Supplemental Brief — Chicago Ass'n of Commerce & Industry Inc. v. Natural Resources Defense Council (Nos. 86-608, 86-239)

Nos. LY and 10)

Iu the Suprenwe Court of the United States

OCTOBER TERM, 1986

CHEMICAL MANUFACTURERS ASSOCIATION, PETITIONER

Vv.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

CHICAGO ASSOCIATION OF COMMERCE AND

INDUSTRY, ET AL., PETITIONERS

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

SUPPLEMENTAL BRIEF FOR THE

UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 205380

(202) 633-2217

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-239

CHEMICAL MANUFACTURERS ASSOCIATION, PETITIONER

Vv.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

No. 86-608

CHICAGO ASSOCIATION OF COMMERCE AND

INDUSTRY, ET AL., PETITIONERS

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

SUPPLEMENTAL BRIEF FOR THE

UNITED STATES IN OPPOSITION

(1)

i

2

This supplemental brief is filed pursuant to Rule

22.6 of the Rules of this Court to notify the Court

of a development occurring subsequent to the filing

of our brief in opposition that may affect the Court’s

disposition of the two petitions for a writ of cer-

tiorari.

On February 4, 1987, Congress enacted into law,

over the President’s veto, the Water Quality Act of

1987, Pub. L. No. 100-4, 101 Stat. 7 et seg. Section

406 of that Act amends Section 405(d) of the Clean

Water Act, 33 U.S.C. 1345(d), the meaning of which |

is the subject of the two petitions. In our brief in op- |

position, we argue that the two petitions should be

denied because EPA rulemaking efforts now in

progress should eventually alleviate the principal

burdens created by the decision. In our view, the

new statutory amendments make this Court’s review

even less appropriate. |

Section 406(a) of the Water Quality Act of 1987

amends Section 405(d)(2) of the Clean Water Act

to provide that EPA should promulgate sludge rules

by August 31, 1987, for certain toxic pollutants and

by June 15, 1988, for others. In addition, Section

406(e) of the 1987 Act stays until August 31, 1987,

the relevant portion of the decision of the court of

appeals in this case with respect to those publicly

owned treatment works that either received removal

credits prior to February 4, 1987, or that applied for

removal credits and whose application was pending on

February 4th, and is approved by August 31, 1987.

Finally, Section 406(e) provides that “[t]he Admin-

istrator shall not authorize any other removal credits

under such Act until the Administrator issues the

[sludge] regulations required by paragraph (2) (A)

_ . |

3

(ii) of section 405(d) of '[the Clean Water] Act, as

amended.’’*

Respectfully submitted.

CHARLES FRIED

Solicitor General

FEBRUARY 1987

* A copy of the pertinent provision of the Water Quality

Act of 1987 is appended.

APPENDIX

SEC. 406. SEWAGE SLUDGE.

(a) IDENTIFICATION AND REGULATION OF TOXIC

POLLUTANTS.—Section 405(d) is amended—

(1) by inserting “(1) REGULATIONS.—” be-

fore ‘“‘The Administrator, after” ;

(2) by striking “(1)”, “(2)”, and “(3)” and

inserting in lieu thereof “(A)”, “(B)”, and

“(CC)”, respectively ; and

(83) by adding at the end the following new

paragraphs:

“(2) IDENTIFICATION AND REGULATION OF

TOXIC POLLUTANTS.—

“(A) ON BASIS OF AVAILABLE INFORMA-

TION.—

“(i) PROPOSED REGULATIONS.—Not

later than November 30, 1986, the Ad-

ministrator shall identify those toxic

pollutants which, on the basis of avail-

able information on their toxicity, per-

sistence, concentration, mobility, or

potential for exposure, may be present

in sewage sludge in concentrations

which may adversely affect public

health or the environment, and propose

regulations specifying acceptable man-

agement practices for sewage sludge

containing each such toxic pollutant

and establishing numerical limitations

for each such pollutant for each use

identified under paragraph (1) (A).

