMERICAN BRASS**

P.O. Box 981

Buffalo, NY 14240-0981

\(716\) 879-6979

**PMX INDUSTRIES, INC.**

5300 Willow Creek Drive, SW

Cedar Rapids, IA 52404-4303

\(319\) 368-7700X-1155

**REVERE COPPER PRODUCTS, INC.**

One Revere Park

Rome, NY 13440-5561

\(315\) 338-2332

**WIELAND METALS, INC.**

567 Northgate Parkway

Wheeling, IL 60090

\(847\) 537-3990