# Petition — E. I. du Pont de Nemours & Co. v. Train

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 426 U.S. 947

## Text

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APR 13 1976 |

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iu the Supreme Court of the United States

OCTOBER TERM, 1975

No 75-1473

E. I. DUPONT DE NEMOURS AND COMPANY, OLIN CORPORA-
TION, FMC CorPorRATION, AMERICAN CYANAMID COMPANY,
MONSANTO COMPANY, THE Dow CHEMICAL COMPANY,
ALLIED CHEMICAL CORPORATION, HERCULES INCORPORATED,
UNION CARBIDE CORPORATION, STAUFFER CHEMICAL COM-
PANY, DIAMOND SHAMROCK CORPORATION, PPG INDUSTRIES,
INCORPORATED, BASF WYANDOTTE CORPORATION, CITIES
SERVICE COMPANY, AND N L INDUSTRIES, INCORPORATED,

Petitioners,

Vv.

RussELt E. TRAIN, as Administrator,
Environmental Protection Agency,
Respondent.

Petition For A Writ Of Certiorari To The
United States Court Of Appeals
For The Fourth Circuit

ROBERT C. BARNARD

Douc.as E. KLIEVER

CHARLEs F. LETTOW
1250 Connecticut Avenue, N.W.
Washington, D. C. 20036

Attorneys for Petitioners

OF COUNSEL:

CLEARY, GOTTLIEB, STEEN & HAMILTON
1250 Connecticut Avenue, N.W.
Washington, D. C. 20036

APRIL 13, 1976

du the Supreme Court of the United States

- OCTOBER TERM 1975

~~

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No.

E. |. DUPONT DE NEMOURS AND COMPANY, OLIN CoRPORA-
TION, FMC CorPorRATION, AMERICAN CYANAMID COMPANY,
MONSANTO COMPANY, THE Dow CHEMICAL COMPANY,
ALLIED CHEMICAL CORPORATION, HERCULES INCORPORATED,
UNION CARBIDE CORPORATION, STAUFFER CHEMICAL COoM-
PANY, DIAMOND SHAMROCK CORPORATION, PPG INDUSTRIES,
INCORPORATED, BASF WYANDOTTE CORPORATION, CITIES
SERVICE COMPANY, AND N L INDUSTRIES, INCORPORATED,
Petitioners,
vV.

RussELL E. Train, as Administrator, Envisonmental Pro-
tection Agency,
Respondent.

Petition For A Writ Of Certiorari To The
United States Court Of Appeals
For The Fourth Circuit

Petitioners E. I. duPont de Nemours and Company, et al.’
ask that a writ of certiorari issue to review the judgment
of the United States Court of Appeals for the Fourth Circuit
entered in this case on March 10, 1976.

Opinions Below

The opinion of the court of appeals is not yet officially
reported. It is unofficially reported at 8 E.R.C. 1718. The

' Petitioners are E. I. duPont de Nemours and Company, Olin Cor-
poration, FMC Corporation, American Cyanamid Company, Monsanto
Company, The Dow Chemical Company, Allied Chemical Corporation,
Hercules Incorporated, Union Carbide Corporation, Stauffer Chemical
Company, Diamond Shamrock Corporation, PPG Industries, Incorpo-
rated, BASF Wyandotte Corporation, Cities Service Company, and N L
Industries, Incorporated.

2

opinion and judgment of the court of appeals are annexed
hereto as Appendix A.

As noted infra the decision of the court of appeals is
closely tied to a prior decision of the same court, which
earlier decision is the subject of a pending petition for a
writ of certiorari. E. I. duPont de Nemours & Co. v. Train,
528 F.2d 1136 (4th Cir. 1975), petition for writ of certiorari
filed, No. 75-978.

Concurrently with the filing of this Petition, petitioners
are submitting to the Court a motion to consolidate the
present Petition with the Petition already docketed at
No. 75-978.

Jurisdiction
The judgment of the court of appeals here sought to be

reviewed was entered on March 10, 1976. The jurisdiction
of this court is invoked under 28 U.S.C. § 1254(1).

Questions Presented’

1. Whether district courts or courts of appeals have
initial jurisdiction to review regulations issued by the Ad-
ministrator of the Environmental Protection Agency under
the Federal Water Pollution Control Act, as amended, gov-
erning wastewater effluent discharges from existing plants.

2. Whether the Federal Water Pollution Control Act, as
amended, provides that regulations governing wastewater
effluent discharges from existing plants be issued in the
form of

(a) “effluent limitations” based upon an authoriza-
= said to be implied from Section 301(b) of the
ct, or

(b) “guidelines for effluent limitations” in com-
—— the express command of Section 304(b)
of the Act

oe, ae See © ee Sanee © as ae
E. I. duPont de Nemours & Co. v. Train, No. 75-978.

3

3. Whether when “the Act is not clear” in conferring
initial jurisdiction to review regulations for existing plants
upon the courts of appeals rather than in providing the
normal review in the district courts, the statute should be
construed on grounds of practicality to confer such initial
jurisdiction on the courts of appeals.

Statutes And Regulations Involved

1. The Federal Water Pollution Control Act, as amended.
Sections 101, 301, 302, 304, 306, 307, 309, 401, 402, 502,
505 and 509 of the Act (33 U.S.C. §§ 1251, 1311, 1312,
1314, 1316, 1317, 1319, 1341, 1342, 1362, 1365 and 1369)
are set forth in Appendix C to Petition, E. I. duPont de
Nemours & Co. v. Train, No. 75-978.

2. “Effluent Limitations Guidelines” for the Inorganic
Chemicals Manufacturing Point Source Category. The reg-
ulations issued by the Administrator which govern the
wastewater effluent discharges from existing plants in the
Inorganic Chemicals Manufacturing Point Source Category
are found at 39 Fed. Reg, 9611-9639 (March 12, 1974).
They are set forth in Appendix D to Petition, E. I. duPont
de Nemours & Co. v. Train, No. 75-978.

STATEMENT OF THE CASE

This case presents issues of the proper construction to
be accorded key sections of the Federal Water Pollution
Control Act, as amended (“the Act”), 33 U.S.C. §§ 1251
et seq. The issues concern the nature of the statutory
authority granted by Congress to the Administrator of the
Environmental Protection Agency (“EPA”) to issue regu-
lations governing wastewater effluent discharges from exist-
ing industrial plants and other existing facilities.

Like the Petition already on file in E. I. duPont de
Nemours & Co. v. Train, No. 75-978 (“duPont I”), this case
specifically relates to EPA’s regulations for wastewater
effluents from existing facilities in the inorganic chemicals

4

industry. After informal rulemaking proceedings, on
March 12, 1974, the Agency issued final regulations called
“(e]ffluent limitations guidelines” for existing facilities in
each of 22 product subcategories of the inorganic chemicals
industry. (39 Fed. Reg. 9611-9635.) EPA said these regu-
lations were being “promulgated pursuant to sections 301
[and] 304(b) . . . of the Federal Water Pollution Control
Act, as amended... .” (39 Fed. Reg. at 9612.)

The fifteen petitioner companies filed timely “protective”
petitions for review of the guideline regulations in the U.S.
Court of Appeals for the Fourth Circuit. E.g., E. I. duPont
de Nemours & Co. v. Train, No. 74-1261 (4th Cir. ).* Con-
temporaneously, eight of the fifteen companies filed a
complaint in the U.S. District Court for the Western Dis-
trict of Virginia seeking review of EPA’s guideline regula-
tions applicable to existing plants in the sulfuric acid
production subcategory of the inorganic chemicals indus-
try. E. I. duPont de Nemours & Co., et al. v. Train, et al.,
Civil Action No. 74-57-R (W.D.Va., filed April 1, 1974).
The companies asserted that the district court had juris-
diction of the review action based upon the provisions of
28 U.S.C. §§ 1331, 1332, 1337, 1361 and 1651, the Declara-
tory Judgment Act, 28 U.S.C. ¢§ 2201-2202, and Section 10
of the Administrative Procedure Act, now codified as 5
U.S.C. §§ 701-706.

On September 27, 1974, the district court issued an
opinion and order dismissing the complaint. E. I. duPont
de Nemours & Co. v. Train, *%3 F. Supp. 1244 (W.D.Va.
1974). The district court adc ed EPA’s contentions that
Section 509(b) of the Act, 33 U.S.C. § 1369(b), provided
for exclusive jurisdiction of any review action in the courts
of appeals. This conclusion by the court was based upon
the reference in Section 509(b)(1)(E) to effluent limita-
tions under Section 301, and upon the court’s acceptance

° EPA took the position that review was in the Court of Appeals under
Section 501(b)(1)(E). Where Section 509(b) governs review, para-
graph 509(b)(1) requires the filing of a petition for review “within
ninety days .. .”

5

of EPA’s argument that the Agency had an implied power
to issue effluent limitations by regulation for existing plants
under Section 301 of the Act, 33 U.S.C. § 1311. The com-
panies had argued that for such existing plants EPA was
explicitly mandated by express language in Section 304(b)
of the Act, 33 U.S.C. § 1314(b), to issue guideline regula-
tions. The companies contended that review of such guide-
line regulations did not fall within Section 509(b)’s special
provisions for review in the courts of appeals of certain
specified EPA actions. EPA had argued that the ostensible
mandate of Section 304(b) for guideline regulations should
be disregarded; instead, Section 304(b) should be con-
strued as merely providing a “definitional” basis for estab-
lishing effluent limitations by regulation.‘

An expedited appeal of the district court’s decision was
taken to the Fourth Circuit. That appeal was consolidated
for briefing and argument with the protective petitions for
review. The companies maintained their claim that the
Agency had not followed the Act in issuing its regulations
for existing plants, and they correspondingly contested the
jurisdiction of the court of appeals. The companies also
challenged the Agency's separate regulations for eleven of
the 22 product subcategories on the ground that the regula-
tions were not supported by the administrative record.

