Petitioners Brief — Environmental Protection Agency v. National Crushed Stone Ass'n

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CE ITT A LET NT SMC ATE = NP

I I icciaiccesisinceinncitannsestntenmaniiioncneiil

Statutes and regulations involved ....................

EERE ELON red AIOE TO ORA NS OOS ee

UTNE GCE GCEIIOUE ann. encncnenvencescnnievseccannnes

Argument:

The Clean Water Act does not require

EPA to grant a variance from the 1977

effluent limitations to an individual dis-

charger based on its inability to afford

“best practicable technology”’....................--

A.

B.

I i

The language and the structure of the

Act establish that ‘affordability’ is

not a basis for a variance from the

Ee TID cases senncccscusenunecckeeneioenes

C. The decisions of the court of appeals

are squarely inconsistent with the

legislative history of the Act ..............

D. The Agency’s consistent and reason-

able construction of the Act is en-

titled to great deference ......................

NUNS aiaictacieniedsiaeosnieiaetaasiinicedbaminies

own NH

14

18

18

21

28

38

43

CITATIONS

Cases: Page

Abbott Laboratories vy. Gardner, 387 U.S.

136 20, 21

Adamo Wreeking Co. vy. United States,

434 U.S. 275 21

American Frozen Food Institute v. Train,

H39 F.2d 107 8, 2:

American lron and Steel Inatitute vy. BPA,

h26 F.2d 1027 2h, 36

American Meat Institute v. EPA, 526

Vid 442 7, 8, 2b

American Petroleum Institute vo EPA,

h40 F.2d 1028, cert. denied, 430 U.S.

922 2h, 39

Andrus vy. Allard, No, 78-740) (Nov. 27,

1979) 26, 40

Andrus vy. Idaho, No. 79-260 (Apr. 16,

1980) 21

Appalachian Power Co. vy. Train, 545

F.2d 1351 12, 13, 14, 24, 2b, 26, 29

Board of Education vy. Harris, No, 78-873

(Nov. 28, 1979) 39-40

Costle v. Pacifie Legal Foundation, No.

78-1472 (Mar. 8, 1980) i, 4&9

Crown Simpson Pulp Co. vy. Costle, No.

79-797 (Mar. 17, 1980) ........................8, 9, 12

E.1. duPont deNemours & Co. vy. Collins,

OO 38

El. duPont deNemours & Co, v. Train,

8 AS PRR 3, 5, 9, 17, 18, 19,

24, 25, 26, 30, 34, 38

EPA vy. State Water Resources Control

Board, 426 U.S. 200 .................... 3, 4, 9, 17, 38

‘ases—Continued Page

Kord Motor Credit Co. vy. Milhollin, No.

78-1487 (Feb. 20, 1980) 38

Gardner vy. Toilet Goods Ass'n, 387 U.S.

167 21

Huddleston vy. United States, 415 U.S.

14 26

Lorillard vy. Pons, 434 U.S. 575 40

Louisiana-Pacifie Corp., In re, 10 E.R.C,

1841 sXcesanahd ioe eee

NLRB vy. Bell Aerospace Co., 416 U.S.

267 | 40

National Railroad Passenger Corp. v. Na-

tional Ass'n of Railroad Passengers,

414 U.S. 453 26

Red Lion Broadcasting Co. vy. FCC, 395

U.S. 367 38

Seatrain Shipbuilding Corp. v. Shell Oil

Co., No. 78-1651 (Feb. 20, 1980) 40

Simpson v. United States, 435 U.S. 6 34

Train vy. Colorado Public Interest Re-

search Group, Inc., 426 U.S. 1. 29

Train v. Natural Resources Defense

Council, Ine., 421 U.S. 60 17, 39

Udall vy. Tallman, 380 U.S. 1... nh 38

Union Electric Co. vy. EPA, 427 U.S.

Tee |

Weyerhaeuser Co. vy. Costle, 590 F.2d

BE ce hesemceens ssachaniecenmeaeiie 10, 12, 18, 21, 22, 24,

25, 29, 35, 36, 39, 42

Statutes and regulations:

Act of November 2, 1978, Pub. L. No.

96-676, 98 Stat. 2467 ............................

Clean Water Act of 1977, Pub. L. No. 95-

217, 91 Stat. 1566, 33 U.S.C. (and

Sen. Fi tee CO...

IV

Statutes and regulations—Continued Page

Section 801, 388 U.S.C. (and Supp. 1)

eee 3, 39, la

Section 801 (a), 88 U.S.C. 1811 (a). h

Section 801 (b), 388 U.S.C. 1811 (b).8, 5, 19

Section 801(b), 88 U.S.C. (and

Supp. 1) 1811(b) —... | 5, 9, 18

Section 301(b) (1), 38 U.S.C. 13811

IE“ vhcirihsthdhsaincipatcipinedsnaial 2

Section 801(b)(1) (A), 388 U.S.C.

1311(b) (1) (A) —..... veneadd, O, 6, 16, 21

Section 801 (b) (2), 388 U.S.C. (Supp.

IT) 1811(b) (2) 5, 6

Section 801(b)(2) (A), 388 U.S.C.

(Supp. I) 1811(b) (2) (A) 8, 28, 24, 80

Section 801(b)(2)(C), 88 U.S.C.

(Supp. 1) 1811(b) (2) (C) 6

Section 801(b) (2) (BE), 88° ULS.C.

(Supp. T) 1811(b) (2) (2) 6

Section 801(¢), 88 U.S.C. 1811 (e) —. passim

Section 3801 (d), 88 U.S.C. 1311 (d) 8

Section 801(h), 388 U.S.C. (Supp. 1)

aie). ......... 25

Section 801(1), 38 U.S.C. (Supp. 1)

11 qi). : wae 25

Section 302, 38 U.S.C. 1812 24, 25, 39

Section 802(b) (2), 38 U.S.C. 1812

(b) (2) ene reer 24, 25

Section 808, 88 U.S.C. 1318 3y

Section 304, 88 U.S.C. (and Supp. 1)

SRNL AI oe es oA SEEN i eP 3, 39

Section 804(b), 38 U.S.C. (and

SUI RD CORD ncstasisisesecnsticsasceas 6, 18, 3a

Vv

Statutes and regulations—Continued Page

Section 804(b)(1)(B), 38 U.S.C,

BMC PCR PCED cciccsccsccdccscubsnnssacs passim

Section 804(b)(2)(B), 38° U.LS.C.

(Supp. 1) 1314(b) (2) (B) 2... 3-7, 24

Section 806(b), 88 U.S.C. 18316 (b) 39

Section 807, 33 U.S.C. (and Supp. 1)

ao Nr SL ES, 39

Section 307(a), 88 U.S.C. (Supp. 1)

1317 (a) ROG NAN FO ge Nee 25

Section 809(a)(5)(B), 338° U.S.C.

(Supp. 1) 1819(a) (5) (B) —......25, 33, 41

Section 311(b), 38 U.S.C. (and

I EP RIED qesesisesseieavoamnsanenbincns 39

Section $12(b), 38 U.S.C. (and

Supp. T) 1822 (b) SOG Ie: BS nt SEE 39

Section 316(a), 33 U.S.C. 1826(a).... 25

Section 402, 33 U.S.C. (and Supp. I)

RE Sat Aidechacs tatu ote Gcedeines ackadacioacala

Section 402(a), 33 U.S.C. (and

IS BP -BOMPOIED vscisndnenincccccsnscsenncs 8

Section 402(a)-(d), 33 U.S.C. (and

Supp. I) 1842(a)-(d) -...0-000..... 9

Section 402(a) (2), 38 U.S.C. 1342

ORES era ae Oe PANS 39

Section 402 (d) (3), 38 U.S.C. (Supp.

Wy PNA oes. 25

Section 402(e), 38 U.S.C. (Supp. 1)

GRRE Cmuenkses Lote era 25

Section 501 (a), 33 U.S.C. 1361 (a).... 39

Section 502, 38 U.S.C. (and Supp.

a EE oicnasgietnnndasscesbusesnecdpnaiaeacioeaiics 3

Section 502(14), 33 U.S.C. (Supp.

Re SEINE. seviceicntcsenecssaciccdniamannns 5

VI

Statutes and regulations—Continued Page

Section 507(e), 33 U.S.C. 13867

|) Ne spacial 27, 28, 38

Section 509(b), 33 U.S.C. 1369 (b).... 21

Section pet apron “33 ULS.C.

1960¢b) (1) (EE). ........0aeee 12

Section 509(b)(1)(F), 33 U.S.C.

1900(b) C2)CP ). ccc 9

Federal Water Pollution Control Act, 33

U.S.C. (1970 ed.) 1151 et seq... 4

Federal Water Pollution Control Act

_ Amendments of 1972, Pub. L. No. 92-

500, 86 Stat. 816 ef seq.:

5 U.S.C. 686 (86 Stat. 898-899)... 28

3 U.S.C. GB6Gn) 41) .....os..usseee 28

33 U.S.C. 1381 of ang. ......u.eeeee 4, 39

33 U.S.C. 19613 (a) 1... 42

88 U.S.C. 1251 (a) (1) seb 4

26 U.S.C. 169 sacannmaiilocietsbeieae aan 38

40 C.F.R. Part 124 ...... <<ninsadatadeae 9

40 C.F.R. Parts 405-460 — 000... REKa as 9

40 C.F.R. Past 436 «1... en:

40 C.P.R. 434.23 (1998) eee 39

40 C.F.R. 434.22 ................9, 1, IZ, 3S, 20, 39, 5a

40 CPR. 43428 ...........4c0eeeeeee 12,13

40 CPLR. 48448 ....W22cccccneeeeeeee

40 C.F.R. Past 636 ..............0.eeee 3,12

40 C.P.R. 40638 ............0ee 9,12

40 C.F.R. 436.32

vit

Miscellaneous: Page

A Legislative History of the Water Pollu-

tion Control Act Amendments of 1972,

Ser. No. 93-1, vols. 1 and 2 (Comm.

I UIE -vecisancsccnonscnsanss 4, 7, 16, 17, 24, 27. 30,

31, 32, 33, 34, 35, 36, 37, 38

A Legislative History of the Clean Water

Act of 1977: A Continuation of the

Legislative History of the Federal

Water Pollution Control Act, Ser. No.

95-14, vols. 3 and 4 (Comm. Print

1978) ..... 60.) Ay EN Bad SO 40, 41, 42

CEQ-Commerce-EPA, The Economic Im-

pact of Pollution Control (1972) .......... 35

126 Cong. Rec. S2656-S2657 (daily ed.

Cs sccuaanunsnneninsinescs 42

39 Fed. Reg. 30073 (1974) ...................--0+ 39

39 Fed. Reg. 36186 et seg. (1974) -........... 13

42 Fed. Reg. 21380 et seg. (1977) ............ 11-12

42 Fed. Reg. 35843 et seg. (1977) ............ 12

42 Fed. Reg. 35847 (1977) ........................ 35

43 Fed. Reg. 44847-44848 (1978) ............ 11

43 Fed. Reg. 50042 (1978) ..................--..-- 11, 39

44 Fed. Reg. 32893-32894 (1979) ............ 10, 39

44 Fed. Reg. 32894 (1979) ........................ 11

Federal Water Pollution Control Act

Amendments of 1977: Hearing Before

the Subcomm. on Environmental Pollu-

tion of the Senate Comm. on Environ-

ment and Public Works, 95th Cong.,

ist Bees., Parts 1-10 (1977) .................. 40, 41

H.R. 11896, 92d Cong., 2d Sess. Section

| es 33

H.R. 6867, 96th Cong., 2d Sess. (1980).... 28, 42

H.R. Conf. Rep. No. 95-830, 95th Cong.,

I ET 0 iccccinnvsadllibissnenaienvannncessensnse 40

vilt

Miscellaneous—Continued Page

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

NS: STE accinscece nsiarcinennniotacininienancticieenstgnse 16, 36

Kalur, Will Judicial Error Allow Indus-

trial Point Sources to Avoid BPT and

Perhaps BAT Later? A Story of Good

Intentions, Bad Dictum and Ugly Con-

sequence, 7 Ecol. L.Q. 955 (1979) ........ 26, 33

LaPierre, Technology-Forcing and Fed-

eral Environmental Protection Stat-

utes, 62 Iowa L. Rev. 771 (1977) ........ 36

Note, The Clean Water Act of 1977:

Great Expectations Unrealized, 47 U.

Cin. L. Rev. 259 (1978) ........................ 41

Parenteau & Tauman, The Effluent Limi-

tations Controversy: Will Careless

Draftsmanship Foil the Objectives of

the Federal Water Pollution Control

Act Amendments of 1972?, 6 Ecol. L.Q.

