Petition for Writ of Certiorari — Chemical Manufacturers Ass'n v. Natural Resources Defense Council, Inc.
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g3-1013
No. 83- |
INTHE
Supreme Court of the United States
OcToBER TERM, 1983
CHEMICAL MANUFACTURERS ASSOCIATION,
AMERICAN CYANAMID COMPANY,
FMC CorporaTIOoN, and
Union CARBIDE CORPORATION,
Petitioners,
Vv.
NaTuRAL Resources Derense Councit, Inc., and
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
ee
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
———
Tueopore L. GARRETT
(Attorney of Record)
CorinNE A. GOLDSTEIN
CovincTon & BURLING
1201 Pennsylvania Avenue, N.W.
P.O. Box 7565
Washington, D.C. 20044
(202) 662-6000
Attorneys for Petitioners Chemical
Manufacturers Association, et al.
December 1983
—————— OOOO
The decision below raises important concern-
ing EPA’s development of -based effluent
limitations guidelines and standards under
pretreatment
the Clean Water Act. Since the beginning of this program
under the 1972 Act, the Agency has established such
limitations and standards for industry categories in na-
tional regulations based on a consideration of typical
plants. EPA has deferred to subsequent “variance”
proceedings the consideration of atypical plants present-
contrary to thie Court's holding in
plants, as EPA has done by including a variance clause” in
its regulations.
2. Whether the court below was incorrect in ruling
that § 301(1) of the Clean Water Act precludes the grant-
ing of a variance for toxic pollutants to atypical plants that
can demonstrate a factor not considered by EPA in
establishing national technology-based regulations.
3. Whether the decision below, by removing EPA's
decision in SEC v. Chenery Corp., 332 U.S. 194 (1947).
PARTIES
The parties to this action are as follows:'
Chemical Manufacturers Association, American
Cyanamid Company, FMC Corporation, Union Carbide
Corporation;
Natural Resources Defense Council, Inc.; and
U.S. Environmental Protection Agency.
The Natural Resources Defense Council, Inc.
(“NRDC”) was the petitioner below. The U S. Environ-
mental Protection Agency (“EPA”) was the respondent.
The Chemical Manufacturers Association, et al., were
intervenor-respondents below.’
' In accordance with Rule 28.1 of the Rules of the Supreme Court,
the parent companies, subsidiaries and affiliates of each corporate
party to this petition are set forth in the Appendix at A-111.
* The above list includes all parties to the separately-briefed case
numbers 81-1977 and 81-1985 below. The decision below also ruled on
related petitions filed by other parties which do not involve the
questions presented here. The parties to these related cases below
are as follows:
National Association of Metal Finishers, Electroplaters of Yor,
Inc., Pioneer Metal Finishing, Inc., The Institute for Interconnect-
ing and Packaging Electronic Circuits, Ford Motor Company, Inc.,
United States Brewers Association, American Paper Institute, Na-
tional Forest Products Association, Synthetic Organic Chemical
Manufacturers Association, Air Products and Chemicals, Inc., Her-
cules Incorporated, Shell Oil Company, Association of Metropolitan
Sewerage Agencies, Metal Finishing Association of Southern Cali-
fornia, Interlake, Inc., Republic Steel Corporation, United States
Steel Corporation, American Iron & Steel Institute, Rouge Steel
Co., Chicago Association of Commerce and Industry, Illinois Manu-
facturers Association, and Mid-America Legal Foundation.
TABLE OF CONTENTS
Page
EES i
ESSE LEE TLE DETR T EEE PEEP ii
EE EEE EO iii
ek 8s ceeecoeccee iv
Ten on. cecccececcce 2
a 2
STATUTES AND REGULATIONS INVOLVED ............... 2
ae ow oncecosescoeceoes 2
A. Legislative And Administrative Background 3
B. The Proceedings Below ................... 7
REASONS FOR GRANTING THE WRIT ................... 4
I. The Decision Below Creates A Conflict In The Cir-
ee ey 20S Siler Decision OF Site .
