Petition for Writ of Certiorari — Environmental Protection Agency v. National Crushed Stone Ass'n
Supreme Court brief1980
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Reasons for granting the petition —................... 12
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CITATIONS
Cases:
Abbott Laboratories v. Gardner, 387 U.S.
scale ieceeteenmiarndiaesnsenetaictnsaecisl eniaiewics 20, 21
Appalachian Power Co. v. Train, 545 F.2d
1351, as modified, 545 F.2d 1380........ 11, 14, 18
duPont v. Train, 430 U.S. 112.............. 4, 5, 7, 16,
17, 19, 20
duPont v. Train, 541 F.2d 1018 .000000000..... 20
EPA vy. State Water Resources Control
BE, I Tile Te vce cic ecerssssrereens 3,5
Louisiona-Pacifie Corp., In re, 10 E.R.C.
RRR TRAE RLER RES SESE BMS Riba ae DNR ER 9
Weyerhaeuser Co. v. Costle, 590 F.2d
SIE lnusiatsesi cs nsaeeaciesicrenmicsenian 12, 13, 14, 15, 16, 21
Statutes and er Page
Act of November 2, 1978, Pub. 1. No. 9b-
N76, V2 Stat. 2407 4
Federal Water Vollution Control Aet, 33
USC) (INTO ed.) TEDL ef seq. 4
Moderal Water Vollution Contrel Aet, as
amended by the Clean Water Act. of
TT, Publ. Ne. 86-217, Ob Stat. 166,
R82 USC) Cand Supp TP) Tthb ef seq.:
Seetion 8b 88 ULS.CL Gand Supp. 1)
rit 8.4, 81a
Seetion SOb Gay, 88 USC. Itt da) 4
Seetion 80b Gb). 83 U.S.C. Gand Supp.
1) sti) 4h
Seetion SOTQbD) (1), 88 ULS.CL Pt
(by qt) Z
Seetion SOT Cb) CD GA, 88 ULSAC.
I8ticby (Vy CA) 3,
Section S0bT¢b) (2), 88 ULS.CL Gand
Supp. 1) t8tt¢b) @2) hy
Seetion 301(¢b) (2) (A) - (BE), 388
U.S.C. (and Supp. 1) 18tt¢b) (2)
(A)-(he) h
Seetion S801¢b) (2) (6), 83 USAC.
(Supp. 1) 1811¢b) (2) (C) 6
Section S801¢0b) (2) (8), 88 USC,
(Supp. 1) 1811¢b) (2) (re) 6
Section 801(b)(2)(F), 88 ULS.C.
(Supp. 1) 1 St1(b) (2) (F) 6
Section 801(¢), 88 ULS.C, 1311(e). 6, 10,11,
13, 16, 19
Section 304, 383 U.S.C. (and Supp. I)
} + | eae RET 6
Section $04 (5), 88 USC. (and Supp.
E> BURGER) q.ncccnccieennenee 3, 8la
mW
Statutes and regulations——Continued Page
Section 304(b) (1) (B), 38 U.S.C.
Mi1l4(b) (1) CB) i, 13, 17
Section 304(b) (2) (B), 38 ULS.C.
(and Supp. 1) 1314(b) (2) (B) 6
Section 806, 88 U.S.C. 1316 19
Section 402, 28 U.S.C. 1342 es
Section 502, 5
328 U.S.C. 1362 4
Seetion HOO(b) (1) (i), 3
369 0by (1) CB) 10
Pollution Control Aet. Amendments” of
1972, Pub. I. No. 92-500, 86 Stat. 816,
233 U.S.C. 1251 ef seq. A
35 U.S.C. 1251 (a) (1) 4
40 CLPLR. Parts 405-460 7
AQ C.FLR. 482.22 7
40 C.PLR. Part 434 9
AD C.FLR. 434.22 8,9
AQ C.FLR. 484.32 9
AOD C.BLR. 424.42 )
40 CPLR. Part 436 9
AD C.FLR. 426.22 . 9
AD CLFLR. 436.52 9
Miscellaneous:
39 Fed. Reg. 36186 ef seq. (1974) 1]
AZ Fed. Reg. (1977):
P. 21380 ef sey.
P. 35843 ef seq. i:
43 Fed. Reg. 50042 (1978) -
Legislative History of the Water Pollution
Control Act Amendments of 1972, Ser.
No. 93-1 (Comm. Print 1973), Vols. 1
NSP 3, 16, 17, 18
S. Rep. No. 92-414, 92d Cong., 1st Sess.
I did sbdiniminenienaiensinnigenmnpmaniannmmanesees 3
wo LO
In the Supreme Court of the United States
OCTOBER TERM, 1979
No.
ENVIRONMENTAL PROTECTION AGENCY, PETITIONER
v.
NATIONAL CRUSHED STONE ASSOCIATION, ET AL.
DouGLas M. COSTLE, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY, PETITIONER
v.
CONSOLIDATION COAL COMPANY, ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
The Solicitor General, on behalf of the Administra-
tor of the Environmental Protection Agency and the
Environmental Protection Agency, petitions for a
writ of certiorari to review judgments of the United
States Court of Appeals for the Fourth Circuit.
(1)
”
“
OPINIONS BELOW
The opinion of the court of appeala in Nefronal
Crushed Stone Association vo BPA (App. A, infra,
latia), in reported at GOL bogd Tit Phe opinion
of the court of appeals in’ Consolidation Coal Com
pany Vo Costle (App. ©, infra, d0a-78a) in reported
at GOd bod 2a,
JURISDICTION
The judgment of the court of appeal in’ National
Crushed Stone Association ¢. EPA (App. By infra,
SSa-lMa), was entered on June TS, E79. The judy
ment in Consolidation Coal Company vo Coatle
(App. D, tefra, 78a-80a), was entered on June 2b,
1IYTY. On September U1, L979, the Chief Justice ex
fended the time for fling a petition for a writ of
cortiorart to and including October 16, 1979, and on
Getober 11, 1979, he further extended the time to and
including November 15, L979. The jurisdiction of this
Court is invoked under 28 ULS.C. b2b4(1).
QUESTIONS PRESENTED
1. Whether regulations adopted by the Adminis-
trator of the Environmental Protection Agency estab-
lishing effluent limitations on discharges of pollutants,
based upon the application of “best practicable control
technology currently available” pursuant to Section
3801(¢0) (1) of the Clean Water Act, 33 U.S.C. 1311
(b)( 1), must include a variance provision that re-
quires consideration of the economic ability of an
individual discharger of pollutants to afford the costs
ef such technology.
2. Whether the validity of the Administrator's
variance clause is subject to judicial review before ites
appleation to any diseharger of pollutants,
STATUTE INVOLVED
Pertinent portions of Sections GOL and S040h) of
the Clean Water Aet, 38 1.5.0. Cand Supp. ty 1ahd,
M314 (0b) are set forth in Appendix bh, mfra, Hla wa.
STATEMENT
In these cases, the court of appeals held that, in
acting on applications by dischargers of pollutants into
the nation’s waters for individual variances: from the
pollution limitations established by the Administrator
of the Environmental Protection Ayency under a4
U.S.C. Sth) C1) (A), the Administrator must con-
sider the applieant’s claim that it cannot afford ta
implement the pollution control technology necessary
to comply with the limitations, The court rejected the
Administrator’s contention that, under the statute, an
individual discharyer’s economic inability ty comply
with those limitations is not a ground for granting a
variance, The statutory and procedural background
of these decisions is as follows:
1. Concluding that “the Federal water pollution
control program * * * [had| heen inadenuate in every
vital aspect,” ' Congress enacted the Federal Water
1S, Rep. No. 92-414, G2d Cong, lat Seas 7 (1971), re
printed in 2 Legislative History of the Water Pollutium Con-
trol Act Amendmenta of 1972, Ser. No. 923-1, at page 1425
(Comm. Print 1973) (hereafter Lez. Hist) See, aan, EPA
v. State Water Reavurcer Control Board, 426 U.S. 200, 202-
203 (1976).
4
Pollution Control Act Amendments of 1972, Pub. L.
No. 92-590, 86 Stat. 816, 33 U.S.C. 1251 et seq.,
which substantially rewrote the Federal Water Pol-
lution Control Act, 33 U.S.C. (1970 ed.) 1151 et seq.
In this Act, now commonly referred to as the Clean
Water Act, Congress declared as a “national goal
that the discharge of pollutants into the navigable
waters be eliminated by 1985,” 33 U.S.C. 1251(«) (1).
To achieve this goal, Section 301(a), 33 U.S.C.
1311(a), makes the discharge of any pollutant
by any person unlawful, except where the dis-
charge is in compliance with Section 301 itself
and certain other enumerated sections of the Act,
including Section 402, 33 U.S.C. 1342. In Section
301(b), 33 U.S.C. 1311(b), Congress directed the
Adininistrator of EPA to establish maximum “effluent
limitations” (7.e., pollution limitations) on discharges
from existing point sources.” In Section 402 of the
Act, 33 U.S.C. 1342, Congress established the Na-
tional Pollutant Discharge Elimination System
(NPDES) as a means of achieving and enforcing the
2 The Act was most recently amended by the Clean Water
Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566, and by the Act
of Novernber 2, 1978, Pub. L. No. 95-576, 92 Stat. 2467. Until
the 1977 Amendments, this legislation was generally known as
the “Federal Water Pollution Control Act.”
* 8 Although Section 301(b) states, in the passive, that “there
shall be achieved [effluent limitations],” this Court in duPont
v. Train, 480 U.S. 112, 126-130 (1977), construed that sec-
tion as authorizing and directing the Administrator to pro-
mulgate effluent limitations by regulation.
The terms “effluent limitation,” “discharge of pollutants,”
“pollutant” and “point source” are defined in Section 502 of
the Act, 33 U.S.C. 1362.
5
effluent limitations. It is unlawful for any person to
discharge pollutants into the nation’s waters without
an NPDES permit, and the permits incorporate the
effluent limitations promulgated under Section
301(b). Thus, an NPDES permit under Section 402
“serves to transform generally applicable effluent
limitations * * * into the obligations (including a
timetable for compliance) of the individual dis-
charger * * *.” EPA v. Siate Water Resources Con-
trol Board, 426 U.S. 200, 205 (1976). See also
duPont v. Train, 430 U.S. 112, 126 n.15 (1977).
Section 301(b) provides for the implementation of
effluent limitations for existing point sources in two
stages. First, Section 301(b)(1)(A) directs the
Administrator to establish effluent limitations, to be
met not later than July 1, 1977, “requir{ing] the ap-
plication of the best practical control technology cur-
rently available” (hereinafter referred to as “BPT”
limitations). Second, Section 301(b)(2) directs the
Administrator to establish effluent limitations, to be
met not later than July 1, 1987, requiring, depending
on the type of pollutant, application of either the
“best available technology ecc .omically achievable”
or “best conventional pollutant control technology”
(hereinafter, collectively referred to as “BAT” limi-
tations). Section svl(b)(2)(A)-(E), 33 U.S.C.
(Supp. I) 1311(b) (2) (A)-(E).*
4 When this Court decided duPont v. Train, supra, the Act
required BAT limitations to be achieved by 1983. The Court
thus frequently referred to BAT limitations as the “1983
limitations.” As amended in 1977, Section 301(b) (2) has
deferred the best available technology deadline. For certain
6
The terms “best practicable,” “best available,” and
“best conventional” technology are mainly defined in
Section 304 of the Act, 33 U.S.C. 1314. Section 304
(b(1)(B) provides that “[f]actors relating to the
assessment of best practicable control technology * * *
shall include consideration of the total cost of appli-
cation of technology in reletion to the effluent reduc-
tion benefits to be achieved” as well as “the age of
equipment and facilities involved, the process em-
ployed, the engineering aspects of the application of
various types of control techniques, process changes,
non-water quality environmental impact (including
energy requirements), and such other factors as the
Administrator deems appropriate.”
Section 304(b) (2)(B) adopts the same factors in
defining best available technology as those employed
in defining best practicable technology with one ex-
ception. Unlike the provision dealing with best prac-
ticable technology, Section 304(b)(2)(B) does not
require the Administrator to consider the total cost
of the best available technology in relation to expected
effluent reduction benefits. Section 301(c), however,
toxic pollutants, best available technology must now be
achieved by July 1, 1984. Section 301(b) (2) (C). For other
pollutants, the deadline is between July 1, 1984, and July 1,
1987, depending upon when EPA establishes the limitations.
Section 301(b) (2) (F). In the Clean Water Act of 1977,
Congress added a new technology level to replace best avail-
able technology for so-called “conventional” pollutants. This
level, which must be miet by July 1, 1984, is called ‘“‘best con-
ventional pollutant control technology.” Section 301(b) (2)
(E). For purposes of this case, the distinction between best
available and best conventional technologies is not pertinent.
7
provides that the Administrator may modify the BAT
limitations as applied to particular dischargers if
the discharger demonstrates that the modification
“(1) will represent the maximum use of technology
within [his] economic capability * * * and (2) will
result in reasonable further progress toward the
elimination of the discharge of pollutants.”
In duPont v. Train, supra, 430 U.S. at 128, this
Court upheld the authority of the Administrator to
establish effluent limitations based on the best prac-
ticable technology—.e., the 1977 limitations—so long
as he permits some modification of those limitations
with respect to individual plants through a variance
clause. The Administrator has promulgated best prac-
ticable technology (or “BPT”’) limitations for 42
different industrial categories. See 40 C.F.R. Parts
405-460. With respect to each set of those limitations,
the Administrator has promulgated a standard vari-
ance clause setting forth the grounds upon which
the NPDES permit issuing authority (i.e., either
EPA or state agencies with acceptable NPDES sys-
tems) may grant an individual discharger a modifi-
cation of the effluent limitations.“* With respect to
variances from the BPT limitations, the Administra-
tor has concluded that the pertinent issuing agency
may, under the statute, consider whether the in-
dividual discharger’s: cost of compliance with the
limitations signicantly exceeds the costs of other
‘« Under the statutory and regulatory system, state agencies
with acceptable NPDES systems act in the first instance upon
individual applications for variances, but EPA has the final
authority with respect to the grant of such applications. See,
e.g., 40 C.F.R. 482.22.
8
dischargers in the same industry. The variance
clause, bowever, does not allow the permit. issuing
ageney to consider, or grant, a variance based upon
aoclaim that an individual diseharger cannot. afford
best practicable technology.” As EPA has most. re-
vently stated (48 Fed. Reg. 50042 (1978) (emphasis
in original) ):
While EPA allows complianee costs to be con-
sidered under the BP'T variance clause, it should
be noted that EPA continues to believe that
S80T¢e) of the Clean Water Aet (Catowing
waivers based upon plant-specifiec, economic cap-
* The standard best practicable technology variance clause,
promulyated in these and other cases, provides (40 CLFLR,
434.22):
In establishing the [national best practicabie teehnol-
ogy] limitations * * * EPA took into account all informa-
tion if was able te collect, develop and solicit with respect
to factors (such as aye and size of plant, raw materials,
manufacturing processes, products produced, treatment
technology available, energy requirements and costs)
which can affect the * * * eMuent levels established. It is,
however, possible that data which would affect these limi-
{ations have not been available and, as a result, these
limitations should be adjusted for certain plants in this
industry. An individual discharger or other interested
person may submit evidence to [the permitting authority |
that facters relating to the equipment or facilities in-
volved, the process applied, or other such factors related
to such discharyer are fundamentally different from the
factors considered in the establishment of the guidelines.
** * If such fundamentally different factors are found to
exist, [the permitting authority] shall establish for the
discharyer efluent limitations * * * either more or less
stringent than the [national best practicable technology
limitations] to the extent dictated by such fundamentally
ditferent factors.
9
ability or “affordability”) applies only to best
available technology (BAT) limitations.
Thus a plant may be able to secure a BPT
variance by showing that the plant’s own com-
pliance costs with the national guideline limita-
tion would be x times greater than the compliance
costs of the plants EPA considered in setting the
national BPT limitation. A plant may not, how-
ever, secure a BPT variance by alleging that the
plant’s own financial status is such that it can-
not afford te comply with the national BPT
limitation,
See also In re Lenisiana-Pacifie Corp., ete., 10 E.R.C.
1841 (1977).
2. In April 1977, the Administrator adopted regu-
lations establishing BPT limitations on discharges
from existing point sources in certain subcategories of
the coal mining industry, ?.¢., coal preparation plants,
acid mine drainage and alkaline mine drainage (42
Fed. Reg. 21380 ef seq., adopting 40 C.F.R. Part
434). In July 1977, the Administrator published
regulations establishing BPT limitations on dis-
charges from existing point sources in the crushed
stone and construction sand and gravel subcategories
of the mineral mining and processing category (42
Fed. Reg. 35843 ef seq., adopting 40 C.F.R. Part
436). Both regulations included EPA’s standard
variance provision for each subcategory."
-
°40 C.F.R. 434.22 (coal preparation plents); 40 C.F.R.
434.32 (acid mine drainage) ; 40 C.F.R. 434.42 (sikaline mine
drainage) ; 40 C.F.R. 436.22 (crushed stone) and 40 C.F.R.
436.32 (construction sand and gravel).
10
Petitions to review both seta of regulations were
filed in various courts of appeals under Seetion
HOMEY GEE), 88 ULS.C. 1869¢0b) C1) e), and all
the petitions were ultimately transferred to the
Fourth Cireuit. ‘The petitions ehallenged the regu
lations on various grounds, ineluding the sufficiency
of the variance clauses, The variance clauses were al
leged to be inadequate, because they failed to provide
for consideration of the eeovomie ability of indi
vidual dischargers to afford the costs of best prae
tieable technology.