IN: suicidchnashetepasnineutagesewaneydahtaoaivenes 36, 37, 42

S. 2453, 96th Cong., 2d Sess. (1980) ....... 42

S. Conf. Rep. No. 92-1236, 92d Cong., 2d

GO PIII Netdiesks saccsiscccvenssnstennavincnsessennatas 16

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

cS RRREI nomena ae aetesren ema 4, 33, 34, 35

S. Rep. No. 95-370, 95th Cong., Ist Sess.

DRIP 3 nites sctevaseis-aniislipniamnastioneieteodhanacese 40, 41, 42

To Amend and Extend Authorizations

for the Federal Water Pollution Con-

trol Act: Hearings on H.R. 3199 Be-

fore the Subcomm. on Water Resources

. of the House Comm. on Public Works

and Transportation, 95th Cong., 1st

SI CRED ceeckecinivcrbsensiekentnesidomnniie 40-41

IX

Miscellaneous—Continued

Water Pollution Control Legislation—

1971: Hearings Before the House

Comm. on Public Works, 92d Cong., 1st

GN: STUD wivsicterenscietesseieiamndacines

Water Pollution Control Legislation:

Hearings Before the Subcomm. on Air

and Water Pollution of the Senate

Comm. on Public Works, 92d Cong., 1st

SE: STE sincieaectcedeonaa ts

Page

35

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-770

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

NATIONAL CRUSHED STONE ASSOCIATION, ET AL.

DouGLas M. COSTLE, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

CONSOLIDATION COAL COMPANY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals in National

Crushed Stone Association v. EPA (Pet. App. 1a-

(1)

2

87a) is reported at 601 F.2d 111. The opinion of the

court of appeals in Consolidation Coal Company v.

Costle (Pet. App. 40a-78a) is reported at 604 F.2d

239.

JURISDICTION

The judgment of the court of appeals in National

Crushed Stone Association v. EPA was entered on

June 18, 1979 (Pet. App. 88a-39a). The judgment in

Consolidation Coal Company v. Costle was entered

on June 25, 1979 (Pet. App. 79a-80a). On Septem-

ber 11, 1979, the Chief Justice extended the time

for filing a petition for a writ of certiorari to and

including October 16, 1979, and on October 11, 1979,

he further extended the time to and including Novem-

ber 15, 1979. The petition was filed on November 15,

1979, and granted on February 19, 1980. The juris-

diction of this Court rests on 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether regulations adopted by the Administrator

of the Environmental Protection Agency pursuant to

Section 301(b) (1) of the Clean Water Act, 33 U.S.C.

1311(b) (1), to establish effluent limitations on dis-

charges of pollutants, based upon the application of

“best practicable control technology currently avail-

able,” must include a variance provision that requires

consideration of the economic ability of an individual

discharger of pollutants to afford the costs of such

technology.

3

STATUTES AND REGULATIONS INVOLVED

Pertinent portions of the Clean Water Act, 33

U.S.C. (and Supp. I) 1311 and 1314, and Title 40 of

the Code of Federal Regulations are set forth in

Appendix A, infra, la-6a.

STATEMENT

In FE. 1. duPont deNemours & Co. vy. Train, 430

U.S. 112, 116-1386 (1977), this Court held that Sec-

tion 301(b) of the Clean Water Act, 33 U.S.C. 1311

(b), authorizes the Environmental Protection Agency

to promulgate regulations setting effluent limitations

on the discharges of pollutants by various categories

of dischargers. At issue in these suits is the validity

of the regulations promulgated by EPA pursuant to

Section 301(b)(1)(A) of the Act, 38 U.S.C. 1311

(b) (1) (A), with regard to effluent limitations in the

coal, crushed stone, and construction sand and gravel

industries. See generally 40 C.F.R. Parts 434 and

436. More particularly, these cases concern whether,

in acting on an application by a discharger of pollut-

ants for a variance from the established national

effluent standard, the Administrator of the EPA must

consider an individual discharger’s economic inability

to comply with the applicable Section 301(b) (1) (A)

effluent limitation.’ The statutory and procedural

background of this ccntroversy is set forth below.

' The terms “effluent limitation,” “discharge of « pollutant,”

“pollutant,” and “point source” are defined in Section 502 of

the Act, 33 U.S.C. (and Supp. I) 1362. See EPA v. State

Water Resources Control Board, 426 U.S. 200, 204 (1976).

4

1. Concluding that earlier federal water pollution

control legislation had been “inadequate in every

vital aspect,” * Congress enacted the Federal Water

Pollution Control Act Amendments of 1972, Pub. L.

No. 92-500, 86 Stat. 816, 33 U.S.C. 1251 et seq.’

This statute, now commonly referred to as the Clean

Water Act, declares that “it is the national goal that

the discharge of pollut:.nts into the navigable waters

be eliminated by 1985.” 33 U.S.C. 1251(a) (1); see

Costle vy. Pacific Legal Foundation, No. 78-1472 (Mar.

18, 1980), slip op. 3. To achieve this goal, Congress

has prohibited “the discharge of any pollutant by any

person,” unless that discharge complies with various

provisions of the Act, including the effluent limita-

tions and mandatory permit requirements that con-

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

in 2A Legislative History of the Water Pollution Control Act

Amendments of 1972, Ser. No. 93-1, at 1425 (Comm. Print

1973). See also EPA v. State Water Resources Control Board,

supra, 426 U.S. at 202-203.

° The 1972 Amendments substantially rewrote the Federal

Water Pollution Control Act, 33 U.S.C. (1970 ed.) 1151 et seq.

The earlier Act had unsuccessfully relied on ambient water

quality standards to control the problems of water pollution.

See EPA v. State Water Resources Control Board, supra,

426 U.S. at 202-208. The 1972 Amendments, as further

amended by the Clean Water Act of 1977, Pub. L. No. 95-

217, 91 Stat. 1566, and the Act of November 2, 1978, Pub.

L. No. 95-576, 92 Stat. 2467, primarily focus on “achieving

maximum ‘effluent limitations’ on [all] ‘point sources’ * * *.”

EPA v. State Water Resources Control Board, supra, 426

U.S: at 204-205 & n12.

5

stitute the core of this complex statutory scheme. See

33 U.S.C. 1311 (a).4

a. As this Court held in duPont v. Train, supra,

Congress intended that the Administrator of the

EPA, pursuant to Section 301(b) of the Act, 33

U.S.C. (and Supp. I) 1311(b), would set effluent

limitations for categories of “point sources.” ° See-

tion 301(b) provides for the implementation of efflu-

ent limitations for existing point sources in two

stages. First, Section 301(b)(1)(A) directs the Ad-

ministrator to establish effluent limitations, to be met

not later than July 1, 1977, “requir[ing] the appli-

cation of the best practicable control technology cur-

rently available” (‘1977 limitations”). Second, Sec-

tion 301(b) (2), 33 U.S.C. (Supp. I) 1311(b) (2), re-

quires EPA to set more stringent effluent limitations,

to be met not later than July 1, 1987, requiring ap-

plication of either “best available technology econom-

ically achievable” or “best conventional pollutant con-

trol technology”, depending upon the type of pollutant

(‘1987 limitations” ).°

* Section 301 (a) of the Act, 33 U.S.C. 1311(a) provides that

“Te]xcept as in compliance with this section and sections

[302, 306, 307, 318, 402, and 404 of the Act], the discharge

of any pollutant by any person shall be unlawful.” Section

301(b) (“this section’) concerns “effluent limitations” and

Section 402 governs the issuance of permits.

* A “point source” is a discrete outlet from which pollutants

may be discharged. 33 U.S.C. (Supp. I) 1862(14). In duPont

Vv. Train, the Court determined that EPA could promulgate

effluent limitations on an industry-by-industry basis rather

than a point source-by-point source basis. See 430 U.S. at

126-136.

* When this Court decided duPont v. Train, supra, the Act

required the second level of effluent iimitations (i.e., “best

6

The provisions governing both the 1977 limitations

and the 1987 limitations further state that the Ad-

ministrator shall define the respective levels of pollu-

tion control technology “pursuant to Section [304 (b)

of the Act].” 33°U.S.C. 1311(b) (1) (A), (Supp. 1D)

1311(b)(2)(A) and (E). Section 304(b), in turn,

explains the terms “best practicable,” “best avail-

able,” and “best conventional” secknelues. With re-

gard to the 1977 limitations, Section 304(b) (1) (B)

provides that “[flactors relating to the assessment

of best practicable control technology * * * shall in-

clude consideration of the total cost of application of

technology in relation to the effluent reduction benefits

to be achieved” as well as “the age of equipment and

available technology economically achievable”) to be achieved

by 1983. The Court thus referred to these more severe stand-

ards as the “1988 limitations.” As amended in 1977, Section

801 (>) (2) has deferred the best available technology dead-

line. For certain toxic pollutants, the best available tech-

nology must now be achieved by July 1, 1984. See 33 U.S.C.

(Supp. 1) 1811(b) (2) (C) (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 limitation.

See 88 U.S.C. (Supp. 1) 1811(b) (2) (F) (Section 301 (b) (2)

(F)). Finally, for so-called “conventional pollutants” (38

U.S.C. (Supp. I) 1314(a) (4)), the Clean Water Act of 1977

requires that “best conventional pollutant control technology”

be achieved no later than July 1, 1984. See 33 U.S.C. (Supp.

I) 1811(b) (2) (E) (Section 301(b) (2) (E)). For purposes

of this case, there is no pertinent distinction between “best

available technology economically achievable” and “best con-

ventional pollutant control technology.” Because in all events

the second tier of effluent limitations must be met no later

than 1987, we will refer to the various different standards

under Section 301(b) (2) collectively as the “1987 limita-

tions.” /

7

facilities involved, the process employed, the engin-

eering aspects of the application of various types of

control techniques, process changes, nonwater quality

environmental impact (including energy require-

ments), and such other factors as the Administrator

deems appropriate.” 33 U.S.C. 1314(b) (1) (B).

With one exception, Section 304(b)(2)(B), 33

U.S.C. (Supp. I) 1314(b)(2)(B), adopts the same

factors in defining best available technology (the 1987

limitations) as those employed in defining the best

practicable technology. Whereas Section 304(b) (1)

(B) directs the Administrator to weigh the total cost

of implementing the proposed 1977 limitations

against the poliution reduction benefits of those

limitations, Section 304(b)(2)(B) merely provides

that the Administrator “take into account * * *

the cost of achieving such effluent reduction.” See

also American Meat Institute vy. EPA, 526 F.2d 442,

445-446 (7th Cir. 1975); 1 A Legislative History of

the Water Pollution Control Act Amendments of

1972, Ser. No. 93-1, at 169-170 (Comm. Print 1973)

(hereinafter “Leg. Hist.”) (remarks of Sen. Mus-

kie) (“cost-benefit analysis” inapplicable to 1987

limitations).’ In addition, Congress made clear that

in setting the 1987 limitations, EPA should akso-

lutely prohibit all discharges of pollutants if “such

"Senator Muskie, the Act’s primary author, further ex-

plained that ordinarily the 1977 limitations should represent

“the average of the best existing performance by plants of

various sizes, ages, and unit processes within each industrial

category.” The 1987 limitations, in contrast, “should, at a

minimum, be established with reference to the best performer

in any industrial category.” 1 Leg. Hist. 169-170.

8

elimination is technologically and economically

achievable for a category or class of point sources

* * * 33 ULS.C. (Supp. I) 1311(b) (2) (A)

(Section 301(b) (2) (A))." Because the 1987 limita-

tions were thus intended to be significantly more

stringent than the 1977 limitations, Congress further

provided that EPA may modify the 1987 limitations

as applied to particular point sources if the dlis-

charger 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.” 33 U.S.C. 1311(c)

(Section 301(¢)). See American Meat Institute

v. EPA, supra, 526 F.2d at 449 n.15.

b. To ensure compliance with these effluent limi-

tation standards, Congress, in Section 402 of the

Act, established the National Pollutant Discharge

Elimination System (“NPDES”). It is unlawful for

any person to discharge pollutants into the Nation’s

waters without an NPDES permit, and such permits

incorporate the effluent limitations promulgated by

EPA under Section 301(b). See 33 U.S.C. (and

Supp. I) 1342(a) (1) and 1311; Crown Simpson Pulp

Co. v. Costle, No. 79-797 (Mar. 17, 1980), slip op. 1;

Costle v. Pacific Legal Foundation, supra, slip op. 3.

Thus, an NPDES permit under Section 402 “serves

‘In those circumstances in which application of the 1987

limitations does not result in the complete elimination of

discharges, Section 301(d) of the Act requires the Adminis-

trator to review the 1987 standard periodically. See 53 U.S.C.

1$11(d) ; American Frozen Food Institute V. Train, 539 F.2d

107, 116 (D.C. Cir. 1976).

9

to transform generally applicable effluent limitations

“ * * into the obligations (including a timetable for

compliance) of the individual discharger * * *.”

EPA y. State Water Resources Control Board, 426

U.S. 200, 205 (1976). See also duPont vy. Train,

supra, 430 U.S. at 119, 126 n.15.

NPDES permits are issued by the EPA or, in those

covered jurisdictions in which EPA has authorized a

State agency to administer the NPDES program,’ by

a state agency subject to EPA review. See 33 U.S.C.

