Amicus Brief — E. I. du Pont de Nemours & Co. v. Train

Supreme Court brief1976

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Nos. 75-1473, 75-1705 | 3 AK, JR., CLERK

IN THE

Supreme Court of the United States

OctToser TERM, 1975

E. I. pu Pont pe NeEMours AND COMPANY, ET AL.,

Petitioners,

Vv.

Russet E. Trarn, as Administrator, Environmental

Protection Agency, Respondents.

On Writ of Certiorari to the Uniled States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE FOR THE

AMERICAN PETROLEUM INSTITUTE

Frepertck M. Rowe

Epwarp W. WARREN

KIRKLAND, E.Luis & Rowe

1776 K Street, N.W.

Washington, D. C. 20006

202-833-8400

Of Counsel: Attorneys for Amicus Curiae

StTarRK RITcHIE American Petroleum Institute

General Counsel

American Petroleum Institute

re se 8 ee

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ...............

SUMMARY OF ARGUMENT ...............0e0ee

STATEMENT OF THE CASE ..........0000ee0es

EPA’s Experience with Technology Guidelines

Under the Refuse Act Permit Program ......

EPA’s Support and Acceptance of ‘‘ Federal

Guidance’’ During and After Passage of the

1972 Amendments ...........cececceeeevees

EPA’s Expedient Abandonment of the Stat-

utory Guidelines and Promulgation of Rigid

Discharge Standards Which Revoke the States’

Primary Role Under the Permit Program ....

ABGUMEBNE cccccccccccccccccccccescpecceccccces

I. SECTION 304(b) REQUIRES EPA TO ISSUE,

NOT RIGID EXISTING PLANT STANDARDS,

BUT RATHER FLEXIBLE ‘‘GUIDELINES”’

FOR TAILORING EFFLUENT LIMITATIONS

TO THE CIRCUMSTANCES OF INDIVIDUAL

PLANTS IN THE PERMIT-ISSUING PROC-

TED 0 vc con cowrcccewceseseccescoseseveseowcces

In Contrast to Section 301(b) Which Does Not

Authorize the Issuance of Any Regulations,

Section 304(b) Expressly Requires EPA

Promulgation of ‘‘Regulations, Providing

Guidelines for Effluent Limitations’? Which

‘*Identify’’ the ‘‘ Degree of Effluent Reduction

Attainable’’ and ‘‘Specify Factors to Be

Taken into Account’’ in the Permit-Issuing

POEs onccccsassnccddgdcenassacece snesée

Over and Above the Specifie Text of Section

304(b), the Entire Statutory Scheme Delib-

erately Distinguishes Between New Sources,

Which Are Subject to ‘‘Across-the-Board’’

National Standards, and Evzisting Source: .,

Which Are to Be Controlled by Guidelines

for Use in the State/Federal Permit Program. 25

As Table of Contents (Cont’d)

Page

Il. THE LEGISLATIVE HISTORY REAFFIRMS

CONGRESS’ INTENTION THAT EPA ISSUE

FLEXIBLE ‘‘GUIDELINES FOR EFFLUENT

LIMITATIONS,” IDENTIFYING A “RANGE”

OF FEASIBLE DISCHARGE LEVELS AND

“SPECIFYING FACTORS” FOR USE IN THE

STATE/FEDERAL PERMIT PROGRAM..... 31

A. The Senate and Conference Committee Re-

ports Confirm Congress’ Enactment of Tech-

nology Guidelines Identifying a ‘‘ Range’’ and

‘*Specifying Factors’’ for Use in the Permit-

i 32

B. EPA’s Rigid, Single-Number Existing Plant

Standards Nullify the States’ ‘‘Primary’’

Pollution Control ‘‘Responsibilities’’ and

Vitiate the State/Federal Permit Program... 35

C. Rigid National Standards Defeat Congress’

Expressed Purpose of Achieving Genuine

‘*Uniformity’’ of Treatment for Disparate

Existing Plants Through Flexible ‘‘Guide-

lines’? and EPA Veto Power over Individual

POCUREND. .cccccncccccecceusessceeennanenenn 38

Il. EPA’S BELATED, EXPEDIENT SWITCH

TO SINGLE-NUMBER EXISTING PLANT

STANDARDS CANNOT OVERCOME THE

STATUTORY TEXT, LEGISLATIVE HIS-

TORY AND EPA’S OWN ORIGINAL INTER-

PRETATION REQUIRING THE ISSUANCE

OF FLEXIBLE GUIDELINES FOR FINAL-

IZING EFFLUENT LIMITATIONS IN THE

PERMIT-ISSUING PROCESS................ 45

A. This Court Should Pay Deference to EPA’s

Original Authoritative Interpretation Accept-

ing Flexible Guidelines for Finalizing Effluent

Limitations in the Permit-Issuing Process... 46

Table of Contents (Cont’d) iii

Page

B. EPA’s Otherwise Unlawful Existing Plant

Standards Cannot Be Sustained Simply Be-

cause the Agency Belatedly Included a So-

Called ‘‘Variance Clause’? Which Provides

Far ‘‘Less Flexibility’? Than Congress Con-

sac ca bbGesoasccoccocesecescoccces 50

Nee ee ed eee éeeccentoevcesese 54

TABLE OF AUTHORITIES

CaAsEs:

Allen v. State Bd. of Elections, 393 U.S. 544 (1969) .. 19

American Ass’n of Meat Processors v. Train, No. 75-

ee ied ke edheccesseoccenese 18

American Frozen Food Institute v. Train, 8 ERC 1993

ED ec cde acdetcccennces ces 2, 40, 44, 46

American Iron & Steel Institute v. EPA, 526 F.2d 1027

(3d Cir. 1975) ....... 17, 19, 20, 22, 23-24, 39, 40, 41, 44,

46, 51, 52

American Meat Institute v. EPA, 526 F.2d 442 (7th

Se EE aUBascccccscesereces 2, 20, 26, 38, 39, 46, 48

American Petroleum Institute v. EPA, Consol. Nos.

74-1465, 74-1466, 74-1621 (10th Cir., argued March

NE cide Ee ceecécdocecsbetuceconeceses 1

American Petroleum Institute v. Train, 526 F.2d 1343

te as ace cag bennegecess 2, 17, 18, 21

Brown v. EPA, 521 F.2d 827 (9th Cir. 1975), cert.

granted, No. 75-909, 44 U.S.L.W. 3681 (June 1,

EEE errr er ery TTT errr errr 50

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) ...... 19

Commissioner v. Bilder, 369 U.S. 499 (1962) ........ 43

CPC International, Inc. v. Train, 515 F.2d 1032 (8th

SF 2, 25-26, 28, 33, 40-41, 42, 43, 44

iv Table of Authorities (Cont’d)

Page

District of Columbia v. Train, 521 F.2d 971 (D.C. Cir.

1975), cert. granted, No. 75-1055, 44 U.S.L.W.

See GHD TD, BOSD 6 0cccceenesccsecoseatetees 50

E. I. du Pont de Nemours & Co. v. Train, 528 F.2d

1136 (4th Cir. 1975), cert. granted, No. 75-978, 44

U.S.L.W. 3585 (April 19, 1976) ............. 3, 17,18

E. I. du Pont de Nemours € Co. v. Train, 8 ERC 1718

(4th Cir. 1976) .......... 2, 20, 21, 22, 44, 46, 51-52, 54

England v. Louisiana State Bd. of Medical Examiners,

SoD Wak GER CHO co vcccnccccecenncncecetesss 19

EPA vy. California ex rel. State Water Resources Con-

trol Bd., 44 U.S.L.W. 4781 (June 7, 1976) ....9, 27-28

Grain Processing Corp. v. Train, 407 F. Supp. 96 (S.D.

Iowa 1976), appeal pending, No. 76-1233 (8th

GD «ehoscccedacecstdsuesetéacnueneeel 18, 22, 24, 44

Hancock v. Train, 44 U.S.L.W. 4767 (June 7, 1976) .. 28

Hooker Chemicals € Plastics Corp. v. Train, 8 ERC

8 fe Pr ee ee 2

Leedom v. Kyne, 358 U.S. 184 (1958) .............. 18

Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975), cert.

granted, No. 75-960, 44 U.S.L.W. 3682 (June 1,

SUGED cecceccnausecbensnesedantsausen4uneeel 49, 50

National Independent Meat Packers Ass’n v. EPA, No.

Cae GA GD cabccceseescecedbsbaumabnenss 18

Nattonal Renderers Ass’n v. Train, No. 75-0-482 (D.

SD sh acOudcesusnddecunsiseetaadeeeeee 18

Natural Resources Defense Council v. EPA, 507 F.2d

Se Gee Ge ED 06 hbk ncdecidveseconsaveun 48-49

Natural Resources Defense Council v. EPA, 8 ERC

Bee? Ge Wak GD Gcdekcdecknesoaunieie 17, 46, 51

Natural Resources Defense Council v. Train, 6 ERC

1033 (D.D.C. 1973), rev’d in part and remanded,

510 F.2d 692 (D.C. Cir. 1975) ................ 14, 47

Table of Authorities (Cont’d) v

NLRB v. Lion Oil Co., 352 U.S. 282 (1957) .......... 43-44

Norwegian Nitrogen Prods. Co. v. United States, 288

SE CED SG dicccecocsccscnteceeciecsote 47

Train v. NRDC, 421 U.S. 60 (1975) ....... 28, 37-38, 48, 50

Udall v. Tallman, 380 U.S. 1 (1965) ................ 47

Union Electric v. EPA, 44 U.S.L.W. 5060 (June 25,

BEE dé nedacendocaudsdacesbsenteésdesees 38

United States v. Leslie Salt Co., 350 U.S. 383 (1956) .47, 49

STaTUTEs:

Federal Water Pollution Control Act Amendments of

1972, 86 Stat. 816, Public Law No. 92-500, October

18, 1972, 33 U.S.C. § 1251 et seq.

Section 301, 33 U.S.C. § 1311 .. 18, 19, 26, 27, 31, 33, 39

Section 301(b), 33 U.S.C. §1311(b) .. 17, 19, 20, 21, 30

Section 301(b)(1)(A), 33 U.S.C. 4 1311(b)(1)(A) 40

Section 301(b) (1) (A) (ii), 33 U.S.C.

a i ne 26

Section 301(b)(2)(A), 33 U.S.C. §1311(b)(2)(A) 39

Section 301(1) (2) (A) (ii), 33 U.S.C.

SIE vcccchacchaeae-. . sees 26

Section 303(e)(2), 33 U.S.C. § 1313(e)(2) ....... 37

Section 303(e)(3), 33 U.S.C. § 13813(e)(3) ....... 37

Section 304, 33 U.S.C. § 1314 ...... 19, 21, 27, 31, 32, 39

Section 304(b), 23 U.S.C. § 1314(b) ........... passim

Section 304(b)(1)(A), 33 U.S.C. §1314(b)(1)(A) 22

Section 304(b)(1)(B), 33 U.S.C. § 1314(b)(1)(B) 22,

23, 39

Section 304(b)(2)(B), 33 U.S.C. §1314(b)(2)(B) 23

Section 306, 33 U.S.C. § 1316 .......... 5, 14, 26, 27, 31

Section 306(b), 33 U.S.C. §1316(b) ............. 26

Section 306(b)(1)(C), 33 U.S.C. §1316(b)(1)(C) 29

vi Table of Authorities (Cont’d)

Page

Section 306(e), 33 U.S.C. § 1316(e) .............. 27

Section 307, 33 U.S.C. § 1317 .... cc cecesesccess 5, 26

Section 307(a), 33 U.S.C. §1317(a) ....... 5, 26, 27, 31

Section 307(b), 33 U.S.C. §1317(b) ....... 5, 26, 27, 31

Section 307(c), 33 U.S.C. § 1317(¢) ............-. 26, 31

Section 316, 33 U.S.C. § 1326 ............eeeeeee 26

Section 316(b), 33 U.S.C. § 1326(b) ............. 26

Section 402, 33 U.S.C. $1342 .......... 2, 19, 31, 40, 41

Section 402(a) (5), 33 U.S.C. § 1412(a)(5) ....... 36

Section 402(d), 33 U.S.C. § 1412(d) ............. 6, 42

Section 402(d) (2), 33 U.S.C. § 1412(d)(2) ...40, 41, 43

Section 501(a), 33 U.S.C. § 1361(a) ............ 20, 21

Section 502(11), 33 U.S.C. § 1362(11) ........... 27

Section 509(b), 33 U.S.C. $1369(b) ............. 6, 45

Section 509(b)(1), 33 U.S.C. § 1369(b)(1) ...... 52, 53

Section 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E) 18

Bestion SES, TS WIAA 6 EGS oc cccvsavccccvceess 15

Section 110, Clean Air Act, 42 U.S.C. § 1857e-5 ....... 28

Section 111, Clean Air Act, 42 U.S.C. § 1857¢e-6 ....... 27

Section 13, Refuse Act of 1899, 33 U.S.C. § 407 ....... 7

CONGRESSIONAL MATERIALS:

Senate Committee on Public Works (Library of Con-

gress), A Legislative History of Water Pollution

Control Act Amendments of 1972, 93d Cong., 1st

Sess. (Jan. 1973) (Comm. Print) (2 Vols.) (cited

RE, TE Mibdaanedd kaaksddendcewnassanmas passim

Conr. Rep. No. 92-1236, 92d Cong., 2d Sess. (1972) . .27, 29,

40, 43

H.R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972) ..9, 18,

27, 30, 37, 42

S. Rep. No. 92-414, 92d Cong., Ist Sess. (1971) . .9, 27, 33,

34, 36

Table of Authorities (Cont’d) vii

Page

Hearings Before the Subcomm. on Air and Water

Pollution of the Senate Comm. on Public Works,

92d Cong., Ist Sess. (1971) .........cccececeees 10

Hearings on H.R. 11896 Before the House Public

Works Comm., 92d Cong., 2d Sess. (1972) ...... 28

Rvu.es aND REGULATIONS:

ee do cccctvanssnwnnducsenees 7

Se es CS SE CUED onc déveccceoccedccasecess 14

MISCELLANEOUS:

BNA EwvrronMeEnt Reporter, CURRENT DEVELOPMENTS

i SM tate es deeds cghcne es sndedestnae 16

BNA EwnvrronMEntT Reporter, CURRENT DEVELOPMENTS

ED nates bed add edkesheas hee’ 16

Address of John R. Quarles, Jr., to an EP A-Manufac-

turing Chemists Association Symposium, Septem-

Be Be PP dncdbendeceddbnneascenseinanensenee 11

Memorandum, John R. Quarles, Jr., Assistant Admin-

istrator for Enforcement and General Counsel,

July 1, 1971, Hearings Before the Subcomm. on

Air and Water Pollution of the Senate Comm. on

Public Works, 92d Cong., Ist Sess. (1971)

Letter of Administrator Ruckelshaus to John A.