In National Crushed Stone Asrociation vo ETA,
(App. Av anf, Ta-87a), the court of appeals vacated
and remanded the substantive mineral mining regu:
lations on various grounds (7d. at Tda-29a), and we
do not challenge that aspect of the court's decision,
The eourt, however, also remanded the variance
clauses promulgated in connection with those repu-
lations on the ground that) varianee clauses per-
taining to RPT limitations must include the same
factors that Seetion 801(¢) of the Act requires the
ageney to consider in acting on variance applications
from the BAT limitations, which are to become effec-
tive no later than July 1, 1987 (7d. at 29a-35a).
Those Section 301(¢) factors include a showing by
the discharger that the requested variance “will rep-
resent the maximum use of technology within the
economic capability of the [discharger] * * *.”
In remanding the variance clause, the court. relied
(id. at 29a-33a) on its earlier decision in Appalach-
win Power Co. vy. Tram, 545 F.2d 1351, as modified,
b4h F.2d 1880 (1976). In that case the court had
remanded a similar variance clause pertaining to the
steam electric power industry (see 39) Fed. Reg.
S616 ef seg. (1974)), on the ground that “EPA
should come forward with a meaningful variance
clause applicable to existing as well as new sources,
‘aking into consideration at least [the] statutory
factors set out in §§ 301 (e), 304(0b) 01) CB) and 206
(by (1) (RB). 545 Fi2d at 1359-1360 (footnote
omitted). The court concluded (545 F.2d at 1359):
Clearly, the Act, in its regulatory plan, contem-
plates increasingly stringent control measures for
existing and new sources culminating in the
elimination of the discharge of all pollutants into
navigable waters by 19%5. We are of opinion
that the initial phase of these regulations, the
1977 standards and the subsequent new source
limitations, were not intended to be applied any
less flexibly than the final Phase IT-19%2 [now
1987] requirements. Thus, if such factors as the
economic capacity of the owner or operator of a
particular point source is relevant in determin-
ing whether «. variance from the 1982 standards
should be permitted, they should be equally rele-
vant when applied to the less stringent 1977
standards as well as the new source require-
ments.
12
In Consolidation Coal Company v. Costle, the court
of appeals affirmed the substantive coal mining regu-
lations (App. C, infra. 40a-78a). As in National
Crushed Stone, however, it remanded the variance
clauses “for revision to conform with National
Crushed Stone” (id. at 50a-52a).
REASONS FOR GRANTING THE PETITION
The decisions below, remanding EPA’s standard
variance clause pertaining to BPT limitations, is
in conflict with the decision of the District of
Columbia Circuit in Weyerhaeuser Co. v. Costle,
590 F.2d 1011 (1978). Moreover the conflict in-
volves an important issue that warrants this Court’s
review. Although the decisions below directly concern
the variance clauses pertaining to effluent limitations
for two industries, EPA has promulgated essentially
the same variance clause in connection with all of its
BPT limitations, applicable to 40 other industries.
The decisions below thus create cunsiderable doubt
with respect to the validity and proper application of
those clauses as well.. Furthermore, whether EPA
must allow variances to be granted on the basis of
claims that individual dischargers cannot afford to
comply with BPT limitations is a question that has
significant implications for the achievement of Con-
gress’ objective of eliminating pollution from the
nation’s waters. We believe that the decisions below
are incorrect, but in any event we submit that the
13
question is sufficiently important to merit this Court’s
review.
1. The decision below conflicts with Weyerhaueser
Co. v. Costle, supra. In that case, dischargers chal-
lenged EPA’s standard variance clause as it per-
tained to BPT limitations established for the pulp
and paper industry on the ground that it failed to
permit consideration of individual dischargers’ eco-
nomic inability to comply with the limitations. The
court rejected that contention. It noted that Section
301(c), which is the only statutory provision ex-
pressly dealing with variances, makes the economic
capability of individual dischargers relevant only to
applications for variances from the BAT limitations,
which are the second phase of the statutory program.
590 F.2d at 1034-1035. The court also noted that Sec-
tion 304(b) (1) (B), which sets forth the factors the
Administrator must consider in establishing BPT
limitations, requires the Administrator to consider
“the total cost of application of technology in relation
to the effluent reduction benefits to be achieved,” but
does not require the Administrator to consider the
economic or financial ability of operators to meet
those costs. 590 F.2d at 1035-1036. Finally, the court
reviewed the legislative history of the Act and con-
cluded that that history, as well as the language and
structure of the statute, demonstrates that the eco-
nomic hardships of individual operators are not
proper grounds for excusing their compliance with
14
BPT limitations (id. at 1036-1037). Thus, the court
stated (id. at 1086; emphasis in original) :
We have explored this issue carefully, and we
express our conclusion emphatically: Although
the “total cost” of pollution control at the peti-
tioning mill must be considered under a satisfac-
tory variance provision, it is only relevant “in
relation to the effluent reduction benefits to be
achieved” at that mill, section 804(b) (1) (B);
so long as those costs relative to the pollution re-
duction gains are not different from those that
may be imposed on the industry as a whole, the
difficulty, or in fact the inability, of the operator
fo absorb the costs need not control the variance
decision.
We reach this conclusion under the statute only
after satisfying ourselves that the legislative in-
tent is as clear as the result is harsh * * *.
The decisions below, and in Appalachian Power Co.
v. Train, 545 F.2d 1351, 1880 (4th Cir. 1976), on
which they relied, are in direct conflict with that
holding.’
In National Crushed Stone, the court below expressed the
incorrect view that “our construction of the variance provi-
sions seems to be generally, if not precisely, in accord with
that of the court in Weyerhaeuser Co. v. Costle [supra]”
(App. A, infra, 34a). Although the court correctly noted
that the court in Weyerhaeuser had held that “EPA's appli-
cation of the 1977 [i.e., BPT], variance clause must bear a
similar relationship to the 1977 standards as the 1983 variance
clause bears to the 1983 standards” (App. A, infra, 34a), it
overlooked the critical holding of the District of Columbia
15
2. The issue is important. As we have noted, EPA
has promulgated its standard variance clause in con-
nection with BPT limitations for 42 industries. Un-
der the decisions of the Fourth and District of Colum-
bia Circuits, the agency’s construction and applica-
tion of that clause is invalid with respect to three
industries, valid with respect to one, and in doubt
with respect to 38 others. Such a result is unaccept-
able for the administration of an Act designed to
establish nationally uniform requirements.
Furthermore, whether or not individual discharg-
ers may obtain a variance from BPT limitations
based on their own economic inability to comply is a
question of substantial importance not only to those
individual dischargers, whose economic survival may
turn on the matter, but also to the achievement of
Congress’ purpose to eliminate water pollution. As
the District of Columbia Circuit said in Weyer-
haeuser, supra, 590 F.2d at 1036:
This issue is crucial, of course, because those mill
operators who are most hard pressed economi-
cally will be the most likely to pursue vigorous
variance demands. Moreover, when faced with
the ultimate threat of economic hardship—plant
closure, with attendant unemployment and re-
gional economic dislocation—the local permit-
granting agency will find it difficult to resist a
plea for a variance.
Circuit that the RPT variance clause, in contrast to the BAT
variance clause, need not require consideration of the individ-
ual discharger’s economic inability to meet BPT limitations.
The court below held to the contrary that it must.
16
The importance of the issue to the legislative objec-
tives is also reflected in the remarks of Senator
Nelson during the debates on the Act (2 Leg. Hist.
1355):
** * [T]he approach of giving variances to pol-
lution controls based on economic grounds has
long ago shown itself to be a risky course: All
too often, the variances become a tool used by
powerful political interests to obtain so many
exemptions for pollution control standards and
timetables on the flimsiest of pretenses that they
become meaningless.
3. We submit that the decisions below are wrong
for the reasons stated by the District of Columbia
Cireuit in Weyerhaeuser, supra. This, as the court
correctly concluded, the language and structure of
the Act support the Administrator’s conclusion that,
unlike variances from BAT limitations (which are
expressly governed by Section 301(¢)), BPT limita-
tions and variances from them are not to be based
on the economic inability of individual dischargers to
apply the “best practicable control technology.”
Furthermore, the District of Columbia Circuit cor-
rectly found that the legislative history demonstrates
that Congress deliberately adopted “best practicable
control technology” as a minimal level of effluent
control that a// sources within a category or class had
to meet, even if the cost of compliance could drive
certain individual sources out of business. For ex-
ample: the conference committee report on the Act,
17
in a passage quoted in part in duPont v. Train, supra,
430 U.S. at 129, stated (1 Leg. Hist. 304):
The conferees intend that the Administrator
* * * will make the determination of the eco-
nomie impact of an effluent limitation on the
basis of classes and categories of point sources,
as distinguished from a plant by plant determi-
nation. However, after July 1, 1977, the owner
or operator of a plant may seek relief from the
requirement to achieve effluent limitations based
on best available technology economically achiev-
ert
Similarly, Senator Muskie, “perhaps the Act’s pri-
mary author,” “ explained the “cost-benefit” language
in Section 304(b)(1)(B) as follows (1 Leg. Hist.
170; emphasis supplied) :
The Conferees agreed upon this limited cost-
benefit analysis in order to maintain uniformity
within a class and category of point sources sub-
ject to effluent limitations, and to avoid imposing
on the Administrator any requirement * * * to
determine the economic impact of controls on any
individual plant in a single community.
It is assumed, in any event, that ‘‘best prac-
ticable technology” will be the minimal level of
control imposed on all sources within a category
or class * * *.
Representative Jones of Alabama, chairman of the
House conferees, in presenting the conference bill to
8 duPont V. Train, supra, 430 U.S. at 129.
18
the members of the House, also stated (1 Leg. Hist.
231, 232; emphasis supplied) :
If the owner or operator of a given point
source determines that he would rather go out of
business than meet the 1977 requirements, the
managers clearly expect that any discharge [per-
mit] issued in the interim would reflect the fact
that all discharges not in compliance with such
“best practicable control technology currently
available” would cease by June 30, 1977.
* * * «* e
* * * ([S]ection 301(c) authorizes a case-by-case
evaluation of any modification to the July 1,
1983, requirement proposed by the owner or
operator.
* * * * *
This provision is not intended to justify
modifications which would not represent an up-
grading over the July 1, 1977, requirements of
“best practicable control technology.”
See also remarks of Senator Nelson, quoted supra,
page 16 (2 Leg. Hist. 1355).
Neither the decisions below nor Appalachian Power
Company, supra, on which they relied, discussed the
legislative history of the Act. Instead, they were
based on the court’s view that it would be illogical
for an agency not to consider a factor (economic
inability) in acting on an application for a variance
from BPT limitations when it will consider the same
factor in acting upon variances from the more
stringent BAT standards (see App. A, infra, 34a;
Appalachian Power Co., supra, 545 F.2d at 1359).
Even as a matter of abstract logic, however, there is
19
no inconsistency in concluding that a more stringent
standard should be accompanied by a more liberal
variance provision in order to prevent the greater
economic dislocations that might otherwise result.
Furthermore, the court’s logic overlooks the fact that
under the statutory scheme, BPT levels are intended
as a minimum requirement that no discharger will be
permitted to violate, even after 1987, regardless of
his economic situation.’ In any case, the matter ought
not be judged abstractly. As this Court stated in
duPont v. Train, supra, 430 U.S. at 138, in reject-
ing the Fourth Circuit’s application of similar logic
to a closely analogous issue under the Clean Water
Act: “The question, however, is rot what a court
thinks is generally appropriate to the regulatory
process; it is what Congress intended for these
regulations.” *°
® Thus, Section 301(c), which deals expressiy with vari-
ances from BAT limitations requires a discharger applying
for a variance to demonstrate not only that the requested
modifications will reflect the “maximum use of technology
within [his] economic capability” but also “will result in rea-
sonable further progress toward the elimination of the dis-
charge of pollutants.” If an applicant for a variance from
BAT limitations were to seek a modification that would allow
greater discharges than even the BPT limitations would have
allowed, his proposed modification would not “result in reason-
able further progress toward the elimination of the discharge
of pollutants.”
In duPont Vv. Trai, the Fourth Circuit held that the
Administrator should promulgate a variance clause with
respect to the most stringent “new source” limitations estab-
lished under Section 306 of the Act, 33 U.S.C. 1316, on the
ground that “provisions for variances, modifications, and
20
4. This case also presents a substantial ripeness
question. In duPont v. Train, supra, this Court up-
heid the Administrator’s authority to promulgate
BPT limitations by regulation “so long as some al-
lowance is made for variations in individual plants.”
430 U.S. at 128. The Court, however, agreed with
the court of appeals in that case that “consideration
of whether EPA’s variance provision has the proper
scope would be premature” (id. at 128 n.19}, in view
of the fact that that case did not involve the applica-
tion of the variance clause to any particular dis-
charger.
Similarly, the variance clauses reviewed and re-
manded by the court of appeals in these cases have
not yet been appiied to any applicant for a variance.
For that reason we argued in the court of appeals
that such pre-enforcement review of the validity of
those clauses would be inappropriate under the prin-
ciples announced in Abbott Laboratories v. Gardner,
387 U.S. 136 (1967) and other cases. The court dis-
agreed. It concluded that the Administrator had
made clear, in a number of statements and decisions
since duPont v. Train, that economic inability would
not be a ground for granting variances, and that
those statements made the issue sufficiently ripe for
review (App. A, infra, 30a-32a). In Weyerhaeuser,
supra, the District of Colurabia Circuit also reviewed
exceptions are apropriate to the regulatory process.” duPont
v. Train, 541 F.2d 1018, 1028 (4th Cir. 1976). This Court
rejected that view on the ground that it was contrary to the
statute. 430 U.S. at 138.
21
EPA’s standard variance clause and upheld the Ad-
ministrator’s position.”
We continue to believe that it was inappropriate
for the court to review the variance clause prior to
its application to any individual discharger. We ac-
knowledge, however, that the question is a close one,
because the Administrator’s position on the \ ariance
clause has now become clear and presents a discrete
legal issue that is capable of pre-enforcement review.
See Abbott Laboratories v. Gardner, supra, 387 U.S.
at 149-153. Moreover, there is a direct conflict be-
tween the decision below and the District of Columbia
Circuit on that issue that needs to be resolved.
Standing alone, the ripeness question might not
warrant this Court’s review. The difficulty faced by
the agency, however, is that if the Court denies re-
view of the decisions below, the agency is required by
the court of appeals’ judgment to amend its variance
clauses pertaining to these two industries to conform
to the court’s decision. The agency would thus never
have an oppurtunity to present its position for this
Court’s review in any subsequent proceeding involv-
ing actions on variances in these industries; and in
view of the conflict among the circuits, it would have
11In Weyerhaeuser, the court purported not to undertake
“final review of the variance provision,” but rather to engage
in a “threshold review” to determine whether the provision
was sufficiently flexible to satisfy this Court’s statement in
duPont that “some allowance” must be made for variations
in individual plants. 590 F.2d at 1032. Whatever label the
court applied, it did in fact review the variance clause and
upheld the Administrator’s position as a matter of law.
22
to continue to apply different standards to different
industries.
Accordingly, if this Court agrees with us that the
issue it not ripe for review, we believe it should
grant the petition and vacate the judgments below
on that ground, so that the issue may be preserved
for later cases in which it is ripe for review. If the
court disagrees with us on the ripeness question, it
should grant the petition and review the question
we have presented on the merits.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
WADE H. McCREE, JR.
Solicitor General
SANFORD SAGALKIN
Acting Assistant Attorney General
LoulIs F. CLAIBORNE
Deputy Solicitor General
RICHARD A. ALLEN
Assistant to the Solicitor General
DirRK D. SNEL
MICHELE B. CORASH LARRY A. BoGcs
General Counsel Attorneys
JAMES A. ROGERS
Associate General Counsel
RICHARD G. STOLL, JR.
Deputy Associate General Counsel
Environmental Protection Agency
NOVEMBER 1979
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 76-1914
NATIONAL CRUSHED STONE ASSOCIATION, INC.
and LUCK QUARRIES, INC., PETITIONERS
v.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
No. 76-1929
WARREN BROTHERS COMPANY, a Division of
Ashland Oil Co., Ine., and Ashland Oil, Inc.,
PETITIONERS
Vv.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
No. 76-1930
ARKHOLA SAND AND GRAVEL COMPANY, a Wholly
Owned Subsidiary of Ashland Oil, Inc.,
PETITIONER
Vv.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
ON PETITION FOR REVIEW OF AN ORDER OF THE
ENVIRONMENTAL PROTECTION AGENCY
2a
Argued April 4, 1978 Decided June 18, 1979
Before HAYNSWorTH, Chief Judge, RUSSELL and
WIDENER, Circuit Judges
WIDENER, Circuit Judge:
Petitioners, National Crushed Stone Association
(NCSA), Warren Brothers Company (Warren
Brothers), and Arkhola Sand and Gravel Company
(Arkhola) seek review of certain regulations promul-
gated by the Environmental Protection Agency
(EPA) pursuant to $$ 301, 304 of the Federal Water
Pollution Control Act (FWPCA), 33 U.S.C. $$ 1311,
1314. These regulations establish limitations on the
discharge of pollutants' from existing point sources *
of the crushed stone and construction sand and gravel
subcategories of the mineral mining and processing
point source category, based upon the best practicable
'“The term ‘pollutant’ means dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, muni-
tions, chemical wastes, biological materials, radioactive mate-
rials, heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal, and agricultural waste
discharged into water.” FWPCA §502(6); 33 U.S.C.