(and Supp. I) 1342(a)-(d); Crown Simpson Pulp

Co. Vv. Costle, supra, slip op. 1-2, 4; duPont v. Train,

supra, 430 U.S. at 119-120 & n.7; EPA y. State

Water Resources Control Board, supra, 426 U.S. at

206-208."" At the same time that a discharger ap-

plies for a permit, it may also request a variance

from the applicable Section 301(b) effluent limita-

tion. See, e.g., 40 C.F.R. 434.22, 436.22. EPA has

now established the 1977 limitations for 42 different

industrial categories (40 C.F.R. Parts 405-460), and

with respect to each category, EPA has promulgated

a standard variance clause setting forth the grounds

upon which the permit issuing authority may grant

* Thirty-two states and covered tePritories operate their

own NPDES program.

‘° The procedures governing issuance of an NPDES permit

are more fully discussed in Costle v. Pacific Legal Foundation,

supra, slip op. 3-5. See also 40 C.F.R. Part 124. Review of

an EPA decision refusing to issue a permit or variance (or

to approve a state-issued permit or variance) lies in the court

of appeals under Section 509(b) (1) (F) of the Act, 33 U.S.C.

1369(b) (1) (F). See Crown Simpson Pulp Co. v. Costle,

supra.

10

an individual discharger a modification of the effluent

limitations."’

This standard variance clause takes into account

only those factors listed in Section 304(b) (1) (B)—

that is, the factors that EPA must consider in setting

the 1977 limitations. In other words, a discharger

may obtain a variance only if it demonstrates that

its particular site-specific engineering features or

other characteristics enumerated in Section 304(b)

(1)(B) are fundamentally different from the com-

parable characteristics of other, more typical dis-

chargers in the same industry. See, e.g., Weyer-

hacuser Co. v. Costle, 590 F.2d 1011, 1038-1040 (D.C.

Cir. 1978); 44 Fed. Reg. 32898-32894 (1979); 40

C.F.R. 434.22 (App. A, infra, 5a-6a). For example,

a discharger might be entitled to a variance if it

could show that given its unique location and cir-

cumstances, adherence to the 1977 limitations would

be substantially more expensive or would consume

significantly more energy or would produce sub-

11 The variance clause is reprinted in full in Appendix A,

infra, 5a-6a. In pertinent part, the standard clause states

that “[a]n individual discharger or other interested person

may submit evidence to [the licensing authority] 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 licensing authority]

shall establish for the discharger effluent limitations a

either more or less stringent than the [1977 limitations] to the

extent dictated by such fundamentally different factors.”

11

stantially more air pollution than compliance by

other members of the same industry. See 44 Fed.

Reg. 32894 (1979). The variance clause does not,

however, allow the permit issuing agency to consider

(or to grant) a variance based upon a claim that the

discharger-applicant cannot afford best practicable

technology (i.c., the 1977 limitations). As EPA re-

cently explained (43 Fed. Reg. 50042 (1978) (em-

phasis in original) ):

While EPA allows compliance costs to be con-

sidered under the [1977 limitations] variance

clause, it should be noted that EPA continues to

helieve that $301(¢) of the Clean Water Act

(allowing waivers based upon plant-specific, eco-

nomic capability or “affordability”) applies only

to best available technology [1987] limitations.

Thus a plant may be able to secure a [1977 limi-

tations] variance by showing that the plant’s

own compliance costs with the national guideline

limitation would be » times greater than the

compliance costs of the plants EPA considered in

setting the [1977 limitations]. A plant may not,

however, secure a [1977 limitations] variance by

alleging that the plant’s own financial status is

such that it cannot afford to comply with the

[1977 limitations].

See also 4% Fed. Reg. 44847-44848 (1978): In re

Louisiano-Pacific Corp., 10 E.R.C. 1841 (1977) (de-

cision of the Administrator}.

2. In April 1977, EPA promulgated the 1977 limi-

tations for certain subcategories of the coal mining

industry, including coal preparation plants, acid mine

drainage and alkaline mine drainage (42 Fed. Reg.

12

21380 et seqg., adopting 40 C.F.R. Part 434). In July

1977, EPA promulgated the 1977 limitations for the

crushed stone and construction sand and gravel sub-

categories of the mineral mining and processing

category (42 Fed. Reg. 35843 et seqg., adopting 40

C.F.R. Part 436). Both regulations included EPA’s

standard variance provision for each subcategory."

Petitions to review both sets of regulations were

filed in various courts of appeals under Section 509

(b) (1) (E), 33 U.S.C. 1869(b) (1) (E), and all pe-

titions were ultimately transferred to the Fourth Cir-

cuit." The petitions challenged the regulations on

various grounds, including the adequacy of the var-

iance clauses. Relying on the Fourth Circuit’s prior

decision in Appalachian Power Co. vy. Train, 545 F.2d

1351 (1976), respondents claimed that the variance

clauses were invalid because EPA refused to consider

an individual discharger’s economic ability to afford

best practicable technology. According to respondents,

Section 301(¢) requires EPA to take “affordability”

1240 C.F.R. 434.22 (coal preparation plants); 40 C.F.R.

434.32 (acid mine drainage) ; 40 C.F.R. 434.42 (alkaline mine

drainage) ; 40 C.F.R. 436.22 (crushed stone) and 40 C.F.R.

436.32 (construction sand and gravel).

13 Because the variance clause regulation was an integral

part of the 1977 effluent limitations promulgated by EPA,

the court of appeals had jurisdiction to review the variance

clause as “the Administrator’s action * * * in approving or

promulgating any effluent limitation or other limitation un-

der section 1311 * * * of this title [section 301 of the Act].”

38 U.S.C. 1369(b) (1) (E). See Weyerhaeuser Co. V. Costle,

590 F.2d 1011, 1033 n.29 (D.C. Cir. 1978) ; ef. Crown Simpson

Pulp Co. v. Costle, supra.

13

into account when it reviews a request for a variance

from the 1977 limitations.

In National Crushed Stone Association v. EPA, the

court of appeals upheld (Pet. App. 29a-35a) respond-

ents’ challenge to the variance clauses promulgated

in connection with the mineral mining regulations.

See 40 C.F.R. 434.22, 434.32, and 434.42." Follow-

ing its earlier decision in Appalachian Power Co. v.

Train, supra,” the court concluded that variance

clauses pertaining to the 1977 limitations must per-

‘The court also vacated and remanded the substantive

mineral mining regulations on various grounds (Pet. App.

14a-29a). Those issues are not before the Court.

In Appalachian Power Co. v. Train, supra, the court of

appeals had remanded a similar variance clause pertaining

to the steam electric power industry (see 39 Fed. Reg. 36186

et seq. (1974)), on the ground that “EPA should come for-

ward with a meaningful variance clause applicable to existing

as well as new sources, taking into consideration at least

[the] statutory factors set out in §§ 301(c), 304(b) (1) (B)

and 306(b)(1)(B).” 545 F.2d at 1359-1360 (footnote

omitted). The court there concluded (545 F.2d at 1359):

Clearly, the Act, in its regulatory plan, contemplates in-

creasingly stringent control measures for existing and

new sources culminating in the elimination of the dis-

charge of all pollutants into navigable waters by 1985.

We are of opinion that the initial phase of these regula-

tions, the 1977 standards and the subsequent new source

limitations, were not intended to be applied any less flexi-

bly than the final Phase II-1983 [now 1987] requirements.

Thus, if such factors as the economic capacity of the

owner or operator of a particular point source is relevant

in determining whether a variance from the 1983 stand-

ards should be permitted ; they should be equally relevant

when applied to the less stringent 1977 standards as well

as the new source requirements.

14

mit consideration of the same factors that Section

301(c) of the Act requires the agency to weigh in

acting on variance applications from the 1987 limi-

tations—specifically, the economic. capability of the

individual discharger. In the court of appeals’ view,

a contrary decision “could easily close a plant in 1979

which would be allowed to operate under a variance

in 1983” (Pet. App. 34a).

In Consolidation Coal Company v. Costle, the court

of appeals generally affirmed EPA’s regulations gov-

erning the coal mining industry (Pet. App. 40a-78a).

As in National Crushed Stone Association, however,

it concluded that the variance clauses adopted by

EPA with regard to the 1977 limitations were unduly

restrictive (Pet. App. 50a-52a). Accordingly, it re-

manded the variance clauses to EPA “for revision to

conform with National Crushed Stone” (id. at 52a).

See also Appalachian Power Co. v. Train, Nos. 74-

2096 ete. (4th Cir. Apr. 28, 1980), slip op. 17.

SUMMARY OF ARGUMENT

This case poses the question whether the Clean

Water Act, 33 U.S.C. 1251 et seqg., requires EPA to

grant a variance from the 1977 effluent limitations

to an individual discharger that cannot afford to

meet those standards. Relying exclusively on_ its

prior decision in Appalachian Power Co. v. Train,

545 F.2d 1351 (4th Cir. 1976), the court of appeals

summarily concluded that EPA must take into ac-

count the economic circumstances of the individual

discharger. That conclusion is not supported by the

15

language and structure of the statute. Section 301

(b)(1)(A) of the Act states that the 1977 limita-

tions “‘shall require the application of the best practic-

able control technology currently available,” as that

term is defined in Section 304(b) (1) (B) of the Act.

Although Section 304(b)(1)(B) directs the Admin-

istrator to weigh the “total cost” to industry against

“the effluent reduction benefits to be achieved” in es-

tablishing the 1977 limitations, no provision of the

Act suggests that EPA must, or even may, consider

the individual discharger’s ability to afford “best

practicable control technology.”

In contrast, Congress expressly provided that EPA

could grant a variance from the more stringent 1987

limitations \“best available technology economically

achievable’) to an individual discharger that could

not afford to comply with those effluent limitations.

Section 301(c) specifies that such a modification is

permissible solely with regard to the 1987 limitations

and only if the individual discharger demonstrates

that the variance “will represent the maximum use

of technology within [its] economic capability” and

“will result in reasonable further progress toward

the elimination of the discharge of pollutants.” 33

U.S.C. 1311(c) (emphasis supplied). In light of the

requirement that a Section 301(¢) variance from the

1987 limitations make further progress in pollution

control beyond the level already established by the

1977 limitations, it is clear that Congress purpose-

fully excluded the 1977 limitations from the pur-

view of Section 301(c). Accordingly, the court of

16

appeals’ application of Section 301(c) to the 1977

limitations is wholly unwarranted.

The legislative history of the Act confirms that

Congress deliberately adopted “best practicable con-

trol technology” (the 1977 limitations) as a minimal

level of effluent control that all dischargers within a

category or class had to meet, even if the cost of

compliance could force certain point sources to cease

operations. See, ¢.g., S. Conf. Rep. No. 92-1236, 92d

Cong., 2d Sess. 121 (1972) (reprinted at 1 Leg.

Hist. 304) ; H.R. Rep. No. 92-911, 92d Cong., 2d Sess.

100-101, 107 (1972) (reprinted at 1 Leg. Hist. 787-

788, 794); 1 Leg. Hist. 169-170 (remarks of Sen.

Muskie, primary author of the Act); id at 156, 217-

218, 523. As Representative Jones of Alabama, Chair-

man of the House Conferees on the Act, explained

(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.

* * * * *

* * * (Section 301(c) authorizes a case-by-case

evaluation of any modification to the July 1,

1983, requirement proposed by the owner or

operator.

17

This provision is not intended to justify modi-

fications which would not represent an upgrad-

ing over the July 1, 1977, requirements of “best

practicable control technology.”

In short, Congress deliberately and emphatically

concluded that “a plant-by-plant determination of the

economic impact of [a 1977] effluent limitation is

neither expected, nor desired, and, in fact, it should

be avoided” (1 Leg. Hist. 255) (remarks of Rep.

Dingell).

In our submission, the language and legislative

history of the Act described above leave no room for

doubting that EPA’s construction of the Act is “suf-

ficiently reasonable to preclude the Court of Appeals

from substituting its judgment for that of the

Agency.” Train v. Natural Resources Defense Coun-

cil, Inc., 421 U.S. 60, 87 (1975). Indeed, this Court

has repeatedly stressed that EPA’s interpretation of

the environmental laws is entitled to particular def-

erence because of the complex and scientific nature

of the statutes that must be administered by EPA.

See, e.g., EF. 1. duPont deNemours & Co. vy. Train, 430

U.S. 112, 134-135 (1977) ; Union Electric Co. y. EPA,

427 U.S. 246, 256 (1976); EPA v. State Water Re-

sources Control Board, 426 U.S. 200, 226-227 (1976) ;

Train v. Natural Resources Defense Council, Inc.,

supra. Here, the court of appeals’ failure to defer to

EPA’s consistent administrative construction is par-

ticularly objectionable, because the legislative debates

and hearings accompanying the 1977 amendments to

the Act strongly evidence Congress’ acquiescence in

EPA’s implementation of the 1977 limitations.