“(ii) FINAL REGULATIONS.—Not later

than August 31, 1987, and after op-

(la)

2a

portunity for pubuc hearing, the Ad-

ministrator shall promulgate the reg-

ulations required by subparagraph

(A) (i).

“(B) OTHERS.— l

“(j) PROPOSED REGULATIONS.—Not

later than July 31, 1987, the Admin-

istrator shall identify those toxic pollu-

tants not identified under subparagraph

(A) (i) which may be present in sew-

age sludge in concentrations which may

adversely affect public health or the

environment, and propose regulations

specifying acceptable management prac-

tices for sewage sludge containing each

such toxic pollutant and establishing

numerical limitations for each pollu-

tant for each such use identified under

paragraph (1) (A).

“(ii) FINAL REGULATIONS.—Not later

than June 15, 1988, the Administrator

shall promulgate the regulations re-

quired by subparagraph (B) (i).

“(C) REVIEW.—From time to time, but

not less often than every 2 years, the Ad-

ministrator shall review the regulations

promulgated under this paragraph for the

purpose of identifying additional toxic pol-

lutants and promulgating regulations for r

such pollutants consistent with the require-

ments of this paragraph.

“(D) MINIMUM STANDARDS; COMPLIANCE

DATE.—The management practices and nu-

merical criteria established under subpara-

ESS ==

3a

graphs (A), (B), and (C) shall be ade-

quate to protect public health afd the envi-

ronment from any reasonably anticipated

adverse effects of each pollutant. Such regu-

lations shall require compliance as expedi-

tiously as practicable but in no case later

than 12 months after their publication, un-

less such regulations require the construc-

tion of new pollution control facilities, in

which case the regulations shall require

compliance as expeditiously as practicable

but in no case later than two years from the

date of their publication.

“(3) ALTERNATIVE STANDARDS.—For purposes

of this subsection, if, in the judgment of the

Administrator, it is not feasible to prescribe or

enforce a numerical limitation for a pollutant

identified under paragraph (2), the Administra-

tor may instead promulgate a design, equipment,

management practice, or operational standard,

or combination thereof, which in the Adminis-

trator’s judgment is adequate to protect public

health and the environment from any reasonably

anticipated adverse effects of such pollutant. In

the event the Administrator promulgates a de-

sign or equipment standard under this subsec-

tion, the Administrator shall include as part of

such standard such requirements as will assure

the proper operation and maintenance of any

such element of design or equipment.

“(4) CONDITIONS ON PERMITS.—Prior to the

promulgation of the regulations required by par-

agraph (2), the Administrator shall impose con-

ditions in permits issued to publicly owned treat-

ment works under section 402 of this Act or take

4a

such other measures as the Administrator deems

appropriate to protect public health and the en-

vironment from any adverse effects which may

occur from toxic pollutants in sewage sludge.

“(5) LIMITATION ON STATUTORY CONSTRUC-

TION.—Nothing in this section is intended to

waive more stringent wo samme established

by this Act or any other law.”

(b) MANNER OF SLUDGE DISPOSAL.—Section 405

(e) is amended to read as follows:

‘“(e) MANNER OF SLUDGE DISPOSAL.—Tne deter-

mination of the manner of disposal or use of sludge

is a local determination, except that it shall be un-

lawful for any person to dispose of. sludge from a

publicly owned treatment works or any other treat-

ment works treating domestic sewage for any use

for which regulations have been established pursuant

to subsection (d) of this section, except in accord-

ance with such regulations.”’.

(c) IMPLEMENTATION THROUGH PERMITS.—Sec-

tion 405 is further amended by adding at the end

thereof the following:

“(f) IMPLEMENTATION OF REGULATIONS.—

“‘(1) THROUGH SECTION 402 PERMITS.—Any

permit issued under section 402 of this Act to a

publicly owned treatment works or any other

treatment works treating domestic sewage shall

include requireinents for the use and disposal of

sludge that implement the regulations established

pursuant to subsection (d) of this section, un-

less such requirements have been included in a

permit issued under the appropriate provisions

of subtitle C of the Solid Waste Disposal Act,

5a

part C of the Safe Drinking Water Act, the

Marine Protection, Research, and Sanctuaries

Act of 1972, or the Clean Air Act, or under

State permit programs approved by the Admin-

istrator, where the Administrator determines

that such programs assure compliance with any

applicable requirements of this section. Not

later than December 15, 1986, the Administrator

shall promulgate procedures for approval of

State programs pursuant to this paragraph.