§ 1362 (6).
?“"Phe term ‘point source’ means any discernible, confined
and discrete conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, cencentrated animal feeding opera-
tion, or vessel or other floating craft, from which pollutants
are or may be discharged.”” FWPCA, § 502(14); 33 U.S.C.
§ 1862(14).
3a
control technology currently available (BPT).* The
regulations challenged here were promulgated in final
form on July 12, 1977, to be effective August 11, 1977,
42 F.R. 35843 et seq. Previous to the promulgation
of the final regulations, the EPA had issued regula-
tions in “interim final” form,’ June 10, 1976, 41 F.R.
23552 et seq. This court has jurisdiction under § 509
(b) (1) of the FWPCA, 33 U.S.C. 1369(b) (1).
The crushed stone subcategory regulations, 42 F.R.
35849-50, to be codified as a part of 40 C.F.R. Part
436, subpart B, apply “to the mining or quarrying and
the processing of crushed and broken stone and rip-
rap. This subpart includes all types of rock and
stone.” 42 F.R. 35849. Riprap consists of large, ir-
regular stones used chiefly in highway enbankments
and in river and harbor work. Other types of crushed
stone are used, for example in concrete, macadam, and
bituminous aggregate, in railroad ballast, in agri-
culture, and in road bases. Approximately three
quarters of all crushed stone is limestone. The
crushed-stone industry is widespread, with all States
reporting some production. The size of individual
* FWPCA, §§ 301(b) (1) (A) (i), 304 (b) (1) (A) ; 33 ULS.C,
§ 1311(b) (1) (A) (i), 1814(b) (1) (A).
‘The EPA failed to meet the deadline established by the
FWPCA, § 304(b); 33 U.S.C. §1314(b), for establishing
guideline regulations. The interim regulations were promul-
gated by EPA in response to a court order which required
the EPA to issue the regulations according to a timetable.
41 F.R. 23552, citing Natural Resources Defense Council V.
Train, 6 ERC 1033 (D.D.C. 1973), affirmed in part, reversed
in part, 510 F.2d 692 (D.C. Cir. 1975).
4a
facilities varies widely, from less than 25,000 to 15
million tons per year. Facilities which produce less
than 25,000 tons per years constitute one-third of the
total number of facilities, but only 1.3% of total na-
tional output. At the other extreme, 5.2% of the
facilities each produce more than 900,000 tons an-
nually, but together these make up 39.5% of the total
output. Nationwide there are approximately 4800
crushed stone facilities.
The construction sand and gravel subcategory reg-
ulations, 42 F.R. 35850-51, to be codified as 40 C.F.R.,
Part 436, subpart C, apply “to the mining and the
processing of sand and gravel for construction or fill
uses.” 42 F.R. 35850, § 436.30. Construction sand
and gravel is used in building, paving, fill and rail-
road ballast applications. As with crushed stone, sand
and gravel facilities are found in all States. Of the
more than 5,000 firms engaged in production, 40%
have an anual capacity of less than 25,000 tons; these
smaller firms account for 4% of the national output.
Larger firms with an annual capacity of more than
one million tons, on the other hand, account for 12-
15% of the national output, although by number they
constitute less than 1% of the producing facilities.
Crushed stone and construction sand and gravel
operations produce two basic types of waste water
which must be discharged and which the EPA has
regulated. The first with which the Agency is con-
cerned is that from “mine dewatering.” For crushed
stone operations the term means “any water that is
impounded or that collects in the mine and is pumped,
5a
drained or otherwise removed from the mine through
the efforts of the mine operator.” 42 F.R. 35849,
§ 426.21(b). The definition for the construction sand
and gravel industry includes identical language. 42
F.R. 35850, § 486.31(b). The introduction of pollut-
ants includes those coming from “surface runoff of
rain water into the mine and mine water treatment
systems, ground water seepage and infiltration into
the mine.” 42 F.R. 35845. The quantity of mine water
that must be discharged either has no correlation
with production or is only indirectly related. Only
13% of crushed stone facilities have no mine water.
Mine water is also present in construction sand and
gravel operations.
The other type of waste water commonly associated
with crushed stone and construction sand and gravel
operations is that used in the processing of the ap-
plicable products. In the crushed stone industry, after
the stone has been extracted from the quarry and
crushed and screened to meet size specifications, water
is added to wash the stone. In a few operations the
rough product is processed in a flotation cell, where
impurities are removed in the overflow from the cell,
and the product is removed in the underficw. Some
facilities also have a dry production process. With
the dry process, of course, there is no discharge of
process generated waste water, although half of the
dry process quarries must be dewatered on at least an
intermittent basis. Overall in the crushed stone in-
dustry 59% of the 4800 facilities wash their product.
Of the crushed stone wet processing facilities con-
6a
tacted by the EPA, 33% do not discharge their wash
water.
Construction sand and gravel facilities also use
water in processing the product to remove impuri-
ties such as clay and silt in separating and classify-
ing the product, and in cooling and dust suppression.
Half (35) of the facilities visited by the EPA have
no discharge of process water because they recircu-
late all process water. A few facilities achieved no
discharge of process water because of soil percolation
or because of dredging closed ponds, the process water
being discharged back into the pond. Some sand and
gravel facilities use a dry process, and thus have no
discharge of process water. 4250 industry plants have
wet process operations; only about 750 have dry op-
erations. A few sand and gravel operations use dredg-
ing techniques.’
In developing the regulations the EPA considered
the varieties, prevalence, and environmental effects of
effluent produced by crushed stone and construction
sand and gravel operations, and also the current pol-
lution control practices used in the industries. Only
two measures of pollution were considered by the
Agency to be of sufficient importance to warrant regu-
lation: Total suspended solids (TSS) and pH." TSS
5The production of dredged sand and gravel which is
processed on-board the drecging vessel is not covered by the
regulations under review. 42 F.R. 35850, § 436.30.
* pH is a symbol expressing the acidity or alkalinity of a
substance. A pH of 7 is neutral, with lower figures repre-
senting increasing acidity and higher figures representing
increasing alkalinity.
Ta
measures both organic and inorganic materials, such
as sand, silt, clay, grease, oil, and tar. Solids in sus-
pension interfere with many industrial processes; they
are aesthetically displeasing; they burden aquatic
life by depleting the oxygen content of water and
clogging the respiratory passages of various fauna.
The Agency considers TSS to be the single most im-
portant pollutant parameter in the mineral mining
and processing industry. The petitioners do not chal-
lenge the EPA’s regulation of pollution as measured
by pH.’
The interim regulations published by the EPA on
June 10, 1976, 41 F.R. 23552, divided waste water
discharges from crushed stone and construction sand
and gravel facilities into two components. ‘Mine
dewatering,” referred to earlier, was there defined
for both subcategories as “any water that is pumped,
drained or otherwise removed from the mine through
the direct action of the mine operator.” 41 F.R.
23558, § 436.21(b); 42 F.R. 23559, § 436.31(b). The
definition for construction sand and gravel added
“wet pit overflows,” not relevant here. Mine water
was permitted to be discharged if TSS concentration
did not exceed 30 milligrams per liter (mg/l) of
waste water output for any one day. 51 F.R. 23558,
§ 436.22(a) (2}, 41 F.R. 23559, $ 436.32(a) (2). The
technical material accompanying the crushed stone
regulations, 41 F.R. 23554, explained in general that
7In their opening brief, petitioners note that “only the
provisions relating to the TSS requirements are relevant
here.”
8a
“mine dewatering for all subcategories is limited on
a daily maximum basis only, since mine dewatering
may occur on an intermittent basis.” Water which
collects on quarry floors “is quite clear” and “iz typi-
cally of excellent purity,” 41 F.R. 23554. Thus, it
often may be discharged without treatment, but “in
extreme cases [where treatment is necessary] a settl-
ing pond at ground level” will permit enough of the
suspended solids to settle out so that the mine water
will meet the 30 mg/I criterion. 41 F.R. 23555.
The other waste water discharge regulated by
the Agency in the interim regulations was “process
generated waste water,” defined for crushed stone
operations as “any waste water resulting from the
slurry transport of ore or intermediate product, air
emissions control, or processing exclusive of mining.”
41 F.R. 23558, § 436.21(e). No discharge of process
generated waste water pollutants was permitted by
the interim regulations, Id. at § 436.22(a)(1), al-
though the regulations contained exceptions.* Crushed
stone facilities would be able to meet the no discharge
requirement by clarifying process generated waste
water in a settling pond, and then recirculating it
in the production cycle. 41 F.R. 23554. As envisioned
by EPA in the interim regulations, all water used
in the production processes would be recycled back
8The regulations did permit discharge of process water
when an overflow occurred as a result of a “maximum 24
hour precipitation event with a probable reoccurrence in-
terval of once in 10 years.” 41 F.R. 23558, §§ 436.21(c),
436.22 (b).
9a
to the process for reuse, and thus there would be no
discharge.
The regulatory scheme established by the interim
regulations for construction sand and gravel plants
was not identical, but similar. There, too, discharge
of process generated waste waters was prohibited.
41 F.R. 23559, § 436.32(a)(1). However, because
the EPA found that in construction sand and gravel
plants “mine water is often treated in process waste
water ponds,” 41 F.R. 23555, the interim regulations
for construction sand and gravel operations provided
that when “waste streams from various sources are
combined for treatment and discharge, the quantity
and quality of each pollutant or pollutant property in
the combined discharge shall not exceed the quantity
and quality of each pollutant or pollutant property
allowed had each stream been treated separately.” 41
F.R. 23559, § 436.32(a)(3). Thus the regulations
provided that the water to be discharged from the two
sources could be commingled in the same settling pond
and discharged subject to the 30 mg/! limit. The
regulations did not require or mention recycling, and
obviously rejected the Technical Summary, which in
41 F.R. 23555 had recommended recycling where
there was a commingling in a settling pond.
On July 12, 1977, a little more than a year after the
interim regulations were published, the EPA an-
nounced its final rulemaking for the crushed stone and
and construction sand and gravel subcategories, 42
F.R. 35843. Two principal changes which concern
us were made in the final regulations. First, the
maximum TSS mine water effluent limitation for both
10a
subcategories was raised from a permissible discharge
of 30 mg/1 for any one day to 45 mg/l, but a new
thirty day average of 25 mg/l was promulgated. 42
F.R. 35850, § 486.22(a) (1); 42 F.R. 35851, § 436.32
(a) (1). Second, the no process water discharge pro-
vision of the interim regulations was changed for
some facilities. Instead of the former provision,
crushed stone and construction sand and gravel oper-
ations ‘“‘that recycle waste water for use in process-
ing’’ were permitted to discharge “process generated
waste water pollutants” in accordance with a daily
maximum of 45 mg/1 and 30 day average of 25 mg/1.
42 F.R. 35850, § 436.22(a)(1), 42 F.R. 35851, §
436.32(a)(1). The interim no discharge provision
was retained unchanged for facilities which did not
recycle. 42 F.R. 35850, § 486.22(a)(2); 42 F-.R.
35851, § 436.32(a) (2). In addition to these changes,
the definition of mine water for both subcategories
was changed by classifying all water collected or im-
pounded in a mine as “‘process generated waste water”
if the mine is used for treatment of “process gener-
ated waste water,””® and the definition of process
® The final definition of mine water for the crushed stone
subcategory reads as foliows:
(b) The term “mine dewatering” shall mean any
water that is impounded or that collects in the mine
and is pumped, drained or otherwise removed from the
mine through the efforts of the mine operator. However,
if a mine is also used for treatment of process generated
waste water, discharges of commingled water from the
facilities shall be deemed discharges of process generated
waste water.
42 F.R. 35849, § 436.21(b). With the addition of one sen-
tence, “This term shall also include wet pit overflows caused
lla
generated waste water was amended to “include any
other water which becomes commingled with such
waste water in a pit, pond, lagoon, mine, or other
facility used for treatment of such waste water.” *”
In the Summary of Major Changes that accom-
panied the new regulations, the EPA explained the
rationale for the changes described above. The in-
crease in the daily maximum TSS discharge and the
addition of a maximum average 30 day discharge
“were made because additional data collected since
the promulgation of the interim final regulations
indicated that the day-to-day variations in discharges
from individual operations were greater than initially
found, and because the additional information col-
lected provided the broader data base necessary for
solely by direct rainfall and ground water seepage,” the
definition of mine water for construction sand and gravel is
identical. 42 F.R. 35850, § 436.31 (b).
10 The final definition of process generated waste water for
the crushed stone subcategory reads as foilows:
(e) The term “process generated wast. water” shall
mean any waste water used in the slurry transport of
mined material, air emissions control, or processing ex-
clusive of mining. The term shall also include any other
water which becomes commingled with such waste water
in a pit, pond, lagoon, mine, or other facility used for
treatment of such waste water.
42 F.R. 35849, § 436.21(e). With the addition of one sen-
tence, “The term does not include waste water used for the
suction dredging of deposits in a body of water and returned
directly to the body of waste without being used for other
purposes or combined with other waste water,” the definition
of process generated waste water for construction sand and
gravel is identical. 42 F.R. 35850, § 436.31(e).
12a
formulating a monthly average limitation.” 42 F.R.
35844, The provision permitting discharge of process
water for crushed stone and construction sand and
gravel facilities that recycle was added when the EPA
found that ‘a number of the facilities which cur-
rently recycle experience occasional discharges due to
natural occurrences, such as rainfall or seepage.”
The discharge provision thus was added ‘“‘to allow a
limited discharge of process generated waste water
pollutants.” 42 F.R. 35844. Non-recycling facilities
were not provided the benefits of the “limited dis-
charge, however, because of the Agency’s view that
the best practicable control technology currently avail-
able for these industries includes recycling of process
water.” 42 F.R. 35844.
Petitioners challenge here the validity of the defi-
nition of process generated waste water contained in
§ 436.21(e) for crushed stone and § 436.31(e) for
construction sand and gravel; the TSS limits for
process generated waste water and the recyc-
ling requirement, § 436.22(a)(1) (crushed stone),
§ 436.32(a) (1) (construction sand and gravel); the
no discharge provision for non-recycling operations,
§ 436.22(a)(2) (crushed stone), § 436.32(a) (2)
(construction sand and gravel), and the TSS limits
for mine dewatering discharges, § 436.22(a) (3)
(crushed stone), § 436.32(a) (3) (construction sand
and gravel). In addition, petitioners ask that the
variance provisions for the crushed stone (§ 436.22)
and construction sand and gravel (§ 4386.32) sub-
categories be set aside as inconsistent with our de-
13a
cision in Appalachian Power Co. v. Train, 545 F2d
1351 (4th Cir. i976).
The standards which we must apply to the review
of EPA regulations have been set out elsewhere and
need not extensively be reviewed here. E.g., Appa-
lachian Power, supra, 545 F2d at 1856-57; duPont v.
Train, 541 F2d 1018, 1026 (4th Cir. 1976), aff’d
in part and rev’d in part on other grounds, 430 U.S.
112 (1977); Tanners’ Council of America, Ine. v.
Train, 540 F2d 1188, 1191 (4th Cir. 1976). Briefly,
under the Administrative Procedure Act, 5 U.S.C.
§ 706(2), we may not set aside the regulations unless
we find their promulgation to have been “arbitrary,
capricious, an abuse of discretion, or otherwise not
in accordance with law,” § 706(2) (A), or ‘without
observance of procedure required by law,” § 706
(2)(d). In reviewing these regulations, we are fur-
ther constrained by “the very basic tenet of admin-
istrative law that agencies should be free to fashion
their own rules of procedure,” Vermont Yankee
Nuclear Power Corp. v. Natural Resources Defense
Council, 46 U.S.L.W. 4801, 4307 (1978), and by
provisions for rule making under the Administrative
Procedure Act, 5 U.S.C. § 553, which establish ‘the
maximum procedural requirements which Congress
was willing to have the courts impose upon agencies
in conducting rule making procedures.” Id. at 4302
(footnote omitted). However, the Agency, as noted,
must act in accordance with law, and not in an arbi-
trary or capricious manner. Neither may it abuse
its discretion. 5 U.S.C. § 706. Courts are no longer
l4a
satisfied with bare administrative ipse dixits, and
the Agency must make reasoned decisions with full
articulation of the reasoning and take into account
all relevant factors. Appalachian Power Company v.
EPA, 477 F2d 495 (4th Cir. 1973).
TSS Effluent Limitations
We first consider the claim of petitioners that the
regulations (42 F.R. 35850-1, §§ 4386.22(a) (1),
436.22(a)(3), 436.(a)(1), 486.32(a)(3)) estab-
lishing TSS limitations for mine dewatering and
process generated waste water are invalid. The EPA
has admitted that certain data called the ‘“Versar
data” were used to determine the 30 day TSS aver-
age of 25 mg/1 for both crushed stone and construc-
tion sand and gravel operations, and also has ad-
mitted the Versar data were used to determine the
TSS daily maximum of 45 mg/l. So, unless the use
of the data is harmless, regulations based upon it
must be set aside if EPA’s use of the data was not
in accordance with law. We think the regulations are
invalid for the reasons which follow.