II. The Decision Below Presents Questions
Of Law Which Should Be By This Court . 12
III. The Decision Below Upsets EPA’s Reasonable Con-
EL 15
Tees ced ccccccsccceesoccoes 19
APPENDIX
iv
TABLE OF AUTHORITIES
CASES: Page
American Iron & Steel Inst. v. EPA, 526 F.2d 1027 (3d
Cir. 1975), cert. denied, 435 U.S. 914 (1978) ..... 13
Appalachian Power Co. v. Train, 620 F.2d 1040 (4th Cir.
SD Sanecesnesnsseesasédunnnunean 8, 9, 10, 12, 19
EI. du Pont de Nemours & Co. v. Train, 430 U.S. 112
OPN Oe passim
EDF v. Costle, 636 F.2d 1229 (D.C. Cir. 1980) Lannea 4
EPA v. Nat'l Crushed Stone Ass’n, 449 U.S. 64
EEE Gnoccecoedecancsesesseccdoenshasnens 11, 17, 18
FMC Corp. v. Train, 539 F.2d 973 (4th Cir. 1976) ... 13
OT ee ae We
NAACP v. FPC, 425 U.S. 662 (1976) ............... 14
NZRB v. Bell Aerospace Co., 416 U.S. 267 (1974) .... 14
NRDC vy. EPA, 537 F.2d 642 (2d Cir. 1976) ........ 11, 18
NRDC v. Train, 8 E.R.C. 2120 (D.D.C. 1976) ...... 4,13
SEC v. Chenery Corp., 332 U.S. 194 (1947) .......... i, 14
Tanners’ Council of America v. Train, 540 F.2d 1188 (4th
Gh BED wnccococcesccnnesesasedesbecneuseses 13
Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir.
EY. co ceedcoceconcesecceenenenesensesensestes 11
STATUTES:
Se Gee ER coccccccncaccccccncccescss 2
33 U.S.C. § 1311(b) (1976 & Supp. V 1981) .......... 2,7
33 U.S.C. § 1311(b)(1 (A) (1976)... 2... ee eee eee 4
33 U.S.C. § 1311(b)(2)(A) (1976 & Supp. V 1981) ..... 4
SD Ge © IEE ccncdccescadcsecéccceseces 16
33 U.S.C. § 1311(g) (Supp. V 1981) ................. 16
33 U.S.C. § 1311(1)) (Supp. V 1981) ............... passim
33 U.S.C. § 1314(b) (1976 & Supp. V 1981) ........ 2,4,7
33 U.S.C. § 1317(b) (1976 & Supp. V 1981) ..... 2,4, 7, 11
33 U.S.C. § 1369(b) (1976)... ccc eee eens 7, 15
Vv
Table of Authorities Continued
Page
ADMINISTRATIVE ACTIONS:
43 Fed. Reg. 27736-7783 (1978) ......... cece eee uees 7
46 Fed. Reg. 9404-60 (1981) .......... ccc cece eee 7
REGULATIONS:
fi er 6
ee dn. cccccccccesacess 2,6
40 C.F.R. § 408. 13(c)(2)iv) (1983) ... 2... eee 7
40 C.F.R. § 403.13(c)(3 ii) (1983) ...... 2.6... 7
40 C.F .R. § 408. 19(d) (1983)... 2... cece ccc eee eee 6
LEGISLATIVE MATERIALS:
H.R. Rep. No. 830, 95th Cong., Ist Sess. (1977) ..... ll
S. Rep. No. 1236, 92d Cong., 2d Sess. (1972) ........ 18
A islative Hi of the Clean Water Act of 1977,
“7 eae ee Comm. Print No. 14, 95th
Cong., 2d Sess. (1978) ..........cccecsccee cece. 17
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
No. 83-
CHEMICAL MANUFACTURERS ASSOCIATION,
AMERICAN CYANAMID COMPANY,
FMC CorporaTION, and
UNION CARBIDE CORPORATION,
Petitioners,
Vv.
