# Petition for Writ of Certiorari — Environmental Protection Agency v. National Crushed Stone Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1247%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1980 - **Citation:** 449 U.S. 64 ## Text Page IY SI oi iiss scesiccnceedaboincdicniacuenninniiens 2 III nics 5s ssa tla ciencesanendecaieisagieieuaeteant 2 RNIN IE os. sic ciciovcendsnecioanidlencetvaacoenaeiacs 2 RI IN foi taccideensticenensbencckaiesnaiiosseibiada 3 I ios einteeicadeneceeiees 3 Reasons for granting the petition —................... 12 ci caulninacn 22 Pe I ae cenctcsarenlnenncdewsaserincsnieisaseaminedaalics la Apotngx © .............. erideaiats ine en eats 38a _____E. § Gi RRR SLRS ESRC ePT Aare Aenea wT 40a PNT eihctibic cs sits 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 to [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1247%3A01. Public record. Not legal advice.