The June 10, 1976 “interim final regulations,” al-
though effective immediately, provided for a public
comment period extending until August 9, 1976, 41
F.R. 23553, and NCSA was afforded an additional
period in which to comment. NCSA took advantage
of this opportunity by filing written comments with
EPA. After the close of the comment period and a
public hearing held on December 2, 1976, however,
on December 14-16, 1976 EPA’s contractor, Versar,
15a
Inc., visited EPA’s regional headquarters in Atlanta
and Dallas and obtained NPDES discharge monitor-
ing reports for various crushed stone operations. This
survey, referred to as the Versar data, was completed
on February 25, 1977, and on March 15, 1977 the
EPA met with some representatives of the crushed
stone industry, including NCSA, at which meeting
the Versar data were mentioned in the conversation.
This was not a public meeting or hearing but was
nothing more than a conference held at the request
of some members of the industry affected. Petitioners
have provided affidavits from participants at the
March 15th meeting which show that while the data
were discussed at this meeting, they were not made
available to the industry for study and analysis. In
addition, although industry representatives at the
meeting on March 15th requested that they be af-
forded access to the Versar data, the EPA refused
to make the data available until after promulgation
of the final regulations. EPA has not filed counter
affidavits but has related in its brief that “NCSA
was shown the discharge monitoring data compiling
the ‘Versar data’”. Thus, we are confronted witha
fact situation on all fours with that considered by this
court in Appalachian Power Co. v. EPA, No. 72-1733,
F2d (4th Cir. June 13, 1978). There, we
held that upon an affidavit presented by EPA, peti-
tioners not offering any, in the absence of counter
affidavits we would be “unwilling to conclude that the
statements in the affidavits are false.” Slip op. at 15,
n. 15. The same result should obtain here, and we
l6a
thus accept as correct the statements in petitioners’
aflidavits that they were not afforded an opportunity
to examine, analyze, and comment on the Versar
data. The various internal memoranda relied upon
by EPA de not contradict the affidavits.
The fact situation so presented to us is very nearly
the same as that presented in Portland Cement Assoc.
v. Ruckelshaus, 486 F2d 375 (D.C. Cir. 1978), in
which ease the court set aside certain EPA regula-
tions. Prior to the promulgation of the regulations
there set aside, the court had remanded to EPA
previous regulations because test information upon
which the previous regulations had been based was
refuted by an engineer experienced in the subject.
On remand, instead of commenting on the conclusions
of the engineer upon which the remand was based,
EPA merely added that analysis to the record, The
court set aside the regulations, finding that the com-
ment offered by the industry affidavits was of possible
significance in the results of the test. In its discus-
sion of the case, the court said that it found“... a
critical defect in the décision making process in arriv-
ing at the standard under review in the initial in-
ability of the petitioners to obtain—in timely fashion
—the test results and procedures used in existing
plants which formed a partial basis for the emission
control level adopted, and in the subsequent seeming
refusal of the agency to respond to what seem[s] to
be legitimate problems with the methodology of those
tests.” p. 392. The court also stated that “it is not
consonant with the purpose of a rule making pro-
17a
ceeding to promulgate rules on the basis of inadequate
data or on data that [to] critical degree is known
only to the agency.” While the second rule just stated
Was apparently applied by that court in its initial
remand proceeding, it is applicable here. EPA ad-
mittedly has relied on the Versar data in promul-
gating the TSS regulations at issue. At the time the
regulations were being formulated, only EPA knew
about the data in detail. Our case and Portland
Cement are no different in that respect. The first
rule above mentioned also is applicable to this case.
Although the petitioners, or some of them at least,
were at the meeting on March 15th, the refusal of
the agency to make the actual data available to those
immediately affected by it cannot be excused. The
comments of the industry following the promulgation
of the interim final regulations and at the December
hearing could not have anticipated use of the Versar
data because the same had not even been collected
by Versar at that time.
We need not, however, place sole reliance on Port-
lund Cement in deciding to remand. We have held
in duPont vy. Train, 451 F2d 1018 (4th Cir. 1976),
and Appalachian Power Co., 477 F2d 495 (4th Cir.
1973), that an agency engaged in rule making must
“explicate fully its course of inquiry, its analysis and
its reasoning.” 541 F2d at 1026, 477 F2d at 507.
In the case before us, EPA candidly admits that ‘the
development document does not discuss the calculation
process by which the agency arrived at the monthly
average limit.” That amouvits to no less than an
18a
admission that the regulation is invalid unless some-
thing else appears to render the omission harmless.
While EPA, in its brief, does attempt to justify “the
path of the administrator’s reasoning,” it has shown
us no reason not to apply our holding in duPont that
“after the fact rationalization by counsel in brief and
argument does not cure non-compliance by the Agency
with the stated principles.” 541 F2d at 1026. See
also Portland Cement at p. 395.
The justification offered by EPA in its brief for its
failure to give the reasoning behind the new TSS
standards is that the 25 mg/1 daily limit was a
monthly average from the Versar data, and that the
45 mg/1 daily maximum was an increase sought by
industry. The last of the reasons given by EPA is
insufficient on its face, for the comments by industry
seeking a higher daily maximum discharge limit were
in the context of the interim final regulations which
had rejected an average discharge limit in favor of a
limit for each day. What industry sought was a
higher limit for each day, which in fact was effec-
tively lowered on a* monthly basis by the new regu-
lation.
More importantly, however, the petitioners never
had a chance to respond to the Versar data before
the promulgation of the final regulations. This is not
consistent with the requirements of law. See Bowman
Transportation, Inc. v. Arkansas-Best Freight Sys-
tem, Inc., 419 U.S. 281, 288, n. 4 (1974), and Granite
City Steel Co. v. EPA, 501 F2d 925 (7th Cir. 1974).
EPA argues that in all events the use of the Versar
19a
data, however, is harmless because the increase in
the maximum limit for any one day from 30 to 45
mg/1 more than compensates for the imposition of a
monthly maximum average of 25 mg/1, so that, in
fact, EPA increased the discharge limits rather than
decreased them. The industry contests this conclusion,
and EPA calls our attention to no data to corroborate
its position.
Following the promulgation of the final regulations,
the petitioners did very much the same as the peti-
tioners in Portland Cement. They secured a report
by an engineer who was an expert in the field, who
took serious issue with the Versar data base on more
than one ground. In his opinion the data were in-
sufficient upon which to base the new regulations in
many respects, among them; from a practical operat-
ing standpoint, the final regulations are more re-
strictive than the interim final regulations; EPA
did not consider the technical feasibility or economic
impact of the increase in settling pond size caused
by discharging at 25 mg/l rather than 30 mg/1;
seventy-five percent of the permits surveyed were in
three States, and over 50 percent in two States,
although the industry is scattered nationwide and
conditions differ widely; the types of rock mined in
the quarries from which the Versar data came was
not typical of all of the industry, especially the
settling characteristics of the rock from which the
Versar data came might well be different from rock
in other parts of the country, and as well the settling
characteristics in different climates are different; the
Versar memorandum does not state the adequacy of
20a
its data for statistical analysis; the TSS limitations
were arbitrarily selected without benefit of a statisti-
cal basis. The objections go on and on, but enough
have been related to show that they are far from
frivolous, and while EPA will undoubtedly take issue
with the report of the engineer, we need not, and do
not, decide whether the objections raised in the engi-
neer’s report are valid. What we do decide is that
the mistakes in the use of the Versar data, if any
mistakes there were, were shown by the report to be
of possible significance in the formulation of the final
regulations. Portland Cement at p. 394. The engi-
neer’s report we have referred to raises significant
questions as to the statistical validity of the Versar
data, as well as to whether or not the data from that
limited base could reliably be used in formulating
national regulations. The fact that the petitioners,
and just as importantly the fact that the public, had
no opportunity to comment on the use of the Versar
data prior to the promulgation of the :inal regulations
in the face of serious questions concerning the validity
of their use is reason to remand the regulations for
further consideration.’ When this is coupled with
11 We have not discussed the defects in procedure wholly
on the basis of public or private right, for they are inter-
twined in this case. The Agency’s own regulations provide
that it shall make available ‘continuing policy, program, and
technical information at the earliest practicable times and at
places easily accessible to interested or affected persons and
organizations so that they can make informed and instructive
contributions to governmental decision making.” 40 C.F.R.
§ 105.4(a). The regulations also provide that “conferring
2la
the fact that the Agency admits that it did not exp!ain
the reasons for its actions, the obvious question arises
as to whether or not they could have been justified in
the record before the Agency.
We remand the TSS limitations to the Agency for
reconsideration.”
with the public after a final Agency decision has been made
will not meet the requirements of this part,” and by that
“part” the reguiations refer to “active public involvement
in and scrutiny of the inter-departmental decision making
process.” 40 C.F.R. § 105.2. EPA did not make available the
Versar data at any time, much less the earliest practicable
time. Neither did the public nor the petitioners have a
chance to comment on it until after the final Agency decision.
A good discussion of the subject is found in Wright, The
Courts and the Rule Making Process: The Limits of Judicial
Review, 59 Cornell IR 375 (1974). In this respect, because
we have set aside the regulations complained of on other
grounds, we need not consider the use ef a certain summary
supplied by way of comment by the National Limestone
Institute which EPA admittedly used in promulgating the
final regulations. There is a dispute over whether or not
the National Limestone Institute survey was available to
the petitioners.
However, there seems to be no dispute that it was not
available to the public, or at least there was no notice to the
public that it was being relied upon.
'* The EPA has confessed error in its brief for its failure
to provide petitioners Warren Brothers and Arkhola Sand
and Gravel with an opportunity to comment upon the Versar
data used by the Agency in setting the monthly TSS average
for construction sand and gravel plants. EPA brief at 18,
n. 15. Since the Agency admits the Versar data also were
used in setting the 45 mg 1 daily maximum, we do not think
the EPA's confession of error should be confined to the 30
day average. In addition, we note that Warren Brothers had
precisely made clear to the EPA its concern with the crushed
stone as well as the sand and gravel limitations. As a result,
22a
Recycling Provisions
The next point which we consider is the contention
that the recycling provisions (42 F.R. 35850-1,
§§ 436.22(a) (1), 436.32(a)(1)) of the final regu-
lations are invalid. Recycling was not mentioned in
any way in the interim final regulations, and there
was no requirement in them to recycle. The word
simply does not appear. It is true that in the techni-
cal summary accompanying the interim final regula-
tions in connection with zero discharge for process
generated waste water that recycling was mentioned
as an available technology. Also, for construction sand
and gravel facilities, recycling was apparently con-
templated as a requirement for discharge of process
generated waste water when commingled with mine
water. Recycling was also referred to as a treatment
technology in the economic analysis. But the recycling
technology for construction sand and gravel facilities
was specifically rejected for the interim final regu
lations in that the technical summary provided that
“treatment other than single settling ponds followed
by recycling may be the only economically viabie
technology.” With the technical summary which is
at least confusing, the interim final regulations them-
selves specifically provided, for construction sand and
gravel facilities, that process generated waste water,
when commingled with other waste water, could be
EPA’s confession of error should be extended to the daily
maximum and monthly average TSS limitation in both the
crushed stone and sand and gravel subcategories. We con-
sider this an alternate reason for setting aside the regu-
lations.
23a
discharged without recycling providing the numbered
effluent limitations were met. The case was not
quite the same in the interim final regulations for the
crushed stone facilities. The interim final regulations
contemplated that process generated waste water be
kept separate from other waste water, and while
providing a zero discharge limit for process generated
waste water, allowed discharge of mine dewatering
water providing the numbered effluent limitations
were met. ;
Comments from the industry on the no discharge
provision for process generated waste water, as EPA
acknowledges, sought to provide for the crushed stone
industry the same right to discharge the commingled
waters that EPA had allowed the construction sand
and gravel industry in the interim final regulations
without recycling.
With this background, the final regulations were
promulgated. Petitioners make a multitude of ob-
jections to them, of which we will discuss only a few.
First, the term recycle is not defined in the regu-
lations. This may seem somewhat remarkable be-
cause the recycling requirement is acknowledged to
be a major change between the interim final and the
final regulations. This aside, nowhere in the regu-
lations can it be found what part or what volume of
the process generated waste water must be recycled
to get the benefit of the discharge provisions. If
petitioners claim, as EPA claims that they do, that
total recycling is required, that term is not defined.
If the requirement is partial recycling as EPA claims,
24a
then that term is not defined. There simply is no
definition.” EPA claims in its brief that the answer
is apparent, that “all the water used in the industrial
process must be obtained from the treatment system
itself.” But then it adds that “excess water can be
treated prior to discharge,” referring to the addition
of water from outside the mine to use in the industrial
process. If this is a definition, it is not found in the
regulations, rather in the brief.
The fact that the regulations do not define recyc-
ling may well make them void for vagueness under
our decision in duPont, at p. 1033, where we set aside
an EPA regulation because we were “not sure what
it means ia the context in which it is used.” That
reasoning might well apply here even if this were the
only objection, but there is a more basic fundamental
objection to the recycling requirement.
We take it from all the record in this case that in
the usual wet operation for both crushed stone and
construction sand and gravel that the water used in
the industrial process, generally speaking, comes from
within the mine or quarry, whether it be from a
settling pond or from some other source."* Assuming
18 Various terms are defined in the regulations. A glossary
to the development document defines many more. Recycle is
not among therm.
‘* There is a dispute over whether or not the water for the
industrial process in a typical wet operation comes from
within the mine or quarry. The engineer’s report offered by
petitioners previously referred to states that it does. Peti-
tioners in their second reply brief state that it does and offer
to corroborate the faci. EPA in its second reply brief con-
25a
only that fact, then, the petitioners claim, and EPA
points to nothing in the record to refute the fact, that
the recycling requirement results in not one bit less
discharge of pollutants into the navigable streams
than the technology which petitioners claim should be
the best practicable, that is allowing settling and
discharge without recycling. In its brief, EPA argues
that this claim of petitioners is without merit because
some water may be lost by evaporation and some may
be carried off on the product. But it points te no
technical data to support its argument. Without the
tests the fact, although in its first brief its argument that
total recycle means all process water coming from within the
system may lend some support to petitioners’ view, but this
is qualified by mention of added water from without the
quarry or mine. The development document does not ad-
dress the question. It lists the sources of process water as
quarries, wells, rivers, company-owned ponds, and settling
ponds, with no attempt at stating the source for a typical or
ordinary operation. EPA contends in its second reply brief
that only about half the quarries it studied dewater their
quarries at all. We are unable to determine from this record
the facts to ascertain which position is correct, but even
assuming the correctness of EPA’s apparent position that
many quarries do not obtain their process water from within
the mine or quarry, we especially note that EPA does not
deny that many quarries do. That being true, and nothing in
the record suggests that it is not, the very difficult question
for EPA arises as to whether or not EPA, in any event, may
make a rational decision which would impose upon a substan-
tial part of an industry a burdensome and costly require-
ment which, if needed at all, is cnly needed in another part
of the same industry. We do not atiempt to answer that
question on this record, but the fact that it is a serious ques-
tion and is suggested by the record is not refuted by any
argument EPA makes in the case.
26a
benefit of an engireering opinion on the point, it
would seem to us that if water is used to wash the
stone or the sand and the water comes from within
the mine, whether from settling pond or otherwise,
that the same amount of water is going to be carried
out on the finished product regardless of whether it
is pumped from the settling pond or from somewhere
else. Also, if there is a given amount of water within
the mine from whatever source, and evaporation
takes place from exposed surface areas, including
the industrial process, explanation is required to
show why any more water would evaporate in a
system utilizing recycling when compared with one
which did not. We do not say that petitioners’ posi-
tion will turn out to be correct, but the record before
us does not show it to be incorrect, and it is sup-
ported by logic. We decline to accept EPA’s position
absent reesrd support.
On the record before us, it is not shown that the
addition of the recycling requirement, although ad-
mittedly costly and burdensome, will result in any
reduction in the discharge of pollutants into the navi-
gable waters. Indeed, EPA as much as acknowledges
that absent evaporation and the water carried out
on the product petitioners’ premise is correct. This
state of facts, then, makes applicable our ruling in
duPont, at p. 1034, concerning the no discharge pro-
vision for plants using the electrolytic process for
making hydrogen peroxide. In that case, one plant
using a process unique to the industry in this country
had a negligible difference in the quality of influent
27a
well water and efluent discharge. We noted that the
discharges were environmentally insignificant, and
importantly we then followed with the statement that
‘“‘we cannot comprehend how a chenge from the pres-
ent to the EPA technology, evaporation and landfill
will be beneficial. ... On reconsideration, [for addi-
tional reasons] EPA must give consideration to the
total environmental impact.”
That holding also applies here. If the requirement
of settling plus recycling results in no more benefit
to the environment than simply resettling without
recycling, then the recycling requirement may not be
the best practicable control technology currently avail-
able, but only a burdensome and expensive addition.
If EPA’s argument is valid, that evaporation and the
water carried out on the product result in less pol-
lutants being discharged into the waters, then EPA
musi at least explain how much less poilutants will
be discharged and what the additional cost will be
for discharging the lower amount of pollutants. None
of these subjects are addressed in the record. See
Appalachian Power Co. v. Train, 545 F2d 1351, 1364
(4th Cir. 1976).
Parenthetically, we note that, especially for the
construction sand and gravel industry,’* and, to a
lesser extent for the crushed stone industry, the prob-
'® The construction sand and gravel industry was permitted
to discharge, if effluent limitations were met, commingled
waste water without recycling under the interim final regula-
tions. The final regulations reversed this policy without
notice.