NATURAL Resources DEFENSE CoUNCIL, INc., and
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
Petitioners Chemical Manufacturers Association, et
al., pray that a writ of certiorari issue to review the
opinion and judgment of the United States Court of
Appeals for the Third Circuit in this case.'
' The Solicitor General, on behalf of EPA, nas requested an exten-
sion of time until February 17, 1984, within which to file a petition for
a writ of certiorari in this case. See Appx. at A-128. The Court may
wish to defer acting on this petition until the government files a
petition for a writ of certiorari (or advises the Court that it has
decided not to file a petition) so that the Court will have before it all
relevant materials.
2
OPINION BELOW
The opinion of the court of appeals below is reported at
719 F.2d 624, and is reprinted in the Appendix to this
petition at A-1.
JURISDICTION
The order of the court of appeals was entered on Sep-
tember 20, 1983. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C § 1254(1) (1976).
STATUTES AND REGULATIONS INVOLVED
This case involves technology-based “pretreatment
standards” under Section 307(b) of the Clean Water Act,
33 U.S.C. § 1317(b) (1976 & Supp. V 1981). Section 301(b)
of the Act, 33 U.S.C. § 1311(b) (1976 & Supp. V 1981),
describes various effluent limitations and standards that
are to be achieved. Section 301(1) of the Act provides that
the Administrator may not modify the requirements of
§ 301 for toxic pollutants. The factors to be considered in
ishing effluent limitations are set forth in § 304(b) of
the Act, 33 U.S.C. § 1314(b) (1976 & Supp. V 1981).
Section; 301(b), 301(1), 304(b) and 307(b) of the Act are
set forth in the Appendix at A-116-21.
EPA’s regulations govering the establishment of
“fundamentally different factors” (“FDF”) variances
from pretreatment standards are codified at 40 C.F.R.
§ 403.13 (1983), and are set forth in the Appendix at
A-122.
STATEMENT OF THE CASE
Under the Clean Water Act, EPA is directed to prom-
and standards applicable to the various major segments
of American industry. Because of the complexity of devel-
3
oping these limitations and standards, EPA has focused
its rulemaking efforts on the more typical plants in an
industry, and has deferred to subsequent individual
“variance” proceedings the consideration of atypical
plants. This has resulted in significant cost and time
savings in the development of industry regulations.
This petition seeks review of a judgment of the Third
Circuit which struck down EPA’s deferred procedure for
allowing so-called “variances” for “fundamentally differ-
ent” dischargers of priority or toxic pollutants subject to
standing way in which EPA has developed and applied
technology-based regulations under the Clean Water
Act. The decision below creates a conflict in the circuits,
and is contrary to this Court’s decision in E.]. du Pont de
Nemours & Co. v. Train, 430 U.S. 112 (1977) (“du Pont”).
A. Legislative And Administrative Background
A brief discussion of the Act’s program of guidelines
and standards provides the background of the proceed-
ings below. Under the Clean Water Act, industrial direct
dischargers must meet a series of technology-based
effluent limitations and standards.* By July 1, 1977, in-
dustrial direct dischargers had to achieve effluent limita-
tions based on the application of the “best practicable
control technology currently available” (“BPT”) as de-
? Industrial and commercial plants use water for various purposes
in their operations and discharge wastewater. These discharges are
made either directly to waters of the United States (“direct dis-
charges”) or to municipal sewer systems (“indirect discharges”). In
the latter case, the discharges are collected and treated in a publicly
owned treatment works (“POTW”) before being discharged to wa-
ters of the United States.
4
fined by EPA. 33 U.S.C. § 1311(b)1)A) (1976). Such
industrial direct dischargers must meet a second stage of
limitations based upon the “best available technology
economically achievable” (“BAT”) by July 1, 1984. 33
U.S.C. § 1311(b(2)A) (1976 & Supp. V 1981). Industrial
dischargers to publicly owned treatment works
(“POTWs”) are required to comply with pretreatment
standards established under the Act for pollutents that
are not susceptible to treatment by POTWs or would
interfere with the operation of POTWs. 33 U.S.C.