The court of appeals issued two decisions in the con-
solidated cases. In the first decision (duPont I) the court
dealt with the appeal. It upheld its own jurisdiction
to review EPA’s action in issuing existing plant regula-
tions and thus affirmed the district court’s dismissal of
the companies’ complaint. The court of appeals sepa-
rated the question of the Agency's authority from the
issue of jurisdiction. It ruled that promulgation by EPA

4 The dispute over the nature of EPA’s authority to issue regulations
for the wastewater discharges from existing plants had and has consid-
erable practical significance. EPA argued in the district court that its
limitation regulations were to be “mechanically cranked” into discharge
permits required under the Act for particular plants, without any special
reference to a plant's individual circumstances or to the statutory fac-
tors set out in Section 304(b)(1)(B) and 304(b)(2)(B).

6

of the mandated guideline regulations under Section 304
(b) was a necessary step to attainment of the objectives
for existing plants set out in Section 301. Consequently,
action by EPA under Section 304(b) “should properly be
considered to be pursuant to the provisions of [Section] 301
and, therefore, reviewable by this court under [Section]
509.” (528 F.2d at 1142: Petition in No. 75-978, Appen-
dix A, at 11-a.)

The petitioner companies filed with this Court the peti-
tion for writ of certiorari pending as No. 75-978 to review
the court of appeals’ duPont I decision.

Then, on March 10, 1976, the court of appeals rendered
its decision on the protective petitions for review. (“duPont
II”.) The court sustained EPA’s claim that it could issue
effluent limitations by regulation under Section 801, but it
ruled against the Agency on the role to be accorded those
regulations. The court held that such existing-plant regu-
lations were not binding on the permit-issuing authorities,
but rather were only “presumptively applicable.” (Appen-
dix A, at 10-a.) In administrative proceedings to establish
a discharge permit for a particular plant, the permit appli-
cant could adduce facts respecting the individual plant or
facility to rebut the presumption of applicability.

The court then turned to the challenge to specific aspects
of the regulations. It set aside the portions of EPA’s regula-
tions of general applicability dealing with “process waste
water, “process waste water pollutants,” and “catastrophic
rainfall.” (Appendix A, at 19-a to 20-a.) Then the court
focussed on the specific subcategory regulations. The com-
panies had challenged all or part of the regulations for
eleven different subcategories. In each instance, the court
set aside those portions of the subcategory regulations which
had been challenged, i.e., all or part of the regulations for
the production of chlorine, hydrochloric acid, hydrofluoric
acid, hydrogen peroxide, nitric acid, sodium carbonate,
sodium dichromate, sodium metal, sodium silicate, sulfuric
acid, and titanium dioxide. (Appendix A, at 32-a to 33-a.)

7

REASON FOR GRANTING THE WRIT

Consideration of This Case In Conjunction With duPont
I Would Resolve The Four-Way Conflict Among The
Courts Of Appeals Respecting The Statutory Responsi-
bilities Of The Administrator For Existing-Plant Regu-
lations.

The questions presented in this case are identical to
those posed in duPont I. The record is also identical for
both cases; they were consolidated in the court of appeals.
And petitioners are filing with this Petition a motion to
consolidate this case with No. 75-978.

This separate Petition is being filed only to ensure that
the Court has before it a consolidated case which fully
presents all aspects of the very important issues of the Ad-
ministrator’s implementation of Sections 301 and 304 of the
Act respecting regulations applicable to existing-plant dis-
charges. In the response to the Petition in duPont I, the
Solicitor General agreed that the Court should grant the
petition for a writ of certiorari there presented. (Respond-
ents’ Memorandum in No. 75-798, at 1.) He also agreed
that each of the three questions set out in the duPont I
Petition were properly presented and should be considered
by the Court. (Id., at 6.) However, he expressed the view
that this Court, like the Fourth Circuit, “need not decide the
question concerning the Administrator's authority” in re-
solving the conflict among the circuits over the jurisdic-
tional questions. (Id.)

However, as the Fourth Circuit said in duPont II, the
issue of the Administrator's power “goes to the heart of the
controversy.” (Appendix A, at 5-a.) There is a two-way con-
flict among the circuits on the jurisdictional questions, but
the circuits have split four different ways on the nature of
the Administrator's power to issue effluent regulations for
existing plants. Compare CPC International Inc. v. Train,
515 F.2d 1032 (8th Cir. 1975) (Administrator must issue
guideline regulations under Section 304), with American
Meat Institute v. Environmental Protection Agency, 526

8

y
F.2d 442 (7th Cir. 1975) (Administrator may issue limita-
tion regulations under Section 301), with American Iron
and Steel Institute v. Environmental Protection Agency,
526 F.2d 1027 (3d Cir. 1975) (Administrator may issue
regulations with Section 301 ceilings and Section 304(b)
guideline ranges beneath the ceilings), with duPont II
(Administrator may issue limitation regulations under Sec-
tion 301 but such regulations are not binding, rather they
are “presumptively applicable” ).

As noted, the petitioner companies prevailed in the court
of appeals on those issues which were dependent upon the
administrative record. And on the issue of the Administra-
tor’s power, the court of appeals did not accept the view of
either of the parties but rather adopted elements from each
of their positions. Given such results, and the pending Peti-
tion in duPont I, petitioners ordinarily would not seek
review of this case in this Court. However, because the
Respondent evidently would advocate 2 disposition of
duPont I which would leave outstanding the central issue
of the Administrator's power, the petitioner companies
have elected to submit this further Petition.

By granting this Petition in conjunction with the Petition
in duPont I, the Court can consider the matter of the Ad-
ministrator’s power without any constraints, either together
with or independent of the jurisdictional issues.

CONCLUSION

As a matter of judicial economy, this Court should grant
this Petition along with the previously filed Petition in
duPont I (No. 75-978). The record in each case is identical
as are the questions presented, and all of the petitioners in
duPont I are also petitioners here. The cases can be con-
solidated, as in the Fourth Circuit, and a single set of
briefs can then be filed.

Until this Court resolves the troublesome and very im-
portant issues here presented, the confusing and inconsis-

9

tent constructions of the key sections of the Federal Water
Pollution Control Act will cause delay in achieving the

purposes of the Act.
Respectfully submitted,

RoBERT C. BARNARD

Douc tas E. KLIEVER

CHARLES F. LETTOW
1250 Connecticut Avenue, N.W.
Washington, D. C. 20036

Attorneys for Petitioners

OF COUNSEL:

CLEARY, GOTTLIEB, STEEN & HAMILTON
1250 Connecticut Avenue, N.W.
Washington, D. C. 20036

APRIL 13, 1976

l-a

APPENDIX A

Anitedh States Court of Appeals

FOR THE FOURTH CIRCUIT

Nos. 74-1261, 74-1290,
74-1296-1304, 74-1357,
74-1406-7, 74-1588-90,
74-1670-1 and 74-1741

E. I. DUPONT DE NEMours & COMPANY
Petitioner,
v.

Russet E. TRAIN, as Administrator of the Environmental
Protection Agency,
Respondent,

On petitions for review of actions of the Administrator
of the Environmental Protection Agency.*

Argued April 22, 1975 Decided March 10, 1976

*The following Petitions for Review, all naming Train as Respondent,
were consolidated.

74-1261 and 74-1357—DuPont & Co.
74-1290 and 74-1299— Allied Chemical Corp.
74-1296 and 74-1303—-FMC Corp.

74-1297 and 74-1304— American Cyanamid Co.
74-1298 and 74-1301—Dow Chemical Co.
74-1300 and 74-1302—Olin Corp.

74-1406 and 74-1407—Stauffer Chemical Co.
74-1588— Diamond Shamrock Corp.
74-1589——-PPG Industries, Inc.
74-1590-—BASF Wyandotte Corp.

74-1670 and 74-1671—Cities Service Co.
74-1741—NL Industries, Inc.

Za

Before Rives** and BREITENSTEIN***, Serior Circuit
Judges, and WipENER, Circuit Judge.

Robert C. Barnard, Douglas E. Kliever and Charles F.
Lettow for the Petitioners.

Kathryn A. Oberly for Respondent. With her on the briefs
were Wallace H. Johnson, Assistant Attorney General,
Edmund B. Clark, Attorney, Department of Justice, Alan
G. Kirk, II, Assistant Administrator for Enforcement
and General Counsel, and Ray E. McDevitt, Attorney, Envi-
ronmental Protection Agency.

Briefs of Amici Curiae were filed by Angus Macbeth and
Edward L. Strohbehn, Jr., for Natural Resources Defense
Council, Frederick M. Rowe, Edward W. Warren, and
Robert F. VanVoorhees for American Petroleum Institute,
et al., Russell E. Leasure and Elliot S. Azoff for RMI Com-
pany, George C. Freeman, Jr., Turner T. Smith, Jr., and
William A. Anderson, II, for Allegheny Power System, Inc.,
et al., Milton A. Smith, Lawrence B. Kraus, James F. Rill,
Max N. Edwards, Richard E. Schwartz, and Collier, Shan-
non, Rill & Edwards for the Chamber of Commerce of the
United States, Robert H. Young, Kenneth R. Myers and
Archibald A. Campbell for New Jersey Zinc Company.