28a
lems we have just mentioned concerning recycling
could have as easily been avoided as those in the TSS
context if only EPA had provided a fair notice of
what it was doing with the reasons therefor and made
available in time to allow for intelligent comment all
of the technical data upon which it acted.
We thus remand the recycling provisions to the
Agency for further consideration.
No Discharge Provisions
(42 F.R. 35850-1, $$ 436.22(a) (2), 436.32(a) (2) )
The zero discharge requirement for process gene-
rated waste water in the interim final regulations
(41 F.R. 23558-9, §§ 436.22(a) (1), 4386.32 (a) (1) )
was absolute for the crushed stone industry because
those regulations did not contemplate the commin-
gling of process generated waste water with other
waste water. It was also absolute for plants in the
construction sand and gravel industry which did not
commingle process generated waste water with mine
dewatering water but permitted discharge without
recycling for constructian sand and gravel facilities
which did so commingle. 41 F.R. 23559, § 436.32
(a)(3). In the final regulations, the no discharge
requirement for process generated waste water is
the same for both industries, that is to say, no dis-
charge for facilities which do not recycle but not
applicable to those which do. As we have previously
pointed out, recycling was not mentioned in the in-
terim final regulations. The condition for both indus-
29a
tries in the final regulations permitting discharge is
recycling, which we have set aside. The condition
being set aside, the no discharge provisions should
be remanded for reconsideration by the Agency. We
do not think the no discharge provisions are meant
to stand alone. They were made a part of the final
regulations in what EPA contends was an ameliora-
tion of the stringency of the interim final regulations
in response to industry comments. They can hardly
be considered an amelioration if they stand in their
original form. Also, on remand, should EPA’s posi-
tion on the recycling requirement turn out to be not
well taken, then it may well decide to omit the re-
cytling requirement which might permit the discharge
after settling of commingled process generated waste
water and mine water provided numbered effluent
limitations are met.
The no discharge provisions are therefore remand-
ed to the Agency for reconsideration.
Variance Provisions
Petitioners also raise the question of whether the
crushed stone (42 F.R. 35849, § 436.22) and con-
struction sand and gravel (42 F.R. 35850, § 436.32)
variance provisions comport with the decision of this
court in Appalachian Power Co. v. Train, 545 F2d
1351, 1358-60 (4th Cir. 1976), in which case we set
aside a variance clause for steam electric power
point sources worded substantially the same as the
variance provision now under review. Here, as in
Appalachian Power, the EPA proposes to grant a
30a
variance from the 1977 BPT standards only where
“factors relating to the equipment or facilities in-
volved, the process applied, or other such factors re-
lating to such discharges are fundamentally different
from the factors considered in the establishment of
the guidelines.” Compare 40 C.F.R. § 423,.12(a)
(1977) with 42 F.R. 35850, $§ 436.22, 436.32, which
show the variance provisions in Appalachian Power
and the ones before us to be in the same words.
We held in Appalachian Power that the variance
clause was “unduly restrictive,” 545 F2d at 1359, and
ordered a remand to the Agency for the development
of “a meaningful variance clause” that would permit
economic and other factors to be considered. Id. at
1359-60. The EPA, however, argues that Appalachian
Power is not applicable here because review of the
variance provision would be premature prior to any
actual claim for a variance in a discharge permit
application. See FE. J. duPont de Nemours & Co. v.
Train, 541 F2d 1018, 1028 (4th Cir. 1976), aff'd on
this ground, 430 U.S. 112, 128, n. 19 (1977). In
Appalachian Power, however, we distinguished our
decision in duPont, that review of the variance pro-
vision would be premature and speculative, because
EPA hed indicated its refusal in two administrative
opinions to consider economic factors in considering
variance requests. 545 F2d at 1357-60, n, 22; 39
F.R. 28926-7, dated August 2, 1974, and 39 F.R.
30073 dated August 13, 1974.
We are of opinion the same distinction applies
here, but with added background. On March 3, 1978,
sla
the EPA announced its proposed amendments to the
steam electric power variance provision we set aside
in Appalachian Power. 43 F.R. 8812, 8813. Refer-
ring to our decision in Appalachian Power, the EPA
announced this change: “In accordance with the
Court’s opinion, the [new] variance clause would
allow the permit issuers to consider ‘significant cost
differentials’ and other economic factors applicable
to the particular source involved.” 43 F.R. 8813.
But the EPA further stated “[t]his change applies
only to steam electric power plants. . . . For cate-
gories other than steam electric power plants, ecc-
nomic factors will not be considered in ruling on
BPT variance requests. .. .” The final steam electric
variance amendment appears at 43 F.R. at 43023
et seq., and 44846 (corrected), dated September 22
and 29, 1978, where the same position was taken.
In the meantime, however, despite EPA’s con-
tinued assertions that “economic factors” should be
“Cexclude[d]” in all categories of industry regulated
by EPA other than steam electric power generation,
the administrator, on ruling on a variance in the
case of In re Louisiana-Pacific Corp., et al., 10 E.R.C.
1841 (Sept. 15, 1977), had recited that the cost of
application of the required technology was a major
relevant fact. Despite this recitation, however, EPA
did not change its stated position until after this
case was submitted; and the final regulations effect-
ing a change in position are not yet in effect.
On October 17, 1978, the general counsel for EPA
withdrew the interpretations of August 1974 upon
which we had relied in Appalachian Power in holding
that the construction of the variance clause was ripe
for review and not premature. 43 F.R. 50042. That
withdrawal had been preceded by only a few weeks by
the promulgation, on August 21, 1978, of proposed
variance provisions which would have made a signifi-
cant departure from EPA's previous position and put
the Agency more in line with our opinion in Ap-
palachian Power. 43 F.R. 37132. The proposed pro-
visions apparently would apply both to the crushed
stone and construction sand and gravel industries,
and together with the revocation by EPA of the
August 1974 interpretations the matter might be
moot were it not for one additional fact. In the paper
published in 43 F.R. 50042 withdrawing the August
1974 interpretations, the administrator specifically
noted that “EPA continues to believe that § 301(c)
of the Clean Water Act (allowing waivers based upon
plant-specifie economie capability or ‘affordability’ )
applies only to best available technology (BAT)
limitations.”
That construction places EPA squarely in conflict
with the rule in Appalachian Power which we have
referred to. That case, on page 1359-1366, specifically
required EPA to take into consideration, among other
things, the statutory factors set out in § 301(¢). EPA
is well aware of our position, for, in Appalachian
Power, in an order filed September 26, 1977, follow-
ing the Supreme Court decision in duPont, the same
point was made in a motion to us to amend our opin-
ion. The request was denied.
33a
In passing, we should note several arguments of
EPA which are not well taken. First, EPA argues
that our ruling demands variance requests be based
on water quality standards rather than effluent
limitations. We rejected that point of view in Appa-
lachian Power Company at page 1378. Second, the
administrative action of EPA of October 17, 1978,
43 F.R. 50042, strongly implies that our requirement
that § 301(c) factors be at least considered in de-
termining whether or not to grant a variance means
that a plant may “secure a BPT variance by alleging
[and proving] that the plant’s own financial status
is such that it cannot afford to comply with the
national BPT limitation.” Like the previous EPA
argument, this argument was also specifically re-
jected by us in Appalachian Power, where we said,
with reference to the $ 301(c) factors, that “if it is
doing all that the maximum use of technology within
its economic capability will permit and if such use
will result in reasonable further progress toward the
elimination of the discharge of pollutants . .. no rea-
son appears why Consolidated Edison should not be
able to secure such a variance should it comply with
any other requirements of the variance.” (Emphasis
in original)
EPA’s arguments as to water quality standards
and as to its interpretation of the consideration of
costs under $ 301(c) are no better than straw men.
Both positions have been previously considered by this
court and rejected. They are not even argued by peti-
tioners whose argument here largely is devoted to
34a
other specific factors they claim should be considered
in determining whether or not to grant a variance.
Finally, we should say that our construction of the
variance provisions seems to be generally, if not pre-
cisely, in accord with that of the court in Weyer-
haeuser Co. v. Costle, Nos. 76-1674, et al., 11 E.R.C.
2149 (D.C. Cir. 1978). That court analogized the
1983 variance provisions with the 1977 provisions,
drawing upon the Supreme Court opinion in duPont
as its authority. In summary, Weyerhaeuser held
that a 1977 variance clause must be analogous to
the 1983 variance clause, and that EPA’s application
of the 1977 variance clause must bear a similar rela-
tionship to the 1977 standards as the 1983 variance
clause bears to 1983 standards. We have held, in
Appalachian Power Co., that EPA, in promulgating
regulations under the 1977 variance clause, may not
exclude the factors to be considered in granting vari-
ances under the 1983 standards because the statute
contemplates there may be more stringent standards
for 1983. While the 1983 standards are not before
us for review, we note in the development document
that the contractor recommends both pH and TSS
limits for 1983 be the same as for 1977. Especially
in a case where the effluent limits are the same, but
in any case, we think the statute is not meant to
stop the operation of a plant in 1979 under 1977
standards under more strict conditions than would
apply to a plant operating in 1983 under standards
for that year. This situation could easily close a
plant in 1979 which would be allowed to operate un-
der a variance in 1983.
35a
Accordingly, we remand the variance provisions to
the Agency for compliance with Appalachian Power
Company.
Definition of Process Generated Waste Water
Finally, we consider the petitioner’s contention that
the definitions of process generated waste water in
the final regulations (42 F.R. 35849-50, §§ 436.21(e),
436.31(e)) are so different from the definitions in
the interim final regulations (41 F.R. 23558-9,
$$ 436.2i(e), 436.31(e) that they must be set aside.
The addition in the final regulations about which
complaint is made is that process generated waste
water “shall also include any other water which
becomes commingled with such waste water in a pit,
pond, lagoon, mine, or other facility used for treat-
ment of such waste water.”
Petitioners view the change as having significantly
expanded the definition of process generated waste
water, and indeed it has. But we doubt the definition
is invalid on its face, for when we take into account
the practical consideration that the commingling is
done in a settling pond or even in another part of a
mine or quarry, and that one, if not the, principal
controversy before us seems to be whether effluent
discharge of commingled waters meeting numbered
effluent limitations is permissible without recycling,
then we think the regulation could have a place in
the scheme of regulation. This does not take: into
account, of course, lack of notice. Neither does it
take into account the fact that the definition of proc-
36a
ess generated waste water is completely intertwined
with the controversy concerning effluent discharge
and the recycling provisions.
Because of this, we think the proper course to
take with respect to these regulations is to decline
to act on them at this time in view of our remand of
certain other regulations in this decision. On remand,
petitioners should be allowed to comment on the regu-
lations, and if they appear before us again, we will
have them in the context of their accompanying regu-
lations and will be in a better position to express an
opinion on their validity, both for that reason and
because accompanied by comment.
We, therefore, decline to express an opinion upon
the validity of the expanded definition of process
generated waste water at this time without prejudice
to the matter being raised in a subsequent petition
following the remand of this case to EPA and its
reconsideration of the other regulations we have dis-
cussed in this case.
Other Matters Raised in Briefs
The petitioners also have asked us to set aside the
regulations for industries which did not have the re-
quired technology in place by July 1, 1977 on the
ground that the July 1, 1977 deadline for compliance
with them had passed before the regulations were
promulgated on July 12, 1977, to be effective August
11, 1977.
It is apparent that the petitioners’ position raises
what may be serious questions of statutory construc-
37a
tion as well as constitutional limitations, and because
we have remanded the contested regulations on other
grounds, we do not express an opinion on those
questions.
The fact that we may not have mentioned many of
the points raised in the briefs should not infer any
opinion of ours as to their merit.
Conclusion
The following regulations are remanded to the
Agency for reconsideration:
Crushed Stone Subcategories
Section
§ 436.22 (variance clause)
§ 436.22(a)(1) (TSS limits for process generated
waste water and recycling requirement)
§ 436.22(a)(2) (no discharge provision)
§ 436.22(a) (3) (TSS limits for mine dewatering dis-
charge)
Construction Sand and Gravel Subcategories
§ 436.32 (variance clause)
§ 436.32(a)(1) (TSS limits for process generated
waste water and recycling requirement)
§ 436.32(a) (2) (no discharge provision)
§ 436.32(a) (3) (TSS limits for mine dewatering dis-
charge)
38a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
76-1914
[Filed Jun. 18, 1979]
NATIONAL CRUSHED STONE ASSOCIATION, INC.,
and LUCK QUARRIES, INC., PETITIONERS
vs.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
ON PETITION FOR REVIEW OF AN ORDER OF THE
ENVIRONMENTAL PROTECTION AGENCY
THIS CAUSE came on to be heard upon the peti-
tion of National Crushed Stone Association, Inc.,
and Luck Quarries, Inc., for review of an order issued
by the Environmental Protection Agency entitled
“Effluent Guidelines and Standards for Mineral Min-
ing and Processing Point Source Category,” 41 Fed.
Reg. 23552-23560 (June 10, 1979), Subparts B,
§§ 436.20, 436.21 and 436.22; upon the certified index
to the record; and the said cause was argued by
counsel.
ON CONSIDERATION WHEREOF, It is ordered,
adjudged and decreed by the United States Court of
Appeals for the Fourth Circuit, that the following
regulations are remanded to the Agency for recon-
sideration consistent with the opinion of this Court
filed herewith:
39a
Crushed Stone Subcategories
Section
§ 436.22 (variance clause)
§ 436.22(a)(1) (TSS limits for process generated
waste water and recycling requirement)
§ 436.22(a) (2) (no discharge provision)
§ 436.22(a) (3) (TSS limits for mine dewatering dis-
charge)
Construction Sand and Gravel Subcategories
§ 436.32 (variance clause)
§ 436.32(a)(1) (TSS limits for process generated
waste water and recycling requirement)
§ 436.32(a) (2) (no discharge provision )
§ 436.32(a) (3) (TSS limits for mine dewatering dis-
charge)
WILLIAM K. SuateE, II
Clerk
40a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 76-1690
CONSOLIDATION COAL COMPANY, PETITIONER
versus
DOUGLAS M. CosTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 76-1859
BETHLEHEM STEEL CORPORATION, PETITIONER
versus
DOouGLAS M. COSTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 76-1862
NATIONAL COAL ASSOCIATION, PETITIONER
versus
DouGLas M. CostLE, as Administrator,
Environmentai Protection Agency, RESPONDENT
WEST VIRGINIA CITIZEN ACTION GROUP, INTERVENOR
No. 76-1912
PEABODY COAL COMPANY, a corporation, PETITIONER
versus
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
4la
No. 76-1981
GIBRALTER COAL CORPORATION, PETITIONER
versus
DOUGLAS M. COSTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 76-1982
AMAX, INC., on behalf of its Amax Coal
Company Division, PETITIONER
versus
DouGLAS M. COSTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 76-2019
THE DRUMMOND COMPANY, PETITIONER
versus
DOouGLAS M. COSsTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 76-2020
SAVE OUR CUMBERLAND MOUNTAINS, INC.
and CITIZENS LEAGUE TO PROTECT THE
SURFACE RIGHTS, INC., PETITIONERS
versus
DouGLas M. CostLE, as Administrator,
Environmental Protection Agency, RESPONDENT
42a
No. 76-2059
NortTH AMERICAN COAL CORPORATION, PETITIONER
versus
DouGLas M. CostTL£, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 76-2145
NATIONAL STEEL CORPORATION, PETITIONER
versus
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
No. 76-2146
REPUBLIC STEEL CORPORATION, PETITIONER
versus
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
No. 76-2147
UNITED STATES STEEL CORPORATION, PETITIONER
VETSUS
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
No. 77-1474
NATIONAL COAL ASSOCIATION, PETITIONER
versus
DouGLas M. CostTLgE, as Administrator,
Environmental Protection Agency, RESPONDENT
43a
No. 77-1490
CONSOLIDATION COAL COMPANY, PETITIONER
versus
DOUGLAS M. COSTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 77-1491
BETHLEHEM STEEL CORPORATION, PETITIONER
versus
DouGLAS M. CosTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 77-1534
THE DRUMMOND COMPANY, PETITIONER
versus
DOUGLAS M. CosTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 77-1592
NATIONAL STEEL CORPORATION, PETITIONER
versus
DOUGLAS M. CosTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 77-1593
REPUBLIC STEEL CORPORATION, PETITIONER
Versus
DOouGLAS M. COosTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
44a
No. 77-1594
UNITED STATES STEEL CORPORATION, PETITIONER
versus
DouG.Las M. CostLgé, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 77-1828
PEABODY COAL COMPANY, a corporation, PETITIONER
versus
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
No. 77-1845
WEST VIRGINIA-CITIZEN ACTION GrRouP, INC.,
MOUNTAIN COMMUNITY UNION, INC., and
SAVE OUR MOUNTAINS, INC., PETITIONERS
versus
DouGuas M. CostLe, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 77-1892
SAVE OUR CUMBERLAND MOUNTAINS, INC.,
and CITIZENS LEAGUE TO PROTECT THE
SURFACE RIGHTS, INC., PETITIONERS
versus
DouGLas M. CosTLeE, Administrator,
Environmental Protection Agency, RESPONDENT
45a
No. 77-1893
NORTH AMERICAN COAL CORPORATION, PETITIONER
versus
DouGLas M. CosTLe, Administrator,
Environmental Protection Agency, RESPONDENT
No. 77-1957
CEDAR COAL COMPANY, CENTRAL APPALACHIAN COAL
COMPANY, CENTRAL COAL COMPANY, CENTRAL
On10 COAL COMPANY, SOUTHERN APPALACHIAN
COAL COMPANY, SOUTHERN OHIO COAL COMPANY,
and, WINDSOR POWER HOUSE COAL COMPANY, PE-
TITIONERS
versus
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
No. 77-1989
AMAX INC., on behalf of its Amax Coal
Company Division, PETITIONER
versus
DouGLas M. COSTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
No. 77-1990
GIBRALTAR COAL CORPORATION, PETITIONER
versus
DouGLas M. COsTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
46a
No. 77-2088
COMMONWEALTH OF PENNSYLVANIA, Department
of Environmental Resources, PETITIONER
versus
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
ON PETITION FOR REVIEW OF AN ORDER OF THE
ENVIRONMENTAL PROTECTION AGENCY
Argued October 5, 1978 Decided June 25, 1979
Before BUTZNER, WIDENER and HALL, Circuit Judges
BUTZNER, Circuit Judge:
In 27 consolidated cases, 17 coal producers, their
trade association, 5 citizens’ environmental associa-
tions, and the Commonwealth of Pennsylvania seek
review, pursuant to 33 U.S.C. § 1369(b)(1)(E), of
water pollution control regulations for existing facili-
ties in the coal industry promulgated by the adminis-
trator of the Environmental Protection Agency.’ We
uphold the regulations with the exception of a clause
establishing criteria for variances.