Blatnik, Chairman, Committee on Public Works,

GE HO Tt, BUD. cc ecccccccccccccceces 21

Remarks of Administrator Ruckelshaus, Annual Meet-

ing of Pollution Control Federation, reprinted in

45 J. Water Potiut. Controx Fep. 1 (1973) ....10, 11

IN THE

Supreme Court of the United States

OctToBER TERM, 1975

Nos. 75-1473, 75-1705

E. I. pu Pont DE NEMOURS AND COMPANY, ET AL.,

Petitioners,

Russett E. Trarn, as Administrator, Environmental

Protection Agency, Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE FOR THE

AMERICAN PETROLEUM INSTITUTE

INTEREST OF AMICUS CURIAE

Amicus Curiae American Petroleum Institute (here-

inafter ‘‘API’’)' is a petitioner in American Petro-

leum Institute, et al. v. EPA, et al., Consol. Nos. 74-

1465, 74-1466, 74-1621 (10th Cir., argued March 24,

1976),? which challenges the Environmental Protec-

1 Petitioners in Nos. 75-978, 75-1473, and 75-1705 and the United

States Solicitor General have consented to the filing of this amicus

curiae brief by letters submitted to the Clerk of the Court pursuant

to Rule 42(2).

2The API member companies which are named petitioners in

American Petroleum Institute v. EPA, supra, include Continental

tion Agency’s ‘‘effluent limitations guidelines’? and

standards of performance for existing and new petro-

leum refineries under the Federal Water Pollution

Control Act Amendments of 1972 (‘‘the Act’’). API

was also an appellant in American Petroleum Insti-

tute v. Train, 526 F.2d 1343 (10th Cir. 1975), which

upheld court of appeals’ jurisdiction to review EPA’s

‘‘effluent limitations guidelines’? for existing petro-

leum refineries.

API has maintained before EPA and the Tenth

Cireuit, as well as before other circuits as amicus

curiae,’ that EPA is required by Section 304(b) of

the Act* to issue, not rigid, single-number existing

plant standards, but rather flexible ‘‘guidelines’”’ for

tailoring and finalizing individual plant effluent lim-

itations in the Section 402 State/federal permit pro-

Oil Company ; Exxon Corporation; Gulf Oil Corporation; Phillips

Petroleum Company; Shell Oil Company; Standard Oil Company

of California; Standard Oil Company (Ohio); Sun Oil Company

of Pennsylvania; Texaco, Ine.; and Union Oil Company of Cali-

fornia.

* API has previously participated as amicus curiae before the

courts of appeals in CPC International, Inc. v. Train, 515 F.2d

1032 (8th Cir. 1975) (‘‘CPC Int’l’’) ; American Meat Institute v.

EPA, 526 F.2d 442 (7th Cir. 1975) (‘‘AMI’’); E. I. du Pont de

Nemours & Co. v. Train, 8 ERC 1718 (4th Cir. 1976) (‘‘du Pont

II’’) ; Hooker Chemicals & Plastics Corp. v. Train, 8 ERC 1961

(2d Cir. 1976) (‘‘Hooker’’); American Frozen Food Institute v.

Train, 8 ERC 1993 (D.C. Cir. 1976) (‘‘AFFI’’).

* Parallel United States Code citations for the sections of the Act

most frequently cited in this brief are:

Section 101—33 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

gram. In view of the substantial impact which the

outcome of this case may have on API’s pending

Tenth Circuit petition for review,’ API respectfully

requests the Court’s consideration of the arguments

and authorities presented in this amicus curiae brief.

Since API accepts court of appeals’ jurisdiction and

does not contest the Fourth Circuit’s decision in £. I.

du Pont de Nemours & Co. v. Train, 528 F.2d 1136

(4th Cir. 1975), cert. granted, No. 75-978, 44 U.S.L.W.

3585 (April 19, 1976) (‘‘du Pont I’’), this amicus

euriae *vief has been filed in Nos. 75-1473 and 75-1705

rather .aan in 75-978. However, insofar as the argu-

ments and authorities presented herein are relevant

to No. 75-978, API respectfully requests that they be

considered in that docket also.

SUMMARY OF ARGUMENT

This case raises fundamental questions regarding

the appropriate role of the States and the need for

discretion by State officials to accommodate the enor-

mously varied circumstances of thousands of existing

industrial plants required to obtain permits under the

Act’s State/federal replacement of the previous fed-

eral Refuse Act permit program.

In the 1972 Amendments, EPA sponsored and Con-

gress codified the Agency’s own program of flexible

technology guidelines developed administratively un-

der the Refuse Act permit program. As an alternative

to the previous system of water quality permits, the

1972 Amendments intended an ‘‘orderly transfer of

5 Over and above legal issues common with this proceeding, API’s

pending Tenth Circuit petition challenges EPA’s existing refinery

‘effluent limitations guidelines’’ and new refinery standards of

performance on numerous additional legal, scientifie and technical

grounds.

permit authority”’ to the States through flexible ‘‘ Fed-

eral guidance’’ in the form of detailed information

affording State permit authorities carefully cireum-

scribed discretion to tailor effluent limitations to the

circumstances of individual plants.

Although EPA followed this pragmatic statutory

approach for nearly a year, the Agency elected in late

1973 to usurp all but a nominal role for the States,

ostensibly because the States might prove too ‘‘lax’’ in

formulating permits taking account of the diverse, lo-

eal circumstances of individual existing plants. Specifi-

cally, the Agency developed so-called ‘‘effluent limita-

tions guidelines’’ for existing plants in inorganie chem-

icals and dozens of other industries which provided

single-number discharge standards to be ‘‘mechaniecally

eranked’’ by the States into individual discharge per-

mits.

As detailed in this amicus curiae brief, EPA’s aban-

donment of flexible ‘‘ Federal guidance”’ to the States

and subsequent issuance of rigid existing plant stand-

ards is fundamentally at odds with the overall statu-

tory plan. For whatever imprecision may exist in other

provisions of the Act, the text of Section 304(b) is

explicit as to how Congress intended to regulate pollu-

tion from existing sources.

Specifically, Congress prescribed in Section 304(b)

that EPA ‘‘shall’’ promuigate ‘‘ guidelines for effluent

limitations’? within one year so that this ‘‘ Federal

guidance”’ could be utilized by the States in finalizing

effluent iimitations for individual existing plants.’ In

these guidelines, Congress mandated that EPA ‘‘iden-

tify... the degree of effluent reduction attainable”’’ and

* All emphasis added throughout this amicus curiae brief unless

otherwise indicated.

““snecify factors to be taken into account in determin-

ing the control measures . . . to be applicable to point

sources.’’ Nowhere did Congress authorize or even

mention single-number standards in Section 304(b),

a fact that is critically significant in light of the ex-

press provision elsewhere for national, independently

enforceable new source ‘‘standards of performance”’

(Section 306), ‘‘toxie effluent standards’’ (Section

307(a)), and ‘“‘pretreatment standards’’ (Section

307(b)).

Over and above the specific text of Section 304(b),

which is confirmed by a coordinated reading of See-

tions 306, 307 and other provisions of the Act, the legis-

lative history also strongly supports Congress’ intent

that EPA issue flexible guidelines rather than rigid

standards for existing plants. Thus, both the Senate

and Conference Committee Reports reaffirm Congress’

contemplation that the Section 304(b) ‘‘guidelines for

effluent limitations’ identify a ‘‘range’’ of feasible

discharge levels and ‘‘specify factors’’ for use by the

States in tailoring individual plant permits to pre-

vailing local cireumstances.

Even more significant, EPA’s existing plant stand-

ards, which must be ‘‘mechaniecally cranked”’ into indi-

vidual permits, contradict the ‘‘ primary pollution con-

trol responsibilities’? reserved by Congress for the

States. Indeed, Congress deliberately rejected the ‘‘in-

flexible[,] Washington dictated approach’’ adopted

by EPA because such federal ‘“‘usurpation’’ would

‘‘destroy the initiative of the States and local govern-

ments’’ and prove ‘‘wasteful and non-productive’’ in

the long run.

Nor can EPA’s rigid national standards be justified

as a misguided attempt to achieve ‘‘uniformity’’ among

existing plants. On the contrary, Congress recognized

that genuine ‘‘uniformity’’ could be achieved only by

treating diverse sources differently and by avoiding

procrustean standards which ignore widely varying

individual plant circumstances. Indeed, it was precise-

ly to guarantee such ‘‘uniformity’’ that Congress re-

jected rigid existing plant standards and opted in-

stead for an EPA veto over individual plant permits

under Section 402(d) of the Act.

Nothing in EPA’s so-called ‘‘variance’’ provision

changes this result. Hence, because EPA purports to

have considered even plant-specific factors in its ‘‘efflu-

ent limitations guidelines,’” EPA’s ‘‘variance’’ clause,

which applies only in the case of ‘‘fundamentally dif-

ferent factors,’’ has proved to be a practical nullity.

In fact, precisely because EPA’s so-called ‘‘vari-

ance’’ clause provides far less flexibility than Congress

intended, it is imperative that this Court promptly dis-

approve EPA’s single-number discharge standards and

invalidate the Agency’s so-called ‘‘variance’’ provi-

sion. For otherwise, the many hundreds of plunts still

without permits are unlikely to resolve pending ad-

ministrative proceedings equitably, and ultimately

will have no choice but to seek judicial review of their

individual permits in the federal courts of appeals

under Secton 509(b) of the Act.

STATEMENT OF THE CASE

A history of the specific development of EPA’s ‘‘ef-

fluent limitations guidelines’’ for the inorganic chem-

icals industry has been detailed by petitioners. See

Petitioners’ Brief in No. 75-978 at 13-22 (hereinafter

‘*Pet. Br.’’). For purposes of this amicus curiae brief,

all that is necessary is a chronological description, trac-

ing the evolution of EPA’s control efforts from the

flexible technology ‘‘guidelines’’ and predominant

State role originally favored by EPA and codified by

Congress in the 1972 Amendments to the rigid, single-

number existing plant standards ultimately promul-

gated by EPA for mechanical application by State

permit-issuing authorities in individual plant permits.

1. EPA’s Experience with Technology Guidelines Under the

Refuse Act Permit Program

Shortly after its formation in 1970, EPA was given

responsibility for making water quality determinations

in discharge permits issued pursuant to Section 13

of the Refuse Act of 1899, 33 U.S.C. § 407. See 36 Fed.

Reg. 6564, 6566 (1971). Although EPA recognized that

individual plant discharge limits would depend ulti-

mately on the receiving stream water quality, EPA

decided that its responsibilities under the Refuse Act

permit program could best be carried out by establish-

ing sets of technology ‘‘guidelines’’ for each major

industry. The purpose of these technology ‘‘guide-

lines’’ was to provide a reference for the development

of individual -plant permits in the permit-issuing

process.

From the outset, EPA recognized that such “‘guide-

lines’’ could serve only as a general benchmark for in-

dividual plant permits because of the enormous diver-

sity and complexity within the broad industry cate-

gories to be regulated. Indeed, the disparate features

of individual plants, including varying manufacturing

processes, age, size, complexity, wastewater character-

isties, location, climate, and other factors, precluded

EPA from reducing industry discharge limits to a

‘simple formula computation.”’

EPA’s view that no set of single-number discharge

standards could substitute for the ‘‘careful exercise of

professional judgment”’ in developing individual plant

permits was concisely summarized in Congressional

testimony by John R. Quarles, Jr., then EPA Assist-

ant Administrator for Enforcement and General Coun-

sel:

‘The complexities of such determinations, togeth-

er with the infinite variations from case to case,

indicate that the establishment of effluent specifi-

cations cannot be reduced to simple formula com-

putation.