BREITENSTEIN, Senior Circuit Judge.

Companies engaged in the production of inorganic chem-
icals have filed 20 petitions for review of various regula-
tions promulgated by respondent Train as Administrator
of the Environmental Protection Agency. The petitions
have been consolidated for presentation and disposition.
The regulations were promulgated under the Federal Water
Pollution Control Act Amendments of 1972. 33 U.S.C.
§§ 1251-1376. Herein for brevity and clarity the Adminis-
trator at times will be referred to as EPA and the statutory
references will be those found in the Act as set out in

**Of the Fifth Circuit, sitting by designation.
***Of the Tenth Circuit, sitting by designation.

3-a

86 Stat. 816 et seq.' Petitioners will be referred to collec-
tively as Industry.

Industry's attack on the jurisdiction of the court of ap-
peals has been rejected by our opinion in No. 74-2237,
DuPont & Company v. Train.

The objective of the Act “is to restore and maintain the
chemical, physical, and biological integrity of the Nation’s
waters.” § 101(a). The goal is the elimination by 1985 of
“the discharge of pollutants into the navigable waters.”
§ 101(a)(1). Earlier legislation, which placed on the states
the primary responsibility to maintain water quality, had
proven inadequate. S. Rep. No. 92-414, 92 Cong. 2d Sess.,
2 U.S. Cong. & Adm. News °72 3674. The Act made “a
major change in the enforcement mechanism of the Fed-
eral water pollution control program from water quality
standards to effluent limits.” Ibid. at 3675.

Section 301(a) provides that except in compliance with
specified sections of the Act “the discharge of any pollutant
by any person shall be unlawful.” Section 301(b) says that
“to carry out the objective of this Act there shall be
achieved” stated effluent limitations. Not later than July 1,
1977, those limitations for point sources, except publicly
owned treatment works with which we are not concerned,
“shall require the application of the best practicable control
technology.” § 301(b)(1)(A). For July 1, 1983, the require-
ment is “the best available technology economically achiev-
able.” § 301(b)(2)(A).

The foregoing requirements apply to existing sources.
For new sources, § 306(a)(1) requires a standard of per-

1 The parallel U.S. Code citations for the most frequently mentioned
sections are:

Section 101—23 U.S.C. § 1251,
Section 301—33 U.S.C. § 1311,
Section 304—33 U.S.C. § 1314,
Section 306—33 U.S.C. § 1316,
Section 402—-33 U.S.C. § 1342,
Section 501—33 U.S.C. § 1361,
Section 502—33 U.S.C. § 1362,
Section 509—33 U.S.C. § 1369.

4-a

formance “which reflects the greatest degree of effluent
reduction which the Administrator determines to be achiev-
able through application of the best available demonstrated
control technology.” Section 306(b)(1)(A) directs the Ad-
ministrator within 90 days after enactment to publish a
list of categories which at the minimum shall include 27
named industries among which is “inorganic chemicals
manufacturing.” Within one year after publication of the
list of categories, the Administrator shall publish Federal
standards of performance for new sources within each
category. § 306(b)(1)(B).

Primary enforcement of the Act is secured through the
permit system established by § 402. Permits for pollutant
discharge may be issued by the Administrator, 4 402(a)\1),
or by a state which has adopted a permit program approved
by the Administrator. 4 402(b). The Administrator has
veto power over a state issued permit. § 402(d)(2). All
permits shall comply with the applicable provisions of
§§ 301, 306, and other specified sections not including
§ 304. See § 402(a)(1) and (b)(1)(A).

Section 304 is the cause of much of the controversy.
Within one year after enactment, the Administrator must
publish “criteria for water quality accurately reflecting
the latest scientific knowledge” on enumerated subjects.
§ 304(a)(1). Within the same period the Administrator
shall publish regulations “providing guidelines for effluent
limitations.” § 304(b). Subsection (b)(1)(A) applies to
the 1977 step and subsection (b)(2)(A) to the 1983
step. Each subsection mandates consideration of specified
factors.

The Administrator did not act within the one year re-
quirements of § 304. Compliance was not within the realm
of reality. There are some 28,000 industrial dischargers
and 27,000 others. About 30,000 applications for permits
were filed. EPA characterizes the Act as “incredibly com-
plex and demanding.” A private suit was brought to com-
pel compliance. The result was a court imposed time-
table. Natural Resources Defense Council, Inc. v. Train,
D.C. Cir., 510 F.2d 692, 710-714.

5-a

On March 12, 1974, EPA promulgated “effluent limita-
tions guidelines for existing sources and standards of per-
formance * * * for new sources in the inorganic chemicals
manufacturing category of point sources.” 39 Fed. Reg.
9612 et seq. These are the regulations under attack. In
so doing EPA stated that it acted “pursuant to sections 301,
304(b) and (c), 306(b) and (c) and 307(c).” We are not
concerned with § 307 which covers certain toxic pollutants.
The regulations prescribe “effluent limitations guidelines
for existing sources” and “standards of performance for
new sources.” 40 C.F.R. 401.10.

Industry attacks the regulations generally and specifi-
cally. We shall first consider the objections going to all
of the regulations and then discuss those applying to par-
ticular sources.

I
GENERAL VALIDITY OF REGULATIONS

(a) Notice.

Industry argues that the regulations are invalid because
of EPA’s failure to give the notice required by the Adminis-
trative Procedure Act, 5 U.S.C. § 553(b). In its October 11,
1973, notice of proposed rule-making, 38 Fed. Reg. 28174
et seq., EPA stated that its proposed action was taken pur-
suant to §4 301, 304(b) and (c), 306(b), and § 307(c).
Public comments received thereafter are contained in
pp. 4884-5346 of the Appendix. In its March 12, 1974,
promulgation of the regulations, EPA summarized the
comments. See 39 Fed. Reg. 9612-9615.

The rule-making and notice provisions of APA “were
designed to assure fairness and mature consideration of
rules of general application.” National Labor Relations
Board v. Wyman-Gordon Co., 394 U.S. 759, 764. Notice
is sufficient if it provides a description of the subjects and
issues involved. 5 U.S.C. § 553(b)(3) and California Citi-
zens Band Association v. United States, 9 Cir., 375 F.2d

6-a

43, 49, cert. denied 389 U.S. 844. Industry had adequate
notice and took advantage of it.

(b) EPA’s power to establish effluent limitations by
regulations.

This issue goes to the heart of the controversy. Industry
says that the Administrator promulgates guidelines to be
considered by the permit issuer. EPA says that the Admin-
istrator establishes effluent limitations by regulations
which, with exceptions to be noted later, have uniform
application throughout the nation and which must be
applied by the permit issuer.

(1) Applicable Law.

The Administrative Procedure Act, 5 U.S.C. 4 706
(2)(A), authorizes a reviewing court to set aside agency
action which is “arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.” As
said in Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416, “the court must consider whether the
decision was based on a consideration of the relevant
factors and whether there has been a clear error of judg-
ment.” See also Appalachian Power Company v. Environ-
mental Protection Agency, 4 Cir., 477 F.2d 495, 506-507.
The court may not substitute its judgment for that of the
agency. Overton Park, 401 U.S. at 416. If the agency’s
construction of the controlling statute is “sufficiently
reasonable” it should be accepted by the reviewing court.
Train v. Natural Resources Defense Council, Inc., 421 U.S.
60, 75.

The grounds upon which the agency acted must be
clearly disclosed in, and sustained by, the record. Federal
Trade Commission v. Sperry and Hutchinson Co., 405
U.S. 233, 249. The agency must “explicate fully its course
of inquiry, its analysis and its reasoning.” Ely v. Velde,
4 Cir., 451 F.2d 1130, 1139; see also Appalachian Power
Company v. Environmental Protection Agency, 4 Cir., 477
F.2d 495, 507. After the fact rationalization by counsel in
brief and argument does not cure non-compliance by the

7-a

agency with the stated principles. Dry Color Manufac-
turers’ Association, Inc. v. Department of Labor, 3 Cir.,
486 F.2d 98, 104, and particularly cases cited in n. 8.

The function of judicial review of agency action is to
determine (1) authority of the agency, (2) compliance
by the agency with the necessary procedural requirements,
and (3) any claim that agency action is arbitrary, capri-
cious, or an abuse of discretion. Citizens to Preserve
Overton Park, Inc., 401 U.S. at 415-417. With these prin-
ciples in mind, we turn to the regulations.

(2) Agency Authority.

The Eighth Circuit has held, CPC International Inc. v.
Train, 8 Cir., 515 F.2d 1032, that the Administrator may
not promulgate regulations establishing effluent limita-
tions for existing sources. The Third and Seventh Circuits
have held to the contrary. See American Iron and Steel
Institute v. Environmental Protection Agency, 3 Cir., slip
opinion filed November 7, 1975, p. 8; and American Meat
Institute v. Environmental Protection Agency, 7 Cir., slip
opinion filed November 24, 1975, p. 16. On the mentioned
point we disagree with the Eighth Circuit and agree with
the Third and Seventh Circuits. Our views on the effect
of the regulations will be stated later. The conflict among
the circuits emphasizes the confusion caused by this
poorly drafted and astonishingly imprecise statute.