18

ARGUMENT

THE CLEAN WATER ACT DOES NOT REQUIRE EPA

TO GRANT A VARIANCE FROM THE 1977 EFFLU-

ENT LIMITATIONS TO AN _ INDIVIDUAL DIS-

CHARGER BASED ON ITS INABILITY TO AFFORD

“BEST PRACTICABLE TECHNOLOGY”

A. Introduction

The statutory scheme underlying this controversy

has been canvassed in detail elsewhere. See, e.g.,

E. I. duPont deNemours & Co. v. Train, 430 U.S.

112, 116-121 (1977); pages 4-11, supra. In sum,

Section 301(b) of the Clean Water Act, 33 U.S.C.

(and Supp. I) 1311(b), directs EPA to establish two

levels of progressively more stringent effluent limita-

tions. Weyerhaeuser Co. v. Costle, 590 F.2d 1011,

1019 (D.C. Cir. 1978). Section 304(b), in turn,

enumerates the various factors that EPA must con-

sider in setting the 1977 and 1987 limitations. See

33 U.S.C. (and Supp. I) 1814(b). EPA has always

interpreted the less than pellucid language of the Act

as permitting the Administrator to determine the

effluent limitations on an industry-wide rather than

plant-by-plant basis. At the same time, because EPA

cannot analyze the relevant characteristics of every

discharger in a particular industry before setting the

1977 limitations," EPA’s regulations have consis-

16 The Act places severe time limits on EPA. See duPont,

supra, 430 U.S. at 122-124 & n.13, 131-132. It is therefore

impossible for EPA to make a thorough survey of each dis-

charger in every industry. For example, there are more than

4,800 crushed stone facilities (C.A. App. 275).

19

tently allowed for variances from the 1977 limita-

tions in circumscribed cases. See pages 9-11, supra;

duPont v. Train, supra, 430 U.S. at 128.

In duPont v. Train, supra, this Court upheld

EPA’s overall construction of the Act. Although rec-

ognizing that the Act did not expressly mandate the

agency’s approach to the question of effluent limita-

ticns, the Court concluded that Section 301(b) of the

Act “authorizes the 1977 limitations * * * to be set

by [industry-wide] regulation, so long as some allow-

ance is made for variations in individual plants.”

430 U.S. at 128. The court did not, however, pass

upon the actual variance clause then in existence.

Id. at 128 r.19.

At issue in these cases is the scope of EPA’s stand-

ard variance clause promulgated with respect to the

1977 limitations. Though EPA has changed its var-

iance clause from time to time since the duPont de-

cision, it has always ruled that an individual dis-

charger may not obtain a variance merely because

it cannot afford to comply with the 1977 limitations.

Instead, under the current regulations, EPA may

grant a variance to an individual discharger based

on the agency’s reconsideration of the factors enume-

rated in Section 804(b)(1)(B)—that is, the same

factors that EPA must evaluate in setting the 1977

limitation in the first instance. In other words, an

individual point source may be permitted to operate

under modified effluent limitations, if it can demon-

strate that it is fundamentally different from other

20

more typical members of the same industry with re-

spect to one or more of the factors listed in Section

304(b)(1)(B). See, eg., 40 C.F.R. 434.22; In re

Louisiana-Pacific Corp., 10 E.R.C. 1841 (1977) (de-

cision of the Administrator).

Without discussing either the language or legisla-

tive history of the Act, the court of appeals in these

cases held that EPA’s standard variance clause was

unduly restrictive. It apparently concluded that Sec-

tion 301(c) of the Act, 33 U.S.C. 1311(c), requires

EPA to take into account the economic difficulties of

the individual discharger when evaluating a request

for a variance from the 1977 limitations. We submit

that the language and legislative history of the Act

squarely refute this conclusion and that the court

below should have deferred to the consistent and

reasonable administrative construction of the Clean

Water Act at issue here."

17Tn our petition for a writ of certiorari, we noted (Pet.

20-22) that these cases present a substantial ripeness question.

We therefore suggested (Pet. 22) that if the Court agreed

that respondents’ challenge to the variance provision promul-

gated by EPA with regard to the 1977 limitations was pre-

mature that it vacate the decisions below on that ground.

If the Court disagreed with our submission regarding ripe-

ness, however, we suggested that the Court grant plenary

review to consider the merits of the variance clause contro-

versy. The C~urt granted the petition for a writ of certiorari,

and we now believe that it would be appropriate for the Court

to resolve the statutory question at this time.

Although we are informed that none of the respondents in

this case have ever filed a request for a variance based upon

economic circumstances, such an application would have been

a futile gesture given the “definitive” and longstanding nature

of EPA’s administrative construction of the Clean Water Act.

See Abbott Laboratories v. Gardner, 387 U.S. 136, 151 (1967).

21

B. The Language And The Structure Of The Act Estab-

lish That “Affordability” Is Not A Basis For A Vari-

ance From The 1977 Limitations

1. Section 301(b)(1)(A) provides that the 1977

effluent limitations “shall require the application of

the best practicable control technology currently

available as defined * * * pursuant to section [304

(b) of the Act].” Section 304(b)(1)(B), in turn,

carefully specifies the considerations that EPA must

take into account in setting the 1977 limitations:

Factors relating to the assessment of best prac-

ticable control technology currently available to

Moreover, here, as in Abbott Laboratories, “the issue tendered

is a purely legal one.” Jd. at 149. Finally, withholding judicial

consideration of the variance issue until a particular dis-

charger files and is denied a request for a variance might

present hardships for both parties. See Abbott Laboratories

v. Gardner, supra, 887 U.S. at 152-154. Under the 90-day

preclusion rule set forth in Section 509(b) of the Act, 33

U.S.C. 1369(b), respondents may well have been forever

barred from challenging the variance regulation if they did

not seek review in the court of appeals within 90 days of its

promulgation. See Union Electric Co. v. EPA, 427 U.S. 246,

255-256 (1976). Cf. Adamo Wrecking Co. v. United States, 434

U.S. 275 (1978). See also note 13, supra. At the same time,

we are informed by EPA that a present ruling by this Court

would advance rather than impede the administrative en-

forcement of the Act. See Andrus v. Idaho, No. 79-260 (Apr.

16, 1980), slip op. 6-9; compare Abbott Laboratories, supra,

387 U.S. at 154-155. In light of all these circumstances, we

urge the Court to exercise its discretion to determine the

statutory question posed by the parties at this time. See, e.g.,

Andrus Vv. Idaho, supra; Abbott Laboratories v. Gardner,

supra; Gardner V. Toilet Goods Ass'n, 387 U.S. 167 (1967);

Weyerhaeuser Co. V. Costle, 590 F.2d 1011, 1032-1033 (D.C.

Cir. 1978) (concluding that variance clause presents ripe

issue).

22

comply with subsection (b) (1) of seetion [301]

shall include consideration of the total cost of

application of technology in relation to the ef-

fluent reduction benefits to be achieved from such

application, and shall also take into account the

age of equipment and facilities involved, the

process employed, the engineering aspects of the

application of various types of control techniques,

process changes, non-water quality environ-

mental impact (ineluding energy requirements),

and such other factors as the Administrator

deems appropriate.

Thus, in determining the 1977 limitations, KPA must

weigh the “total cost” to industry against the po-

tential “effluent reduction benefits” and must also

consider various technical aspects of the particular

industry in question.

But neither Section 804(b)(1)(B) nor any other

provision of the Act suggests that the 1977 limita-

tions must be tailored to remedy the financial diffi-

culties of a particular discharger. See Weyer-

hacuser Co. vy. Costle, 590 F.2d 1011, 10338-1088 (D.C.

Cir. 1978). See also Union Electrie Co. v. EPA, 427

U.S. 246 (1976).'* The cost-benefit assessment re-

quired by Section 304(b)(1)(B) is satisfied where

EPA considers whether the total economic cost to the

In Union Electric Co., the Court unanimously concluded

that the Clean Air Act's directive to implement air quality

plans in a “practicable” and “reasonable” fashion did not

require EPA to consider the economic or technological feasi-

bility of a state plan despite its hardships on particular

dischargers.

23

industry of requiring one level of technology rather

than another appears to be proportional to the in-

cremental effluent reduction benefits to be derived

from the application of the more expensive technol-

ogy. Section 304(b)(1)(B) does not, in addition,

require the agency to make a case-by-case determi-

nation whether a certain cost-effective level of tech-

nology will force a particular discharger to cut back

or even cease its operations because of its financial

condition. To the contrary, “the statute clearly con-

templates the closing of marginal plants which can-

not function economically with the costs added by

[the 1977] water pollution controls.” American

Frozen Food Institute vy. Train, 539 F.2d 107, 113

(D.C. Cir. 1976).

In striking contrast, Congress expressly authorized

EPA to grant variances from the 1987 limitations

based on a discharger’s inability to afford compliance

with this more stringent set of effluent controls.

Section 301(b)(2)(A) states that the 1987 limita-

tions “shall require application of the best avail-

able technology economically achievable.” 33 U.S.C.

(Supp. 1) 1811(b) (2) (A) (emphasis supplied). And

Section 301(¢) permits EPA to “modify the require-

ments of subsection (b)(2)(A) of this section [the

1987 limitations]” as applied to a particular point

source, provided “that such modified requirements

(1) will represent the maximum use of technology

within the economic capability of the [discharger];

and (2) will result in reasonable further progress

toward the elimination of the discharge of pollut-

ants.” 33 U.S.C. 1811(¢) (emphasis supplied). See

24

also 38 U.S.C. 1812(b)(2) (variance from Section

302 effluent limitations based on excessive “economic

and social costs”’).

It is thus apparent that Congress did not intend

that the agency would consider “the economic capa-

bility of the [individual discharger]” in applying the

1977 limitations to a particular point source. Al-

though the 1987 limitations are unquestionably de-

signed to be more stringent than the 1977 limita-

tions,"* the Administrator must consider nearly iden-

tical factors in setting both. Compare 33) U.S.C.

1314(b)(1)(B) with 33 U.S.C. (Supp. 1) 1814(b)

(2)(B)." Nonetheless, Section 301(c) directs EPA

to consider the individual disecharger’s financial dif-

ficulties solely with regard to the 1987 limitations

(“subsection (b)(2)(A) of this section”), and then

only if the modified requirements will “result in rea-

sonable further progress toward the elimination of

1® See, e.g., duPont v. Train, supra, 430 U.S. at 121; Weyer-

haeuser Co. V. Costle, supra, 590 F.2d at 1019; Appalachian

Power Co. Vv. Train, 545 F.2d 1351, 1359 (4th Cir. 1976);

1 Leg. Hist. 149, 163, 169-170 (remarks of Sen. Muskie and

EPA Admin. Ruckelshaus). In fact, Section 301(b) (2) (A)

makes clear that the 1987 limitations are to eliminate all

discharges if “such elimination is technologically and eco-

nomically achievable.” 33 U.S.C. (Supp. I) 1311 (b) (2) (A).

* The only difference between Section 304(b)(1)(B) and

Section 304 (b) (2) (B) is that the Administrator must balance

“the total cost of application of technology in relation to the

effluent reduction benefits to be achieved from such applica-

tion” in establishing the 1977 limitations, whereas the Ad-

ministrator must merely consider “the cost of achieving such

effluent reduction” with respect to the 1987 limitations.

25

the discharge of pollutants” beyond that already

achieved by the 1977 limitations. See duPont v.

Train, supra, 430 U.S. at 121; American Meat In-

stitute v. EPA, 526 F.2d 442, 449 n.15 (7th Cir.

1975); American Iron and Steel Institute v. EPA,

526 F.2d 1027, 1037 (8d Cir. 1975). In short, the

court of appeals’ conclusion (Pet. App. 82a; Appa-

lachian Power Cv. v. Train, 545 F.2d 1351, 1359-

1360 (4th Cir. 1976)) that EPA must review a var-

iance application from the 1977 limitations in ac-

cordance with Section 301(c) is wholly unjustified

as a matter of statutory language. Accord, Weyer-

haeuser Co. v. Costle, supra.

Indeed, in light of Secticn 301(c) and the other

specific variance provisions carefully established by

‘ongress throughout the Act,*' there is a substantial

question whether EPA need grant any variances

from the 1977 limitations at all. See duPont v.

Train, supra, 430 U.S. at 137-1388; American Pe-

troleum Institute v. EPA, 540 F.2d 1023, 1033 (10th

Cir. 1976), cert. denied, 430 U.S. 922 (1977); Kalur,

Will Judicial Error Allow Industrial Point Sources

2! See, e.g., 33 U.S.C. 1312(b) (2) (variance from Section

302 effluent limitations) ; 33 U.S.C. 1326(a) (variance for

thermal discharge effluent limitations) ; 33 U.S.C. (Supp. I)

1342(d)(3) and (e) (waiver provisions regarding permit

review) ; 33 U.S.C. (Supp. 1) 1317(a) (variance from 1987

limitations regarding certain nontoxic pollutants) ; 33 U.S.C.