* * _

‘The effluent computation formulas which will be

furnished to [permit authorities], when available,

may be used to supplement existing techniques for

establishment of effiuent specifications. They will

provide a quick method to determine whether pro-

posed specifications are within a normal range but

will not reduce the need for careful exercise of

professional judgment.’’*

More than anything else, it was this Refuse Act permit

program experience which prompted EPA to support

flexible ‘‘Federal guidance”’ rather than rigid, across-

the-board existing plant standards when Congress in

1972 turned to consideration of amendments to the

Federal Water Pollution Control Act.

2. EPA’s Support and Acceptance of “Federal Guidance” During

and After Passage of the 1972 Amendments

As detailed during their consideration by Congress,

the 1972 Amendments were designed to effect two prin-

cipal modifications in the Federal Water Pollution

Control Act.

* Memorandum, John R. Quarles, Jr., Assistant Administrator

for Enforcement and General Counsel, July 1, 1971, Hearings Before

the Subcomm. on Air and Water Pollution of the Senate Comm. on

Public Works, 92d Cong., Ist Sess. 1834-35 (1971).

First, the new legislation proposed ‘‘a major change

in the enforcement mechanism of the federal water

pollution control program from water quality stand-

ards to effluent limits.’’* This change was to he accom-

plished by adopting and codifying the approach of flex-

ible technology ‘‘guidelines’’ established administra-

tively by EPA under the Refuse Act permit program.

Second, Congress intended to accomplish an ‘‘or-

derly transfer of permit authority from the Environ-

mental Protection Agency to the States”’ as ‘‘rapidly

as they develop approved programs.’’ 1 Leg. Hist. 363,

2 Leg. Hist. 1305. This ‘transfer of permit authority”’

‘“‘to the States’ reflected Congress’ recognition that

‘*Ti]t is impossible for the Federal Government to suc-

ceed in this program without the close and active co-

operation of the States.’? H.R. Rep. No. 92-911, 92d

Cong., 2d Sess. 125 (1972), 1 Leg. Hist. 812. Indeed,

without ‘‘meaningful local and State participation,”’

rather than ‘‘a Federal dictatorship,’’ Congress en-

visioned that ‘‘the program will founder on the rocks

of the generally inflexible[,] Washington dictated ap-

proach.’’ 1 Leg. Hist. 355.

Consequently, EPA consistently supported legisla-

tion calling for the issuance of ‘‘ Federal guidance’”’ to

State permit authorities for setting individual plant

effluent limitations in the permit-issuing process. As

explained by then EPA Administrator Ruckelshaus

to the Senate Air and Water Pollution Subcommittee,

® See S. Rep. No. 92-414, 92d Cong., Ist Sess. 7 (1971), 2 Leg.

Hist. 1425; EPA v. California ez. rel. State Water Resources Con-

trol Bd., 44 U.S.L.W. 4781, 4782 (June 7, 1976).

Citations to ‘‘Leg. Hist.’’ refer to the two-volume Committee

Print entitled ‘‘A Legislative History of the Water Pollution Con-

trol Act Amendments of 1972,’’ 93d Cong., 1st Sess. (1973).

‘“*[wle believe that such Federal guidance is espe-

cially important in the area of effluent limitations.

This concept is new in the law. It would be diffi-

cult and needlessly duplicative for each State to

gather all the scientific, industrial, and technolog-

tcal tnformation upon which effluent limitations

must be based. Federal leadership must be provid-

ed here so that the States, in setting effluent limi-

tations, have a clear idea of the task.’’*

Accordingly, at EPA’s urging, Congress adopted

amendments to the Act which expressly require EPA

to promulgate ‘‘regulations providing guidelines for

effluent limitations.’’ As interpreted by Administrator

Ruckelshaus after the passage of the Act, these guide-

lines incorporated the flexible ‘‘Federal guidance”’

favored by EPA:

“(E]very plant involves individual factors which

differentiate it from others and directly affect

what would be the best practicable control tech-

nology for that plant. EPA's guidelines will pro-

vide the most comprehensive effort ever made on

a national basis to provide information with re-

spect to industrial waste control technology. How-

ever, to do the job on specific plants will take the

full-time efforts of hundreds of Federal and State

pollution control people, working as a team... .

The EPA guidelines . . . will not be the final an-

swer to pollution control questions.’

Implicit in this flexible ‘“‘guidélines’’ approach was

Congress’ recognition that EPA could not possibly es-

tablish equitable, single-number discharge standards

* Hearings Before the Subcomm. on Air and Water Pollution of

the Senate Comm. on Public Works, 92d Cong., 1st Sess. 19 (1971).

*° Remarks of Administrator Ruckelshaus, Annual Meeting of Pol-

lution Control Federation (October 11, 1972), reprinted in 45 J.

Water Potiut. Conrrou Fen. 1, 2 (1973).

for mechanical application to all existing plants in a

given industry. EPA’s then Assistant Administrator

for Enforcement Quarles, the official with principal

responsibility for administering the permit program,

explained this point as follows:

“The key to most of the puzzles concerning the

policies row. follow in this area is that specific

determinations as to application of best practicable

control technology currently available can only

be made on a plant-by-plant basis. There 1s no way

that anyowe can sit in Washington and prepare a

document that will specify effluent limitations that

should be attained at numerous plants across the

country.”*™

Followin ssage of the Act, EPA immediately be-

gan to ar enn. tree Sarre the flexible ‘Federal

guidance’? approach mandated by Congress. Early in

1973, EPA promulgated interim ‘“‘Guidance’’ docu-

ments which set forth a range of feasible discharge

levels and specified variable factors for each industry

to assist in establishing individual plant permit condi-

tions under the new State/federal permit program.”

11 Address of John R. Quarles, Jr., to an EPA-Manufacturing

Chemists Association Symposium, September 13, 1972. Deputy Ad-

ministrator Quarles’ remarks echo Administrator Ruckelshaus’ com-

parable admission ‘‘that there is no way anyone in Washington can

properly prepare a document that specifies the effluent limitations

for all the tens of thousands of plants across the country.’’ 45

J. Water Potiur. Conrrou Fen. 1, 2 (1973).

12 The ‘‘Petroleum Refining Guidance’’ document expressly ac-

knowledged that circumstances ‘‘ will vary widely among individual

refineries,’ and, accordingly, identified a range of feasible dis-

charge levels as well as a host of specific ‘‘factors’’ (¢.9-, “‘avail-

ability of land,’’ ‘‘types of crude oils,’’ “refinery age,”’ ‘ climate

and geographic location’’) to guide the exercise of professional

judgment by the permit-issuing authorities. See also Pet. Br. 14-15.

Simultaneously, EPA set about the task of updating

and improving its guidance to permit authorities in

light of the requirements of the 1972 Amendments. In

this connection, EPA published Requests for Propo-

sal for all major industrial categories, soliciting bids

from engineering contractors for studies which would

‘‘identify the range of control and treatment technol-

logy within each industrial category and subeategory.”’

See Pet. Br. 14. Like EPA’s “‘Guidance’’ documents,

these Requests for Proposal reflected EPA’s recogni-

tion of the hazards of a ‘‘generally inflexible[,]

Washington-dictated approach”’ as well as the im-

possibility of preparing ‘‘a document that will specify

the effluent limitations that should be attained at

numerous plants across the country.’’ See pp. 7-11,

supra.

Specifically, EPA acknowledged that the Act con-

templates ‘‘a range of technology,’’ and that ‘‘efluent

limitations consistent with the application of such tech-

nology will also vary.’’ Accordingly, EPA directed po-

tential contractors to ‘‘[l]ist the factors which should

be taken into account in determining Level I and Level

II control technology for particular plants and con-

sequently in determining permissible effluent levels for

such plants.’’ See also Pet. Br. 14.

If EPA had continued to follow the flexible ‘‘Fed-

eral guidance’’ approach adopted by Congress and

largely reflected in EPA’s own Guidance documents

and Requests for Proposal, many of the difficulties giv-

ing rise to the avalanche of more than two hundred

lawsuits challenging EPA’s implementation of the 1972

Amendments might never have occurred. Notwith-

standing this early, faithful implementation of Con-

gress’ intent, however, EPA decided late in 1973 to

abandon the statutory ‘‘guidelines’’ approach, and

instead to promulgate rigid, single-number discharge

standards to be ‘‘cranked mechanically’’ by the States

into individual plant permits.

3. EPA’s Expedient Abandonment oi the Statutory Guidelines

and Promulgation of Rigid Discharge Standards Which Revoke

the States’ Primary Role Under the Permit Program

The full story behind EPA’s decision to discard Con-

gress’ flexible technology guidelines and to opt in-

stead for rigid, single-number discharge standards may

never be known. See Pet. Br. 15-22. However, this

much is cleaar—EPA acted not on the basis of what

was realistic for widely disparate existing facilities or

sound from a technical standpoint, but on the basis of

short-run expediency in the face of litigation by en-

vironmental groups designed to repeal ‘‘meaningful

local and state participation’? and to resurrect the

‘‘Federal dictatorship’’ approach rejected by Con-

gress. See pp. 8-13, supra.

In particular, the Natural Resources Defense Coun-

cil (““NRDC’’) threatened to file suit in April 1973

if EPA did not publish guidelines for industrial cate-

gories by October 1973 and issue permits for all point

sources by December 31, 1974. Although these dead-

lines were completely unrealistic for EPA to do an

adequate professional job of promulgating meaningful

guidelines and issuing permits, NRDC nonetheless filed

suit in August 1973 against EPA in the United States

District Court for the District of Columbia.

Three months later, without appareut perception of

the far-reaching consequences for EPA and the many

affected industries, the district court entered an order

compelling EPA to publish industry-by-industry regu-

lations at approximately one-week intervals extending

from January 15, 1974 through November 29, 1974.”

This timetable proved unachievable and, even now,

EPA has not issued regulations for all the industries

specified by the district court. See Pet. Br. 17 n.25.

Under these circumstances, the district court’s order

became an excuse for EPA to disregard the Act and

repeal the States’ prescribed ‘‘primary”’ role in the

permit program. Hence, confronted with unworkable

deadlines for the promulgation of guidelines and issu-

ance of permits, EPA short-circuited the statutory

guidelines by issuance of binding, single-number dis-

charge standards, ostensibly because EPA believed the

States would be too ‘‘lax’’ in formulating permits

taking account of the diverse, local circumstances of

individual existing plants. R. 6500-04; Pet. Br. 19.

The first hint of EPA’s switch to rigid, existing plant

standards was signalled in August 1973 when EPA

coined the expression ‘‘effluent limitations guidelines,’’

appearing nowhere in the Act, to describe the regula-

tions which it planned to issue for existing sources.

38 Fed. Reg. 21202 (1973). Publication of proposed

regulations for many industries later in 1973 revealed

the purpose of EPA’s expression ‘‘effluent limitations

guidelines’’ used to describe its existing plant regula-

tions—specifically, EPA intended to ignore the guid-

ance step altogether and issue rigid existing plant

standards identical in form and format to the new

plant standards expressly called for in Section 306 of

the Act.

48 Natural Resources Defense Council v. Train, 6 ERC 1033

(D.D.C. 1973), rev’d in part and remanded, 510 F.2d 692 (D.C.

Cir. 1975).

As an aftexthought, most likely to shore up its posi-

tion in upeoming litigation challenging its so-called

‘effluent limitations guidelines,’’ EPA included in its

final regulations a previously unproposed ‘‘ variance

procedure,’’ ostensibly designed to permit departure

from EPA’s 1977 ‘‘effluent limitations guidelines’’ for

‘‘certain plants’’ within each industrial category. How-

ever, because EPA purported to consider even plant-

specific factors such as size, age, and manufacturing

processes in developing its regulations, the ‘‘variance

procedure,’’ which applies only to factors ‘‘fundamen-

tally different from the factors considered in the es-

tablishment of the guidelines,’’ has little, if any, prac-

tical significance.

Consequently, EPA’s ‘‘effluent limitations guide-

lines’’ violated the Agency’s own basic maxim that

‘“*(t]here is no way anyone ean sit in Washington”’ and

set ‘‘effluent limitations that should be attained at nu-

merous plants across the country.’’ For stripped of the

so-called ‘‘variance procedure’”’ which has never actual-

ly provided individual plant flexibility, EPA’s ‘‘efflu-

ent limitations guidelines’’ amount to rigid across-the-

board standards which deprive State permit-issuing

authorities of the plant-by-plant discretion intended

by Congress in the 1972 Amendments.

This fundamental rigidity of EPA’s ‘effluent limi-

tations guidelines’’ has been consistently criticized by

the scientific and technical community. For example,

the Effluent Standards and Water Quality Information

Advisory Committee (““ES&WQIAOC’’), which Con-

gress chartered under Section 515 of the Act to ‘‘pro-

vide, assess and evaluate scientific and technical infor-

mation’’ and to oversee EPA development of Section

304(b) guidelines, has repeatedly warned EPA against

procrustean standards that ignore the widely dispar-

ate circumstances of individual existing plants.

On this basis, ES&@WQIAC condemned EPA’s “‘efflu-

ent limitations guidelines’’ as “arbitrarily established

inflexible standards” which give minimal consideration

to “great differences in individual facilities among

generic industries with regard to raw waste load, size

of plant, age and type of process equipment now oper-

ating in a given plant, and climatic and geographic

location factors.’’“* Indeed, the statutory scientific

committee two years ago foresaw that ‘‘[m]ost effluent

limitations guidelines ... can be met only under certain

controlled, perfect conditions... .’’”