The regulations impose “effluent limitations guidelines.”
The quoted term appears nowhere in the Act. Section 301
refers to “effluent limitations”; § 304 to “guidelines”; and
§ 306 to “standards of performance.” It may be that Con-
gress intended § 304 guidelines to precede § 301 limita-
tions. That did not occur. Under compulsion of a judici-
ally ordered timetable, EPA combined the two steps. The
question is the validity of the action taken. Nothing in the
Act forbids surmounting the two steps in one jump.

Each party spends much effort in sustaining its position

by analysis of the Act and its legislative history. Without
going into any details, it is enough to say that the Act is

8a

vague, uncertain, and inconsistent. Support can be had
for diametrically opposed conclusions. Except for some
statements in committee reports, see e.g. our opinion in
No. 2237—DuPont v. Train, the two-volume, 1766 page,
Legislative History is of little help. In it, statements can
be found to uphold almost any position which one cares
to take.

We are faced with the problem of making workable a
vague, regulatory statute so as to attain the congressional
objective that the discharge of pollutants be eliminated.
This end may not be reached by quibbling over semantics.
Ambiguity must be transformed into practicality.

Section 304(b) specifically authorizes the Administrator
to publish “regulations, providing guidelines for effluent
limitations.” Nothing is said in § 301 about regulations.
The source of power to impose § 301 limitations by regu-
lations can only come from § 501(a) which authorizes the
Administrator “to prescribe such regulations as are neces-
sary to carry out his functions under this Act.”

The question then is what are his functions. Section
101(d) says that he “shall administer this Act.” The
control technology mentioned in 4 301(b)(1)(A) and
(b)(2)(A) is that defined and determined by the Admin-
istrator under § 304. Section 301(e) refers to “[e)ffluent
limitations established pursuant to this section” but does
not say who does the establishing. The Act is unworkable
unless someone takes the initiative in deciding what limi-
tations are generally applicable to discharges, whether by
individual plants, categories, subcategories, classification,
or otherwise. Because the control technology is determined
by the Administrator, it is reasonable that he establish
the limitations generally applicable to categories. Such
action is within the performance of his functions.

From a practical standpoint we find no objection to
the combining of limitations and guidelines. The Admin-
istrator was faced with unrealistic statutory requirements
and a court imposed timetable. He had the duty to pro-
ceed. His action was “sufficiently reasonable” and should

da

be accepted by a reviewing court. Train v. Natural Re-
sources Defense Council, Inc., 421 U.S. 60, 75. We con-
clude that he had authority to promulgate regulations
establishing limitations for existing sources.

(3) Effect of Exercise of Authority.

The authority to promulgate the regulations must not
be confused with the effect of those regulations. Industry
says that the effect will violate the Act and, hence, the
regulations are invalid.

In part the controversy is whether the regulations are
§ 301 limitations or § 304 guidelines. The regulations im-
pose “effluent limitations guidelines.” EPA says in effect
that the regulations impose limitations which are appli-
cable uniformly throughout the nation and, with some
exceptions, must be mechanically cranked into each per-
mit by the issuer. Industry says that the regulations are
guidelines for the information of and consideration by,
but not binding on, the permit issuer. Inherent in this
dispute is the question of national uniformity versus state
power and responsibility.

Section 101(a) refers to the “integrity of the Nation's
waters, “the national goal,” and “the national policy.”
Section 101(b) says that the policy of Congress is “to
recognize, preserve, and protect the primary responsibili-
ties and rights of States to prevent, reduce, and eliminate
pollution.”

Subsections 402(a)(1) and (b)(1) say that the permits
shall comply with §{§ 301, 306, and other sections not in-
cluding § 304. If national uniformity is controlling, state
action in issuing permits is inhibited. If the regulations
are informational, the states may exercise reasonable dis-
cretion in permit issuance.

The Act, § 502(11), defines “efftuent limitation” to
mean “any restriction established by a State or the Admin-
istrator.” The pertinent regulation, 40 C.F.R. § 401.11(i),
defines the same term to mean “any restriction established

10-a

by the Administrator.” The conflict must be resolved in
favor of the statute. Accordingly, an effluent limitation
may be established either by a state or by the Adminis-
trator. However, we go around in a circle because
§ 402(d)(2) gives the Administrator veto power over state
action. Section 401.11(i) is set aside and remanded for
reconsideration.

For all sources, both existing and new, we believe that
the solution which most nearly satisfies congressional
intent is recognition that the regulations are presumptively
applicable to permit applications. The regulations control
unless that presumption is rebutted. Thus, national uni-
formity, subject to limited specific exceptions, is attained.
The balance of general rule and narrow exceptions assures
all possible uniformity without sacrifice of the flexibility
needed to adjust for disparate plants in dissimilar circum-
stances.

Both the Act and the regulations recognize permissible
variances. Section 301(c) empowers the Administrator to
modify the requirements of § 301(b)(2)(A), 1983 phase,
upon a showing that modified requirements “(1) will
represent the maximum use of technology within the eco-
nomic capability of the owner or operator; and (2) will
result in reasonable further progress toward the elimina-
tion of the discharge of pollutants.” Industry points out
that this does not apply to the 1977 limitations. However,
in each of the regulations applicable to the 1977 phase
for those subcategories under consideration, there is recog-
nition that adjustments may be appropriate for certain
plants and provision for pertinent procedures. See e.g.
40 C.F.R. § 415.62 applying to chlorine. The differences
between the provisions of the statute and those of the
regulations are of no present concern. Both recognize and
permit variances. In any event, the “best practicable con-
trol technology” for 1977 may not be construed more
stringently than the “best available technology economi-
cally achievable” as ameliorated by the qualification of
§ 301(c) for 1983 limitations.

ll-a

Provisions for var’ances, modifications, and exceptions
are appropriate to the regulatory process. See United
States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 755.
They have been recognized in actions pertaining to en-
vironmental regulations. See e.g. Portland Cement Asso-
ciation v. Ruckelshaus, D.C. Cir., 486 F.2d 375, 399, cert.
denied 417 U.S. 921, and International Harvester Co. v.
Ruckelshaus, D.C. Cir., 478 F.2d 615, 641. The administra-
tion of these provisions in practice is a matter of specula-
tion at the present. The question will arise when a claim
for a variance is made in a permit application.

Neither the Act nor the regulations contain any variance
provision for new sources. The rule of presumptive appli-
cability applies to new sources as well as existing sources.
On remand EPA should come forward with some limited
escape mechanism for new sources.

In the discussion which follows we shall treat the regu-
lations as presumptively applicable to both existing and

' new sources.

(ce) Agency Compliance with Procedural Requirements.
The issues involved will be considered separately.

(1) Subcategories.

EPA imposed the limitations on the basis of subcate-
gories. Industry desires that the limitations be fixed on
the basis of individual plants.

The provision relating to the 1977 step, § 301(b)(1)(A),
refers to “effluent limitations for point .” For the
1983 step the provision, § 301(b)(2)(A), is “effluent limi-
tations for categories and classes of point sources.” The
section applicable to mew sources provides, { 306
(b)(1)(A), that the Administrator shall publish “a list of
categories of sources” which shall include specified indus-
tries.

“Point source” is defined, 4 502(14), as a “conveyance
*** from which pollutants are or may be discharged.”

12-a

Read literally the 1977 requirement is for determination
on the basis of individual discharges. The 1983 and new
source requirements are on the basis of categories. We
do not know the reason for the difference. Whatever it
may have been, July 1, 1977, approaches and a holding
that EPA must now start over and make the 1977 determi-
nations on the basis of many thousands of individual
plants would be chimerical. Practical considerations may
not be ignored. A remand of all of the regulations per-
taining to the 1977 step would result in administrative
delay, have the potential of judicial review, and further
postpone attainment of the Act’s objectives. In the cir-
cumstances we accede to the EPA procedure of promul-
gating general regulations which impose presumptively
applicable effluent limitations for all three steps on the
basis of categories.

With regard to the 1977 step, the reference in § 301
(b)(2)(A) to “point sources” is taken to mean that Con-
gress intended that the permit grantor should give indi-
vidual attention to each “point source” and apply the
factors specified in § 304(b)(1)(B). Some of those fac-
tors, e.g., “age of equipment and facilities involved,” can
only be applied on an individual basis. EPA recognized
this problem when it included variance provisions in its
regulations for the 1977 step: See e.g. 40 C.F.R. § 415.62
and the reference therein to factors which are “funda-
mentally different.”

For the inorganic chemical manufacturing industry
EPA established 22 subcategories based on the chemical
product manufactured. In addition where dissimilar pro-
cesses are used to manufacture the same product the
limitations are refined to provide separate limitations
within the subcategory.

The method of categorization adopted by EPA will
reasonably effectuate the congressional objectives. Further
subdivision might unduly complicate the administration
of the Act. Rulemaking of necessity is general. Problems
relating to specific factual situations 2re for determination
at the permit-issuing stage.

13-a

(2) Use of single numbers.

The regulations impose limitations in terms of single
numbers rather than in a range of numbers. Industry
attacks this method saying in effect that EPA promulgated
guidelines and that guidelines are not absolutes. Nothing
in the Act prohibits the Administrator from using single
numbers in establishing effluent limitations. The use of
a single number limitation for discharge, permits any dis-
charge from zero up to the allowed amount, subject always
to the principle of presumptive validity which we have
stated.