(Supp. I) 1311(h) (variance from 1977 limitations for pub-

licly owned treatment works) ; 33 U.S.C. (Supp. I) 1311(i)

(compliance deadline extensions for publicly owned treatment

works) ; 33 U.S.C. (Supp. I) 1319(a) (5) (B) (extensions for

1977 limitations).

26

to Avoid RPT and Perhaps BAT Later? A Story of

Good Intentions, Bad Iietum, and Ualy Consequence,

7 Beot, 1.Q. 945 (L9TON. Ch Andrus y. Allard, No.

78-740 (Nov. 27, 1979), slip op. 4; Huddleston vy.

United States, 4148 US. 814, 822 (1974); National

Railroad Passenger Corp. v. National Ass'n of Rail-

vord Passengers, 414 US. 452, 458 (1974). Of

eourse, EPA has always permitted sueh variances on

a limited basis, and in duPont vo Train, this Court

upheld that practice, 480 US. at 128. Rut, the faet

that the ageney will issue a varianee based on its

reconsideration of the faetors listed in Seetion 304

(b) (1) (RB) does not mean that it must alse grant

varianees based on the “affordability” factor covered

by Seetion 201 (e).

2. Sinee Seetion 201(e) by its plain terms does

not apply to the 1977 limitations, it is not surprising

that the eourt of appeals did not hold that variances

from the 1977 limitations are governed by Seetion

R01(¢e) ex proprio vigore. Rather, the court sug-

gested that in its view the 1977 standards should

not be applied any less flexibly than the 1987

standards, because otherwise EPA “could easily close

a plant in 1979 whieh would be allowed to operate

under a variance in T98[7]" ¢ Pet. App. 84a; see

also Appalachian Power Co. V. Train, supra, 545 F.2d

at 1359). However, as this Court explained in duPont

with vegard to a variance question similar to that at

issue here, “[t]}he question * * * is not what a court

thinks is generally appropriate to the regulatory

process; it is what Congress intended for these regu-

lations.” 430 U.S. at 1388 (emphasis in original).

27

More important, the court of appeals’ repeated re-

jection of the standard variance clause appears to be

premised on a misreading of the Act. The 1977 limi-

lations are a minimal level of effluent control to be

complied with by all dischargers now and in the

future. Any “affordability” variance under Section

SO1(e) must still “result in reasonable further prog-

ress toward the elimination of the discharge of pol-

lutanis” beyond that already required by the 1977

regulations, 338 U.S.C. 1311(e). Accordingly, every

discharger operating with a Section 301(e) variance

is required, at a minimum, to adhere to the 1977 limi-

lations. Thus, Seetion 301(¢) would not allow a plant

that cannot afford to comply with the 1977 limita-

tions to reopen in 1987.

4. EPA’s construction of the Act obviously cre-

ates the possibility that marginal businesses either

will restriet their operations or close their doors al-

together. That Congress both recognized and intended

that result is evident from the face of the statute,

however. Thus, Section 507(e) of the Act, 33 U.S.C.

1367, directs the Administrator to investigate “po-

tential loss or shifts of employment which may re-

sult from the issuance of any effluent limitation

* * * jncluding * * * threatened plant closures

or reductions in employment allegedly resulting

from such limitation * * *.” Congress thereby

sought to preclude employers from using the Clean

Water Act as a scapegoat for solving labor or other

problems. See 1 Leg. Hist. 217-218 (remarks of Sen.

Bayh). At the same time, Section 507(e) stresses

that “‘[n]othing in this subsection shall be construed

28

to require or authorize the Administrator to modify

or withdraw any effluent limitation or order issued

under this chapter.” See also H.R. 6867, 96th Cong.,

2d Sess. (1980) (proposed bill to amend Section

507(e) to require Administrator to modify effluent

limitations “[i]n the case of any finding of adverse

effect on employment”).

Furthermore, Section § of the Act, 86 Stat. 898-

899 (amending 15 U.S.C. 6386), establishes an $800

million fund to ameliorate the economic impact of

the strict effluent limitations required by the Act.

Recognizing that the cost of pollution control poses

the greatest problem for smaller companies (2 Leg.

Hist. 1355), Congress directed the Small Business

Administration to use this fund to make loans to

small business concerns “likely to suffer substantial

economic injury without assistance under this sub-

section.” 15 U.S.C. 6386(g)(1). If Congress had in-

tended that the 1977 limitations be modified on be-

half of financially troubled companies, such assist-

ance would, of course, be unnecessary.

C. The Decisions Of The Court Of Appeals Are Squarely

Inconsistent With The Legislative History Of The Act

In view of the explicit limiting language of Section

301(¢), the court of appeals should not have ex-

tended the scope of that provision to encompass the

1977 limitations unless the legislative history of the

Act unequivocally demonstrates that Congress in-

tended that result. However, no citation to the legis-

lative history concerning the 1977 limitations and

Section 301(c) appears in any of the court’s three

29

decisions striking down EPA’s variance clause. See

Pet. App. 29a-35a, 50a-52a; Appalachian Power Co.

v. Train, supra, 545 F.2d at 1358-1360. More im-

portant, the pertinent congressional reports and de-

bates, which are discussed in detail below, convinc-

ingly demonstrate that the economic hardships of

individual operators are not proper grounds for ex-

cusing their compliance with the 1977 limitations.

As the District of Columbia Circuit concluded in

Weyerhaeuser Co. v. Costle, supra, 590 F.2d at

1037, the extensive legislative deliberations regard-

ing the Clean Water Act show that Congress “self-

consciously made the legislative determination that

the health and safety gains that achievement of the

*2 Compare Train v. Colorado Public Interest Research

Group, Inc., 426 U.S. 1, 9-10 41976) (“To the extent that the

Court of Appeals excluded reference to the legislative history

of the FWPCA [Clean Water Act] in discerning its meaning,

the court was in error’). The District of Columbia Circuit,

in contrast, after thoroughly reviewing the language and

legislative history of the Act, upheld the variance regulation

at issue here (Weyerhaeuser Co. v. Costle, supra, 590 F.2d

at 1036 (emphasis in original; footnote omitteg) ) :

We have explored this issue carefully, and we express

our conclusion emphatically: Although the “total cost”

of pollution control at the petitioning mill must be con-

sidered under a satisfactory variance provision, it is only

relevant “in relation to the effluent reduction benefits to

be achieved” at that mill, section 304 (b) (1) (B) ; so long

as those costs relative to the pollution reduction gains are

not different from those that may be imposed on the in-

dustry as a whole, the difficulty, or in fact the inability,

of the operator to absorb the costs need not control the

variance decision.

We reach this conclusion under the statute only after

satisfying ourselves that the legislative intent is as clear

as the result is harsh.

Ao

\et's aspirations would bring to future generations

Will in some eases outweigh the economic cisleation

i( eanses to the present generation.”

1. The legislative history unequiveeally shows that

Conpress infended EPA to set the 1977 limitations

onan industry wide basis and that neither Seetion

QA hd CLV ERY nor Seetion 801 Ce) requires EPA to

erawt varianees from the T9877 limitations to ip

dividual point sonrees in finaneial diffienlty. lor ex

ample, the Conferenee Report points out (i Leg.

Hist, 202-204; see duPont wo Train, supra, 430

VS. at 198), that by July 1, 1977 “all point sonrees

of pollution © * * must have in use the hest prae

fiealle treatment technology [the 177 limitations |”

and that, in eontrvast, the seeond level of effluent limi

{ations are subject to modifieation in accordance with

Seetion 201 ¢e)2") The Report further states (1 Leg.

Hist. R04, 209):

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 eategories of point sources,

as distinenished 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-

able [the 1987 limitations]. ‘The burden will be

°° The 1972 legislative history refers, of course, to the “best

available technology economically achievable” (33° U.S.C.

(Supp. 1) 1817(¢b) (2) (A)) as the 1983 limitations rather

than the 1987 limitations. See note 6, supra.

31

on him to show that modified requirements will

represent the maximum use of technology with-

in his economic capability and will result in rea

sonable further progress toward the elimination

of the discharge of pollutants. * * *

+ + + . +

Except as provided in Seetion SO1(e) of this

Act, the intent of the Conferees is that effluent

limitations applicable to individual point sources

within a given category or class be as uniform

as possible. The Administrator is expected to

he precise in his guidelines under subsection Oh)

of this section, so as to assure that similar point

sourees with similar characteristies, regardless

of their location or the nature of the water inte

which the discharge is made, will meet similar

effluent limitations,

Representative Jones of Alabama, chairman of the

House Conferees, in presenting the conference bill to

the members of the House, likewise confirmed that

only the 1987 limitations were subject to “afford.

ability” variances under Section wolfe) and that the

1977 limitations were intended to apply to al! point

sourees regardless of their economic cireumstances

(1 Leg. Hist. 251-232; emphasis supplied) -

It is the intention of the managers that the

July 1, 1977, requirements be met by phased

compliance and that a/l point sources wil] be in

full compliance no later than July 1, 1977. * * *

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 is-

32

sued in the interim would reflect the fact that

all discharges not in compliance with such “best

practicable control technology currently avail-

able” would cease by June 30, 1977. * * *

By the term “best practicable” the managers

mean that all factors set forth in Section 304

(b)(1)(B) are to be taken into consideration.

* * * The managers expect that the total cost of

application of technology in relation to the ef-

fluent limitation benefits to be achieved will al-

ways be a factor used by the Administrator in

his determination of “best practicable contrcl

technology currently available” for a given cate-

gory or class of point source.

* * * * *

The Administrator may modify the [1987] re-

quirements * * * section 301(c) authorizes a

case-by-case evaluation of any modification to the

July 1, 1983 [now 1987] requirement * * *.

* * + * *

This provision is not intended to justify modi-

fications which would not represent an upgrad-

ing over the July 1, 1977, requirements of “hest

practicable control technology.” **

See also 1 Leg. Hist. 162-163, 169-170, 171-172; 2

Leg. Hist. 1259 (statesents of Sen. Muskie) ; 1 Leg.

Hist. 524 (remarks of Rep. Harsha); 2 Leg. Hist.

1232 (remarks of Rep. Terry) (Act “would require

the best practicable technology as a floor in all

4 Representative Jones’ explication of the Clean Water Act

also makes clear that a discharger that cannot afford to com-

ply with the 1977 limitations will not be able to reopen under

a Section 301(c) variarce in 1987. See pages 26-27, supra.

See also 1 Leg. Hist. 255 (remarks of Rep. Dingell).

33

cases”) ; id. at 1281 (remarks of Sen. Bentsen) ; id.

at 1461-1462 (S. Rep. No. 92-414, 92d Cong., Ist

Sess. 43-44 (1971) ).*

In addition, the managers of the Act in both

Houses of Congress carefully explained that the cost-

benefit analysis required by Section 304(b) (1) (B)

with respect to the 1977 limitations was not intended

to permit financially troubled operators to avoid

compliance. Thus, Representative Dingell, a sponsor

of the bill, emphasized that “a plant-by-plant deter-

mination of the economic impact of [the 1977] ef-

fluent limitation[s] is neither expected, nor desired,

and, in fact, it should be avoided” (1 Leg. Hist. 255).

Similarly, after noting that the 1977 limitations ap-

plied to all industrial point sources, Senator Muskie

ciarified what Congress meant by the term “prac-

ticable” in Section 304(b)(1)(B) (1 Leg. Hist. 170;

emphasis supplied) :

The balancing test between total cost and effluent

reduction benefits is intended to limit the ap-

plication of technology only where the addi-

tional degree of effluent reduction is wholly out

of proportion to the costs of achieving such

25 Section 301(b) (3) of the House version of the Act (H.R.

11896, 92d Cong., 2d Sess. (1971)) would have permitted

EPA in appropriate circumstances to extend the deadline for

compliance with the 1977 limitations for up to two years. See

1 Leg. Hist. 881, 964-965; 2 Leg. Hist. 1114-1115, 1197. The

conference bill that was subsequently enacted into law does

not allow for even this limited kind of variance. Kalur, supra,

7 Ecol. L.Q. at 962-965. In 1977, the Act was amended to

permit limited delays in a few situations. See 33 U.S.C.

(Supp. I) 1319(a) (5) (B).

34

marginal level of reduction for any class or cate-

gory of eources,

The Conferees agreed upon this limited cost-

benefit analysis in order to maintain uniformity

within a elass and category of point sources sub-

ject to effluent limitations, and fo avoid imposing

on the Administrator any requirement * * * to

determine the economic impact of controls on any

individual plant ina 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

orcas ”**”

See also id. at 231, 287-288 (statements of Rep.

Jones; emphasis supplied) (‘In enforeing the 1977

‘best practicable technology’ regulation, the Environ-

mental Protection Agency (EPA) would take into ac-

count the fofa/ impact of the action on plants within

a given category (c.q., steel, chemical, paper) con-

sidering overall financial ability to comply, and the

national impact of compliance on communities and

workers”); 2 Leg. Hist. 1186, 1188 (“social and

economic costs * * * [should not be] addressed on

an ad hoc, case-by-case approach”).