Rather than straitjacket industry with ‘‘arbitrar-

ily established inflexible standards,’””’ ES&WQIAC

forcefully recommended that EPA return to the statu-

tory ‘‘guidelines’’ approach. Thus, according to the

statutory committee, ‘“‘[r]ather than set one number

as an effluent limitation to be met by all plants within

an industry,’’ technically sound guidelines promul-

gated by EPA ‘should establish a range of lim-

Seis

In short, as officially reviewed by ES&WQIAC,

EPA’s “‘effluent limitations guidelines’’ are ‘‘unscien-

tifie’’ since they disregard ‘‘great differences in indi-

vidual facilities’? which could have been accounted for

had EPA promulgated ‘‘guidelines’’ establishing a

‘‘range of limits.’? As perceived by this authoritative

14 BNA ENVIRONMENT REPORTER, CURRENT DEVELOPMENTS, p. 855

(September 28, 1973).

15 BNA ENVIRONMENT REPORTER, CURRENT DEVELOPMENTS, p. 1481

(March 8, 1974).

16 Td.

ES&WQTAC evaluation, the short-term administrative

expediency which prompted EPA’s decision to forego

the issuance of legally valid guidelines will inevitably

prove enormously wasteful and counterproductive to

efficient and lasting pollution control progress.

ARGUMENT

I. SECTION 304(b) REQUIRES EPA TO ISSUE, NOT RIGID

EXISTING PLANT STANDARDS, BUT RATHER FLEXIBLE

“GUIDELINES” FOR TAILORING EFFLUENT LIMITATIONS

TO THE CIRCUMSTANCES OF INDIVIDUAL PLANTS IN

THE PERMIT-ISSUING PROCESS.

Seven courts of appeals have now rendered nine sep-

arate opinions dealing with EPA’s construction and

implementation of Sections 301(b) and 304(b) of the

Act.” Three separate and distinct issues emerge from

these several opinions: (i) which court or courts have

jurisdiction to review EPA’s existing plant regula-

tions; (ii) whether EPA is authorized to issue effluent

limitations by regulation under Section 301(b) of the

Act; and (iii) what is the proper role and required for-

mat of the ‘‘guidelines for effluent limitations’? man-

dated by Section 304(b) of the Act.

Although these distinct questions have unfortunate-

ly tended to merge in the various court opinions, only

the last issue, namely the purpose and content of See-

tion 304(b) ‘‘guidelines for effluent limitations,”’ crit-

ically affects the degree of discretion afforded State

and EPA permit-issuance authorities to provide flexi-

bly for disparate existing plant circumstances in in-

dividual discharge permits.

** American Petroleum Institute v. Train, 526 F.2d 1343 (10th

Cir. 1975) (‘‘API’’) ; American Iron & Steel Institute v. EPA, 526

F.2d 1027 (3d Cir. 1975) (‘‘AISI’’); Natural Resources Defense

Council v. EPA, 8 ERC 1988 (2d Cir. 1976) (‘‘NRDC’’). See also

cases cited at p. 2 n.2, supra; du Pont I, p.3, supra.

For example, the issue of court of appeals’ jurisdic-

tion to review EPA’s regulations may be resolved inde-

pendently of both EPA’s purported authority to issue

effluent limitations by regulation under Section 301 and

the required content of ‘‘guidelines for effluent limita-

tions’’ under Section 304(b). As the Tenth Circuit ex-

plained in API, supra, the ‘‘[e]xistence of jurisdic-

tion must not be confused with the exercise of that

jurisdiction,’’ and, regardless of the ‘‘validity or in-

validity’? of the Administrator’s action, jurisdiction

here ‘‘is incident to a federal statute granting the right

to an interested person within the circuit to file a peti-

tion in the court of appeals to review agency action.”’

526 F.2d at 1345. Accord, du Pont I, supra, 528 F.2d at

1141."

18 Amicus accepts the existence of court of appeals’ jurisdiction

under Section 509(b) (1) (E) on the theory that, whatever else they

are, EPA’s ‘‘effluent limitations guidelines’’ constitute an ‘‘action

of the Administrator’’ in ‘‘approving or promulgating’’ effluent

limitations implemented in individual plant permits. However, any

ruling by this Court that review jurisdiction lies erclusively in the

courts of appeals might nullify several actions pending in the dis-

trict courts and impose hardships on industries forced to reinstitute

review acticns in the courts of appeals on the eve of the July 1,

1977 statutory deadline. See Grain Processing Corp. v. Train, 407

F. Supp. 96 (S.D. Iowa 1976), appeal pending, No. 76-1233 (8th

Cir.) ; National Renderers Ass’n v. Train, No. 75-0-482 (D. Neb.) ;

American Ass’n of Meat Processors v. Train, No. 75-0-394 (D.

Neb.) ; National Independent Meat Packers Ass’n v. EPA, No.

75-0-369 (D. Neb.).

Accordingly, this Court might hold such suits to have been

properly instituted in the district courts if they allege actions ‘‘in

excess of [EPA’s] delegated powers and contrary to a specific pro-

hibition in the Act.’’ Leedom v. Kyne, 358 U.S. 184, 189 (1958).

See H.R. Rep. No. 92-211, 92d Cong., 2d Sess. 136 (1972), 1 Leg.

Hist. 823 (‘‘[T]he inelusion of section 509 is not intended to ex-

elude judicial review under other provisions of the legislation that

are otherwise permitted by law.’’). Similarly, the Court might

validate jurisdiction over petitions initially instituted in the courts

Likewise, the role of Section 304(b) ‘‘guidelines for

effluent limitations’’ in the permit program is not re-

solved even if EPA were authorized to issue effluent

limitations by regulation. For as held by the Third Cir-

cuit in AISI, supra, even if Section 301(b) empowers

EPA to issue effluent limitations as a ‘‘ceiling’’ to the

guidelines ‘‘range,’’ this still would not dispense with

the independent Section 304(b) requirement that EPA

also issue ‘‘guidelines for effluent limitations’? which

provide ‘‘guidance to the permit-issuing authorities

as to what factors to consider or how to set the partic-

ular discharge level within a feasible range... .’’ 526

F.2d at 1045-46.

Accordingly, this amicus curiae brief presents a co-

ordinated reading of Sections 301, 304 and other pro-

visions of the Act, which focuses on the central ques-

tion of how Congress intended to accommodate the

widely varying circumstances of individual existing

plants under the Section 402 State/federal permit pro-

gram. As we shall show, Congress contemplated that

EPA would provide admittedly needed flexibility

through the issuance of ‘‘ guidelines for effluent limita-

tions’? which ‘‘identify’’ a ‘‘range’’ of feasible dis-

of appeals as pendent to actions to review EPA’s new source stand-

ards of performance. See Pet. Br. 94-96.

Alternatively, the Court might restrict to prospective application

only any ruling that review jurisdiction lies exclusively in either

the courts of appeals or district courts. See, e.g., Chevron Oil Co.

v. Huson, 404 U.S. 97, 106-07 (1971); Allen v. State Bd. of Elec-

tions, 393 U.S. 544, 571-72 (1969) (‘‘prospective effect’’ only given

to jurisdictional ruling where ‘‘questions involve complex issues of

first impression—issues subject to rational disagreement’’) ; Eng-

land v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411,

422-23 (1964) (applying ruling prospectively after finding peti-

tioners’ submission of case to wrong court not an ‘‘unreasonable’’

misinterpretation of earlier Court decisions).

charge levels and ‘“‘specify factors’’ for use by State

and EPA permit-issuance authorities in tailoring

permit conditions to the particular circumstances of

individual existing plants.

A. In Contrast to Section 301(b), Which Does Not Authorize the

Issuance of Any Regulations, Section 304(b) Expressly Re

quires EPA Promulgation of “Regulations, Providing Guide-

lines for Effluent Limitations” Which “Identify” the “Degree

of Effluent Reduction Attainable” and “Specify Factors to Be

Taken into Account” in the Permit-Issuing Process.

From the beginning, EPA has justified its issuance

of so-called ‘‘effluent limitations guidelines’’ on a pur-

ported authority to issue nationwide effluent limita-

tions under Section 301(b) of the Act. Although the

courts have strained to find such authority in Section

301(b), they have invariably been forced to rely upon

the Administrator’s Section 501(a) power ‘‘to pre-

scribe such regulations as are necessary to carry out his

functions under this Act.’’ See, e.g., AISI, supra, 526

F.2d at 1039; AMI, supra, 526 F.2d at 449; du Pont II,

supra, 8 ERC at 1721.

But reliance on Section 501(a) begs rather than an-

swers the threshold question of whether EPA issuance

of single-number existing plant standards is even con-

sistent with, much less ‘‘necessary’’ for the Adminis-

trator ‘‘to carry out his functions under this Act.’’

The scope of EPA’s role in this area depends upon

Section 304(b), which spells out, rather than leaves to

iinplication, the Administrator’s ‘‘functions’”’ in con-

trolling existing source pollution. As we shall show,

this provision contemplates, not across-the-board stand-

ards, but ‘‘guidance’’ to the States by regulations

identifying a ‘‘range’’ of feasible discharge levels and

4 |

‘specifying factors’’ to be taken into account by per-

mit-issuance authorities in formulating individual

plant effluent limitations.

The place to begin any statutory interpretation is

with the text of the Act. The simple fact is that

‘*[n jothing is said in § 301 about regulations.’’ du Pont

II, supra, 8 ERC at 1721. Rather, Section 301(b)

merely ‘‘sets up specified goals for July 1, 1977 and

July 1, 1983’’ to be ‘‘achieved”’ through ‘‘limitations’”’

which ‘‘require application of the control technology

established by the Administrator under § 304.’’ API,

supra, 526 F.2d at 1345.

Irrespective of any supplemental regulatory author-

ity under Section 501(a), the EPA ‘‘Administrator

not only has the power, but the explicit obligation to

promulgate ‘guidelines’ under Section 304.”’ AISI,

supra, 526 F.2d at 1042. Even a cursory reading of the

requirements of Section 304(b) shows that Congress

intended EPA to issue regulations providing for more

detailed guidance, and affording far greater discre-

tion for State and EPA permit-issuance authorities,

than provided by the single-number ‘“‘effluent limita-

tions guidelines’’ actually promulgated by EPA.

As captioned in the official version of the 1972

Amendments, the whole purpose of Section 304 is to

provide ‘‘information and guidelines’’ so that State

and federal officials can carry out their responsibilities

under the Act. 1 Leg. Hist. 37. Consistent with this

1° Throughout Congressional consideration of the 1972 Amend-

ments, EPA consistently viewed and referred to Section 304 as

restricted to ‘‘information requirements.’’ See, e.g., Letter of Ad-

ministrator Ruckelshaus to John A. Blatnik, Chairman, Committee

on Public Works, dated December 13, 1971, 1 Leg. Hist. 845.

objective, Section 304(b) specifies ‘‘ guidelines for efflu-

ent limitations’? with the obvious intent that such

‘guidelines’? were not themselves ‘‘limitations’’ but

were for the purpose of setting effluent limitations. And

plainly such guidelines are for the permit-issuing au-

thorities, not EPA, since it is ‘‘clearly an illogical in-

terpretation’’ for EPA to argue that ‘‘the Adminis-

trator is required to promulgate guidelines for broad

categories or classes which are to guide himself in set-

ting precise limitations for specific point sources.’’

AISI, supra, 526 F.2d at 1042 (emphasis in original).

This is amply demonstrated by the text of Sections

304(b) (1) (A) and (B) of the Act which provides that

‘*guidelines for effluent limitations’’ shall:

‘identify, in terms of amounts of constituents and

chemical, physical, and biological characteristics

of pollutants, the degree of effluent reduction at-

tainable . . . for classes and categories of point

sources....”’

Notwithstanding criticisms of the Act as a ‘‘poorly

drafted and astonishingly imprecise statute,’’ du Pont

IT, supra, 8 ERC at 1721, Congress was careful in this

provision to employ terms emphasizing flexibility so

that EPA would set a range of feasible discharge lev-

els. Therefore, the statute requires EPA not to set a

specific discharge number, but to identify or categorize

the degree or scope of effluent reduction attainable.

Congress underscored that a range of discharge levels

would be identified by use of the plural term

“‘amounts,’’ and by calling for descriptive information

regarding the ‘‘chemical, physical and biological char-

acteristics of pollutants.’’ See Grain Processing, supra,

407 F.. Supp. at 103-04.

Any doubt that these terms indicate Congress’ desire

that EPA promulgate a ‘‘range’’ of feasible discharge

levels rather than inflexible single-number limits is

removed by the remaining tex. of Section 304(b). Thus,

Congress in the second sentence of Sections 304(b) (1)

(B) and (b)(2)(B) required EPA to consider a host

of general factors on an industry-wide basis when iden-

tifying the range of discharge levels feasible for each

industry category and subcategory.

The balance of the text in those sections proves that

Congress intended much more than mere industry-

wide consideration of factors in developing ‘‘ guidelines

for effluent limitations.’’ For Congress recognized that

the most important factors (including plant age, proc-

esses, process engineering problems and the like) would

differ from industry to industry, and also from plant

to plant within each industrial category.