We are aware that the Third Circuit, American Iron
and Steel Institute v. Train, supra, has held that the regu-
lations there considered are invalid because “they failed
to provide meaningful ranges or guidance in considering
individual factors.” Slip opinion at p. 37. On the facts
presented to us, we cannot accept that conclusion. The
EPA has promulgated zero discharge limitations with
regard to many of the discharge sources which are before
us. If a range is required, a zero discharge provision vio-
lates the Act. An objective of the Act is the elimination of
all pollutant discharges by 1985. § 101(a)(1). The exper-
tise of the Administrator is persuasive as to whether the
limitations be fixed in single numbers or ranges. A claim
of arbitrary action in this regard may be considered in
court review under § 509(b)(1)(E) of the issuance or
denial of a permit. Then specific facts may be presented
and the problem will be actual rather than hypothetical.
It may be that with some categories ranges are desirable
and with others single numbers are appropriate. We are
dealing with the general problem and decline to make ad-
visory statements covering specific applicability. For the
purposes of the suit before us relating to “inorganic chem-
icals manufacturing,” we accept the Administrator’s use
of single numbers.

(3) Statutory Factors.

Section 304(b)(1)(B), 1977 step, and § 304(b)(2)(B),
1983 step, specify factors to be taken into account to

14-a

determine control measures. For existing sources, these
are essentially the same except in one respect. The 1977
step includes “consideration of the total cost of applica-
tion of technology in relation to the effluent reduction
benefits to be achieved from such application.” A _ bal-
ancing is required. For the 1983 step there is no reference
to balancing and the listed factors include “cost of
achieving such effluent reduction.” For new sources the
requirement is the effluent reduction “achievable through
application of the best available demonstrated control
technology, processes, operating methods, or other alter-
natives.” § 306(a)(1).

A basic problem is the effect to be given the factors
specified in § 304(b)(1)(B) and (2)(B). Section 301,
which provides for effluent limitations, says in its sub-
section (1)(A) that the 1977 step requires the technology
“as defined by the Administrator pursuant to section
304(b) of the Act.” For the 1983 step the language is “in
accordance with regulations issued by the Administrator
pursuant to section 304(b)(2) of this Act.” We know of
no reason for the change in language. Be that as it may.
The reference in § 301 to § 304 must mean that Congress
intended that the factors specified in § 304 are pertinent
to effluent limitations established under § 301. Some of
the specified factors are of practical applicability only to
individual plants, for example “age of equipment and
facilities involved.” We construe the congressional intent
to be that the specified factors shall be applied by the
permit issuer in determining whether the presumptively
valid effluent limitations should apply to a particular
source of discharge. This construction does not derogate
the power of the Administrator to issue general regulations
fixing presumptively valid effluent limitations on categories.

With reference to the cost-benefit provision Industry con-
tends that EPA must first make an overall cost/benefit
analysis and then elaborate how that analysis shall be
applied in the consideration of permits for individual
plants. We believe that an overall cost/benefit analysis for
each subcategory si ‘isfies the statutory requirements. Such

15-a

an analysis for each of the many thousands of dischargers
and permit applicants would be impractical for general
regulations. In acting on permit applications, the issuer
will properly consider cost/benefit analysis along with the
other factors specified in § 304(b).

We reject the argument of Industry that benefits must
be quantified in monetary terms. Nothing in the Act re
quires this action.

Industry says that as to existing sources EPA is confined
to “end of the pipe” treatment systems. The Act does not
so provide. The provisions applicable to both the 1977
and 1983 phases, § 304(b)(1)(B) and (2)(B) refer to
“measures and practices” and direct the Administrator to
consider “process changes.”

Both the mentioned subsections require EPA to consider
“non-water quality environmental impact (including energy
requirements ).” Pollutant wastes which may not be re-
cycled and for which there is no commercial market have
to be disposed of in some other way. They may be dis-
charged into water, vented into the air, or collected in a
land-fill. Air discharge brings into play the Clean Air Act,
42 U.S.C. § 1857 et seq. Land-fills present local problems
and the application of local laws. We believe that EPA has
given adequate consideration to the non-water environ-
mental impact except in the cases of certain subcategories
to be mentioned later.

Energy requirements present a serious problem in the
light of the existing energy crisis with spiraling prices.
Unquestionably, many of the regulations will require the
use of more energy. EPA and Industry are in sharp dispute
over the amounts and costs of the energy required. We do
not know which is right. One thing is certain. Costs to the
consumers will rise. So far as the inorganic chemical
manufacturing category is concerned we are satisfied with
the EPA actions, except insofar as later mentioned subcate-
gories raise problems.

For the 1977 phase the requirement is “the application
of the best practicable control technology currently avail-

16-a

able.” § 301(b)(1)(A). The Industry reply brief in Nos.
74-1261 etc. at 44 acknowledges that “the 1977 effluent
guidelines can be based on the performance of the best
plants or performance achieved by no plant if the Agency
finds that the level of achievement in the subcategory is
uniformly inadequate.” Industry conceives of problems
which will arise when plants in a subcategory use different
processes. This matter is best considered in connection
with the specific subcategories.

For the 1983 phase the requirement is “application of the
best available technology economically achievable.” § 301
(b)(2)(A). In this regard Industry concedes, Ibid., that
“the Agency may look to the best performer and even assess
technologies that have not been applied.” The concern of
Industry is the adequacy of the variance provisions. We
will not assume inadequacy. The problem can be consid-
ered when and if it arises.

For new sources, § 306(a)(1), standards of performance
must be both “available” and “demonstrated.” Problems
connected with new source standards for specific sub-
categories will be dealt with in our discussion of those
subcategories.

With the exceptions noted, we believe that EPA has satis-
fied the statutory procedural requirements.

(d) Relationship of the three steps.

The problem here is the relationship of the 1977 limita-
tions, the 1983 limitations, and the new source stundards.
The orderly progression is (1) 1977 limitations, (2) new
source standards, and (3) 1983 limitations. No instance
is called to our attention in which the 1977 limitations are
more strict than the new source standards or the 1983
limitations. At times the 1977 limitations are the same as
the new source standards.

The difficulty arises from uncertainty as to the relation-
ship of the 1983 limitations to the new source standards.
Industry says that the 1983 limitations may not be more

ce et

PS

17-a

stringent than the new source standards. We are thrust
into another area of confusion. Section 306(d) prescribes
a grace period. It concerns “standard of performance,” a
term specifically defined in § 306(a)(1). We do not know
whether Congress intended to equate “effluent limitations”
as used in § 301(b) and defined in § 502(11) with “stan-
dard of performance.” Nor do we know the intent of Con-
gress with reference to the applicability of the grace period
to plants the construction of which began after the passage
of the Act in 1972 and before the promulgation of the regu-
lations in 1974. All we can say is that nothing pertaining
to § 306(d) is before us. The construction and application
of § 306(d) is for decision when a specific controversy is
presented.

Improvements in the techniques of waste disposal can
be reasonably expected by 1983. Except for such situations
as are later determined to be within the § 306(d) grace
period, plants which go on the line between the passage
of the Act and 1983 are subject to the 1983 limitations.

The language of the Act is such that the 1983 limita-
tions, to some extent, must be anticipatory. We do not
know what will be “the best available technology economi-
cally achievable” in 1983. See § 301(b)(2)(A). Section
304(b) requires the publication of regulations within one
year. In 1974 the Administrator promulgated regulations
setting forth 1983 limitatiohs. Industry was under the
statutory compulsion of bringing a petition for review
within 90 days of promulgation. See 509(b)(1). The cir-
cumstances thus require speculation as to what will be the
1983 technology.

We are presented with an anomaly. We cannot deter-
mine the validity of an unknown. Industry is entitled to
know the limitations which will confront it in 1983. By
its regulations EPA has told Industry what to expect in
1983 and by so doing has given Industry lead time within
which to make such changes as may be necessary. For
practical purposes our review at this time must be confined
to a determination of whether the record discloses a rea-

18-a

sonable basis for belief that a new technology will be avail-
able and economically achievable.

Clarification may come through EPA review and revision
of the regulations as provided in §§ 301(d) and 304(b).
We assume EPA compliance with these provisions. See
United States v. Chemical Foundation, Inc., 272 U.S. 1,
14-15 and Douglas v. Noble, 261 U.S. 165, 170. Section
301(c) authorizes the Administrator to modify the 1983
requirements for a permit application filed after July 1,
1977. We assume that if industry believes that the tech-
nology on which the 1983 limitations are based is not
available or economically achievable, it will seek modifica-
tion. We realize that the modification procedure of § 301(c)
does not include situations where permit applications were
filed before July 1, 1977. If any controversy arises whether
a point source, the application for which is filed before
July 1, 1977, is entitled to a modification of the 1983 limita-
tions, that controversy will then have to be determined. It
- is not now before us. Our concern is with general regula-
tions.

Section 509(b)(1) permits a petition for review to be
filed after the mentioned 90 day period “only if such appli-
cation is based solely on grounds which arose after the
ninetieth day.” This provision, when coupled with the re-
view and revision provisions of §{ 301(d) and 304(b) pro-
vides a mechanism for future administrative and judicial
action on the basis of actual rather than anticipated con-
ditions.

In our later discussion of the 1983 requirements, we
recognize the problems which have been mentioned. In
each instance where we set aside a 1983 regulation we do
so on the basis of technical objections, either conceded or
presently apparent. We decline to engage in speculation.