2. The legislative history also evidences Congress’

understanding that implementation of strict pollution

control might well force marginal enterprises in var-

26 As this Court recognized in duPont v. Train, supra, 430

U.S. at 129, Senator Muskie was “perhaps the Act’s primary

author.”” His comments, as well as the statements of the

other floor managers and bill sponsors, are thus entitled to

particular weight. See Simpson v. United States, 435 U.S. 6,

18 (1978).

35

ious industries to cease operations. See, e.g., 1 Leg.

Hist. 123, 142, 156, 188, 217-218, 231, 352-353, 375,

113, 457-458, 513-514, 517, 523, 561, 601, 654-659,

710-711, 717-723, 731-733, 740, 741-745; 2 Leg. Hist.

1164, 1353-1361. Water Pollution Control Legislation

—1071: Hearings Before the House Comm. on Public

Works, 92d Cong., Ist Sess. 857, 1165-1166 (1971) ;

Water Pollution Control Legislation: Hearings Be-

fore the Subcomm. on Air and Water Pollution of

the Senate Comm. on Public Works, 92d Cong., 1st

Sess., Part 2, 622, 660-663; Part 4, 1908 (1971). For

example, Senator Bentsen observed that ‘“[t]here is

no doubt that we will suffer some disruptions in our

economy because of our efforts; many marginal plants

may be forced to close.” 2 Leg. Hist. 1282. Simi-

larly, EPA studies submitted to, and considered by,

Congress estimated that the 1977 limitations would

cause the closure of perhaps 300 plants affecting be-

tween 50,000 and 125,000 workers. 1 Ley. Hist. 156,

523; CEQ-Commerce-EPA, The Economic Impact of

Pollution Control 7, 10-11 (1972). And Representa-

tive Crane, in opposing the bill, warned that the Act

“may throw literally millions of Americans out of

work * * *.” 1 Leg. Hist. 738. See id. at 740 (Rep.

Sikes) (4 to 5% of industry subject to closing). See

also Weyerhaeuser Co. v. Costle, supra, 590 F.2d at

1025, 1036-1037; American Iron and Steel Institute

v. EPA, 526 F.2d 1027, 1052 (3d Cir. 1975); 42 Fed.

Ree. 21388 (1977) (affect of 1977 limitations on

marginal coal companies) ; 42 Fed. Reg. 35847 (1977)

(as many as 35 crushed stone facilities and 26 sand

36

and gravel plants might close as the result of the

1977 limitations),

Although Congress thus recognized the Aet's po-

tential for economic dislocation, it also perceived that

continued polluting of this Nation's waters posed a

substantially more serious “threat to life’ and “the

survival of our society.” 1 Leg, Hist. 122, 618 (re

ma. ks of Sen, Muskie and Rep. Roe), See generally

id, at 95-126 (debate on overriding presidential veto) ;

id. at 741 (remarks of Rep. Drinan regarding “na-

tional emergeney”); id. at 758, 862-863 CHLR. Rep.

No, 92-911, 92d Cong., 2d Sess. 66, 898-894 (1972);

2 Teg. Hist. 1258, 1268-1264, 1286 (remarks of

Sens. Muskie and Rentsen), Accordingly, Congress

deliberately chose not to permit variances from the

1N77 limitations on the ground of finaneial hardship.

As Senator Nelson explained (2 Leg. Hist. 1855):

[T]he approach of giving variances to pollution

controls based on economic grounds has long ago

shown itself to be a risky course: All too often,

the variances beeome 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 mean-

ingless, In short, with variances, exceptions to

pollution cleanup ean become the rule, meaning

further tragic delay in stopping the destruction

of our environment.

See also Weyerhaeuser Co. vy. Costle, supra, 590 F.2d

at 1036-1037; LaPierre, Technology-Foreing and Fed-

erul Environmental Protection Statutes, 62 Iowa I.

Rev. 771, 819-820 (1977): Parenteau & Tauman,

37

The Effluent’ Limitations Controversy, Will) Care-

less Draftsmanship Foil the Objectives of the Federal

Walter Pollution Control Act Amendments of 1972?, 6

Weol LQ. 1,55 (1976),

In faet, the relevant congressional debates show

that Congress specifically created the $800) million

revolving loan fund discussed above (page 28, supra)

as an “alternative to * “ * waiving strict environ-

mental standards where economic hardship could be

shown.” 2 Leg. Hist. 1855 (remarks of Sen. Nelson).

See yenerally id. at 1853-1361. Senator Nelson, the

author of Section & financing, proposed such funding

to extend

ederal aid to those small businesses who would

he crushed economically in meeting pollution con-

trol requirements but who could make it other-

wise. An important benefit of the proposal

should be aiding in reconciling any potential

point of conflict that might occur between the

goal of a decent environment and the goal of a

diversity in American life based on the oppor-

tunity for small businesses * * *.

1 Leg. Hist. 1356. Congress thereafter overwhelm-

ingly adopted this proposal on the specific under-

stunding that such loans would be available only to

“7 Senator Nelson offered his amendment in the hope “that

while many otherwise viable small businesses may not be able

to afford the immediate cost of the capital investment neces-

sary to meet the water pollution control requirements, Uhey

could in fact manage these costs if given the benefit of low-

cost, long-term loans.” The loans were designed to carry four

percent interest payable over as long a period as 30 years.

2 Leg. Hist. 1858, 1857.

38

the facilities that EPA certified as meeting effluent

limitation standards. /d. at 1360. See 2 Leg. Hist.

1218, 1353-1362; 1 Leg. Hist. 148, 152, 214, 336-337,

358, 369, 404, 449-450, 467, 509, 566, 664, 717, 742,

762, 829-830, 858.**

D. The Agency’s Consistent And Reasonable Construc-

tion Of The Act Is Entitled To Great Deference

It is well settled that “‘the construction of a

statute by those charged with its execution should be

followed unless there are compelling indications that it

is wrong * * *.’” E. 7. duPont deNemours & Co. v.

Collins, 482 U.S. 46, 54-55 (1977), quoting Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969).

See also Udall vy. Tallman, 380 U.S. 1, 16 (1965).

And where, as here, an agency is charged by Con-

gress with issuing substantive regulations and stand-

ards regarding a complex, scientific statute, its in-

terpretations and rulings are entitled to particular

deference unless plainly “irrational.” Ford Motor

Credit Co. vy. Milhollin, No. 78-1487 (Feb. 20, 1980),

slip op. 12. See, e.g., duPont v. Train, supra, 430

U.S. at 134-135 & n.25; Union Electric Co. vy. EPA,

supra, 427 U.S. at 256; EPA vy. State Water Re-

sources Control Board, 426 U.S. 200, 226-227 (1976) ;

28 Congress has also provided for the rapid depreciation of

all pollution control facilities. 26 U.S.C. 169 (60 months’ de-

preciation period) ; see 2 Leg. Hist. 1175. See also pages 27-

28, supra, and 1 Leg. Hist. 217-218, 654-659, 712-723, 732-733

(discussing limited protection provided by Section 507(e) for

workers unemployed as a result of effluent limitations).

39

Train v. Natural Resources Defense Council, Inc., 421

U.S. 60, 75, 87 (1975).”

The court of appeals thus erroneously set aside the

variance provisions at issue in these cases. Although

EPA has modified its (1977 limitations) variance

clause from time to time in respects not rele-

vant here, it has never waivered from its posi-

tion that inability to comply with the 1977 limitations

is not a ground for a variance. See, e.g., 39 Fed.

Reg. 30073 (1974); 40 C.F.R. 484.22 (1976); Jn re

Louisiana-Pacific Corp., 10 E.R.C. 1841, 1850-1853

& nn.27 & 30 (1977) (decision of Administrator) ;

43 Fed. Reg. 50042 (1978); 44 Fed. Reg. 32893-

32894 (1979); 40 C.F.R. 434.22. Moreover, it seems

beyond dispute that the agency’s well-articulated con-

struction cannot fairly be characterized as “irra-

tional,” given the language and legislative history

limned above. In short, EPA’s variance regulations

are “sufficiently reasonable to preclude the Court of

Appeals from substituting its judgment for that of

the Agency.” Train v. Natural Resources Defense

Council, Inc., supra, 421 U.S. at 87. Accord, Weyer-

haecuser vy. Costle, supra; American Petroleum Insti-

tute v. EPA, 540 F.2d 1023, 1033 (10th Cir. 1976),

cert. denied, 430 U.S. 922 (1977).

Furthermore, EPA’s regulations are entitled to

particular weight because Congress has “acquiesced

in [EPA’s] interpretation of the statute.” Board of

°® Various provisions of the Act, including Sections 301 and

304 require the Administrator to issue regulations. See also

88 U.S.C. 1251, 1312, 1318, 1816(b), 13842(a) 42), 1361 (a);

33 U.S.C. (and Supp. I) 1814, 1317, 1821(b), 1322(b);

Weyerhaeuser Co. V. Costle, supra, 590 F.2d at 1025,

40

Education vy. Harris, No. 78-873 (Nov. 28, 1979),

slip op. 18. See, e.g., Seatrain Shipbuilding Corp. v.

Shell Oil Co., No. 78-1651 (Feb. 20, 1980), slip op.

25-24; Andrus v. Allard, No. 78-740 (Nov. 27, 1979),

slip op. 6; Lorillard vy. Pons, 434 U.S. 575, 580-581

(1978) ; NLRB y. Bell Aerospace Co., 416 U.S. 267,

274-275 (1974). In 1977, in the course of exten-

sively amending the Act, Congress thoroughly re-

viewed “the 1977 requirements for best practicable

technology * * * and the manner in which [they

have] been administered.” 3 A Legislative History of

the Clean Water Act of 1977: A Continuation of the

Legislative History of the Federal Water Pollution

Control Act, Ser. No. 95-14, at 869 (Comm. Print

1978) (remarks of Rep. Clausen) (hereinafter “Cont.

Leg. Hist.”). See, e.g., H.R. Conf. Rep. No. 95-830,

95th Cong., Ist Sess. 76-78, 85 (1977) (reprinted at 3

Cont. Leg. Hist. 260-262, 269); S. Rep. No. 95-370,

95th Cong., Ist Sess. 1-2, 7-8 (1977); 3 Cont. Leg.

Hist. 305, 323-324, 354-355, 368-382, 390, 396-398,

402-404, 410-414, 458-465, 496, 532-533; 4 Cont. Leg.

Hist. 859-862, 1094, 1100-1101, 1117-1118, 1123,

1133-1139, 1312-1315, 1318, 1414-1415, 1430-1432,

1462-1464. See generally Federal Water Pollution

Control Act Amendments of 1977: Hearing Before the

Subcomm. on Environmental Pollution of the Senate

Comm. on Environment and Public Works, 95th

Cong., 1st Sess., Parts 1-10 (1977); To Amend and

Exténd Authorizations for the Federal Water Pollu-

tion Control Act: Hearings on H.R. 3199 Before the

Subcomm. on Water Resources of the House Comm.

41

on Public Works and Transportation, 95th Cong., Ist

Sess. (1977).

As the result of its investigation, Congress was

fully aware that EPA’s implementation of the 1977

limitations had caused and would continue to cause

significant economic dislocation, including the closure

of individual point sources. See, e.g., 3 Cont. Leg.

Hist. 269, 323, 324, 368, 373, 408, 404, 410-411, 496,

534-535, 541-544; 4 Cont. Leg. Hist. 850, 1197, 1430-

1432; S. Rep. No. 95-370, supra, at 2 (reprinted at

4 Cont. Leg. Hist. 636); Federal Water Pollution

Control Act Amendments of 1977, supra, Part 1, at

17-18; Part 2, at 106-107; Part 3, at 324-329; Hear-

ings on H.R. 3199, supra, at 319-325. In fact, sev-

eral industry representatives and legislators proposed

that the 1977 limitations be amended or extensively

delayed because “best practicable control technology

may be impossible to attain or financially beyond

reach in certain cases.” 3 Cont. Leg. Hist. 542 (Sen.

Schweiker). See id. at 324, 411-412, 541-544; 4 Cont.

Leg. Hist. 1312-1315; Federal Water Pollution Con-

trol Act Amendments of 1977, supra, Part 1, at 19,

34; Part 3, at 324; Part 10, at 379, 719, 749, 753-

755; Hearings on H.R. 3199, supra, at 319-325; Note,

The Clean Water Act of 1977: Great Expectations

Unrealized, 47 U. Cin. L. Rev. 259, 269 (1978).

Nonetheless, except for extending the compliance

deadline in special cases to April 1, 1979 (33 U.S.C.

(Supp. I) 1519(a)(5)(B)),* Congress “resist[ed]

% See 3 Cont. Leg. Hist. 261, 390, 396-398, 402-403, 413,

414, 451; 4 Cont. Leg. Hist. 641, 1049-1050, 1054. In addition,

42

attempts to provide general exemptions or extensions

for the 1977 deadlines.” 3 Cont. Leg. Hist. 548 (Sen.