To account for this variation, the first sentence of

Section 304(b)(1)(B) provides that ‘‘guidelines for

effluent limitations’’ ‘‘shall’’:

‘*snecify factors to be taken into account in deter-

mining the control measures . . . to be applicable

to point sources . . . within such categories or

classes.”’

A virtually identical provision is contained in Section

304(b)(2)(B) relating to ‘‘ guidelines for effluent limi-

tations’’ to achieve the Act’s 1983 goal.

As held by the Third Circuit in AJ STI, this provision

in Sections 304(b)(1)(B) and (b)(2)(B) ‘clearly

contemplates that the guidelines promulgated by the

Administrator ...are to provide guidance to those au-

thorities (presumably, the permit grantors) which de-

termine the precise degree of effluent control required

of any individual point source.’’ 526 F.2d at 1042. Ac-

cord, Grain Processing, supra, 407 F. Supp. at 104.

Hence, Congress expressly mandated that EPA

‘‘shall’”’ ‘‘specify factors’’ which would be most impor-

tant for each industry, and purposely employed the fu-

ture tense, ‘‘to be taken into account,” as a means of

emphasizing that such factors were for future use by

permit authorities in establishing precise effluent lim-

itations for discrete ‘‘ point sources’’ within the indus-

trial category. In the Third Circuit’s words, this pro-

vision can only be construed as meaning that ‘‘consid-

eration of the enumerated factors was to be made by

the permit grantors on a plant-by-plant basis.’’ AJSIJ,

supra, 526 F.2d at 1043.

In short, the express statutory requirement that EPA

‘‘snecify factors’”’ in the ‘‘guidelines’”’ reaffirms both

Congress’ direction that EPA identify a “‘range’’ of

levels (for otherwise it would make little sense to ‘‘spe-

eify factors’), and Congress’ prohibition of rigid

standards for existing plants (which would likewise

make specification of ‘‘factors’’ redundant). By the

coordinate requirements that EPA identify a ‘‘range’’

of feasible levels and ‘‘specify factors’’ to be considered

by permit authorities in selecting individual plant efflu-

ent limitations from the ‘‘range,’’ Congress thus pro-

vided a workable middle ground between de novo devel-

opment of individual plant effluent limitations on one

hand, and unbending, procrustean national standards

on the other.

B. Over and Above the Specific Text oi Section 304(b), the Entire

Statutory Scheme Deliberately Distinguishes Between New

Sources, Which Are Subject to “Across-the-Board” National

Standards, and Existing Sources, Which Are to Be Controlled

by Guidelines for Use in the State/Federal Permit Program.

Apart from the specific text of Section 304(b) de-

tailed above, an overall reading of Title III of the Act

reaffirms Congress’ intention that EPA regulate exist-

ing plants, not by across-the-board national standards,

but much more flexibly through the issuance of guide-

lines for finalizing effluent limitations in the permit-

issuing process.

First, Congress’ omission of any authority to issue

nationwide standards for existing sources plainly ‘‘was

not oversight, for Congress provided unambiguously

for the promulgation of national standards in other

sections of the Act.’’ CPC Int’l, supra, 515 F.2d at

1038. Specifically, as the Eighth Circuit explained in

CPC Int’l, ‘‘[nJationally promulgated standards were

expressly mandated for new sources in §306(b) (1)

(B), for toxie discharges in § 307(a) (2), and for pre-

treatment standards in §307(b) and (c).’’ Id. (foot-

note omitted).

Moreover, the statutory text of each of these provi-

sions demonstrates that Congress consistently used

the term “‘standards’’ when it intended EPA to pro-

mulgate fixed, across-the-board restrictions by regula-

tion. Thus, Congress did four things in providing for

national standards in these areas:

**(1) it used the term ‘‘standards,”’ a word which

takes on a ial meaning because of its use under

the Act; ( 3) it coqeeey. rovided that the stand-

ards were to be published by regulation; (3) it put

deadlines on the process, requiring that the Ad-

ministrator publish the standards within a fixed

period of time; and (4) it provided that standards

were to be enforceable independently of the permit

system. See §306(e) ; §307(d).”’ Id.

Since none of these elements exists in the regulatory

scheme established by Congress for existing sources,

EPA’s promulgation of rigid, across-the-board stand-

ards under the guise of so-called ‘‘effluent limitations

guidelines” is prima facie unlawful and in violation of

the overall Congressional plan.

The fundamental illegality of EPA’s use of the same

regulatory format for both new and existing plants is

confirmed by a closer review of the separate and con-

trasting statutory provisions for new and ezisting

sources.” For new sourees, Section 306(b) explicitly

mandates the issuance of fixed ‘‘standards of perform-

ance’’ by ‘‘regulations’’ designed to be ‘‘national’’ in

scope. By contrast, Section 301 never once mentions

standards, much less the issuance of standards by regu-

lations subject to a statutory deadline and made en-

2° EPA has yet to reconcile the express provision for nationwide

standards by regulation in Sections 306, 307(a), (b) and (ec) with

the conspicuous omission of any authority for the issuance of regu-

lations under Section 301. The Seventh Circuit in the AMI case

would paper over this gaping hole in EPA’s position by suggesting

that ‘‘Section 316(b)’s reference to ‘[a]ny standard established

pursuant to section 301’ tends to undermine’’ the Eighth Circuit’s

analysis in CPC Int’l. See AMI, supra, 526 F.2d at 450 n.17.

But use of the expression ‘‘standard’’ in Section 316 is easily

reconciled by reference to Section 301(b)(1)(A) (ii), which pro-

vides for the achievement by 1977 of ‘‘applicable pretreatment re-

quirements and any other requirement under section 307.’’ See also

Section 301(b) (2)(A) (ii). Established pursuant to this provision

of Section 301, of course, are the pretreatment standards of Sec-

tions 307(b) and (c), thereby explaining the mention of ‘‘stand-

ard’’ in Section 316(b).

forceable independently of the permit program. Com-

pare Section 306(e).”

Congress’ use of the term ‘‘standards”’ to designate

across-the-board regulations applicable nationwide is

confirmed by the legislative history which shows that

Section 306 ‘‘standards shall be applicable to any new

source regardless of where it is constructed,’’ and that

‘‘the Administrator must set the standard at a particu-

lar volume of effluent or a particular percentage of ef-

fluent reduction.’’* This explicit requirement of bind-

ing, nationwide standards for new sources contrasts

with the Section 301 references to ‘‘effluent limita-

tion,’’ defined by the Act to include ‘‘schedules of

compliance’’ which, by their nature, can be estab-

lished only in the context of an individual discharge

permit. See Section 502(11).”

*1 Significantly, Congress used the term ‘‘standards’’ no fewer

than nineteen times in Section 306, relating to new plants, but

never once mentioned ‘‘standards’’ in either Section 301 or 304,

applicable to existing plants.

#2 H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 110 (1972), 1 Leg.

Hist. 797; S. Rep. No. 92-414, 92d Cong., 1st Sess. 59 (1971), 2

Leg. Hist. 1477. Comparable legislative history demonstrates that

other statutory provisions calling for the issuance of standards

similarly contemplate the issuance of across-the-board nationwide

restrictions by regulation. See, e.g., Section 307(a) (‘‘toxic effluent

standards’’) ; H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 159 (1972),

1 Leg. Hist. 846 (referring to ‘‘Federal effluent standards and

prohibitions for toxic substances’’); Section 307(b) (‘‘pretreat-

ment standards’’); Conr. Rep. No. 92-1236, 92d Cong., 2d Sess.

129 (1972), 1 Leg. Hist. 321 (referring to ‘‘national pre-treatment

standards’’).

*3 The expression ‘‘standards’’ in Section 306 is derived from the

analogous provision for new emission source ‘‘standards of per-

formance’’ under Section 111 of the Clean Air Act, 42 US.C.

§ 1857c-6. See EPA v. California ex rel. State Water Resources

Control Bd., supra n.8, 44 U.S.L.W. at 4783-84 (noting the ‘‘strong

Congress’ rationale for requiring nationwide, single-

number ‘‘standards’’ for new but not for existing

sources is set forth in the legislative history. Thus,

as detailed by the Eighth Circuit, the ‘‘separate

regulatory schemes for new and for existing point

sources’’ established in the Act reflect the ‘‘contrasting

policies applicable to plants to be constructed in the

future and those already in place.’’ CPC Int’l, supra,

515 F.2d at 1038 n.13.

It was this basic difference between ‘‘plants to be

constructed in the future and those already in place’’

which prompted Administrator Train (then Chairman

of the Council on Environmental Quality) to recom-

mend ‘‘across-the-board”’ standards for new as opposed

to existing plants:

‘* Across-the-board requirements can be justified

for new plants, since they have many options in

terms of processes, inputs and the like, which is

not the case for existing facilities.’’ Hearings on

H.R. 11896 Before the House Public Works

Comm., 92d Cong., 2d Sess. 201 (1972), 2 Leg.

Hist. 1115."

structural and terminological similarities between the Clean Air

Act and the 1972 Water Pollution Control Act Amendments’’).

The national, across-the-board ‘‘standards’’ contemplated by

this Clean Air Act new source provision likewise stand in marked

contrast to the flexible existing source controls of Section 110, re-

cently discussed and explicated by this Court in Train v. NRDC,

421 U.S. 60 (1975). See also Hancock v. Train, 44 U.S.L.W. 4767,

4774 (June 7, 1976) (accepting Congress’ distinction between the

regulation of new and existing sources under the Clean Air Act

but holding that this distinction alone failed to provide ‘‘clear and

unambiguous congressional authorization’’ of State permits for

federal facilities under Section 110 of the Act.)

24 Senator Muskie made much the same point in an Exhibit con-

taining his personal views on ‘‘significant provisions of the bill,’’

Illustrative of the many ‘‘options’’ available to new

plants are production process changes which cannot be

accomplished by plants already in place:

‘‘The Conference [Section 306] substitute requires

establishment of a regulatory mechanism for new

sources which anticipates not only that level of

effluent reduction which can be achieved by the

application of technology (including where prac-

ticable elimination of the discharge of pollutants),

but also the achievement of levels of pollution con-

trol which are available through the use of im-

proved production processes, taking into consid-

eration the cost of achieving such effluent reduc-

tion.’’ Conr. Rep. No. 92-1236, 92d Cong., 2d Sess.

128 (1972), 1 Leg. Hist. 311.”

Over and above ‘“‘improved production processes”’

which are generally available only to new sources, the

House Committee stressed the much greater and high-

ly variable costs of pollution reduction for plants al-

ready in place when compared with plants newly built

presented during Senate debate on the House-Senate Conference

Report :

**[PJollution control alternatives are available to a new source

which are not available to existing sources.

“*It may be that in most instances, the technology for elimina-

tion of discharge of pollutants from new sources can be achieved

on a considerably more reasonable basis than for existing

sources.’’ 1 Leg. Hist. 172.

2° The Conference substitute follows the Senate bill and House

amendment except for the deletion of Section 306(b)(1)(C), a

provision which would have permitted ‘‘appropriate adjustments’’

from an applicable standard of performance ‘‘upon application

from any owner or operator of any source.’’ 1 Leg. Hist. 311, 2

Leg. Hist. 1626-27. The elimination of this provision again under-

scores that Congress intended standards of performance to apply

Beg the-board’’ to all new sources. See Pet. Br. in Nos. 75-1473,

from scratch. Thus, the Committee’s Report stresses

that ‘‘across-the-board new source standards are

strongly supported by:

«|. . the significantly lower expense of attaining

a given level of effluent control in a new facility

as compared to the future cost of retrofitting a

facility to meet stringent water pollution control

measures.’’ H.R. Rep. No. 92-911, 92d Cong., 2d

Sess. 110 (1972), 1 Leg. Hist. 797.

This explicit Congressional acknowledgment of the

disproportionate costs and potential economic dislo-

cation of ‘‘retrofitting’’ existing plants demonstrates

why Congress expressly prescribed ‘‘standards’’ for

new but not for existing sources. For when the ‘‘many

options”’ available to new plants not yet designed and

built are compared to the high and variable costs of

‘‘retrofitting’’ existing plants already in place, the ra-

tional legislative choice was to phase in new technology

for existing plants by stages in 1977 and 1983 through

Section 304(b) ‘‘guidelines’’ implemented flexibly

through individual discharge permits, taking into ac-

count the widely varying age, engineering design, proc-

esses, feedstocks, climate and other factors affecting

the pollution control capabilities of each specific plant.

In sum, it was no ‘‘oversight’’ or coincidence that

Congress chose to regulate new and existing sources

under different and sharply contrasting statutory pro-

visions. On the contrary, precisely because of its un-

derstanding of the inherent differences between new

and existing plants, Congress wisely chose to phase

new technology into existing plants, not by across-the-

board standards, but through the ‘‘goals”’ set forth in

Section 301(b), ‘‘to be achieved’’ by flexible Section

304(b) ‘‘guidelines’”’ for finalizing effluent limitations

in the permit-issuing process.

Il. THE LEGISLATIVE HISTORY REAFFIRMS CONGRESS’ IN-

TENTION THAT EPA ISSUE FLEXIBLE “GUIDELINES FOR

EFFLUENT LIMITATIONS,” IDENTIFYING A “RANGE” OF

FEASIBLE DISCHARGE LEVELS AND “SPECIFYING FAC-

TORS” FOR USE IN THE STATE/FEDERAL PERMIT

PROGRAM.