§ 1317(b).
EPA has implemented the BPT, BAT and pretreat-
ment provisions of the Act through a major rulemaking
program to establish technology-based effluent limita-
tions and standards for twenty-one major industries
covering sixty-five priority or “toxic” pollutants or
dischargers
Under the statute, EPA considers various technical
and economic factors in establishing the technology-
based regulations.‘ These include the age of equipment
* This strategy was the basis for settling suits by four environmen-
tal groups, and the resulting settlement agreement was approved in
1976. NRDC v. Train, 8 E.R... 2120 (D.D.C. 1976), modified sub
nom. NRDC v. Costle, 12 E.R.C. 1833 (D.D.C. 1979), modified sub
nom. NRDC v. Gorsuch (D.D.C. Oct. 26, 1982). In the 1977 amend-
ments to the Clean Wate. Act, Congress sanctioned the Agency's
approach to establishing effluent limitations and standards. See EDF
v. Costle, 636 F.2d 1229, 1244 (D.C. Cir. 1980). The Act also author-
izes EPA to establish standards for new sources, which are not
involved here.
* Section 304(b) of the Clean Water Act specifies the factors for
BPT and BAT limitations. 33 U.S.C. § 1314(b). EPA has considered
includes the pollutants discharged by an industry, the
soormaont toshaclagien tied or ovalable for ene, the trestabiy of
pollutants, the processes used, and the economics of the industry.
* See du Pont, supra, 430 U.S. at 122.
6
clause is codified in EPA’: NPDES permit regulations at
40 C.F.R. § 125.31 (1983): for indirect dischargers, it is
contained in EPA’s general pretreatment regulations, 40
C.F.R. § 403.13 (1983).’
Under the FDF variance regulation, any interested
person may apply to EPA for an FDF variance with
respect to a plant that is believed to be “fundamentally
different.” The issuance of a variance may result in dis-
charge limits that are either more or less stringent than
the limits for the industry category." The plant that re-
ceives a variance from a BAT standard is not “exempt”
from BAT, but will be given an individual BAT limit
based on the statutory BAT factors.’ A discharger must
satisfy two key requirements to obtain an FDF variance.
First, the discharger must show that it is fundamentally
different from the other plants in the industry in ways
corresponding to the statutory factors discussed above.
"A copy of 40 C.F.R. § 403.13 appears in the Appendix at A-122.
* A member of the public may apply to EPA for a variance seeking
the application of different, more stringent limits to a fundamentally
different plant, or the plant may apply for a variance seeking differ-
my , less stringent limits. A variance request may also be initiated by
PA.
* See section II] below. The term “variance” is somewhat of a
misnomer since the revised plant limits are not an exception to the
Act’s requirements but rather an individualized application of those
requirements.
These factors are: the nature or quality of pollutants, the volume
of the discharger’s process wastewater, the nonwater quality en-
vironmental impact of control and treatment, the energy require-
ments of treatment technology, the age, size, land availability and
configuration as they relate to the discharger’s equipment or facili-
the application of the control
with required control technology. 40 C.F.R. § 403. 13(d). See notes 3
and 4 above.
7
Second, the discharger must demonstrate that com-
pliance with the industry standards would result in either
a pollutant removal cost wholly out of proportion to the
cost considered by EPA during development of the stan-
dards, or a non-water quality environmental impact
fundamentally more adverse than the impact considered
in developing the standards. ''
The FDF variance procedure has proven to be an
essential and limited “safety valve” in the effluent limita-
tions and standards program. It has been relied upon by
EPA in virtually every effluent limitation and standard
regulation under §§ 301(b), 304(b) and 307(b) of the Act.
The F DF procedure enables EPA to focus its attention in
these regulations on the typical facilities in an industry
and to defer consideration of atypical facilities.