Moynihan). See S. Rep. No. 95-370, supra, at 7-8,

44, 60-62 (reprinted at 4 Cont. Leg. Hist. 641-

642, 677, 693-695) ; 3 Cont. Leg. Hist. 324, 411, 541-

544; 4 Cont. Leg. Hist. 859-862, 881, 898-900, 1213-

1214, 1270, 1312-1313, 1318."

Finally, we submit that any doubts on this point

must be resolved in favor of the remedial purposes

of the statute and the agency's reasonable interpre-

tation. Requiring EPA to consider the economic cir-

cumstances of all or even many industrial dischargers

would impose a substantial administrative burden on

the limited resources of the agency and would also

further delay the implementation of the 1977 limi-

tations. Such a broad economic variance clause might

well render “the pin-hole safety valve envisioned in

the Act and duPont * * * a yawning loophole.” Wey-

erhaeuser Co. v. Costle, supra, 590 F.2d at 1040. In

sum, the decisions of the courts of appeals, if affirmed,

threaten the express congressional purpose “to re-

store and maintain the chemical, physical, and bio-

logical integrity of the Nation’s waters.” 33 U.S.C.

1251(a). See also Parenteau & Tauman, supra, 6

Ecol. L.Q. at 55.

Congress reemphasized that plants subject to closure because

of financial inability to afford compliance are eligible for

federal financial aid. See 3 Cont. Leg. Hist. 404.

31 See also S. 2453 and H.R. 6867, 96th Cong., 2d Sess.

(1980) (proposed bills to require EPA to modify effluent

limitations if the limitations would have an adverse economic

impact). See 126 Cong. Rec. S2656-S2657 (daily ed. Mar.

19, 1980).

43

CONCLUSION

The judgments of the court of appeals should be

reversed.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

ANGUS MACBETH

Acting Assistant Attorney General

ANDREW J. LEVANDER

Assistant to the Solicitor General

MICHELE B. CORASH

General Counsel

JAMES A. ROGERS

Associate General Counsel

RICHARD G. STOLL, JR.

Deputy Associate General Counsel

Environmental Protection Agency

May 1980

la

APPENDIX A

STATUTES AND

REGULATIONS INVOLVED

1. Section 301 of the Clean Water Act, 33 U.S.C.

(and Supp. I) 1311, provides in pertinent part:

(a) Except as in compliance with this section

and sections [302, 306, 307, 318, 402, and 404

of this Act] 1312, 1316, 1317, 1328, 1342, and

1344 * * *, the discharge of any pollutant by

any person shall be unlawful.

(b) In order to carry out the objective of this

[Act] there shall be achieved—

(1)(A) not later than July 1, 1977, ef-

fluent limitations for point sources, other

than publicly owned treatment works, (i)

which shall require the application of the

best practicable control technology currently

available as defined by the Administrator

pursuant to section [304(b) of this Act, 33

U.S.C.] 1314(b) * * *

* * * * *

(2)(A) for pollutants identified in sub-

paragraphs (C), (D), and (F) of this para-

evaph, effluent limitations for categories and

classes of point sources, othe than publicly

owned treatment works, which (i) shal] re-

quire application of the best available tech-

nology economically achievable for such

category or class, which will result in rea-

sonable further progress toward the national

goal of eliminating the discharge of all pol-

lutants, as determined in accordance with

2a

regulations issued by the Administrator pur-

suant to section 1314(b)(2) of this title,

which such effluent limitations shall require

the elimination of discharges of all pol-

lutants if the Administrator finds, on the

basis of information available to him (in-

cluding information developed pursuant to

section 1325 of this title), that such elimi-

nation is technologically and economically

achievable for a category or class of point

sources as determined in accordance with

regulations issued by the Administrator pur-

suant to section 1314(b) (2) of this title, or

(ii) in the case of the introduction of a pol-

lutant into a publicly owned treatment

works which meets the requirements of sub-

paragraph (B) of this paragraph, shall re-

quire compliance with any applicable pre-

treatinent requirements and any cther re-

quirement under section 1317 of this title;

* * * * *

(C) not later than July 1, 1984, with re-

spect to all toxic pollutants referred to in

table 1 of Committee Print Numbered 95-

30 of the Committee on Public Works and

Transportation of the House of Representa-

tives compliance with effluent limitations

in accordance with subparagraph (A) of

this paragraph;

(D) for all toxie pollutants listed under

paragraph (1) of subsection (a) of section

[307 of this Act] 1317 of this title which are

not referred to in subparagraph (C) of this

paragraph compliance with effluent limita-

tions in accordance with subparagraph (A)

3a

of this paragraph not later than three years

after the date such limitations are estab-

lished ;

(E) not later than July 1, 1984, effluent

limitations for categories and classes of

point sources, other than publicly owned

treatment works, which in the case of pol-

lutants identified pursuant to section 1314

(a) (4) of this title [304(a) (4) of the Act]

shall require application of the best conven-

tional pollutant control technology as deter-

mined in accordance with regulations issued

by the Administrator pursuant to section

1314(b) (4) of this title; * * *

(c) The Administrator may modify the re-

quirements of subsection (b) (2) (A) of this sec-

tion with respect to any point source for which

a permit application is filed after July 1, 1977,

upon a showing by the owner or operator of

such point source satisfactory to the Adminis-

trator that such modified requirements (1) will

represent the maximum use of technology with-

in the economic capability of the owner or op-

erator; and (2) will result in reasonable further

progress toward the elimination of the discharge

of pollutants.

2. Section 304(b) of the Clean Water Act, 33

U.S.C. (and Supp. I) 1814(b), provides in pertinent

part:

(b) For the purpose of adopting or revising

effluent limitations under this [Act] the Adminis-

trator shall, after consultation with appropriate

Federal and State agencies and other interested

persons, publish within one year of enactment of

4a

this title [October 18, 1972], regulations, provid-

ing guidelines for effluent limitations, and, at

least annually thereafter, revise, if appropriate,

such regulations. Such regulations shall—

(1) (A) 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 Lest practic-

able control technology currently available

for classes and categories of point sources

(other than publicly owned treatment

works) ; and

(B) specify factors to be taken into ac-

count in determining the control measures

and practices to be applicable to point

sources (other than publicly owned treat-

ment works) within such categories or

classes. Factors relating to the assessment

of best practicable control technology cur-

rently available to comply with subsection

(b) (1) of section [301 of this Act] 1311 of

this title shall include consideration of the

total cost of application of technology in rela-

tion to the effluent reduction benefits to be

achieved from such application, and shall also

take into account the age of equipment and

facilities involved, the process employed, the

engineering aspects of the application of vari-

ous types of control techniques, process

changes, non-water quality environmental

impact (including energy requirements),

and such other factors as the Administrator

deems appropriate;

5a

(2)(A) identify, in terms of amounts of

constituents and chemical, physical, and bio-

logical characteristics of pollutants, the de-

gree of effluent reduction attainable through

the application of the best control measures

and practices achievable including treatment

techniques, process and procedure innova-

tions, operating methods, and other alter-

natives for classes and categories of point

sources (other than publicly owned treat-

ment works) ; and

(B) specify factors to he taken into ac-

count in determining the best measures and

practices available to comply with subsec-

tion (b) (2) of section [301 of this Act] 1311

of this title to be applicable to any point

source (other than publicly owned treatment

works) within such categories or classes.

Factors relating to the assessment of best

available technology shall take into account

the age of equipment and facilities involved,

the process employed, the engineering aspects

of the application of various types of control

techniques, process changes, the cost of

achieving such effluent reduction, non-water

quality environmental impact (including

energy requirements), and such other factors

as the Administrator deems appropriate.

3. Section 434.22 of Title 40, Code of Federal

Regulations, as promulgated by the Environmental

Protection Agency on April 26, 1977, provides in per-

tinent part as follows (42 Fed. Reg. 21380, 21384):

In establishing the limitations set forth in this

section, EPA took into account all information

(in

Ho wae able te eoalleet, develop and satieit with

rrapert to faetora Caneh ae age and aise of plant,

PAW naterigte, Mana faetining proeesaea, pad

eta proadieed, treatment feelhnelogy available,

enerpy pequinemente and eaetal whieh ean af

fort the induathy esubeateperization and etliient

lovela eatablished lt is

data whieh would affeet theee Tinitations lave

however, pogeible Cheat

not been available and. aa ia reeult, these lini

tations ehould be adjuated for eertain planto in

(Wie didetey Nn dodividial diseharger ar other

ferwated pereen miay submit evidenee to the

Reeional \dmoinieteater Gar te the State, ih the

State hae the authority fo taaie NEDSS permite)

{hat faetora velating fe the equipment or faved

fies dnvelved, the proeesa applied, ar ether sueh

factorn related to sueh diseharper are funda

mentally different from the faetoes eonsidered im

the establishment of the pruidelines On the basi

of suel evidenee or other available taforuurtion,

the Remwnal \dmunisteater Cor the Stated wall

make a written Gnding that sueh faetors are or

are net fundamentally different for that facihity

aAmapared fo those speetfied ino the Development

Document Tf such fundamentally different fac

tors are found te exist, the Remional Administen

tor or the State shall establish for the diseharger

effluent hiitations in the NPDES permit: either

more or less strimyent than the limitations estab

lished herein, te the extent dietated by sueh fun

damentally different factors. Suelo limitations

vust be approved by the Administrator of the

Favinwmental Protection Ageney. The Admin-

istrater may approve or disapprove such lim

tations, specify other limitations, or initiate pro-

ceodings to revise these regulations.

Ta

APPENDIX It

GENERAL DOCKET

UNITED STATES COURT OF APPEALS

POR THE POURPEE CIRCUPT

Cnse No. 76-1690

Ayency

[May $, 1980}

ON Prererion ror REVIEW OF AN ORDER OF THE

NVIRONMENTAL PROTECTION AGENCY

| Mlevible| REO * 761859, 76-1862, 76-1912, 76-1981

and 76.1982, 76-2019, 76-2020

Related eases: 76-2059, 76-2145, 76-2146, 76-2147,

T7T-ANTA, T7-1A90, 77-1491, 77-1534,

T7-1H02, 77-1598, 77-1594, 77-1828,

77-1845, 77-1892, 77-1893, 77-1957,

77-2088, 77-1989, 77-1990

CONSOLIDATION COAL COMPANY, PETITIONER

»,

Doucnas M. Cosrir, as Administrator,

iMnvironmental Protection Agency, RESPONDENT

* Petitioning Industry Groups and Petitioning Environ-

mental Groups allowed to file separate briefs.

8a

Attorneys for Petitioner

LEAD COUNSEL FOR CIT. ENV. GROUPS:

J. Williams

P. McGinley

Alan B. Mollohan, Esq.

Suite 830

919 18th Street, NW

Washington, DC 20006

202 659-2313

Harold R. Schmidt, Esq.

Henry McC. Ingram, Esq.

Lawrence A. Demase, Esq.

9th Floor Oliver Bldg

Pittsburgh, Pennsylvania 15222

LEAL COUNSEL FOR INDUSTRY GROUPS:

George Freeman, Jr.

Michael B. Barr

Hunton & Williams

1730 Pa. Ave.

Washington, D.C.

Attorneys for Respondent

James A. Rogers

Office of Genera] Counsel

401 M St. SW Rm 509B West Tower

Mail Code A-131

Washington, D.C. 20460

202 755-0760

LEAD COUNSEL FOR RESPONDENT:

Lee R. Tyner

U.S. Dept of Justice

’ Pollution Control Section

Land & Natural Resources Div.

Washington, DC 20530

DATE OF JUDGMENT: May 3, 1976

9a

FILINGS—PROCEEDINGS

DATE

6/25/76 Petition for review filed and cause docketed. jab

6/28/76 Notification, together with copy of petition, mailed

certified mail to the respondent. jab

7/1/76 Appearance for the petitioner filed and entered.

(foc)

7/6/76 Appearance for the petitioner filed and entered.

(foc)

7/13/76 Appearance for the respondent filed and entered.