As demonstrated above, the Act makes sense as a

coordinated whole only if EPA is required to regulate

existing sources through the issuance of ‘‘guidance”’

to State and EPA officials for use in the permit pro-

gram. Otherwise, there would be no explanation for:

(i) the ‘‘goals’’ established in Section 301; (ii) the

‘‘guidelines’’ called for in Section 304; (iii) the far

different scheme of new source ‘‘standards of perform-

ance’’ established by Section 306; (iv) the express pro-

vision for the imposition of nationwide toxie and pre-

treatment standards by regulation in Sections 307(a),

(b) and (¢); or (v) even the Section 402 State/federal

permit scheme which would be an exercise in futility

if EPA were authorized to issue across-the-board, en-

forceable existing plant standards by regulation.

Congress’ intent that EPA issue flexible guidelines

for use in the permit program is reaffirmed and ampli-

fied by the legislative history. Hence, as we will show:

(i) the Senate and Conference Committee Reports con-

firm Congress’ enactment of technology guidelines iden-

tifying a ‘‘range”’ and ‘‘specifying factors’”’ for use in

the permit-issuing process; (ii) any other interpreta-

tion would effectively repeal Congress’ ‘“‘transfer of

permit authority”’ so that the States could ‘‘do the

job”’ without ‘‘Federal dictatorship’’; and (iii) rigid,

national standards defeat Congress’ purpose of achiev-

ing genuine ‘‘uniformity’’ of treatment for disparate

existing plants through flexible guidelines and EPA

veto power over individual permits.

A. The Senate and Conference Committee Reports Confirm

Congress’ Enactment of Technology Guidelines Identifying

a “Range” and “Specifying Factors” for Use in the Permit-

Issuing Process.

As previously detailed, the impetus for the ‘‘guide-

lines for effluent limitations’’ eventually included in

Section 304 came principally from EPA, based on the

Agency’s own prior experience with informal technol-

ogy ‘‘guidelines’’ under the Refuse Act permit pro-

gram. See pp. 6-13, supra. This EPA experience

proved the impossibility of reducing ‘‘effluent specifi-

eations’’ to a “‘simple formula computation’’ and

demonstrated that ‘‘[t]here is no way that anyone can

sit in Washington and prepare a document that will

specify effluent limitations that should be attained at

numerous plants across the country.’’ Id. at 8, 11,

supra.

With this Refuse Act permit experience in mind,

EPA supported legislation calling for ‘‘ Federal guid-

ance’’ in the form of “scientific, industrial and tech-

nical information”’ so that ‘‘the States, in setting efflu-

ent limitations,’’ would have ‘‘a clear idea of the task.”’

Id. at 9-10, supra. Consequently, it was always intend-

ed by EPA itself that effluent limitations would be set,

not through regulations promulgated by EPA, but ‘‘by

means of the permits issued under Title IV”’ of the

Act.”

26 Administrator Ruckelshaus stressed this very point in a letter

to Chairman Blatnik of the House Public Works Committee:

‘‘Effluent limitations required by Section 301 would be estab-

lished and applied to all point sources ... by means of the

permits issued under Title IV.

‘‘We favor the approach whereby effluent limitations would

Against this background, Congress acknowledged the

impossibility of translating available technology into

single-number discharge standards for all existing

plants, and accordingly accepted the need for flexible

guidelines sv that ‘‘specific effluent limitations for each

industrial source’’ could be established ‘‘through the

permit program.’’ As the Senate Committee put it:

_ “Unfortunately, . . . little has been done to iden-

tify for industry the exact meaning, on a plant-by-

plant bass, of the equivalent of secondary treat-

ment. Through the permit program established

under section 402, with the help of those States

which have effective programs, the Administrator

and the States can and should . . . be able to apply

specific effluent limitations for each industrial

source.’’ S. Rep. No. 92-414, 92d Cong., 1st Sess.

44 (1971), 2 Leg. Hist. 1462.

Amplifying this point, the Senate Report further

explained that the ‘“‘ guidelines for effluent limitations”’

provided in Section 304(b) would allow specific per-

mit conditions to be established ‘‘for each industrial

source,’’ based on EPA’s establishment of a ‘‘range”’

of feasible levels for the entire industry:

‘The Administrator should establish the range

of best practicable levels based upon the average

of the best existing performance by plants of vari-

ous sizes, ages, and unit processes within each

industrial category.’’ S. Rep. No. 92-414, 92d Cong.

Ist Sess. 50 (1971), 2 Leg. Hist. 1468.2

be applied to dischargers through a permit mechanism.’’ 1

Hist. 844. See also CPC Int’l, supra, 515 F.2d at 1000-40,

*" Similarly, regarding the 1983 goal set forth in Section 301,

the same Report stressed the requirement that EPA establish a

‘‘range’’ of feasible discharge levels:

‘‘In making the determination of ‘best available’ the Com-

This requirement that EPA establish a ‘‘range’’ of

feasible levels was retained by the Conference Com-

mittee in the final version of Section 304(b) :

‘‘The Administrator should establish the range

of ‘best practicable’ levels based upon the average

of the best existing performance by plants of vari-

ous sizes, ages, and unit processes within each in-

dustrial category.’’ 1 Leg. Hist. 169.*

Similarly, the second requirement of Section 304(b),

i.e., that EPA ‘‘specify factors,’’ was intended by Con-

gress to provide sufficient information so that the per-

mit-issuing authority could tailor permits to the cir-

cumstances of individual plants through selection of

the appropriate discharge level from the guidelines

‘‘range.’’ As the Senate Report explained this second

requirement of Section 304(b) :

‘In applying effluent limitations to any individ-

ual plant, the factors cited above should be ap-

plied to that specific plant.’’ S. Rep. No. 92-414,

92d Cong., Ist Sess. 50 (1971), 2 Leg. Hist. 1468.

Likewise, Representative Clausen, a Manager of the

Conference Report for the House, pointed to the same

mittee expects the Administrator to apply the same principles

involved in making the determination of best practicable as

outlined above except that rather than the range of levels

established in reference to the average of the best performers

in an industrial category the range should at a minimum be

referenced to the best performer in any industrial category.’’

S. Rep. No. 92-414, 92d Cong., Ist Sess. 50 (1971), 2 Leg.

Hist 1468.

28In Senate debate over the Conference Report, Senator Muskie

confirmed the necessity for a range of discharge levels:

‘* Also, rather than establishing the range of levels in reference

to the average of the best performers in an industrial category,

the range [for 1983] should, at a minimum, be established with

reference to the best performer in any industrial category.”’

1 Leg. Hist. 170.

“~

ovd

requirement, explaining that ‘‘all those factors set

forth in sections 304(b)(1)(B) ...and such other fac-

tors as the Administrator deems appropriate must be

considered in setting effluent limitations’’ in the permit-

issuing process. 1 Leg. Hist. 378. Applying these fac-

tors, the specific effluent limitations for plants in the

same industry would be similar ‘‘if the applicable

factors ... were the same in each plant.’ Id.

Taken together, this legislative history confirms the

statutory text requiring EPA to issue ‘‘guidelines for

effluent limitations’? identifying a ‘‘range’’ of dis-

charge levels and ‘‘specifying factors’? to be used by

State permit officials in the permit-issuing process.

Indeed, as detailed below, any contrary interpretation

affording State officials less discretion with regard to

individual plant permit conditions would effectively

repeal Congress’ ‘‘transfer of permit authority’’ so

that the States could ‘‘do the job”’ without ‘‘ Federal

dictatorship.’’ See pp. 35-38, infra.

B. EPA’s Rigid, Single-Number Existing Plant Standards Nullify

the States’ “Primary” Pollution Control “Responsibilities” and

Vitiate the State/Federal Permit Program.

As previously demonstrated, Congress’ first objec-

tive in the 1972 Amendments was to effect ‘‘a major

change in the enforcement mechanism of the Federal

water pollution control program .. . to effluent limits’’

by codification of the flexible technology ‘‘ guidelines”’

approach established administratively by EPA under

the Refuse Act permit program. See pp. 8-13, supra.

Closely coordinated was Congress’ concomitant aim of

effecting an orderly transfer to the States of the per-

mit authority previously exercised by EPA under the

1899 Refuse Act. Id.

In keeping with this latter aim, Section 101(b) of

the Act expressed ‘‘the policy of the Congress to rec-

ognize, preserve, and protect the primary responsibil-

ities and rights of States to prevent, reduce, and elim-

inate pollution.’’ Consistent with their ‘‘primary’’

water pollution control ‘‘responsibilities,’’ Congress

‘‘expected that the States will play a major role in the

administration’’ of the permit program, thereby tak-

ing advantage of the considerable accumulated pro-

fessional expertise of State personnel and their inti-

mate appreciation of individual plant circumstances.

S. Rep. No. 92-414, 92d Cong., Ist Sess. 71 (1971), 2

Leg. Hist. 1489.

Accordingly, Section 402(a)(5) requires EPA to

‘authorize a State ...to issue permits for discharges

... within [its] jurisdiction’”’ as soon as the State has

‘the capability of administering a permit program.”’

By this provision, Congress intended an “orderly

transfer of permit authority from the Environmental

Protection Agency to the States”’ as ‘‘rapidly as they

develop approved programs.’’ 1 Leg. Hist. 363, 2 Leg.

Hist. 1305.

The purpose of this ‘‘orderly transfer of permit

authority’? was for the States ‘‘to do the job’’ by

taking ‘‘primary responsibility”’ for utilizing the Sec-

tion 304(b) guidelines to set effluent limitations in in-

dividual discharge permits. 1 Leg. Hist. 234, 356. This

purpose was succinctly summarized by Representative

Blatnik, Chairman of the Public Works Committee,

responsible for the House bill:

‘‘Unless we have meaningful local and State par-

ticipation and not a Federal dictatorship, the pro-

gram will founder on the rocks of the generally

tnflexible[,] Washington dictated approach.

H.R. 11896 provides for States and local par-

ticipation, let us give them the chance to do the

job. This bill will provide the resources and direc-

tion they have not had in the past.’’ 1 Leg. Hist.

Plainly, the States’ ‘‘primary responsibility’’ to

‘do the job’’ under the permit program is vitiated by

rigid discharge standards to be ‘‘cranked mechan-

ically’’ into existing source permits. Indeed, the House

Committee warned against just such federal ‘‘usurpa-

tion’’:

“It is tmpossible for the Federal Government to

succeed in this program without the close and

active cooperation of the States. A system of per-

mits which requires duplicative effort or destroys

the initiative of the States and local governments

is wasteful and non-productive.’’ H.R. Rep. No.

a 92d Cong., 2d Sess. 125 (1972), 1 Leg. Hist.

2° Representative Wright, a Conference Committee member and

co-sponsor of the House bill, also stressed Congress’ conviction that

**State and local interest, initiative, and personnel [would] provide

a much more effective program than that which would result from

control in the regional offices of the Environmental Protection

Agency.’’ 1 Leg. Hist. 262. See Sections 303(e)(2) and (3) (re-

quiring, as a prerequisite to approval of a State permit program,

State ‘continuing planning process,’’ among other things, to per-

mit development of ‘‘effluent limitations and schedules of com-

pliance’’).

* Significantly, this Court in Train v. NRDC, 421 U.S. 60

(1975), invalidated a similar curtailment of State discretion under

the Clean Air Act, which, like the Water Act, recognizes the States’

‘primary responsibilities’’ for controlling pollution. In Train, this

Court stressed Congress’ mandate of flexible State discretion to

revise emission limitations:

‘*We also believe that Congress, consistent with its declaration

that ‘[e]ach State shall have the primary responsibility for

Accordingly, EPA’s issuance of single-number dis-

charge standards for existing petroleum refineries is

not only contrary to the flexible ‘‘Federal guidance’”’

approach consistently favored by EPA, but also fun-

damentally at odds with the orderly transfer of permit

authority envisioned by Congress. For by reducing

State permit authorities to scriveners rubberstamping

discharge numbers set by edict of EPA Washington

headquarters, EPA’s rigid standards destroy State

‘‘initiative’’ and trivialize the State/federal permit

program established by the Act.

C. Rigid National Standards Defeat Congress’ Expressed Purpose

of Achieving Genuine “Uniformity” of Treatment for Dis

parate Existing Plants Through Flexible “Guidelines” and

EPA Veto Power over Individual Permits.

Despite EPA’s consistent support for technology

‘‘ouidelines’’ during and after passage of the Act, and

Congress’ concomitant aim of transferring permit au-

thority from EPA to the States, isolated fragments in

the legislative history have been cited to rationalize

EPA’s disregard of its explicit obligation to issue

guidelines in compliance with the requirements of Sece-

tion 304(b).” Most frequently mentioned is the follow-

assuring air quality’ within its boundaries, § 107(a), left to

the States considerable latitude in determining specifically how

the standards would be met. This discretion includes the con-

tinuing authority to revise choices about the mix of emission

limitations.’’ 421 U.S. at 86-87.

In light of the Court’s Train decision, subsequently reaffirmed in

Union Electric v. EPA, 44 U.S.L.W. 5060 (June 25, 1976), amicus

curiae questions the Seventh Cireuit’s assumption in AMI that

single-number discharge standards are ‘‘in accord with § 101(b) of

the Act’’ and the policy ‘‘of federalism.’’ 526 F.2d at 452.