(e) Arbitrary and capricious action.

EPA actions in promulgating the regulations may not be
arbitrary, capricious, or an abuse of discretion. Except as
noted in our discussion of specific subcategories, we believe
that the regulations do not violate the stated principle.

a —_

19-a

II

VALIDITY OF PARTICULAR REGULATIONS
PERTAINING TO MORE THAN ONE SUBCATEGORY

(a) Definitions of “process waste water” and “process
waste water pollutants.”

Each of the attacked subparts of 40 C.F.R. Part 415 in-
corporates the definitions found in 40 C.F.R. § 401. “Pro-
cess waste water” is defined by § 401.11(q) and “process
waste water pollutants” by § 401.11(r).

With particular reference to chlorine, EPA says (Brief in
Nos. 74-1261 etc., p. 97) that it will amend the “process
waste water” definition “to make clear that it does not ex-
tend, in the context of no discharge standards, to unavoid-
able leaks and spills.”

With particular reference to nitric acid, EPA says (Brief
in Nos. 74-1261, etc. at 118) that:

“***the Agency is preparing a proposed amendment
to the definition of ‘process waste water’ and ‘process
waste water pollutant.’ (40 C.F.R. sec. 401.11(q)(r) )
which will make clear that in the case of point sources
subject to a no discharge limitation, water which has
had only incidental contact with raw materials, inter-
mediate products, finished products, byproducts or
waste products will not constitute process waste
water.”

Accordingly, § 401.11(q) and (r) are set aside and re-

manded for reconsideration.

(b) Catastrophic rainfall.

A number of the regulations pertaining to 1983 limita-
tions and new source standards contain exceptions relating
to catastrophic rainfall. For example §{ 415.93(b)(2) and
415.95(b)(2), relating respectively to 1983 limitations and
new source standards for hydrogen peroxide production,
provide:

A process waste water impoundment which is de-
signed, constructed, and operated so as to contain the
precipitation from the 25 year, 24 hour rainfall event
as established by the National Climatic Center, Na-

20-a

tional Oceanic and Atmospheric Administration for
the area in which such impoundment is located ma
discharge that volume of waste water whic
is equivalent to the volume of precipitation that falls
within the impoundment in excess of that attributable
to the 25 year, 24 hour rainfall event, when such event
occurs.

The first difficulty is with the word “impoundment.” We
are not sure what it means in the context in which it is
used. Industry’s objections go to the extent of the included
area. In its discussion of hydrofluoric acid EPA says (Brief
in Nos. 74-1261, etc. p. 106) that it will propose an amend-
ment to 40 C.F.R. § 415.81 defining the term “within the
impoundment.” We believe that the new definition should
apply to all regulations now using the term.

Industry objects to the test stated as “the 25 year, 24 hour
rainfall event.” It says that this was added in the final regu-
lations and it did not have an opportunity to comment. We
are referred to nothing in the record which justifies the test.
The problem is for the experts and should be solved ad-
ministratively rather than judicially. Industry says that
in an area where precipitation exceeds evaporation the
regulation requires an infinitely expanding pond to contain
all rainfall (less evaporation) that may fall other than
during a catastrophic storm. Absent facts of which we are
not aware, the position of industry appears correct. The
catastrophic rainfall provisions should be the same for the
1983 phase and for new sources. Rain will affect each.

The various regulations pertaining to catastrophic rain-
fall are set aside and remanded for reconsideration. The
specific regulations affected will be mentioned in the dis-
cussion of pertinent subcategories.

Ill
SPECIFIC SUBCATEGORIES

(1) Chlorine—40 C.F.R. Part 415, Subpart F.

This subpart relates to discharges of pollutants from the
production of chlorine and sodium or potassium hydroxide

2l-a

by the diaphragm cell process and by the mercury cell
process. The regulations provide specified lir .ts for pol-
lutant discharge at the 1977 deadline (§ 415.62) and for
new sources (4 415.65). For the 1983 deadline the require-
ment is no discharge ({ 415.63).

The record pertaining to the 1983 no discharge provision
presents unexplained inconsistencies. The Development
Document says, App. 5778, that, “There is no known prob-
lem which has not been solved by at least one plant of this
survey.” Contrariwise, EPA in its preamble for proposed
rulemaking effluent limitations guidelines for the inorganic
chemical industry says, 38 Fed. Reg. 28180, with reference
to chlorine plants using the diaphragm and mercury process
that “no plants are currently achieving no discharge of
process waste water pollutants.” If EPA has any explana-
tion of the inconsistency, it is so hidden in a mass of tech-
nical detail that we cannot find it.

We have heretofore discussed the relationship between
the three steps, 1977, 1983, and new sources. We have also
mentioned the waste wate. definitions and the catastrophic
rainfall provisions, all of which are pertinent to § 415.63.
Until we know what changes EPA will make and what will
be the effect thereof, there is no need to consider the prob-
lem further.

Section 415.63 is set aside and remanded for reconsider-
ation.

(2) Hydrochloric Acid—40 C.F.R. Part 415, Subpart G.

This subpart relates to discharges of pollutants from the
production of hydrochloric acid by direct reaction of chlo-
rine and hydrogen. The regulations provide for no dis-
charge of pollutants by existing plants at both the 1977
(§ 415.72) and 1983 (§ 415.73) deadlines and by new
sources (4 415.75).

After referring to the waste water definitions, EPA says
(Brief in Nos. 74-1261 etc. at 104-105) that it did not intend
to subject hydrochloric acid plants to no discharge stan-

22-a

dards “for occasional sources of waste.” Accordingly, a
remand is required.

We doubt the propriety of EPA’s use of Hooker Chemical
plant as exemplary to support the no discharge require-
ments. The record shows that the Hooker plant has no
discharge of pollutants “during normal operation” but does
during “start-up of production runs.” The EPA explanation
of the technology applicable to the start-up discharges is
not convincing and we doubt whether Hooker can be treated
as an exemplary plant. On remand, EPA must clearly
articulate its position in these regards.

Sections 415.72, 415.73 and 415.75 are set aside and re-
manded for reconsideration.

(3) Hydrofluoric Acid—40 C.F.R. Part 415, Subpart H.

This subpart relates to discharges of pollutants from the
production of hydrofluoric acid. The regulations provide
specific limits for pollutant discharge at the 1977 deadline
(§ 415.82) and for no discharges at the 1983 deadline
(§ 415.83) and for new sources (§ 415.85). Provisions re-
lating to catastrophic rainfall are included in each of the
mentioned regulations.

On January 9, 1975, EPA published proposed new regu-
lations for hydrofluoric acid. See 40 Fed. Reg. 1712. The
comment period has expired but we do not know what will
be the ultimate result. EPA does not expect to promulgate
final amendments before March, 1976. In the circum-
stances, the preferable procedure is to nullify the existing
regulations.

Sections 415.82, 415.83, and 415.85 are set aside and
remanded for reconsideration.

(4) Hydrogen Peroxide—40 C.F.R. Part 415, Subpart I.

This subpart relates to discharges of pollutants from the
production of hydrogen peroxide by the electrolytic process
and by the oxidation of alkyl hydroanthraquinones (or-
ganic process). The regulations provide specified limits

23-a

for pollutant discharge at the 1977 (4 415.92) deadline and
no discharge at the 1983 ({ 415.93(a)) deadline and for
new sources (§ 415.95(a)) for plants using either process.
As to plants using the electrolytic process the no discharge
provisions for 1983 and for new sources contain cata-
re rainfall exceptions (§§ 415.93(b)(2) and 415.95

EPA says (Brief in Nos. 74-1261 etc. at 192 and Brief in
Nos. 74-1296 etc. at 42) that it will reevaluate the 1983 and
new source provisions pertaining to the organic process
($§ 415.93(a) and 415.95(a)).

Industry attacks the 1983 no discharge piovision for
plants using the electrolytic process. The FMC plant at
Vancouver, Washington, is the only plant in the United
States using this process for hydrogen peroxide production.
The purity of its product permits it to compete with plants
using the organic process. EPA’s analysis (App. 1182-
1183) shows that the differences in quality of influent well
water and effluent discharge into the Columbia River are
negligible. The discharges are environmentally insignifi-
cant. We cannot comprehend how a change from the
present process to the EPA technology, evaporation and
landfill, will be beneficial. Because EPA is to reexamine its
waste water definitions and because of the difficulties
which we have noted with the catastrophic rainfall provi-
sions, this regulation must be rema:ded. On reconsidera-
tion, EPA must give consideration to the total environ-
mental impact.

The no discharge regulation for new electrolytic plants
must also be remanded. Our comments on the definitions
of waste water and on the catastrophic rainfall provisions
are as applicable here as they are to the 1983 requirements
for existing plants.

Sections 415.93 and 415.95 are set aside and remanded
for reconsideration.

(5) Nitrie Acid —40 C.F.R. Part 415, Subpart J.

This subpart relates to the discharges of pollutants from
the production of nitric acid in concentrations up to 68 per-

24-a

cent. The regulations provide for no discharges at the 1977
and 1983 deadlines for existing plants (4§ 415.102 and
415.103) and for new sources (§ 415.105).

EPA concedes, with particular reference to nitric acid,
that the waste water definitions must be reconsidered both
as to existing plants (§{§ 415.102 and 415.103) and as to
new sources (§ 415.105). See EPA brief in Nos. 74-1261
etc. at 117-118 and in Nos. 74-1296 etc. at 66-67.