B. The Proceedings Below
The general pretreatment regulations (including the
F DF variance clause) were first promulgated on June 26,
1978. (43 Fed. Reg. 27736-773). Following further
rulemaking on issues not involved here, EPA prom-
ulgated revised general pretreatment regulations on Jan-
uary 28, 1981. (46 Fed. Reg. 9404-60). A number of peti-
tions seeking review of these re culations were considered
together by the Third Circuit.
In its suit, NRDC argued that EPA's allowance of a
variance from pretreatment standards was unlawful on
two grounds. The first and broader ground was that FDF
variances from pretreatment standards are not specifical-
"40 C.F.R. §$§ 403.13(e)(2Miv) and (eX3)ii) (1983).
' The courts of appeals have direct and exclusive jurisdiction to
review pretreatment standards. 33 U.S.C. § 1369(b) (1976).
8
ly authorized by the Clean Water Act. Recognizing that
this Court in du Pont construed the Act to require a
variance procedure, NRDC argued that the Court’s deci-
sion addressed BPT regulations and did not apply to BAT
or pretreatment standards. NRDC’s second argument
was that variances for priority or toxic pollutants were
contrary to § 301(1) of the Act, 33 U.S.C. § 1311()), which
provides that the “Administrator may not modify any
requirement of this section as it applies to any specific
pollutant which is on the toxic pollutant list.” Relying
upon this Court’s decision in du Pont and other cases,
EPA argued that variances are necessary to address
atypical plants presenting relevant factors not considered
by the Agency. As to the second point, EPA argued that
§ 301(1) of the Act does not bar the granting of FDF
variances for toxic pollutants, but refers to modifications
specifically authorized by statute."
The Third Circuit did not rule on NRDC’s broader
argument that FDF variances are unauthorized under
the Act. However, the court below struck down EPA's
FDF variance regulation, holding that § 301(1) of the Act
prohibits variances for toxic pollutants. The court re-
jected EPA's distinction between FDF variances and
modifications specifically authorized by the Act. In so
doing, the court recognized that its decision conflicts with
the decision of the Fourth Circuit in App. ‘achian Power
Co. v. Train, 620 F.2d 1040 (4th Cir. 1980). The court also
rejected EPA’s argument that the principle of this
Court’s decision in du Pont authorizes FDF variances
from pretreatment standards.“
"8 See section III below.
“The opinion below also decided a number of other issues in
related cases, which are not involved here.
It is difficult to overstate the impact of the Third Cir-
cuit’s decision. It has undercut a major feature of the
been accepted and relied upon for years by EPA, reg-
ulated industries and the courts. If allowed to stand, the
Third Circuit’s decision would require all concerned to
rethink the basis for past as well as future industry limita-
tions and standards, and would remove essential flexibil-
ity in establishing these regulations.
REASONS FOR GRANTING THE WRIT
The Court should grant this petition for certiorari for
three reasons that the Court has traditionally found com-
pelling. First, the decision below creates a direct conflict
among the circuits and is contrary to a decision of this
Court. Second, the decision below raises an issue of na-
tionwide importance concerning a major EPA program.
Third, the decision below is at odds with the language and
structure of the Clean Water Act.
I. The Decision Below Creates A Conflict In The Circuits
And Is Contrary To A Prior Decision Of This Court.
The court below acknowledged that its decision direct-
ly conflicts with the decision of the Court of Appeals for
the Fourth Circuit in Appalachian Power Co. v. Train,
620 F.2d 1040 (4th Cir. 1980). In Appalachian Power, the
Fourth Circuit upheld an FDF variance regulation which
allowed variances for toxic pollutants from EPA's BPT
regulations for the steam electric industry. In upholding
EPA's FDF variance regulation, the Fourth Circuit ex-
plicitly rejected the same NRDC argument that was ac-
cepted by the court below, namely that § 301(1) of the Act
prohibits variances for toxic pollutants. The court stated
that EPA had interpreted § 301(1) as applying only to
those parts of § 301 that expressly authorize EPA to
10
modify applicable regulations,” and that the interpreta-
tion of the Agency is entitled to deference. (620 F.2d at
1048)."* The Third Circuit considered the Fourth Circuit’s
reasoning and concluded that it “must disagree” with the
Fourth Circuit’s decision. (Appx. at A-43).