1 For example, both the Third and Seventh Circuits cite a

reference by Senator Bentsen to ‘‘the regulations which we an-

ing statement by Senator Muskie during consideration

of the Conference Committee Report:

“(T]he conference agreement provides that each

polluter within a category or class of industrial

sources will be required to achieve nationally uni-

form effluent limitations based on ‘best practicable’

technology no later than July 1, 1977.’’ 1 Leg.

Hist. 162; AMI, supra, 526 F.2d at 451; AFFI,

supra, 8 ERC at 1997.”

Certainly no one can quarrel with the general con-

cept of ‘‘uniformity”’ of effluent limitations implicit in

Senator Muskie’s remarks.

ticipate the Administrator shall issue pursuant to section 301 and

section 304... .’’ 2 Leg. Hist. 1283; AJS/, supra, 526 F.2d at

1040; AMI, supra, 526 F.2d at 451. But Senator Bentsen’s com-

ment does little more than paraphrase Sections 301(b)(1)(A) and

301(b)(2)(A), respectively, which refer to technology defined

**by the Administrator pursuant to Section 304(b)(2).’’ In short,

because of the explicit reference to Section 304(b) in Section 301,

the Section 304(b) ‘‘guidelines for effluent limitations’’ are regu-

lations issued, in Senator Bentsen’s words, ‘‘pursuant to section

301 and section 304.”’

32 The Seventh Circuit cites another obscure comment by Senator

Muskie that ‘‘the factors described in Section 304(b)’’ may ‘‘not

be considered at the time of the application of an effluent limitation

to an individual point souree ... .’’ 1 Leg. Hist. 172; AMI, supra,

526 F.2d at 451.

However, Senator Muskie’s comment overstates and is contra-

dicted by the Conference Committee Report which, by its terms,

deals only with individual plant consideration of ‘‘the economic

impact’’ of EPA’s guidelines. 1 Leg. Hist. 304; see also 1 Leg.

Hist. 254-55. The Conference Report’s discussion reflects the

Committee’s change from the House version, which required plant-

by-plant consideration of all factors, to the final version of Section

. 804(b) (1) (B), which retains plant-by-plant consideration of other

factors but mandates an industry-wide appraisal of the ‘‘total cost

of application of technology in relation to the effluent reduction

benefits to be achieved.’’ Compare 1 Leg. Hist. 37-40 with 1 Leg.

Hist. 978-87 (House version of Section 304).

The fundamental issue, however, is whether Con-

gress intended this ‘“‘uniformity’’ to be achieved: (i)

by flexible guidelines for setting effluent limitations un-

der the Section 402 State/federal permit program or

(ii) by the imposition of regulations in the form of

nationwide existing plant discharge standards. In fact,

the statutory text and legislative history demonstrate

that Congress chose the guidelines and permit program,

not nationwide existing plant standards, as the means

of achieving ‘‘nationally uniform effluent limitations.”’

Significantly, the Conference Report notes that the

Section 304(b) guidelines are intended ‘“‘to assure

that similar point sources with similar characteris-

tics . . . will meet similar effluent limitations,’’ and

that ‘‘effluent limitations applicable to individual point

sources within a given category or class’’ are to be,

not identical, but ‘‘as uniform as possible.’’*

Moreover, Section 402(d)(2) of the Act provides

that:

‘*No permit shall issue . . . if the Administrator

within ninety days of the date of transmittal of

the proposed permit by the State objects in writ-

ing to the issuance of such permit as being out-

side the guidelines and requirements of this Act.”’

As indicated by the Eighth Circuit, ‘‘[i]t is hard to

imagine a clearer indication that the permit-issuing

authority is to follow the guidelines promulgated un-

der § 304(b), and is not to refer to independent regula-

88 Conr. Rep. No. 92-1236, 92d Cong., 2d Sess. 126 (1972), 1 Leg.

Hist. 309. See also AISI, supra, 526 F.2d at 1044 (‘‘uniformity

was to be achieved by effluent standards within a given category

which were similar, rather than identical or unitary’’) (footnote

omitted).

tions promulgated under § 301.’’ CPC Int’l, supra, 515

F.2d at 1038-39 (footnote omitted).”

The legislative history of this provision provides

strong confirmation for guidelines as the means of

achieving uniformity of effluent limitations established

under the permit program. For as the Eighth Circuit

explained :

_“The most instructive portions of the legislative

history are those concerning the debate over

whether the EPA Administrator should have the

authority to veto state-issued permits. The debate

is important not only because of what was said,

but also because the creation of the veto power

would make no sense if the EPA was already em-

powered to promulgate regulations under § 301.”

CPC Int’l, supra, 515 F.2d at 1040-41.

The original Senate bill spelled out EPA’s author-

ity over the permit program in Section 402(d) (2)

which provided that ‘‘[n]o permit shall issue until

the Administrator is satisfied that the conditions to be

imposed by the State meet the requirements of this

Act.’’ 2 Leg. Hist. 1690.

The House bill provided no EPA veto power over

individual permits but rather authorized EPA to with-

* The Third Circuit agreed that Section 402 permits must com-

ply ‘‘with any guidelines promulgated by the Administrator,’’

but went on to suggest that the term ‘‘requirements’’ in Section

402(d)(2) may refer to ‘‘Section 301 limitations.’’ AISI, supra,

526 F.2d at 1040. Even if ‘‘requirements’’ were to encompass

**Section 301 limitations,’’ the question would remain ‘‘how these

limitations are to be established or who is expected to establish

them.’’ Id, at 1039 (emphasis in original). The legislative history

detailed above confirms that such effluent limitations are to be

established, not by regulation, but in the Section 402 permit pro-

gram by State and EPA permit-issuing authorities.

draw permit-issuance authority if ‘‘a State fails to

earry out its obligations and misuses the permit pro-

gram.’’ H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 127

(1972), 1 Leg. Hist. 814; CPC Int’l, supra, 515 F.2d at

1041-42.

This House action was sharply criticized by many

officials who believed that ‘“‘uniformity’’? among exist-

ing plants could be achieved only by ‘‘ Federal review of

permit applications.’’ 1 Leg. Hist. 472-76, 707. As Gov-

ernor Anderson of Minnesota put it:

‘‘EPA’s veto power should further apply to help

overcome political and other pressures sometimes

exerted by local industry on State agencies.

7 * .

“The uniformity which I cited at the outset of

these remarks as the major necessity for an ef-

fective pollution control program cannot, there-

fore, be achieved without permitting this type of

Federal check on permits which simply do not

accomplish the job of pollution control.”’ 1 Leg.

Hist. 452-53.

More important, opponents of the House bill also

argued that EPA veto power was essential precisely

because ‘‘the act did not provide for nationally promul-

gated effluent standards for existing plants.’”?’ CPC

Int’l, supra, 515 F.2d at 1041. Against this background,

the House nonetheless voted down a floor amendment

offered by Representative Reuss designed to “‘give the

Administrator permit-by-permit review and veto au-

thority over all permits... ...’’ 1 Leg. Hist. 580; see

also id. at 577, 582.

Only in the Conference Committee did Congress

finally amend Section 402(d) to provide the EPA

‘*veto power’’ deemed essential by Governor Anderson,

Congressman Reuss and others to prevent industry

‘*pressures’’ on State permit authorities which might

otherwise occur because of the absence of ‘‘nationally

promulgated effluent standards.’’ Conr. Rep. No. 92-

1236, 92d Cong., 2d Sess. 140 (1972) ; 1 Leg. Hist. 323,

362, 452-53; CPC Int’l, supra, 515 F.2d at 1041.

Congress’ grant of EPA review and veto power over

in« vidual permits directly refutes any notion of ‘‘na-

tionally promulgated effluent standards for existing

plants.’’ CPC Int’l, supra, 515 F.2d at 1041. In this

respect, Congress’ reference to ‘‘guidelines’’ in the

final version of Section 402(d) (2) ‘‘is critical, for that

language was not used in any prior draft of the bill

....’ Id. Thus, by making EPA veto power depend

upon compliance with Seetion 304(b) guidelines, Con-

gress underscored its intention that guidelines, not

regulations imposing nationwide effluent limitations,

were to be ‘‘the means of achieving uniformity.” Id. at

1042.”

*° This interpretation conforms with Senator Muskie’s own ex-

planation of the Conference Committee’s version of Section 402

(d) (2). 1 Leg. Hist. 176; CPC Int’l, supra, 515 F.2d at 1042, To

the extent that any of Senator Muskie’s other remarks may be

construed as going beyond the Conference Report, they are entitled

to no weight. Indeed, Senator Jackson characterized the ‘‘ Exhibit’’

submitted by Senator Muskie during debate on the Conference

Committee Report as:

‘*A back-door attempt at legislation through . . . speeches on

the floor of the Senate .... Fortunately, as... court decisions

have indicated, the courts will not abide . . . speeches re-

interpreting clear legislative language.’’ 1 Leg. Hist. 204.

See Commissioner v. Bilder, 369 U.S. 499, 502 (1962) (statutes

must be interpreted ‘‘in light of the congressional purpose ex-

plicitly revealed in the House and Senate Committee Reports on

the bill’’); NLRB v. Lion Oil Co., 352 U.S, 282, 292 (1957)

(‘‘{[T]he report of the Senate Committee’’ is ‘‘the most authori-

In short, as confirmed by this legislative history,

Congress correctly believed that ‘‘some discretion,”’

‘‘carefully cireumscribed’”’ by expertly drafted guide-

lines, was essential to ‘‘preserve uniformity”’ of treat-

ment for diverse existing plants in many industries.

AISI, supra, 526 F.2d at 1044; Grain Processing,

supra, 407 F. Supp. at 105.% It was precisely for this

reason that Congress eschewed procrustean, single-

number existing plant standards in favor of flexible

guidelines which guarantee fair and equitable dis-

charge limits for disparate existing plants, while si-

multaneously guarding against abuse in light of EPA’s

authority to veto individual discharge permits.”

tative legislative gloss.’’); Grain Processing, supra, 407 F. Supp.

at 103.

86 See also du Pont II, supra, 8 ERC at 1722 (recognizing Con-

gress’ desire that EPA preserve uniformity by exercising ‘‘the

flexibility needed to adjust for disparate plants in dissimilar cir-

cumstances’’); AISI, supra, 526 F.2d at 1044 (‘‘[U]niformity

was to be achieved by effluent standards within a given category

which were similar, rather than identical or unitary.’’).

87 Notwithstanding the recent AF FI decision, this interpretation

plainly would not ‘‘emasculate the act’’ by promoting competition

for industry among States ‘‘by cstablishing minimal standards in

their individual permit programs.’’ 8 ERC at 2006. For as the

Eighth Cireuit correctly held in CPC Int’l, supra, “‘an existing

plant cannot change its forum without becoming a new plant, in

which case it would be subject to the uniform national standards

for new plants promulgated under § 306.’’ 515 F.2d at 1041 n.16.

Accord, 1 Leg. Hist. 579-80, 379.

Ill. EPA'S BELATED, EXPEDIENT SWITCH TO SINGLE-NUMBER

EXISTING PLANT STANDARDS CANNOT OVERCOME THE

STATUTORY TEXT, LEGISLATIVE HISTORY AND EPA’‘S

OWN ORIGINAL INTERPRETATION REQUIRING THE ISSU-

ANCE OF FLEXIBLE GUIDELINES FOR FINALIZING EFFLU-

ENT LIMITATIONS IN THE PERMIT-ISSUING PROCESS.

As previously demonstrated, both the text of the Act

and its legislative history reveal Congress’ intention

that EPA issue ‘‘guidelines for effluent limitations”’

identifying a range of feasible discharge levels and

specifying factors for finalizing individual plant per-

mit conditions in the permit-issuing process.

EPA itself accepted this Congressional directive un-

til late 1973 when, faced with a completely unworkable

district court decision, the Agency jettisoned its pre-

vious guidelines approach in favor of single-number

discharge standards which short-circuit the permit pro-

gram and obliterate the discretion of State permit

officials. Since that time, EPA has rarely, if ever,

departed from its single-number standards and, in-

stead, has searched unsuccessfully for a legal theory

which adequately justifies its expedient about-face

from the statutory guidelines.

Under these circumstances, this Court (i) should

pay deference to EPA’s original authoritative inter-

pretation accepting Congress’ flexible guidelines; and

(ii) disapprove EPA’s ‘“‘effluent limitations guide-

lines,’’ including the Agency’s so-called ‘‘variance

clause’’ which provides far less flexibility and discre-

tion to permit-issuing authorities than intended by Con-

gress. Indeed, only a decision by this Court directing

EPA to implement its existing regulations as flexible

guidelines will prevent a new wave of Section 509(b)

(1) appeals to the courts of appeals by individual

plants suffering under EPA’s current regime of single-

number existing plant standards.

A. This Court Should Pay Deference to EPA’s Original Aw

thoritative Interpretation Accepting Flexible Guidelines for

Finalizing Effluent Limitations in the Permit-Issuing Process.