On the recycling problem, the record is so confused that
we cannot say with any certainty which party is right.
Hopefully, the remand will result in clarification. On the
cost analysis, Industry objects to EPA’s use oi information
obtained from sulfuric acid plants. EPA responds that in
the time available it had no alternative. Now, it has had
more time and should specify the facts and reasons on
which its conclusions are based.

Sections 415.102, 415.103 and 415.105 are set aside and
remanded for reconsideration.

(6) Sodium Carbonate—40 C.F.R. Part 415, Subpart O.

This subpart relates to discharges of pollutants from the
production of sodium carbonate by the Solvay process. The
regulations applicable to existing sources both at the 1977
and 1983 deadlines (§§ 415.152 and 415.153) specify the
permissible discharges with reference to both TSS and pH.
TSS means total suspended nonfilterable solids. § 401.11
(s)(5). The term pH is a logarithmic expression of the
concentration of hydrogen ions in water, with 7 pH indi-
cating a neutral condition. Lower pH values show acidity
and higher values alkalinity. For new sources the require-
ment is no discharge (§ 415.155).

EPA admits errors in the TSS requirements (Brief in
Nos. 74-1261 etc. at 134) and says (Ibid. at 135) it will “not
oppose a remand of the suspended solids limitations in 40
C.F.R. Section 415.152 and 415.153 for consideration of the
appropriate flow rate and the projected economic impact
on the industry.”

25-a

Industry contends that the pH requirement should also
be remanded. We agree. Nothing in the record sustains
the EPA conclusion that neutralization of the inherently
alkaline effluent from a sodium carbonate plant is prac-
ticable or economically achievable. The justification in the
brief is no substitute for agency action not sustained by
the record. Also, the cost of neutralization should be con-
sidered along with the cost of removal of suspended solids.
On remand EPA should make clear the technologies which
it deems available.

The regulation for new sources mandates that there be
no discharge. This is in conflict with the EPA statment,
38 Fed. Reg. 28179, that:

Ҥ ***no technology is available and ay ny |
achievable for the elimination of discharge from Sol-
vay plants.”

The EPA brief comments (Brief in Nos. 74-1296 at 93)
that “The Solvay process generates staggering quantities
of waste products.” It also says (Ibid. ):

“As has been seen, there are practicable alternatives
to discharge from a new Solvay plant if one is ever
built. The Agency properly set the standard of per-
formance for this unlikely plant.”

The EPA alternatives are (1) use of deep well injections
and (2) production of sodium «rbonate by the Trona ore
process. Both of these present non-water environmental
problems. Deep-well injection raises both federal and state
problems and has been the subject of EPA litigation. See
e.g. United States v. Armco Steel Corporation, S.D. Tex., 333
F. Supp. 1073. Trona plants present an air pollution prob-
lem which EPA has recognized. See 39 Fed. Reg. 25339.

Industry argues that EPA has no statutory power to force
industry to use a certain process. There is no need to ex-
plore the legal ramifications of this contention. It is enough
to say that the technology on which EPA bases its new
source standards is neither available nor demonstrated
when regard is had for non-water environmental impact.

26-a

Sections 415.152, 415.153, and 415.155 are set aside and
remanded for reconsideration.

(7) Sodium Dichromate—40 C.F.R. Part 415, Sub-
part Q.

This subpart relates to discharges of pollutants resulting
from the production of sodium dichromate and by-product
sodium sulfate. The regulations provide for permissible,
specified discharges by existing plants at the 1977 deadline
(§ 415.172) and by new sources (§ 415.175). No pollutant
discharge is permitted at the 1983 deadline except dis-
charges attributable to catastrophic rainfall (§ 415.173).

Industry attacks the 1983 no discharge provision. In its
discussion of sodium dichromate, EPA said, 39 Fed. Reg.
9614:

“The proposed new source performance standards
were based on evaporation to attain no discharge of

* process waste water pollutants. Considering nonwater
environmental aspects, the new source performance
standards have been revised to require good water con-
servation and best practicable technology.”

EPA’s rationalization of its actions is not convincing. It
says (Brief, Nos. 74-1261 etc. at 171) that “[a]s to the rea-
sonableness of the Administrator’s conclusion that evapora-
tion represents an available technology for 1983, there can
be no serious challenge.” It then says (Ibid. at 173) that
its new source provision was in response to Industry's con-
cern that “evaporation had not been sufficiently demon-
strated on the volumes encountered in the manufacture of
sodium dichromate.” It also says (Ibid. at 174) that it
deferred imposition of zero discharge for existing sources
until 1983 “because of its reassessment of the technological
development of evaporative systems on waste loads as large
as those generated by this subcategory, as well as energy
consumption demands in a time of general concern about
energy supply.” We are confused rather than convinced.
The manufacture of sodium dichromate produces large
quantities of waste discharges. Disposition of these wastes
by evaporation imposes a severe demand on use of energy.

27-a

EPA does not disclose what evaporative technology it uses
in making its cost analysis, its energy study, or its con-
sideration of the non-water environmental impact.

In essence EPA asks us to have faith in its expertise and,
on that ground, uphold its actions. Judicial review must
be based on something more than faith and respect. Con-
fidence and deference do not substitute for reasoned anal-
ysis sustained by the record. In the circumstances we see
no nee” to explore the technical arguments of the parties
going w environmental impact, costs, and energy require-
ments. We are hopeful that on remand EPA will give fur-
ther consideration to these problems.

Section 415.173 is set aside and remanded for recon-
sideration.

(8) Sodium Metal—40 C.F.R. Part 415, Subpart R.

This subpart relates to discharges of pollutants from the
production of sodium metal by the Downs cell process. The
regulations provide specified limits for pollutant discharge
at the 1977 deadline (4 415.182) and no discharge at the
1983 (§ 415.183) deadline and for new sources (4 415.185).
The no discharge provisions for 1983 and for new sources
contain catastrophic rainfall exceptions (44 415.183(b)
and 415.185(b)).

The pertinent Industry brief is presented by Stauffer
Chemical Company. EPA says that Stauffer has no stand-
ing because it is not a producer. Stauffer is admittedly a
purchaser and user of sodium metal. Section 509(b)(1)
of the Act authorizes review “by any interested person.”
Section 502(5) defines “person” to include “a corporation.”
Accordingly Stauffer has the requisite standing.

Industry attacks the 1977 requirement that the TSS aver-
age daily discharge shall not exceed 23 kilograms per 1,000
kilograms of product. EPA says that this can be achieved
by use of “well designed settling basins.” With general
reference to the inorganic chemical industry, the Develop-
ment Document says that the performance and cost of

28-a

settling basins “depends on the amount of waste involved
and the settling characters of the solids suspended.” The
trouble is that EPA does not demonstrate how this general
principle applies to sodium metal. EPA exemplary plant,
the DuPont plant at Memphis, does not achieve the require-
ment of the regulation.

Industry says that EPA imposed the no discharge limit
without regard for the environmental impact or the energy
costs, factors which 4 304(b)(2)(B) of the Act requires
EPA to specify. Specifically, Industry says that EPA did
not take into account the cost of solid waste disposal and
failed to consider energy requirements. The unsatisfactory
EPA response is that it did pay attention to these factors
and that it developed estimates for all treatment measures
of general application to the inorganic chemical industry.
It does not relate any of these to the particular conditions
found in the sodium metal industry.

EPA concedes (Brief in Nos. 74-1261 etc. at 167) that
the Development Document does not “include significant
energy costs associated with no discharge.” It goes on to
say that it estimated the capital cost of attaining no dis-
charge. An estimate of capital cost is not consideration of
the environmental impact or of the energy requirement.

Because we are convinced that the 1983 regulation must
be set aside, we need not delve into the detailed attack
made by Industry on the EP’. technology or the complex
answers thereto. On remand EPA must do a better job of
articulating the facts and reasons upon which its conclu-
sions are based.

EPA justifies its no discharge requirement for new
sources by reliance on the “technological basis” for the
1983 limitations (Brief in Nos. 74-1296 etc. at 30). Because
we set aside the 1983 regulation, no need exists for further
discussion of the problem in connection with new sources.

Our earlier action in regard to the catastrophic rainfall
provisions applies to both the 1983 and new sources pro-
visions.

a

ts br SF BT Rt te ANE tr

29-a

Sections 415.182, 415.183 and 415.185 are set aside and
remanded for reconsideration.

(9) Sodium Silicate—40 C.F.R. Part 415, Subpart S.

This subpart relates to the discharge of pollutants from
the production of sodium silicate. The regulations appli-
cable to existing sources by July 1, 1977, specify the per-
missible discharges. § 415.192. For 1983 and for new
sources no pollutant discharge is permitted. §§ 415.193 and
415.195.

Consideration of the sodium silicate regulations stretches
our patience to the breaking point. EPA did not furnish the
data on its exemplary plant until after the Industry's first
brief. After receipt of the data, counsel for Industry wrote
counsel for EPA expressing concern over the fact that the
EPA contractor (Industry reply brief in Nos. 74-1261 etc.
at App. F):

“viewed the plant as having exemplary recycle (when
the contractor’s sheets do not mention recvcle) and
evaporation (in an area where precipitation is twice
the evaporation rate ).”

After mentioning other matters the letter said:

“We hope that you will agree that the issues as to the
record and the basis for the sodium silicate guidelines
and standards of performance are matters better re-
solved by administrative than by judicial considera-
tion.”