“(2) THROUGH OTHER PERMITS.—In the case

of a treatment works described in paragraph

(1) that is not subject to section 402 of this

Act and to which none of the other above listed

permit programs nor approved State permit au-

thority apply, the Administrator may issue a

permit to such treatment works solely to impose’

requirements for the use and disposal of sludge

that implement the regulations established pur-

suant to subsection (d) of this section. The Ad-

ministrator shall include in the permit appropri-

ate requirements to assure compliance with the

regulations established pursuant to subsection

(d) of this section. The Administrator shall es-

tablish procedures for issuing permits pursuant

to this paragraph.

“(g) STUDIES AND PROJECTS.—

“(1) GRANT PROGRAM; INFORMATION GATHER-

ING.—The Administrator is authorized to con-

duct or initiate scientific studies, demonstration

projects, and public information and education

projects which are designed to promote the safe

and beneficial management or use of sewage

sludge for such purposes as aiding the restora-

6a

tion of abandoned mine sites, cunditioning soil

for parks and recreation areas, agricultural and

horticultural uses, and other beneficial purposes.

For the purposes of carrying out this subsection,

the Administrator may make grants to State

water pollu.‘on control agencies, other public or

nonprofit agencies, institutions, organizations,

anc individuals. In cooperation with other Fed-

eral departments and agencies, other public and

private agencies, institutions, and organizations,

the Administrator is authorized to collect and

disseminate information pertaining to the safe

and beneficial use of sewage sludge.

“(2) AUTHORIZATION OF APPROPRIATIONS.—

For the purposes of carrying out the scientific

studies, demonstration projects, and public in-

formation and education projects authorized in

this section, there is authorized to be appropri-

ated for fiscal years beginning after September

30, 1986, not to exceed $5,000,000.”

(d) ENFORCEMENT.—(1) Section 308(a)(4) is

amended by inserting “405,” before “and 504”.

(2) Section 505(f) is amended by striking out

“or” before “(6)” and by inserting before the period

“or (7) a regulation under section 405(d) of this

Act,”’.

(3) Section 509(b) (1) (E) is amended by striking

out “or 306” and inserting in lieu thereof “306, or

405”.

(e) REMOVAL CREDITS.—The part of the decision

of Natural Resources Defense Council, Inc. v. U.S.

Environmental Protection Agency, No. 84-3530 (3d.

Cir. 1986), which addresses section 405(d) of the

Federal Water Pollution Control Act is stayed until!

August 31, 1987, with respect to—

Ta

(1) tose publicly owned treatment works the

owner or operator of which received authority to

revise pretreatment requirements under section

307(b)(1) of such Act before the date of the

enactment of this section, and

(2) those publicly owned treatment works the

owner or operator of which has submitted an

application for authority to revise pretreatment

requirements under such section 307(b) (1)

which application is pending on such date of en-

actment and is approved before August 31, 1987.

The Administrator shall not authorize any other re-

moval credits under such Act until the Administrator

issues the regulations required by paragraph (2)

(A) (ii) of section 405(d) of such Act, as amended

by subsection (a) of this section.

(f) CONFORMING AMENDMENTS.—Section 405(d)

is further amended—

(1) by inserting “REGULATIONS.—” after

“ d)”;

(2) by indenting paragraph (1) (as desig-

nated by subsection (a) (1) of this section) and

aligning such paragraph with paragraph (3),

as added by subsection (a) (3) ; and

(3) in such paragraph (1) by aligning sub-

paragraphs (A), (B), and (C) (as designated

by subsection (a) (2) of this section) with sub-

paragraph (C) of paragraph (2), as added by

subsection (a) (3) of this section.

©. 6. covennment revetine orrice, 1907 191485 8640220