Notwithstanding the statutory text and legislative

history detailed above, some courts have nonetheless

gone along with EPA’s “‘effluent limitations guide-

lines’? in the hope that EPA’s so-called ‘‘variance

elause’’ will somehow operate to infuse flexibility into

the Agency’s existing plant standards. du Pont II,

supra, 8 ERC 1718 (4th Cir. 1976); NRDC, supra,

8 ERC 1988 (2d Cir. 1976); AFFI, supra, 8 ERC

1993 (D.C. Cir. 1976); AMI, supra, 526 F.2d 442

(7th Cir. 1975). Although the courts differ slightly

in how EPA is to implement its regulations, their

embrace of EPA’s extra-statutory ‘‘effluent limita-

tions guidelines’’ stems largely from deference to

EPA’s purported interpretation of the Act. AISI,

supra, 526 F.2d at 1041; AMI, supra, 526 F.2d at

449-50, 452; du Pont II, supra, 8 ERC at 1721; AFF,

supra, 8 ERC at 2007-08.

The Seventh Cireuit expressed this ‘‘hands off’’ ap-

proach to EPA’s latest expedient interpretation as

follows:

‘‘Our inquiry then is not whether the agency’s

interpretation of § 301 is the only permissible one,

but rather whether it is sufficiently reasonable to

preclude us from substituting our judgment for

that of the agency.’’ AMI, supra, 526 F.2d at 449-

50 (footnote omitted).

But in light of the statutory text and legislative

history previously detailed, nothing in the Act or this

Court’s judicial decisions justifies obsequious defer-

ence to EPA’s eleventh-hour switch to rigid existing

plant standards which undercut the State/federal per-

mit program.

On the contrary, it is EPA’s original interpretation

recommending and endorsing Congress’ flexible guide-

lines approach which is legally significant. For this

Court has stressed time and again that courts should

pay ‘“‘great deference,’’ not to a subsequent agency

rewrite of the statutory requirements, but to a ‘‘con-

temporaneous construction of a statute by the men

charged with the responsibility of setting its mach-

inery in motion.’’ Udall v. Tallman, 380 U.S. 1, 16

(1965). Accord, United States v. Leslie Salt Co., 350

U.S. 383, 396-97 (1956); Norwegian Nitrogen Prods.

Co. v. United States, 288 U.S. 294, 315 (1933).

Here, EPA’s ‘‘contemporaneous construction”’ at the

time of passage was indisputably that ‘“‘specific deter-

minations’’ could ‘‘only be made on a plant-by-plant

basis,”’** and that EPA’s ‘guidelines’? would “pro-

vide information”’ so that ‘‘ Federal and State pollution

control people”’ could ‘‘do the job”’ for specifie plants.

Only in response to unworkable deadlines ordered in

NRDC v. Train, 6 ERC 1033 (D.D.C. 1973), rev’d in

part and remanded, 510 F.2d 692 (D.C. Cir. 1975), did

EPA expediently short-circuit the statutory require-

*8 See p. 11 n.11, and accompanying text, supra.

*° See p. 10 n.10, and accompanying text, supra; see also pp. 35-

38, supra. Nothing better attests to the significance of EPA’s shift

from flexible guidelines to rigid, existing plant standards than the

multitude of lawsuits in virtually every industry attacking the

inflexibility of EPA’s so-called ‘‘effluent limitations guidelines.”’

ments by short-sighted issuance of rigid existing plant

standards. See pp. 13-14, supra.

Under comparable circumstances, this Court in

Tran, supra, 421 U.S. 60 (1975), actually deferred

to EPA’s original interpretation of the Clean Air

Act rather than EPA’s subsequent construction

adopted in response to adverse court decisions.“

Thus, in Train, EPA originally ‘‘concluded that § 110

(a) (3) [of the Clean Air Act] permits a State to grant

individual variances from generally applicable emis-

sion standards, both before and after the attainment

date, so long as the variance does not cause the plan to

fail to comply’’ with the national ambient standards.

Id. at 70. In response to judicial decisions adverse to

this interpretation, EPA subsequently amended its reg-

ulations before review by this Court to allow variances

only prior to the attainment date. Id. at 74.

In accepting EPA’s original rather than subsequent

interpretation, this Court adopted the result previ-

ously reached by the Ninth Cireuit in Natural Re-

sources Defense Council v. EPA, 507 F.2d 905 (9th

Cir. 1974). See 421 U.S. at 72. There, the Ninth Circuit

expressly declined to accord deference to EPA’s sub-

sequent interpretation for reasons which apply equally

well in this case:

‘‘Under usual circumstances, we would accord

‘great deference’ to the interpretation of the EPA,

the administrative agency responsible for enfore-

ing the statute. H.g., Udall v. Tallman, 380 U.S.

*° Accordingly, the AMI court’s reliance on Train is inapposite.

For the Seventh Cireuit ignored the fact that the Supreme Court

paid deference to EPA’s original, not subsequent interpretation,

and that here, as in Train, EPA changed its original interpretation

in response to adverse judicial rulings. 526 F.2d at 450 n.16.

1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). But we

feel less bound by this principle when the EPA

interpretation is, as here, merely an accession to

a previous judicial decision. Indeed, the construc-

tion we adopt is more in tune with the original

EPA interpretation that has since been phat aoe

after the First Circuit’s decision in Natural Re-

sources Defense Council, Inc. v. EPA, 478 F.2d

875 (Ist Cir. 1973).’’ 507 F.2d at 916 (footnote

| omitted).

Similarly, this Court in United States v. Leslie Salt

Co., 350 U.S. 383 (1956), rejected the Treasury De-

partment’s ‘‘ad hoc contention as to how the statute

should be construed,’’ which had been belatedly

adopted in response to a recent court decision, and

instead followed the Department’s ‘‘prior lengstand-

ing and consistent administrative interpretation.’’ 1d.

at 396, 395.

The rationale for declining to accord deference to

EPA’s subsequent interpretation is even more com-

pelling where, as here, the Agency's change of position

derives primarily from administrative expediency.

For example, in Maryland v. EPA, 530 F.2d 215,

224 (4th Cir. 1975), cert. granted, No. 75-960, 44 U.S.

L.W. 3682 (June 1, 1976), EPA urged an interpreta-

tion of the Clean Air Act which ‘‘directed Maryland

and her legislature to legislate under pain of civil and

criminal penalties’? vehicle inspection, maintenance,

retrofit and other programs for inclusion in Maryland’s

State implementation plan. Characterizing EPA’s in-

terpretation as an act of ‘‘administrative expediency,”’

the Fourth Circuit rejected EPA’s position, notwith-

standing the usual deference to the Agency:

‘‘We acknowledge that the construction of a

statute by the agency administering it is to be

accorded great weight. See, e.g., Social Security

Board v. Nierotko, 327 U.S. 358, 368 . . . (1946).

But if the acts of the administering agency are not

in accordance with law, its actions must be set

aside. 5 USC § 706.” 530 F.2d at 227."

In short, the administrative expediency which long

after passage of the Act led EPA to switch to rigid

existing plant standards cannot repeal the statutory

text and legislative history previously detailed in this

amicus curiae brief. Rather, by paying deference, as

it did in Train, supra, to EPA’s original, contempo-

raneous construction, this Court should require EPA

to revert to the statutory guidelines by allowing State

permit authorities to exercise discretion regarding in-

dividual discharge conditions in the permit process.

B. EPA’s Otherwise Unlawful Existing Plant Standards Cannot

Be Sustained Simply Because the Agency Belatedly Included

a So-Called “Variance Clause” Which Provides Far “Less

Flexibility” Than Congress Contemplated.

Once EPA decided to abandon Congress’ “‘ guidelines

for effluent limitations,’’ the Agency apparently sensed

the need at least to simulate flexibility in the permit-

issuing process. Accordingly, in the final regulations

for each industrial category, EPA belatedly included

a so-called ‘‘variance clause’’ which purports to allow

adjustment of the nationwide limitations ‘‘for certain

plants’”’ in each industry. See p. 15, supra.

‘1 Two additional «ourts of appeals have recently invalidated

expedient EPA interpretations requiring the imposition of similar

programs in other States. See Brown v. EPA, 521 F.2d 827 (9th

Cir. 1975), cert. granted, No. 75-909, 44 U.S.L.W. 3681 (June 1,

1976) ; District of Columbia v. Train, 521 F.2d 971 (D.C. Cir.

1975), cert. granted, No, 75-1055, 44 U.S.L.W. 3682 (June 1, 1976).

As the courts have recognized, however, this ‘‘vari-

ance clause’’ by its terms provides far less latitude for

consideration of the umique circumstances of individual

plants than do the “‘ guidelines for effluent limitations”’

which this amicus curiae brief maintains are required

by the Act. Thus, the Third Circuit in AISI held that

the

‘variance procedure provides for less flexibility

than we believe Congress contemplated, since it

permits deviations from otherwise rigid and uni-

tary limitations only where the circumstances of

the particular plant are ‘fundamentally different’

than those from which the effluent limitation was

derived.’’ 526 F.2d at 1046.

And even the Second Circuit, which accepted the

‘variance clause’? in NRDC, supra, conceded that if

EPA were required to identify a ‘‘range’’ and “‘specify

factors’’ in the guidelines, ‘‘then arguably the ‘vari-

ance’ elause would not remedy the error.’’ 8 ERC at

1990.

The Fourth Cireuit in du Pont IT went one step fur-

ther. Although nominally upholding the ‘variance

clause,’’ the court ruled that ‘‘{s]ome of the specified

factors are of practical applicability only to individual

piants,’’ and, accordingly, ‘‘construe[d] the congres-

sional intent to be that the specified factors shall be

applied by the permit issuer in determining whether

the presumptively valid efflment limitations should ap-

ply to a particular seurce of diswharge.”” 8 ERC at

1723.

Paradoxically, the du Pont II court hesitated to

follow its owm interpretation to the ineluctable conclu-

sion that EPA’s unduly restrictive ‘‘variance clause’’

is unlawful and invalid. Thus, the court reserved any

ruling on the mistaken theory that ‘‘the provisions of

the statute and those of the regulations are of no pres-

ent concern,”’ and that ‘‘[t]he administration of these

provisions in practice is a matter of speculation at the

present.’’ Id. at 1722.

But unless the ‘‘variance clause”’ is invalidated now

as providing far ‘‘less flexibility’’ than ‘‘ Congress con-

templated,” AJSI, 526 F.2d at 1046, it will frustrate

practical implementation of even the Fourth Circuit’s

more pragmatic reading and inevitably encourage a

flood of individual plant appeals to the federal courts

under Section 509(b) (1) of the Act.

For the truth is that EPA’s ‘‘variance clause”’

merely simulates individual plant flexibility where

none actually exists. By its terms, the clause would

permit an exception only for factors ‘‘fundamentally

different from the factors considered in the establish-

ment of the guidelines.’’ And since EPA purported to

consider even site-specific factors such as plant age,

size, processes and the like in development of its ‘‘efflu-

ent limitations guidelines,’’ few, if any, circumstances

exist in which an exception would be granted under

EPA’s clause.

In fact, as far as API is aware, no exceptions under

the Agency’s ‘‘variance clause’’ have been granted to

any of the Nation’s more than two hundred petro-

leum refineries. Nor is API aware of variances granted

in any other industry.

As a result, the du Pont II court’s hesitance to in-

validate the ‘‘variance clause’’ serves only to prolong

the present uncertainty at considerable cost to the fed-

eral judiciary. For if the ‘‘variance clause’’ were in-

validated, and EPA forced to implement its “effluent

limitations guidelines’’ as flexible guidelines along the

lines intended by Congress, the many hundreds of out-

standing permit disputes could be resolved by State

and EPA permit officials without resort to the courts.

But so long as EPA’s restrictive ‘‘variance clause’’

remains in force, permit-issuing authorities will be

deprived of discretion to resolve the vast majority of

disputed permits. And once the administrative process

is concluded, individual plants denied permits tailored

to their specific circumstances will be left with no

choice but to appeal to the appropriate court of ap-

peals under Section 509(b)(1) of the Act.

In short, far from saving EPA’s otherwise unlawful

‘‘effluent limitations guidelines,’’ the Agency’s so-called

‘variance clause” constitutes a major barrier to in-

dividual plant permit flexibility deemed essential by

the courts of appeals. Only by invalidating the ‘‘vari-

ance clause” as providing far ‘‘less flexibility” than

Congress intended, will this Court restore the discre-

tion afforded by Section 304(b) and prevent a multi-

tude of individual plant appeals to the courts of ap-

CONCLUSION

For the foregoing reasons, this Court should: (i)

reverse the Fourth Circuit’s decision in du Pont I1;

(ii) disapprove EPA’s issuance of ‘‘effluent limitations

guidelines’’ as rigid, single-number existing plant

standards; (iii) invalidate EPA’s so-called ‘‘ variance

clause’’ as providing far less flexibility than Congress

intended; (iv) require EPA immediately to implement

its current regulations along the lines of the flexible

‘guidelines for effluent limitations’? mandated by Sec-

tion 304(b); and (v) require EPA, as soon as practi-

cable, to revise its regulations to provide a ‘‘range’”’

of feasible discharge levels and to ‘‘specify factors’’

for tailoring effluent limitations to the circumstances

of individual plants in the permit-issuing process.

Respectfully submitted,

FREDERICK M. Rowe

EDWARD W. WARREN

KIRKLAND, ELLIs & Rowe

1776 K Street, N.W.

Washington, D. C. 20006

202-833-8400

Of Counsel: Attorneys for Amicus Curiae

Stark RITCHIE American Petroleum Institute

General Counsel

American Petroleum Institute

July 16, 1976

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.