(foc)

8/2/76 Motion of EPA to extend time to transmit the ad-

ministrative record to 9/3/76, filed. epb

8/2/76 Order extending time to transmit the administra-

tive record to Aug. 18, 1976, filed. epb

8/19/76 Certified List of EPA (Orig and 3) filed. jb

8/20/76 Briefing schedule established. jb

8/25/76 Motion to defer filing of appendix pursuant to

R.30(c) FRAP, filed. Motion granted. epb

8/26/76 Motion to stay all proceedings along with a memo-

randum in support of the motion filed. Motion granted.

epb

9/20/76 Joint motion to defer briefing until 40 days after

respondent files his certified index to the record of the

final effulent limitations guidelines appliacble to the

coal mining point source category, filed. Motion grant-

ed. epb

12/27/76 Letter/motionof agency for extension of time to

3/31/77 to complete the review process and promulgate

(final-final) regulations. MOTION GRANTED. (fls)

6/3/77 Certified Index to the Supplemental Record, filed,

5/6/77. jb

6/23/77 Order consolidating 76-1690, et al and establishing

briefing schelule per LR 19, filed. jb

10a

DATE FILINGS—PROCEEDINGS

7/1/77 Order consolidating 77-1845 with 76-1690, et al

and directing adhering to the briefing schedule already

established, and allowing one brief for petitioning in-

dustries and one brief for petitioning environmental

group, filed. jb

7/14/77 Order consolidating 77-1892 and 77-1893 with 76-

1696, et ai and directing that counsel adhaere [sic] to pro-

visions of previously filed orders of 6/23/77 and 7/1/77,

filed. jb

718/77 MOTION of the petitioners for lease to file de-

ferred appendix per 30(c), FRAP, filed. (fls) MO-

TION GRANTED. (fis)

7/22/77 Petitioners’ motion to extend time to file brief and

appendix to 8/15/77, filed. MOTION GRANTED. (fls)

7/28/77 Orderconsolidating 77-1957 with 76-1690 pursuant

to LR 19, filed. jb

8/5/77 Order consolidating 77-1989 and 77-1990 with 76-

1690 pur LR 19 for briefing and arguing and applying

provisions of previously filed orders in these cons. cases,

filed. jb

8/17/77 Four (4) copies of the petitioner’s brief filed.

Joint with numbers 76-198 , 76-2146, 77-1592, 77-1845,

76-1859, 76-2019, 76-2147, 77-1593, 77-1892, 76- ;

76-2020, 76-1474, 77-1594, 77-1893, 76-1912, 76-2059,

77-1490, 77-1534, 77- , 76-1981, 76-2145, 77-1491,

77-1828. (8-10-77 dmh).

8/22/77—Positive Local Rule 17 disclosure (Consolidation

Coal Company), filed. dhb

8/17/77 Twenty Five (25) copies of petitioning Environ-

mental Group’s brief filed 8/15/77. (See 76-2020). jb

8/31/77 Order consolidating 77-2088 with 76-1690, et al,

pursuant to LR 19, filed. jb

10/13/77 Twenty-five (25) copies of the petitioner’s brief,

Commonwealth of Penn. Department of Environmental

Resources. (9-30-77 dmh).

lla

DATE ‘FILINGS—PROCEEDINGS

10/17/77 MOTION of respondent for permission to file an

enlarged brief not to exceed 100 pages of printing by

Process of duplication other than standard typographic

printing, filed. (ecr) MOTION DENIED. (ecr)

11/4/77 Four (4) copies of the respondent’s brief Jt. w/

76-1859, et al., filed.

11/22/77 Nine (9) copies of the reply brief for Citizen

Environmental Group Petitioner’s filed. Consolidated

with 76-1859 et al. (11-17-77 dmh).

11/22/77 Five (5) copies of the reply brief for Industry

Petitioners filed. Consolidated with 76-1859 et al. (11-

21-77 dmh).

11/25/77 MOTION of appellant to extend time to file de-

ferred appendix to 12/5/77, filed) MOTION GRANT-

ED. (fls)

11/25/77 Twenty-five (25) copies of the appellant’s reply

brief for the Commonwealth of Pa. filed. Jt. w/ T77-

2088, et al. (PM 11-23-wtc)

12/12/77 Ten (10) copies of the joint appendix Volumes

I, I, II, IV and a continued IV, filed. (HD 12/12-

WTC)

12/12/77 Three folders as one lodged. (wtc)

12/22/77 MOTION of the industry petitioners for leave to

file its initial brief 55 pages in length, filed. MOTION

GRANTED. (fls)

12/22/77 25 copies Reply Brief for Industry petitioners

filed. (12-19-77) dmh

12/22/77 25 copies of industry petitioners brief filed. (12-

19-77) dmh

1/478 Respondent's motion for an extension of time to

file printed briefs to 1/17/78, filed. MOTION GRANT-

ED. (fls)

12a

DATE FILINGS—PROCEEDINGS

1/19/78 Twenty-five (25 copies of the respondent's brief

filed. (1-17-78 dmh). PM es.

1/19 78 Positive Local 17 disclosure (plaintiffs) filed. dhb

3/15/78 Respondent's MOTION to file a supplemental

brief, filed. (eer)

3/21/78 Response to EPA’s motion to file a supplemental

brief, filed. (fls) Transmitted to JDB, HEW, KKH.

3/23/78 ORDER allowing Doulgas M. Costle, Administra-

tor, ete. to file a supplemental brief and permitting the

industry petitioner to file a response to the brief by

March 27, 1978, filed. ecr Certified copies to all coun-

sel.

3/22/78 Supplemental brief of respondents, filed. eer (25

copies)

3/28/78 Four (4) copies of the Industry Petitioners’

Brief in reply to respondent’s supplemental brief filed.

(3-28-78 dmh). HD.

3/29/78 Twenty-five (25) copies of the Industry Petition-

ers’ brief in reply to respondent’s supplemental brief

filed. (3-27-78 dmh). PM.

10/5/78 Cause came on to be heard before Butzner, Wide-

ner and Hall, Circuit Judges, was argued by counsel

and submitted. (jhl)

6/25/79 Opinion filed. JDB P (wu)

6/25/79 Opinion and Notice mailed to counsel of record.

(wu)

6/25/79 Decree filed. Petition to set aside denied; regula-

tions on variances remanded. (wu)

7/979 MOTION (C-70) of P for clarification of opinion,

filed. (jeh) Transmitted to JDB, HEW, KKH

7/12/79 MOTION (C-85) of Respondent for stay of man-

date filed. Transmitted to JDB, HEW & KKH. mjk

13a

DATE _ FILINGS—PROCEEDINGS

to P’s motion for clarification, filed (jeh)

7/31/79 Response of (C-70) Industry Petitioners to var-

ious post-decision submittals, filed (jeh) Transmitted

to JDB, HEW, KKH.

7/31/79 Response of the Commonwealth of Pennsylvania

to various post-decision submittals, filed (jeh) Trans-

mitted to JDB, HEW, KKH.

8/10/79 ORDER denying motion for clarification, filed.

(fls) Copy to all counsel of record. (also denying mo-

tion for stay)

8/28/79 Certified copy of judgment & printed copy of

opinion transmitted to EPA. jhl

10/30/79 Letter of request for the lodged materials with

the court and returned to Michael B. Barr three file

folders. WTC

12/18/79 Notice evidencing the filing petition for writ of

certiorari in the Supreme Court November 15, 1979

filed. (No. 79770) (jhl)

2/26/80 Certified copy of order of the Supreme Court

granting certiorari February 19, 1980 filed. (jhl)

14a

Theodore L. Garrett/secty

D.C.: 452-6000

76-1914

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Case No. 76-1914

Agency

ON PETITION FOR REVIEW OF AN ORDER OF THE

ENVIRONMENTAL PROTECTION AGENCY

Related: 76-1915, 76-1929, 76-1930, 76-2197

Consolidated:

NATIONAL CRUSHED STONE ASSOCIATION, INC.,

and LUCK QUARRIES, PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Attorneys for Petitioners

See letter dated 9/30/77

Theodore L. Garrett, Esq.

888 16th Street, N.W.

Washington, D.C. 20006

202/452-6112

15a

Attorneys for Respondent

Barbara H. Brandon, Esq. 633-5287

Peter A. Taft, Esq.

Alfred T. Ghiorzi, Esq.

Dept. of Justice

Washington, DC 20530

James A. Rogers, Esq.

Lee Breckenridge

Water Quality Division (A-131)

U.S. Environmental Protection Agency

Washington, D.C. 20460

DATE OF JUDGMENT: June 10, 1976

16a

DATE _ FILINGS—PROCEEDINGS

8/23/76 Petition for review filed and cause docketed. jab

8/24/76 Notification along with a copy of the petition for

review mailed certified mail to the respondent. jab

9/3/76 Petitioners appearance filed and entered. (foc)

9/15/76 Order consolidating cases for oral argument filed.

(76-1914, 76-1915, 76-1929, 76-1930). epb

9/22/76 Motion of Sarasota County, Fla, for leave to in-

tervene filed. epb

9/27/76 Joint motion for deferral of proceedings pending

completion of proceedings before the agency to March

31, 1977, filed. MOTION GRANTED. (fis)

9/29/76 Respondent’s opposition to motion of Sarasota

County, FL for leave to intervene, filed. (fls)

9/30/76 Reply of Sarasota County, Florida to respondent’s

opposition to motion of Sarasota County, Florida for

leave to intervene filed crl

10/7,/76 Motion, opposition to motion and reply to oppo-

sition transmitted to SLC.

10/15/76 Appearance for the respondent filed and en-

tered. (foc)

11/12/76 Respondent’s moticn to consolidate this case

with case numbers 76-1914, 1915, 1929, and 19390, for

the purpose of briefing and oral argument, filed. epb

11/12/76 Order consolidating case no. 76-2197 with case

nos. 76-1914, et al, filed.

12/23/76 Appearance for EPA filed and entered. (foc)

1/19/77 Motions, responses and suggested order trans-

mitted to Judges Butzner, Boreman and Russell.

(MFN/vsl)

2/22/77 ORDER denying motion of Sarasota County for

leave to intervene, filed. Certified copies mailed to Scott

and Taft-Graves-Ghiorzi, and Breckenridge. (fis)

3/28/77 MOTION of respondent for deferral of proceed-

ings pending completion of proceedings before the

agency, filed. (ecr)

17a

DATE FILIN.+S—PROCEEDINGS

——_

4/11/77 Motion for deferral of proceedings pending com-

pletion of proceedings before the agency and a copy of

a letter from counsel for the petitioners transmitted

to HSB, JDB, DSR. (ecr)

4/13/77 ORDER granting motion to defer proceedings

until May 31, 1977, filed. (ecr) Certified copies to

Scott, Taft, Graves, Ghiorzi, Breckenridge, Dunkelber,

Garrett, Eckert, Stephens, Rhodes, Clark, Hall.

5/19/77 MOTION for deferral proceedings pending com-

pletion of proceedings before the agency, filed. (ecr)

5/27/77 ORDER granting the motion to defer proceedings

pending completion of proceedings before the agency

to July 1, 1977, filed. (ecr) Certified copies to Scott,

Taft, Graves, Ghiorzi, Breckenridge.

6/7/77 Appearance of Ackerly and McClure for petition-

ers filed and entered. mjk

7/5/77 MOTION for deferral of proceedings to August 1,

1977, filed. (ecr) MOTION GRANTED. (ecr)

7/29/77 Joint motion for deferral of proceedings until

9/15/77, filed. MOTION GRANTED. (fis)

8/5/77 Response to motion of Agrico Chemical Co. for de-

ferral of proceedings, filed. (ecr)

9/8/77 Appearance of Garrett for petitioner filed and

entered. mjk

5/11/78 ORDER allowing the petitioners and respondent

to file supplemental briefs, filed. (fls) Certified copy

of order mailed to Garrett-Dunkelberger; Rogers-Eck-

ert; Taft-Brandon-Ghiorzi.

5/11/78 Supplemental brief of petitioners, filed. (fis)

5/11/78 Supplemental brief of respondent, filed. (fis)

8/8/78 Record of proceedings before EPA in three boxes,

filed. jb

8/8/78 Record above mailed to Judge Widener. jb

6/13/79 Record on appeal in five boxes received from

Judge Widener/ (jhl)

18a

DATE . FILINGS—PROCEEDINGS

6/18/79 Opinion remanding regulations to Agency filed.

HEW P (wu)

6/18/79 Opinion and Notice mailed to counsel of record.

(wu)

6/18/79 Decree filed.

7/11/79 Certified copy of the decree and printed copy of

the opinion forwarded to EPA. (jhl)

8/1/79 RESPONSE of petitioners to EPA motion to re-

call mandate which was filed with papers in no. 76-

1690, et al, filed. (fis)

7/12/79 MOTION of EPA for stay of mandate in Nos.

76-1690 et al and for recall of mandate in 76-1914 et

al filed. plm

8/8/79 SUBMITTED to CHF/DR/HEW motion for re-

call of mandate and the response thereto. plm

8/3/79 RESPONSE of petitioner to EPA’s motion for re-

call of mandate, filed. (fls) Transmitted to CHF/DR/

HEW.

9/4/79 ORDER denying motion of EPA to recall the man-

date, filed (ie) Copy to Garrett, Dunkelberger; Bran-

don, T:.2., Ghiorzi; Rogers, Breckenridge, Eckert.

12/18/79 Notice evidencing the filing petition for writ of

certiorari in the Supreme Court November 15, 1979

filed. (No. 79-770) (jhl)

12/26/80 Certified copy of order of Supreme Court grant-

ing certiorari February 19, 1980 filed. (jhl) ‘

3/13/80 Certified record in three volumes transmitted to

the Clerk of the Supreme Court. (Proceedings in

Court of Appeals plus two copies of Appendix (Vol-

. umes one and two) )

3/17/80 Record of proceedings before EPA in six boxes

(6) returned to Roland Kirby.

* U. S. GOVERNMENT PRINTING OFFice; 1980 319663 303