Editors' Summary: On September 20, 1983, in National Association of Metal Finishers v. Environmental Protection Agency, 13 ELR 21042, the Third Circuit upheld the basic program established by EPA to control the discharge of wastewater from 60,000 industrial facilities to municipal sewage treatment systems under the FWPCA. The EPA program, which requires "pretreatment" of such waste discharges so that they will neither "interfere with" nor "pass through" the publicly owned treatment works (POTWs), had taken much longer to develop than the system of permits and effluent limitations for factories discharging their wastes directly to the nation's rivers and streams. The regulations, promulgated in 1978 and amended in 1981, were attacked in court by industry plaintiffs as well as environmentalists. The litigation was diverted over a challenge to EPA's indefinite postponement of the rules' effective date, an action overturned by the Third Circuit, 12 ELR 20833. The regulations at issue in Metal Finishers included general pretreatment rules establishing the procedures and methodologies EPA would use to set standards for industrial categories as well as the categorical standards for the metal finishing industry. The court upheld the EPA rules for the most part, with the Agency's biggest loss coming with the invalidation of the "fundamentally different factors" (FDF) variance that EPA had made available to individual plants for which the standards for industry categories were not appropriate.

In this Article, Mr. Neuman, who was the chief government counsel in the case, explains the court's ruling on the general pretreatment rules and assesses its implications for the EPA pretreatment program. Mr. Neuman does not discuss the FDF variance issue, since a petition for certiorari has been filed on it. A companion article, 14 ELR 10047, analyzes the variance challenge.