1 See E. I. duPont de Nemours & Co. v. Train, 430 U.S.
112, 136 (1977), for a discussion of the jurisdiction of
courts of appeals to review these regulations.
47a
I
The Federal Water Pollution Control Act of 1972
is a legislative mandate to restore and maintain the
chemical, physical, and biological integrity of the
nation’s waters.* The Act sets a national goal to
eliminate the discharge of pollutants into the naviga-
ble waters by 1985.°
As the first step toward the 1985 goal,‘ Congress
provided in § 301(b)(1)(A) of the Act® that
there shall be achieved . . . not later than July
1, 1977, effluent limitations for point sources
[of water pollution], other than publicly owned
treatment works, (i) which shall require the ap-
plication of the best practicable contro] technol-
ogy currently available as defined by the Ad-
ministrator [of the Environmental Protection
Agency] pursuant to § 304(b)....
This provision for effluent limitations marked a
major change from prior law. Before the 1972 Act,
water pollution control had been based upon water
quality standards specifying the acceptable levels of
pollution in the navigable waters. The program
proved ineffective in part because the standards
focused on the tolerable effects rather than the pre-
ventable causes of water pollution. Effluent limita-
2 33 U.S.C. §§ 1251-1376.
* 33 U.S.C. § 1251 (a).
*The Act contemplates a two-phase reduction in pollutant
discharges. Second-phase standards (§ 301(b) (2) [33 U.S.C.
§ 1311(b) (2)]) are not in issue here.
® 83 U.S.C. § 1311 (b) (1) (A).
48a
tions eliminate this problem because they directly
restrict the concentrations of pollutants that may be
discharged by any plant in a given industrial sub-
category."
Section 304(b)(1)' requires the Administrator to
publish regulations which must
identify, in terms of amounts of constituents and
chemical, physical, and biological characteristics
of pollutants, the degree of effluent reduction
attainable through the application of the best
practicable control technology currently available
for classes and categories of point sources .. .
and specify factors to be taken into account in
determining the control measures and practices
to be applicable to point sources. .. within such
categories or classes.
The administrator promulgated final water pollu-
tion control regulations for existing plants in the coal
industry on April 26, 1977." The regulations divide
the industry into two eategories—(1) coal mines and
(2) coal preparation plants and associated areas.
These categories are .each subdivided according to
acidic and alkaline discharges. For each of the re-
sulting subcategories, the regulations establish maxi-
“EPA vy. California ex :rel. State Water Resources Control
Board, 426 U.S. 200, 202-05 (1976).
733 U.S.C. § 1814(b) (1).
*42 Fed. Reg. 21380-21390 (April 26, 1977), adding cer-
tain parts of 40 C.F.R. Part 434. Regulations governing
“new source” coal production facilities were promulgated
separately and are not before us in these cases. See 44 Fed.
Reg. 2586-2592 (Jan. 12, 1979).
49a
mum concentrations of iron and total suspended
solids. They also limit the permissible range of
acidity and alkalinity of discharge water, and they
restrict manganese concentrations in acidic drainage.
None of the petitions before us challenges these
maxima.” The petitions question the validity of seven
aspects of the regulations which we will discuss in
parts II-VIII of this opinion.
Our review is governed by § 10(e)(2) of the Ad-
ministrative Procedure Act.'” We must set aside any
portion of the 1977 effluent limitations that is ‘“arbi-
trary, capricious, an abuse of discretion, or otherwise
not in accordance with law;” is in excess of statutory
authority; or is “without observance of procedure
required by law.” '' The ultimate standard of review
is narrow. This court is not empowered to substitute
its judgment for that of the agency.’* The Federal
Water Pollution Control Act is to be given the broad-
est possible reading consistent with the commerce
* The administrator’s brief states that this is the first case
brought to review best practicable control technology stand-
ards in which the numerical national limitations have not
been attacked.
5 U.S.C. § 706(2). See Weyerhaeuser Co. v. Costle, 590
F.2d 1011, 1024-28 (D.C. Cir. 1978) ; see generally D. Currie,
Judicial Review under Federal Pollution Laws, 62 Iowa L.
Rev. 1221 (1977).
"5 U.S.C. § 706(2); see Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 415-17 (1971).
2 Citizens to Preserve Overton Park v. Volpe, 401 U.S. at
416.
50a
clause,"* and ambiguities as to the administrator’s
powers under the Act are to be resolved in his favor."*
Congress has required the agency to act quickly and
decisively despite a recognized absence of exact data
on pollution control technology, and we must hesitate
to draw substantive conclusions differing from those
of the agency in this area of imprecise knowledge.
An overly expansive exercise of the judicial review
power can impede accomplishment of the Act’s goal
of eliminating water pollution and thwart its require-
ment of national uniformity in effluent reduction
technology.
II. Variance—Statutory Factors
The industrial petitioners challenge the “funda-
mentally different factors” variance clause contained
in the regulations '* complaining that this provision
13 Leslie Salt Co. v. Froehlke, 578 F.2d 742, 755-55 (9th Cir.
1978) ; Minnesota v. Hoffman, 543 F.2d 1198, 1200 n.1 (8th
Cir. 1976).
14 B, I. duPont de Nemours & Co. v. Train, 430 U.S. 112,
128 (1977) ; Inland Steel Co. v. EPA, 574 F.2d 367, 373 (7th
Cir. 1978).
18 Weyerhaeuser Co. v. Costle, 590 F.2d at 1025.
16 The variance clause, contained in 40 C.F.R. §§ 434.22,
434.32, and 434.42 (1977) provides:
In establishing the limitations set forth in this section,
EPA took into account all information it was able to
collect, develop and solicit with respect to factors (such
as age and size of plant, raw materials, manufacturing
processes, products produced, treatment technology avail-
able, energy requirements and costs) which can affect
the industry subcategorization and effluent levels estab-
5la
fails to require the permit issuer to consider the
factors set forth in §§ 304(b) (1) (B)' and 301(c)"*
of the Act.
lished. It is, however, possible that data which would
affect these limitations have not been available and, as a
result, these limitations should be adjusted for certain
plants in this industry. An individual discharger or
other interested person may submit evidence . . . that
factors relating to the equipment or facilities involved,
the process applied, or other such factors related to such
discharger are fundamentally different from the factors
considered in the establishment of the guidelines. .. .
If such fundamentally different factors are found to
exist, the Regional Administrator or the State shall
establish for the discharger effluent limitations .. . either
more or less stringent than the limitations established
herein, to the extent dictated by such fundamentally
different factors.
733 U.S.C. § 1314(b) (1) (B). This section provides in
pertinent part that
factors relating to the assessment of best practicable
control technology currently available to comply with
subsection (b) (1) of section 1311 of this title shall in-
clude consideration of the total cost of application of
technology in relation to the effluent reduction benefits to
be achieved from such application, and shall also take
into account the age of equipment and facilities in-
volved, the process employed, the engineering aspects
of the application of various types of control techniques,
process changes, non-water quality environmental im-
pact (including enery requirements), and such other
factors as the Administrator deems appropriate.
1833 U.S.C. § 1311(c). This section provides that the Ad-
ministrator may modify the 1984 second-stage pollution con-
trol requirements
upon a showing by the owner or operator of [a] point
source that such modified requirements (1) will repre-
52a
An identical variance clause was before the court
in National Crushed Stone Association v. EPA,”
which controls our disposition of this issue. National
Crushed Stone holds that the clause is unduly restric-
tive, relying on Appalachian Power Co. v. EPA.”
Accordingly, we set aside the variance clauses con-
tained in 40 C.F.R. §§ 434.22, 484.32, and 434.42
and remand them for revision to conform with Na-
tional Crushed Stone.
III. Variance—Environmental Benefits
The industrial petitioners also insist that the regu-
lations dealing with variances must be disapproved
because they fail to require the agency to consider
the environmental benefits of applying the effluent
limitations to a particular source of pollution. The
only specific error they attribute to the regulations is
the absence of a provision requiring the agency to
take into account the quality of the receiving water
when it decides whether to grant a variance.
At the outset, we reject the agency’s argument that
consideration of this aspect of the variance regu-
lations would be premature. In a recent adjudicatory
proceeding, the administrator unequivocally ruled
that the Act and, consequently, the regulations, do not
sent the maximum use of technology within the economic
capability of the owner or operator; and (2) will result
in reasonable further progress toward the elimination of
the discharge of pollutants.
F.2d ——, No. 76-1914 (4th Cir., June 18, 1979).
20 545 F.2d 13851 (4th Cir. 1976).
19
53a
authorize him to grant a variance to an industrial
discharger by providing “relief from technology-based
effluent limitations guidelines due solely to the char-
acteristics of particular receiving waters... .”*
Since the administrator’s interpretation of the regu-
lations precludes any speculation about its meaning,
review is not premature.” We therefore turn to the
merits of the petition.
The pertinent regulations authorize the administra-
tor to allow deviations from the national effluent
limitations if factors peculiar to a specific source of
pollution are fundamentally different from the factors
considered in the establishment of the guidelines.”
The precise issue, therefore, is whether the factors
peculiar to a source of pollution must include com-
parison of the expected improvements in the receiving
water with the cost of achieving them. We dealt with
this issue in Appalachian Power," where, in response
to Consolidated Edison’s request to be relieved of
the effluent guidelines, we said:
[S]o far as its petition may be read as a request
for leniency because of the already polluted con-
dition of the harbor, it must be rejected. The
1972 amendments to the statute changed the
system from that of control of the quality cf the
21 In re Louisiana-Pacific Corp., 10 E.R.C. at 1854.
22 See Appalachian Power, 545 F.2d at 1359.
23 See n.16, supra.
4545 F.2d at 1378.
54a
body of water to effluent limitations as we have
before noted.
The Court of Appeals for the District of Columbia
Circuit also examined this issue in Weyerhaeuser Co.
v. Costle,** and affirmed the administrator’s refusal
to consider receiving water quality in setting limi-
tations.
These decisions recognize tha. after many years of
experimenting with pollution control laws, Congress
determined that emphasis on receiving water quality
instead of effluent reduction technology was unac-
ceptable for control of private sources of pollution.
With exceptions not germane to this opinion, Con-
gress has now mandated that even if the application
of the best practicable control technology to a specific
source of pollution results in no significant improve-
ment in the quality of the receiving water, that tech-
nology must still be applied. Commenting on the
change in the scheme for elimination of poliution, the
Supreme Court said:
[A] discharger’s performance is now measured
against strict technology-based effluent limita-
tions—specified levels of treatment—to which it
must conform, rather than against limitations
derived from water quality standards to which
it and other polluters must collectively conform.”
Any possible doubt about congressional intent to
preclude consideration of receiving water quality in
28 §90 F.2d 1011, 1041-44 (D.C. Cir. 1978).
26 EPA v. California ex rel. State Water Resources Control
Board, 426 U.S. at 204-05.
55a
industrial variance rulings was put to rest in 1977.
While considering legislation necessary for mid-course
corrections in the federal water pollution control pro-
gram, Congress heard evidence about the asserted
inequity of technology-based standards.” In the re-
sulting amendments,” Congress permitted considera-
tion of receiving water quality as a basis for less
stringent discharge standards in one situation: dis-
charges from publicly owned treatment works into
marine waters.” The intent to restrict this exception
to municipalities is clear from the amendments and
their legislative history.“
We therefore conclude that the variance regulations
as interpreted by the administrator properly exclude
consideration of the quality of the receiving water.
*7 See, e.g., Federal Water Pollution Control Act Amend-
ments of 1977, Hearings Before the Subcomm. on Environ-
mental Pollution of the Senate Comm. on Environment and
Public Works, 95th Cong., Ist Sess., Part 10 at 540-41 (1977).
*8 Act of Dec. 27, 1977 Pub. L. 95-217, 91 Stat. 1567, amend-
ing 33 U.S.C. (Clean Water Act of 1977).
* See 33 U.S.C. § 1311 (h).
” See 33 U.S.C. § 1811(h); S. Rep. No. 95-370 on S. 1952,
95th Cony., Ist Sess. 45, 1977 U.S. Code Cong. & Admin.
News 4370. The only provision for less stringent discharge
standards based upon receiving water quality in the 1972
Act pertained to thermal discharges which are not in issue
here. See 33 U.S.C. § 1326(a) ; In re Louisiana-Pacific Corp.
10 E.R.C. at 1848-50. In all other respects, the 1972 Act
allowed consideration of receiving water quality only as a
basis for standards that are more stringent than the tech-
nology-based effluent limitations. See, e.g., 33 U.S.C. §§ 1311
(b) (1) (C), 1812, 1813, 1816(c).
56a
We recognize, however, that elements of the environ-
ment apart from receiving water may be affected by
enforcement of the effluent limitations, and in an
appropriate case, these elements might warrant a
variance.”
IV. Deadline
The industrial petitioners next argue that because
the standards for the coal industry were promulgated
barely two months before the statutory deadline for
application of the best practicable control technology,
they are in part unachievable, and therefore invalid,
as to certain facilities. The petitioners suggest that
the July 1, 1977, deadline for compliance with effluent
limitations “* may not be enforced because the admin-
istrator did not promulgate final regulations until
long after the Act required him to do so.”
Congress addressed this problem when it passed
the 1977 amendments to the Act. Section 309(a)
(5) (B)," added by those amendments, authorizes the
*tIn In re Louisiana-Pacific Corp., 10 E.R.C. at 1855 n.30,
the administrator observed: “There is no reason why, in a
proper case, a fundamental difference.in non-water quality
environmental impact could not justify a variance.” See 33
U.S.C. § 13814 (b) (1) (B).
8° See § 301(b) (1) (A) [33 U.S.C. §1311(b) (1) (A)].
33 See §304(b) [33 U.S.C. § 1314(b)]; but see Natural
Resources Defense Council, Inc. v. Train, 510 F.2d 692, 705-06
(D.C. Cir. 1975).
* 33 U.S.C. § 1319(a) (5) (B). As explained in the Senate
committee report:
{t]he extension would be available only when the Admin-
istrator determines that the discharger acted in good
57a
administrator to extend the deadline up to April 1,
1979, for companies that, despite good faith efforts to
comply with the best practicable control technology
standards, were unable to do so by July 1977. This
new provision speaks in general terms of persons
who have violated the Act or who otherwise have not
complied with its requirements. It does not spe-
cifically mention compliance problems caused by the
administrator’s delay in promulgating effluent limi-
tations guidelines. Nevertheless, the legislative his-
tory establishes that the amendment is intended to
afford relief in such situations to companies that
satisfy its requirements.”
Industry also contends that an extension pursuant
to § 309(a)(5)(B) wil! not prevent suits by private
citizens pursuant to § 505 of the Act against com-
faith; that a serious commitment to achieve compliance
had been made by the discharger; that compliance would
occur no later than January 1, 1979; that the extension
would not result in other sources having to achieve addi-
tional controls; that the application for a permit was
filed prior to December 31, 1974; and that the necessary
facilities for abatement are under construction.
S. Rep. No. 95-370 on S. 1952, 95th Cong., Ist Sess. 61, 1977
U.S. Code Cong. & Admin. News 4386.
% See 123 Cong. Rec. S19650 (daily ed., Dec. 15, 1977)
(remarks of Sen. Muskie, the chairman of the drafting sub-
committee) ; S. Rep. No. 95-370 on S. 1952, 95th Cong., Ist
Sess. 61-62, 1977 U.S. Code Cong. & Admin. News 4385-4387 ;
Monongahela Power Co. v. EPA, F.2d , 12 E.R.C.
1440 (4th Cir., Nov. 8, 1978) ; Republic Steel Corp. v. Costle,
581 F.2d 1228 (6th Cir. 1978) ; cf. State Water Control Board
v. Train, 559 F.2d 921, 927-28 (4th Cir. 1977).
8° 33 U.S.C. § 1365.
58a
panies that are unable to meet the statutory deadline.