We agree with counsel. The strained effort in the EPA
brief to justify the agency actions leaves us in a state of
extreme confusion. We have examined every record refer-
ence made by EPA. They are cryptic, mystic, and enig-
matic. If there is to be any worthwhile judicial review of
agency action, that action must be presented and sup-
ported in a manner capable of judicial understanding. It
is enough to say that EPA has not shown that its tech-
nology is available, achievable, or demonstrated. The man-
dates of the Act have not been obeyed.

30-a

Sections 415.192, 415.193, and 415.195 are set aside and
remanded for reconsideration.

(10) Sulfuric Acid—40 C.F.R. Part 415, Subpart U.

This subpart relates to discharges of pollutants from the
production of sulfuric acid in single and double adsorption
plants. The regulations provide for no discharge of pol-
lutants by existing plants at both the 1977 (§ 415.212)
and 1983 (§ 415.213) dates and by new sources (§ 415.215).

Industry objects to the inclusion of plants using certain
processes. On January 31, 1975, EPA amended the ap-
plicability section ({ 415.210) of this subcategory. See 40
Fed. Reg. 5523. We are not told what is the effect of the
amendment. Without this knowledge we cannot evaluate
the regulations as they now read.

Also we have the problem of the definitions of “process
waste water” and “process waste water pollutants.” These
are found in § 401.11(q) and (r) which we have set aside
and remanded. EPA should assess the effect of the defini-
tions on sulfuric acid plants. Because we do not know
what will be the result of changed definitions on the no
discharge requirements of §§ 415.212 and 415.213, those
regulations are set aside and remanded for reconsideration.

Industry and EPA are in apparent agreement that single
adsorption plants which are required to install tail gas
scrubbers should not be held to the zero discharge require-
ment (Briefs in Nos. 74-1261 etc., EPA at 126 and Industry
reply brief at 97). EPA says that such a plant would be
entitled to a variance from the 1977 requirement and that
the variance may be given by the permit issuer under the
provision of § 415.212. Industry points out that the vari-
ance procedure is not applicable to the 1983 requirement.
It would appear that the variance and review provisions of
§ 301(c) and (d) of the Act furnish adequate protection to
Industry. Because EPA must reconsider the zero discharge
provisions, it might be that the solution is to exclude the
plants in question from regulation coverage. On remand
EPA should consider this problem.

ne mall

Pre ee nes

3l-a

Industry raises two points in connection with the no
discharge requirement for new sources. The first refers to
the definition of process waste water which has been dis-
cussed in connection with other categories. With relation
to sulfuric acid EPA concedes (Brief in Nos. 74-1296 etc.
at 61) that “no discharge of contaminated cooling water is
practicable for all plants at all times.” The second relates
to the EPA redefinition of the applicability of the sulfuric
acid category. In this regard our statements in connection
with existing sources apply also to new sources.

Sections 415.210, 415.212, 415.213, and 415.215 are set
aside and remanded for reconsideration.

(11) Titanium Dioxide—40 C.F.R. Part 415, Subpart V.

This subpart originally r-'=ted to discharges of pollutants
from the production of ti.«nium dioxide by the sulfate
process and by the chloride process. For each process the
regulations specify permissible discharges for all three
steps. §§ 415.222, 415.223, and 415.225.

A 1975 amendment to the applicability clause, 40 Fed.
Reg. 5523-24, removed applicability “to wastes resulting
from discharges from production by processes in which
beneficiation of raw ilmenite ore and chlorination are
inseparably combined in the same process step.” We
understand that the amendment affects the chloride proc-
ess and we are not told what will be its effect. Industry
makes the reasonable request that the court remand the
chloride process regulations insofar as they apply to “a
process that combines beneficiation of low grade ilmenite
ore and chlorination.” Industry reply brief in Nos. 74-1261
etc. at 163. The request is granted.

With regard to the sulfate process, the charges and
countercharges of the parties are more theatrical than in-
formative. The discharge of pollutants from plants using
the sulfate process presents a serious problem. This fact
does not excuse EPA from failing to disclose and articulate,
in an understandable manner, its course of inquiry, anal-

32-a

ysis and reasoning. EPA relies on after-the-fact rationali-
zation and argument in its brief. The brief in turn places
heavy reliance on, and six times cites for record support,
“App. 2278.” This is a reproduction of a document which
was prepared by some undisclosed person and which
contains penciled notes made by an unknown writer.
The cryptic allusions mean nothing to us.

The technology used by EPA to justify its regulations is
not shown to be in use at any plant, either existing or
pilot. EPA’s continued reference to the American Cyana-
mid plant is unimpressive. That plant is not using the
technology on which EPA relies, and it intends to use a
proprietary treatment process which it refuses to disclose
because of a confidentiality agreement. EPA has not
demonstrated that the technology claimed to support its
regulations is either available, practicable, economically
achievable, or demonstrated. In the circumstances it is not
necessary to explore the lengthy, technical arguments of
the parties relating to costs and energy requirements.

Sections 415.220, 415.222, 415.223, and 415.225 are each
set aside and remanded for reconsideration.

IV

The following regulations, all contained in 40 C.F.R.,
are severally set aside and remanded for reconsideration
in the light of this opinion:

General

401.11(i)—Definition of “effluent limitation.”
401.11(q)—Definition of “process waste water.”
401.11(r)—Definition of “process waste water pollutants.”

Chlorine
415.63— 1983 step.

Hydrochloric Acid
415.72—1977 step.
415.73— 1983 step.
415.75—New sources.

Hydrofluoric Acid
415.82— 1977 step.
415.83— 1983 step.
415.85— New sources.

Hydrogen Peroxide
415.93— 1983 step.
415.95—New sources.

Nitric Acid

415.102— 1977 step.
415.103— 1983 step.

415.105—New sources.

Sodium Carbonate

415.152—1977 step.
415.153— 1983 step.

415.155—New sources.

Sodium Dichromate
415.173—1983 step.

Sodium Metal

415.182—1977 step.
415.183— 1983 step.

415.185—New sources.

33-a

Sodium Silicate
415.192—1977 step.
415.193— 1983 step.

415.195—New sources.

Sulfuric Acid

415.210—Applicability.

415.212—1977 step.
415.213—1983 step.

415.215—New sources.

Titanium Dioxide

415.220—Applicability.

415.222—1977 step.
415.223—1983 step.

415.225—New sources.

35-a
JUDGMENT
Anited States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 74-1261

E. I. DUPONT DE Nemours & Co.,
Petitioner,

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,

Amicus Curiae.
ALLEGHENY POWER SYSTEM, INC., ET AL,

Amicus Curiae.
New JERSEY ZINC COMPANY,

Amicus Curiae.

AMERICAN PETROLEUM INSTITUTE AND ELEVEN MEMBER
CoMPANIES. (ASHLAND OIL, INC.; CONTINENTAL OIL Com-
PANY; Exxon Corp.; GULF O1L CorpP.; PHILLIPS PETRO-
LEUM COMPANY; SHELL OIL Co.; STANDARD O11 Co. OF
CALIFORNIA; STANDARD OIL Co. OF OHIO; SUN OIL Co. oF
PENNSYLVANIA; TEXACO, INC.; UNION OIL OF CALIFORNIA )

Amicus Curiae.
RMI, INc.

Amicus Curiae.

versus

RussE.L E. TRAIN, as Administrator, Environmental Pro-
tection Agency,

Respondent.
NATURAL RESOURCES DEFENSE COUNCIL,

Amicus Curiae.

On Petition For Review Of An Order Of The
Environmental Protection Agency

THis CAUSE came on to be heard upon the petition of
E. I. duPONT de NEMOURS & Company, for review of

36-a

an order issued against it by the Environmental Protection
Agency on March 4, 1974; upon a certified list in lieu of a
transcript of the record; and the said cause was argued
by counsel.

ON CONSIDERATION WHEREOF, it is ordered, adjudged and
decreed by the United States Court of Appeals for the
Fourth Circuit, that the following regulations, all contained
in 40 C.F.R., are severally set aside and remanded for
reconsideration in light of this opinion.

General
401.11(i )—Definition of “effluent limitation.”
401.11(q)—Definition of “process waste water.”
401.11(r)—Definition of “process waste water pollutants.”

Chlorine
415.63— 1983 step.

Hydrochloric Acid
415.72—1977 step.
415.73—-1983 step.
415.75— New sources.

Hydrofluoric Acid
415.82—1977 step.
4.5.83— 1983 step.
415.85— New sources.

Hydrogen Peroxide
415.93— 1983 step.
415.95—New sources.

Nitric Acid
415.102—1977 step.
415.103— 1983 step.
415.105—New sources.

415.152— 1977 step.
415.153— 1983 step.

415.155—New sources.

Sodium Dichromate ;
415.173— 1983 step.

Sodium Metal
415.182— 1977 step.
415.183— 1983 step.

415.185—New sources.

Sodium Silicate
415.192— 1977 step.
415.193— 1983 step.

415.195—New sources.

Sulfuric Acid

415.210—Applicability.

415.212—1977 step.
415.213— 1983 step.

415.215—New sources.

Titanium Dioxide

415.220—Applicability.

415.222— 1977 step.
415.223— 1983 step.

415.225— New sources.

37-a

/s/ WituiaM K. State, ll

Clerk

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2251%3A1. Public record. Not legal advice.