The courts, however, retain equitable discretion to
determine whether and to what extent sanctions
should be allowed against coal operators who qualify
for relief under the amendment.”
Congress has adequately dealt with any dilemma
that may confront a coal operator due to the agency’s
delay. Accordingly, the regulations are not invali-
dated by the short lead time.
V. Western Coal Mines
The industrial petitioners next challenge the admin-
istrator’s decision to exclude mines in six western
states from the coverage of the maximum total sus-
pended solids level applicable to mine drainage. Con-
cerned that the administrator will promulgate more
stringent standards for the western mines, the peti-
tioners emphasize two assignments of error. First,
they assert that the postponement of suspended solids
limitations for the western mines violates the Act’s
requirement of uniformity in effluent limitations.
Second, they point out that the limits for suspended
solids, as proposed in 1976, applied to all mines in the
country. They assert that they were not given ade-
quate notice or opportunity to comment on the
Agency’s exclusion of these six states in its final regu-
lations, in violation of the Administrative Procedure
87 State Water Control Board v. Train, 559 F.2d 921, 927-28
(4th Cir. 1977); accord, Weyerhaeuser Co. v. Costle, 11
E.R.C. at 2185 n.86.
59a
Act * and sections 101(e) and 304 of the Federal
Water Pollution Control Act.”
The agency’s interim effluent limitations guidelines,
published October 17, 1975, and May 13, 1976,"
dealt with total suspended solids on a national, rather
than regional, basis. The interim guidelines pre-
scribed a maximum limitation for any one day of 70
milligrams of total suspended solids per liter of water
(mg/l) and a maximum average daily value for 30
consecutive days of 35 mg/l. The final regulations,
promulgated April 26, 1977, retain these values, but
provide that the national suspended solids limitations
do not apply in Colorado, Montana, North Dakota,
South Dakota, Utah, and Wyoming. In these states,
the agency ruled, total suspended solids limitations
will be determined on a case-by-case basis.‘* In the
preamble to its final regulations, published April 26,
1977, the agency explained its reasons for excluding
these western states as follows:
Western Coal Mines. The Effluent Guidelines
Division of EPA has received a substantial body
of information from EPA Region VIII (located
8° 5 U.S.C. § 553.
%* 33 U.S.C. §§ 1251 (e), 1314.
40 Fed. Reg. 48830.
*! 41 Fed. Reg. 19832.
#240 C.F.R. §§ 434.32(a) and 434.42(a) (footnote 1 to
effluent limitations table).
*8 42 Fed. Reg. 21382-21383.
60a
in Denver, Colorado) with respect to the limi-
tations on discharges from coal mines in the
Western United States. Representatives of that
Region believe more stringent numbers are appro-
priate in light of actual experiences with those
mines. These data appear to support effluent
limitations guidelines for a number of param-
eters significantly more stringent than the limi-
tations announced today. The reasons for the
apparent ability of Western coal mines to dis-
charge pollutants in less concentration than is
the case of Eastern coal mines are many, and
certainly include the relatively more even topog-
raphy of Western coal mines, the emphasis on
recycle of relatively scarce water supplies, and
the relatively lower concentration of pollutants
in the ggelogic formations being exploited. The
Agency is undertaking a thorough evaluation of
the information being supplied from permit-
granting authorities in the Western United
States. It is anticipated that consideration will
be given to proposal of a separate subcategory
with respect to al] pollutant parameters for those
coal mining operations located in the Western
United States which have attributes such that
they are able to meet more stringent effluent
limitations.
The Agency has determined not to promulgate
national TSS limitations for mines in some West-
ern States. Until national limitations guidelines
are published which address Western mines and
TSS, NPDES permit writers shall calculate TSS
restrictions utilizing the same discretion and with
the same deference to statutory factors as they
have in the past.
6la
We find no violation of the Act. In the first place,
we note that the administrator has not exempted
these mines from applying the best practicable tech-
nology to reach prescribed effluent limitations. Doing
so would have violated the Act.** In contrast to out-
right exemption, the Act authorizes the administrator
to create appropriate subcategories and to consider
a broad range of factors when establishing the stand-
ards for facilities within such subcategories.** Thus,
the Act does not prohibit the administrator from
creating a subcategory based on geographic location
if geological, topographical, or other technical factors
justify it.
The administrator, however, has not utilized the
Act to create a formal subcategory for the western
mines. The issue therefore is whether the adminis-
trator has authority to take an interim step toward
creating a subcategory by declining to apply the total
suspended solid effluent limitations to a designated
region pending further study.
While the resolution of the question is not free
from doubt, we believe the administrator is empow-
ered to defer establishment of the suspended solids
limitation for mines in the western states. The in-
formation that the administrtor received during the
rulemaking proceedings indicated that, with the same
** Cf. American Iron & Steel Institute v. EPA, 568 F.2d
284, 294-95, 306-08 (3d Cir. 1977).
45 See § 304(b) (1) [83 U.S.C. § 1314(b) (1)]; E. I. duPont
de Nemours & Co. v. Train, 430 U.S. at 131 n.21; Weyer-
haeuser Co. v. Costle, 590 F.2d at 1053.
62a
pollution control equipment, western mines could be
operated with more stringent limitations on the dis-
charge of suspended solids than the eastern mines.
There is therefore no apparent technological justifi-
cation for applying the limitations that were appro-
priate for the rest of the country.
At the same time, the agency had not received and
studied sufficient data to create a separate subcate-
gory with specific limitations. Consequently, the ad-
ministrator applied to the western mines all national
eriteria except the single limitation for which he
lacked sufficient data. He then temporarily authorized
state and federal officials to set levels of suspended
solid effluents on a case-by-case basis.** This practice
will generally require the western mines to continue
to conform to more strict suspended solids limitations
than those for eastern mines during the administra-
tor’s study of the data.
Referring to an analogous issue concerning the
same statute, Judge Leventhal cautioned courts to
exercise restraint for reasons that are pertinent here:
46 Section 402(a) (1) of the Act [33 U.S.C. § 1342(a) (1)]
gives the administrator the power to issue effluent limitations
on a case-by-case basis “prior to the taking of necessary
implementing actions relating to” requirements under §§ 301,
302, 307, 3¢8, and 403 of the Act. Sections 402(b)-(c) [33
U.S.C. §§ 1842(b)-(c)] allow for issuance of permits on a
case-by-case basis by state authorities, subject to veto by the
administrator under § 402(d) (2) [83 U.S.C. § 1842(d) (2) ].
A discharger is free to challenge the terms of a permit issued
by the administrator, or the administrator’s veto of a state-
issued permit, in a court of appeals. 33 U.S.C. §§ 1369 (b)
(1) (D)-(F).
63a
The courts cannot responsibly mandate flat guide-
line deadlines when the Administrator demon-
strates that additional time is necessary to in-
sure that the guidelines are rooted in an under-
standing of the relative merits of available con-
trol technologies. The delay required to give
meaningful consideration to the technical intrica-
cies of promising control mechanisms may well
speed achievement of the goal of pollution abate-
ment by obviating the need for time-consuming
corrective measures at a later date.“
A regulatory agency frequently needs to address prob-
lems step by step. It should not always be required
to answer every question simultaneously.** The ad-
ministrator’s deferral of limitations for suspended
solids in the west pending further study was prudent
and lawful.
The petitioners also point out that the limits on
suspended solids, when initially promulgated in the
notice of rulemaking, applied to all mines, and they
protest that they were not given adequate opportunity
to comment on the agency’s exclusion of the western
mines in its final regulations. They argue that this
omission violated the notice and comment provisions
of the Administrative Procedure Act“ and the re-
quirement of public participation found in the Fed-
eral Water Pollution Control Act.*°
47 Natural Resources Defense Council, Inc. v. Train, 510
F.2d at 712.
48 See Natural Resources Defense Council, Inc. v. Train,
510 F.2d at 705-12.
495 U.S.C. § 553.
8 §§ 101(e), 304 [33 U.S.C. § 1251 (e), 1814].
64a
A notice of proposed rulemaking “ ‘must be suf-
ficient to fairly apprise interested parties of the issue
involved . . .’ but it need not specify ‘every precise
proposal which [the agency] may ultimately adopt as
a rule.” Moreover, “[t]he requirement of sub-
mission of a proposed rule for comment does not auto-
matically generate a new opportunity for comment
merely because the rule promulgated by the agency
differs from the rule it proposed, partly at least in
response to submissions.” ©
Tested by these familiar principles, the administra-
tor’s procedure fully complied with both statutes.”
The Federal Water Pollution Control Act placed the
industrial petitioners on notice that individual dis-
charge permits might contain suspended solids stand-
ards that were more stringent than the national
limitations. The administrator’s 1975 notice of in-
‘! Action for Children’s Television v. FCC, 564 F.2d 458,
479 (D.C. Cir. 1977).
52 International Harvester Co. v. Ruckelshaus, 478 F.2d 615,
§32 (D.C. Cir. 1973).
53 See notes 49 and 50, supra.
‘4 Section 301(b) (1) (C) of the Act [33 U.S.C. § 1811(b)
(1)(C)] requires the agency to enforce
any more stringent limitation, including those necessary
to meet water quality standards, treatment standards, or
schedules of compliance, established pursuant to any
State law or regulations (under authority preserved by
section 510 [83 U.S.C. §1370]) or any other Federal
law or regulation, or required to implement any ap-
plicable water quality standard established pursuant to
this chapter.
Section 304(a)(4) [83 U.S.C. § 1314(a)(4)] makes sus-
spended solids a mandatory element of pollution control
standards.
65a
terim rulemaking advised that effluent limitations
would take account of total suspended solids; that the
agency had considered geographic locations during
its study of effluents; that the quality of raw water
discharged from coal mining activities varies sig-
nificantly; and that regional geology may be a de-
terminant of the variations."* Therefore, it is ap-
parent that the administrator’s deferral of a limi-
tation for suspended solids for the western mines
pending further study dealt with problems that were
mentioned in the notice. Moreover, the final regu-
lations did not require the western mines to cease
the discharge of any pollutant other than those men-
tioned in the notice. In this respect the administra-
tor’s action differs from procedures that were criti-
cized in cases on which the petitioners rely.”
For all of these reasons, we conclude that the exclu-
sion of the mines in the western states does not
invalidate the suspended solids limitation.
VI. Coal Preparation Plants
The industrial petitioners’ final complain concerns
the regulations dealing with coal preparation plants
and associated areas. They claim that these regula-
tions are impermissibly vague; that they fail to dis-
tinguish between point sources and non-point sources;
5° 40 Fed. Reg. 48831 (Oct. 17, 1975).
5° See, e.g., American Frozen Food Institute v. Train, 539
F.2d 107, 135 (D.C. Cir. 1976) ; Maryland v. EPA, 530 F.2d
215, 222 (4th Cir. 1975), vacated and remanded on other
grounds, 431 U.S. 99 (1977).
66a
and that they do not adequately notify mining com-
panies which of their activities are covered.
The Act restricts the administrator’s authority to
the regulation of discharges from point sources.”
Non-point sources are subject only to analysis, study,
and publication of information.*® The Act defines a
point source as follows:
The term “point source” means any discerni-
ble, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, tun-
nel, conduit, well, discrete fissure, container,
[or] rolling steck .. . from which pollutants are
or may be discharged.”
This definition excludes unchanneled and uncollected
surface waters.”
The regulations under attack establish the concen-
tration of specific pollutants “which may be dis-
charged by a point source” after application of best
practicable control technology. They define a point
source in conformity with the statute.” Their defini-
tions of coal preparation plant and coal preparation
plant associated areas are as follows:
57 §§ 801(e). 304(b) [88 U.S.C. §§1311(e), 1314(b)];
Appalachian Power, 545 F.2d at 1373.
58 See § 304(f) [33 U.S.C. § 1314 (f)].
5° § 502(14) [33 U.S.C. § 1362 (14) ].
* Appalachian Power, 545 F.2d at 1373.
61 40 C.F.R. §§ 454.22 (a)-(b).
*?40 C.F.R. §401.11(d) (general definition, incorporated
in these regulations by § 401.10).
67a
The term “coal preparation plant’? means a
facility where coal is crushed, screened, sized,
cleaned, dried, or otherwise prepared and loaded
for transit to a consuming facility.”
The term “coal preparation plant associated
areas” means the coal preparation plant yards,
immediate access roads, slurry ponds, drainage
ponds, coal refuse piles, and coal storage piles
and facilities.”
The subsection which the petitioners criticize as
vague provides:
The provisions of this subpart are applicable
to discharges frem coal preparation plants and
associated areas, including discharges which are
pumped, siphoned or drained from coal storage,
refuse storage and coal preparation plant ancil-
lary areas related to the cleaning or beneficiation
of coal of any rank including but not limited to
bituminous, lignite and anthracite.”
The petitioners argue that this regulation could be
interpreted to apply to surface runoff that does not
fit within the statuory definition of a point source.
We do not share the petitioners’ concern. The
subsection about which the petitioners particularly
complain, read in context with other pertinent parts
of the regulations,” applies only to discharges from
40 C.F.R. § 434.11 (e).
™ 40 C.F.R. § 434.11 (f).
*§ 40 C.F.R. § 434.20.
% See n.61, supra, and accompanying text.
68a
point sources. Stripped to its bare bones, the pe‘i-
tioners’ complaint is directed at the statutory defini-
tion of a point source, which the agency is powerless
to change. How the agency will apply its regula-
tions to actual situations presents issues which can-
not be satisfactorily resolved in the absence of a
full factual background.” They can only be deter-
mined through the permit-issuing process, including
the administrative and judicial review that is avail-
able to the petitioners.
We find no defect in the regulations for coal prepa-
ration plants and associated areas.
VII. Post-Mining Discharges
The Commonwealth of Pennsylvania and several
citizens’ environmental associations “ petition for re-
view of the administrator’s exclusion of point source
discharges from inactive surface mines during recla-
mation and revegetation and from underground mines
after coal production ceases. These petitioners charge
that the administrator’s decision to exclude these
aspects of the cod] industry was arbitrary and
capricious, and therefore illegal. They emphasize
that the deadline imposed by Congress passed with-
out the promulgation of any regulations for these
* See Toilet Goods Association, Inc. v. Gardner, 387 U.S.
159, 168-66 (1967).
*§ Save our Cumberland Mountains, Inc.; Citizens League
to Protect the Surface Rights, Inc.; West Virginia Citizen
Action Group, Inc.; Mountain Community Union, Inc.; and
Save our Mountains, Inc.
69a
discharges. Pennsylvania additionally complains that
the absence, or even the postponement, or rules per-
taining to post-mining discharges will hinder its
regulation of inactive mines by encouraging the in-
dustry to concentrate its operations in states with
lower environmental standards.
The administrator, supported on this occasion by
the industrial petitioners, claims that he has insuffi-
cient data, particularly on costs in relation to bene-
fits, to draft the necessary regulations. Pennsylvania
and the environmental groups insist, however, that
one of the agency’s development documents,” the
comments received by the agency during rulemaking,”
and the laws and regulations of several states“
disclose sufficient data for the promulgation of per-
tinent regulations.
The record amply supports the petitioners’ claim
that post-mining pollution abatement is an integral
part of coal production. In two sections of the Act,
Congress explicitly recognized the problem of pol-
*? EPA, Development Document for Interim Final Effluent
Limitations Guidelines and New Source Performance Stand-
ards for the Coal Mining Point Source Category (May 1976).
7 See, e.g., 42 Fed. Reg. 21383 (April 26, 1377).
7! See, e.g., Ky. Rev. Stat. Chapter 350 (1978 Cum. Supp.) ;
35 Penna. Stat. § 691.1 et seq. (1978 Supp.) ; Commonwealth
v. Barnes & Tucker Co., 472 Pa. 115, 371 A.2d 461 (1977).
Also, according to EPA, the State of West Virginia has con-
sistently certified that mines must continue to meet effluent
limitations after release of the reclamation bond.
70a
luted drainage from abandoned mines. Coal min-
ing, whether on the surface or underground, neces-
sitates massive excavations that change the drainage
characteristics of the land. Drainage of precipitation
and surface water over coal waste—rather than
water actually used for coal mining—causes the bulk
of the water pollution from coal mines.” Ceasing
active mining operations does not necessarily reduce
water pollution from the site. Pollution may continue
indefinitely or even increase in intensity if proper
mining methods and control technology are not em-
ployed.** Pollution from post-mining sites may come
from point source discharges.”
Much of our discussion in Part V about the west-
ern coal mines is pertinent to this issue. The admin-
istrator cannot exempt post-mining point source dis-
charges from the application of the best practicable
control technology. Section 301(e) of the Act re-
quires that pertinent effluent limitations must be
applied to all point sources without exception.” The
72 §$ 107 and 304(f) (2)(B) [33 U.S.C. §§$ 1257 and 1314
(f) (2) (B)] Both sections, however, provide only for study,
analysis, and demonstration projects.
78 Unlike coal preparation plants and plants in certain
manufacturing industries coal mining does not use water as
part of the process, except in small quantities for dust con-
trol and fire prevention. Appendix B to final regulations,
42 Fed. Reg. 21387 April 26, 1977.)
# See 42 Fed. Reg. 21387 (April 26, 1977).
™ See 42 Fed. Reg. 21383, 21387 (April 26, 1977).
7633 U.S.C. § 1311(e); see American Iron and Stee! In-
stitute v. EPA, 568 F.2d 284, 306-08 (3d Cir. 1977).
Tla
administrator may, however, subcategorize the coal
industry for the purpose of prescribing effluent limi-
tation guidelines under § 304(b)”
Here, the administrator has created a subcategory
for active mines. He accomplished this by defining a
coal mine as “an active mining area.” ** This phrase
was defined in turn as follows:
[A] place where work or other activity related
to the extraction, removal, or recovery of coal is
being conducted, except, with respect to surface
mines, any area of land on or in which grading
has been completed to return the earth to de-
sired contour and reclamation work has begun.”
To eliminate any question about the exclusion of
post-mining operations the regulations also provide:
Drainage which is not from an active mining
area shall not be required to meet [these] limi-
tations .. . as long as such drainage is not com-
mingled with untreated mine drainage which is
subject to the limitations .. .”
The administrator rightly decided that regulations
for active mines might prove to be inappropriate for
inactive mines. Indeed, Congress has demonstrated
its belief that inactive mines require pollution con-
trols that are quite different from those for active
mines. By enacting the Surface Mining Control and
77 See text and cases cited at n.45, supra.
78 40 C.F.R. § 434.11(d).
7° 40 C.F.R. § 434.11 (b).
© 40 C.F.R. §§ 434.32 (c), 434.42 (c).
72a
Reclamation Act of 1977,"' Congress recognized that
the Federal Water Pollution Control Act is inade-
quate to eliminate pollution from inactive mines. The
surface mining act addresses many of the issues
raised by the environmental groups and Pennsylvania.
It requires a surface mine operator to restore vege-
tation, prevent erosion, and curtail water pollution
after active mining has ceased.” It also requires
underground mine operators to take specified meas-
ures during and after mining to reduce water pol-
lution.™
Since we have concluded that the administrator
acted properly in treating active mines as a subeate-
gory that excluded inactive mines, the remaining
issue becomes quite narrow. It is whether, in view
of the administrator’s failure to meet the deadline
for promulgating regulations dealing with _post-
mining discharges, we should remand the regula-
tions for prompt inclusion of inactive mines. The
administrative record establishes that techniques for
reducing pollution from inactive mines are generally
known in the industry and that they are successfully
utilized by some mining companies. The record, how-
ever, does not disclose data concerning the “total cost
of application of technology in relation to the effluent
reduction benefits to be received from such applica-
* Act of August 3, 1977, Pub. L. 95-87, 91 Stat. 447, codi-
fied as 30 U.S.C. $§ 1201-1828.
* § 515 of the surface mining act [380 U.S.C. § 1265].
“$516 of the surface mining act [80 U.S.C. § 1266].
73a
tion.” The agency must consider this information in
assessing the best practicable control technology cur-
rently available.“
The passage of the Surface Mining Control and
Reclamation Act of 1977 also must be taken into
account in determining whether the administrator
acted arbitrarily by deferring regulation of post-
mining discharges. That statute does not supersede
or modify the Federal Water Control Pollution Act; ™
therefore, the administrator remains responsible for
promulgating regulations concerning effluent limita-
tions for point source discharges from post-mining
areas in accordance with §§ 301 and 304 of the
water pollution control act.” But the surface mining
act requires the Environmental Protection Agency to
cooperate “[t]o the greatest extent practicable” with
the Secretary of the Interior.“ Conversely, the Sec-
retary is also required to cooperate with the agency.”
The purpose of this cooperation is “‘to minimize dupli-
cation of inspections, enforcement, and administra-
tion.” ® We therefore conclude that the administrator
% § 304{b) (1) (B) of the water pollution contre: act [33
U.S.C. § 1314(b) (1) (B)]; see FMC Corp. v. Train, 539 F.2d
at 978-79.
& § 702(a) (3) of the surface mining act [30 U.S.C.
§ 1292(a) (3)]
8 33 U.S.C. §§ 1311, 1314.
8? § 702(c) of the surface mining act [36 U.S.C. § 1292(c)j.
88 § 201(c)(12) of the surface mining act [80 U.S.C.
§ 1211(c) (12)]
8° Jd.
T4da
responsibly decided to gather further data before issu-
ing the regulations that must be consistent with the
Secretary's enforcement and administration of the
surface mining act.”
A third factor bearing on the propriety of the ad-
ministrator’s exelusion of post-mining discharges is
the extent to which this aspeet of the industry is
regulated without his direet intervention. Even in
the absence of national standards, the administrator
may issue permits on a case-by-case basis for post-
mining discharges.”' Moreover, since there are no
national standards fer post-mining point source dis-
charges, effluent limitations certified by a state must
be incorporated in a discharge permit.”
A suit to challenge the administrator’s action on
the basis of information not in the record, or for the
imposition of a judicial deadline for the promulgation
” After the administrator issued the regulations applicable
to active coal mines, the Secretary of the Interior promul-
gated interim final regulations to implement the surface
mining act. See 30 C.F.R. Part 77 (1977). The administra-
tor concurred in these regulations. 42 Fed. Reg. 62639
(Dec. 13, 1977). The regulations are presently under review.
In re Surface Mining Regulation Litigation, ——— F.Supp.
——, 11 E.R.C. 2078 (D.D.C., Aug. 24, 1978), appeal dock-
eted, No. 78-2190 (D.C. Cir., Nov. 20, 1978); see also In re
Surface Mining Regulation Litigation, 452 F.Supp. 327
(D.D.C. 1978), aff'd mem., No. 78-1406 (D.C. Cir., May 25,
1978).
*' $ 402(a) (1) [83 U.S.C. § 1342(a) (1) ].
* See $$ 301(b) (1) (C), 401 510 [33 U.S.C. §§ 1311 (b)
(1)(C), 1341, 1370]; United States Steel Corp. v. Train,
556 F.2d 822, 835 (7th Cir. 1977).
Tha
of post-mining regulations, would more appropriately
be brought in a district court where matters not
disclosed by the administrative record could be offered
in evidence.” We hold only, on the record presented
in these petitions for review, that the final regulations
are not invalidated by the absence of provisions deal-
ing with post-mining discharges.
VIII. Catastrophic Rainfall Exemption
The citizen environmental petitioners and Pennsyl-
vania challenge a provision, contained in $§ 434.22
(c), 454.32(b), and 434.42(b) of the regulations,
which is intended to allow overflow of untreated
water from pollution control facilities in extraordi-
nary circumstances. At the time these cases were
briefed and argued, the regulations provided as
follows:
Any untreated overflow, increase in volume of a
point source discharge, or discharge from a by-
* Section 505 [33 U.S.C. § 1365] allows any citizen, after
sriving the administrator sixty day's, notice, to “commence a
civil action on his own behalf . . . against the Administrator
where there is alleged a failure of the Administrator to per-
form any act or duty under this chapter which is not dis-
cretionary with the Administrator.” The same provision
gives the district courts original jurisdiction over such suits,
without regard to the amount in controversy or the citizen-
ship of the parties. See, e.g., Central Hudson Gas & Electric
Corp. v. EPA, 587 F.2d 549, 555-57 (2d Cir. 1978) ; Environ-
mental Defense Fund v. EPA, F.2d ———, 12 E.R.C.
1353, 1375-76 (D.C. Cir., Nov. 3, 1978); Natural Resources
Defense Council, Inc., v. Train, 510 F.2d 692, 698-703 (D.C.
Cir. 1975); ef. Currie, Judicial Review under Federal Pol-
lution Laws, 62 Iowa L. Rev. 1221, 1249-50 (1977).
76a
pass system from facilities designed, constructed,
and maintained to contain or treat the discharges
from the facilities and areas covered by this
subpart which would result from a 10-year 24-
hour precipitation event, shall not be subject to
the limitations set forth in paragraph (a) of this
section.
This means that after a storm or other natural
event that forces an overflow from a facility de-
signed, constructed, and maintained to contain a
10-year 24-hour precipitation event,“ the overflow
will be permitted.” The record discloses that this
provision is similar in many respects to safety stand-
ards previously promulgated by the Department of
the Interior for water impoundment facilities at ex-
isting coal mines.”
* “10-year 24-hour precipitation event” is an engineering
term. It is a rainfall figure, taken from National Weather
Service charts for the relevant geographic area, which indi-
cates the heaviest 24-hour precipitation that can be expected
to fall in a decade. 40 C.F.R. § 434.11(h) (1977). The pos-
sible use of this criterion as a basis for an overflow exemp-
tion was recognized during legislative debate on the Act. Sen-
ate Committee on Public Works, A Legislative History of
the Water Pollution Control Act Amendments of 1972, 93d
Cong., 1st Sess. 1298 (1973).
* EPA summary of final regulations, 42 Fed. Reg. 21381
(April 26, 1977).
*6 See Mandatory Safety Standards, Surface Coal Mines
and Surface Work Areas of Underground Coal Mines, 30
C.F.R. 77.216 through 77.216-5 (1977) (promulgated by the
Mine Enforcement and Safety Administration). The admin-
istrator took note of these regulations. 42 Fed. Reg. 21381-
21382 (April 26, 1977).
77a
The petitioners do not dispute the necessity for a
catastrophic rainfall exemption, nor do they question
a criterion of the heaviest 24-hour precipitation that
can be expected to fall in a decade. Their principal
complaint is that the administrator arbitrarily and
capriciously based the exemption on the design, con-
struction, and maintenance of the pollution control
facilities rather than on the magnitude of actual
precipitation. They prefer the regulation to specify
that the exemption will apply only when the 10-year
24-hour rainfall actually occurs. They point out that
in the catastrophic rainfall regulations applicable to
other industries, the agency has used the criterion of
actual performance, rather than design, construction,
and maintenance.”
After oral argument of these cases, the adminis-
trator promulgated final regulations clarifying 40
C.F.R. §§ 434.22(c), 434.32(b), and 434.42 (b). These
provisions now expressly allow only discharges from
properly designed and constructed facilities that “re-
sult[] from a 10 year/24 hour or larger precipita-
tion event or from a snow melt of equivalent vol-
ume.” *
We consider the law in effect at the time we render
our decision. See Thorpe v. Housing Authority of the
See, e.g., 40 C.F.R. §§ 415.22(b) (aluminum sulfate pro-
duction) and 421.42(b) (primary copper smelting) (1977).
These regulations allow an exemption for the 10-year 24-
hour event only “when such event occurs.”
9840 C.F.R. §§ 434.25(b), 434.85(b), 434.45(b), promul-
gated in 44 Fed. Reg. 2590 (Jan. 12, 1979).
78a
City of Durham, 393 U.S. 268, 281-83 (1969). EPA’s
change in the language of the exemption disposes of
the criticism of Pennsylvania and the environmenial
petitioners.
The lack of provisions specifying the details of
necessary design, construction, and maintenance does
not invalidate the regulations. In all of the regula-
tions under review, the administrator has avoided
dictating engineering specifications. Instead, he has
properly concentrated on prescribing limitations on
the amount of pollutants that may be discharged re-
gardless of the construction or treatment techniques
that are employed. Using the 10-year 24-hour engi-
neering standard without detailed specifications for
impoundment facilities is consistent with this ap-
proach.”
The petitions to set aside the regulations are de-
nied with the exception of the regulations dealing
with variances, which are remanded to the agency
for reconsideration.
* Other regulatory agencies use this method of stating de-
sign storm criteria. These agencies include the Soil Conserva-
tion Service, the United States Bureau of Reclamation, the
American Society of Civil Engineers, and the regulatory agen-
cies of several states. See United States Department of the
Interior, Mining Enforcement and Safety Administration, En-
cineering and Design Manual for Coal Refuse Disposal Facili-
ties, page 6.57 n.1 and sources cited (1975).
79a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 76-1690
[Filed Jun. 25, 1979]
CONSOLIDATION COAL COMPANY, PETITIONER
Us.
DOUGLAS M. CosTLE, as Administrator,
Environmental Protection Agency, RESPONDENT
ON PETITION FOR REVIEW OF AN ORDER OF THE
ENVIRONMENTAL PROTECTION AGENCY
THIS CAUSE came on to be heard upon the peti-
tion of Consolidation Coal Company for review of an
order issued by Administrator of the Environmental
Protection Agency on May 3, 1976; and upon the
certified record; and the said cause was argued by
counsel.
ON CONSIDERATION WHEREOPF, It is ordered,
adjudged and decreed by the United States Court of
Appeals for the Fourth Circuit, that the petitions to
set aside the regulations are denied with the excep-
tion of the regulations dealing with variances, which
are remanded to the Environmental Protection
80a
Agency for reconsideration consistent with the opin-
ion of this Court filed herewith.
/s/ William K. Slate, IT
WILLIAM K. SLATE, II
Clerk
8la
APPENDIX E
Section 301 of the Clean Water Act, 33 U.S.C.
(and Supp. I) 1311, provides in pertinent part:
(a) Except as in compliance with this section
and sections 302, 306, 307, 318, 402, and 404 of
this Act [33 U.S.C. 1312, 1316, 1317, 1328, 1342,
1344], the discharge of any pollutant by any
person shall be unlawful.
(b) In order to carry out the objective of this
Act there shall be achieved—
(1)(A) not later than July 1, 1977, effluent
limitations for point sources, other than publicly
owned treatment works, (i) which shall require
the application of the best practicable control
technology currently available as defined by the
Administrator pursuant to section 304(b) of this
Act [33 U.S.C. 1314(b)] * * *.
(2)(A) for pollutants identified in subpara-
graphs (C), (D), and (F) of this paragraph,
effluent limitations for categories and classes of
point sources, other than publicly owned treat-
ment works, which (i) shall require application
of the best available 2chnology economically
achievable for such category or class, which will
result in reasonable further progress toward the
national goal of eliminating the discharge of all
pollutants, as determined in accordance with reg-
ulations issued by the Administrator pursuant
to section $04(b) (2) of this Act [33 U.S.C. 1314
(b) (2)], which such effluent limitations shall
require the elimination of discharges of all pol-
lutants if the Administrator finds, on the basis
of information available to him (including infor-
82a
mation developed pursuant to section 315 [33
U.S.C. 1825]), that such elimination is tech-
nologically and economically achievable for a
category or class of point sources as determined
in accordance with regulations issued by the Ad-
ministrator pursuant to section 304(b)(2) of
this Act [83 U.S.C. 1814(b) (2)] * * *.
* * * * *
(C) not later than July 1, 1984, with respect
to all toxie pollutants referred to in table 1 of
Committee Print Numbered 95-30 of the Com-
mittee on Public Works and Transportation of
the House of Representatives compliance with
effluent limitations in accordance with subpara-
graph (A) of this paragraph:
(D) for all toxic pollutants listed under para-
graph (1) of subsection (a) of section 307 of
this Act [33 U.S.C. 13817(a)] which are not re-
ferred to in subparagraph (C) of this paragraph
compliance with effluent limitations in accord-
ance with subparagraph (A) of this paragraph
not later than three years after the date such
limitations ere established;
(E) not later than July 1, 1984, effluent limi-
tations for categories and classes of point sources,
other than publicly owned treatment works, which
in the case of pollutants identified pursuant to
section 304(a) (4) of this Act [83 U.S.C. 1314
(a) (4)] shall require application of the best
conventional pollutant control technology as de-
termined in accordance with regulations issued
by the Administrator pursuant to section 304
(b) (4) of this Act [33 U.S.C. 1314(b) (4) ]; and
(F) for ail pollutants (other than those sub-
ject to subparagraphs (C), (D), or (E) of this
paragraph) compliance with effluent limitations
83a
in accordance with subparagraph (A) of this
paragraph not later than 3 years after the date
such limitations are established, or not later than
July 1, 1984, whichever is later, but in no case
later than July 1, 1987.
(c) The Administrator may modify the re-
quirements of subsection (b) (2) (A) of this sec-
tion with respect to any point source for which a
permit application is filed after July 1, 1977,
upon a showing by the owner or operator of such
point source satisfactory to the Administrator
that such modified requirements (1) will repre-
sent the maximum use of technology within the
economic capability of the owner or operator;
and (2) will result in reasonable further prog-
ress toward the elimination of the discharge of
pollutants.
Section 304(b) of the Clean Water Act, 33 U.S.C.
(and Supp. I) 1314(b), provides in pertinent part:
For the purpose of adopting or revising
effluent limitations under this Act the Admin-
istrator shall, after consultation with appropri-
ate Federal and State agencies and other inter-
ested persons, publish within one year of enact-
ment of this title [Oct. 18, 1972], regulations,
providing guidelines for effluent limitations,
and, at least annually thereafter, revise, if ap-
propriate, such regulations. Such regulations
shall—
* * * * *
(1)(B) specify factors to be taken into ac-
count in determining the control measures and
practices to be applicable to point sources (other
than publicly owned treatment works) within
such categories or classes. Factors relating to
84a
the assessment of best practicable control tech-
nology currently available to comply with sub-
section (b)(1) of section 301 of this Act [33
U.S.C. 1311(b)(1)] shall include consideration
of the total cost of application of technology in
relation to the effluent reduction benefits to be
achieved from such application, and shall also
take into account the age of equipment and fa-
cilities involved, the process employed, the engi-
neering aspects of the application of various
types of control techniques, process changes, non-
water quality environmental impact (including
energy requirements), and such other factors as
the Administrator deems appropriate;
* * * * *
(2)(B) specify factors to be taken into ac-
count in determining the best measures and prac-
tices available to comply with subsection (b) (2)
of section 301 of this Act [33 U.S.C. 1311(b) (2) ]
to be applicable to any point source (other
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