The decisions of the two courts of appeals cannot be
reconciled. Although the Fourth Circuit addressed FDF
variances from BPT regulations and the decision below
involved FDF variances from pretreatment standards, in
both cases the decision turns on the scope of § 301(1) of
the Clean Water Act and its applicability to non-statutory
FDF variances. The court below held that “FDF
variances for toxic pollutant discharges are forbidden” by
§ 301(1) of the Act (Appx. at A-43), while the Fourth
Circuit held that § 301(1) “does not apply so as to require
the exclusion of toxic substances” from the F DF variance
regulation. (620 F.2d at 1048)."
The decision below is also contrary to this Court’s
decision in E. J. du Pont de Nemours & Co. v. Train, 430
U.S. 112 (1977) (“du Pont”). In du Pont, this Court held
that EPA was authorized to set BPT limitations by
regulation “so long as some allowance is made for varia-
tions in individual plants, as EPA has done by including a
[F DF) variance clause in its 1977 limitations.” (430 U.S.
at 128). Subsequent decisions have interpreted this
Court’s opinion in du Pont as not merely authorizing EPA
to allow FDF variances, but as requiring such
'S See section III below.
* See du Pont, supra, at 135 n. 25.
In Kennecott Copper Corp. v. EPA, 612 F.2d 1232 (10th Cir.
1979), the court implicitly upheld FDF variances from BPT regula-
tions for toxic pollutants.
11
variances." While the du Pont decision dealt with BPT
regulations, the rationale of the Court in du Pont applies
equally to the pretreatment standards involved here."
In du Pont, the issue was whether EPA could set
effluent limitations by regulation for industry categories
in spite of the fact that the statute authorized BPT limits
for point sources, while authorizing BAT limits for classes
or categories of point sources. This Court stated that
nothing in the Act “suggests any radical difference in the
mechanism used to impose limitations for the 1977 (BPT]
and 1983 [BAT] deadlines.” (430 U.S. at 127). The Court
therefore held that BPT limitations, like BAT limits,
could be established “by regulation, so long as some al-
lowance is made for variations in individual plants, as
EPA has done by including a variance clause” in its
regulations. (Jd. at 128).
Section 307(b) of the Act is silent on how “pretreatment
standards for . . . pollutants” are to be established. The
legislative history of § 307(b), however, indicates that
pretreatment standards are to be comparable to BPT and
BAT limitations.” Nothing else in the Act suggests any
“EPA v. Nat'l Crushed Stone Ass’n, 449 U.S. 64, 72 (1980);
Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1032-34(D.C. Cir. 1978).
Prior to this Court’s decision in du Pont, the Second Circuit also
—s the FDF variance clause. NRDC v. EPA, 537 F.2d 642 (2d
. 1976).
'’ The pretreatment standards for electroplating, which were be-
fore the court below, in fact were BPT-level standards. Appx. at
A-76.
”H.R. Rep. No. 830, 95th Cong., Ist Sess. 87 (1977). See text at
n.3 above. The Act contains a threshhold requirement that the pollu-
tants controlled inte: ‘ere with or pass through the POTW, and it also
contains a provision for removal credits applicable to pretreatment
standards. See 33 U.S.C. § 1317(b).
12
radical difference in the way in which pretreatment
standards and BPT/BAT limitations should be imposed.
Accordingly, EPA has been promulgating pretreatment
standards equal or comparable to BPT/BAT limitations
on an industry category basis. If EPA chooses to estab-
lish pretreatment standards by regulation on an industry
category basis, then it must allow for FDF variances from
such regulations for atypical plants not considered in the
national regulations, consistent with this Court’s decision
in du Pont.”
We therefore submit that the decision below is contra-
ry to this Court’s decision in du Pont and conflicts with
the sound decision of the Fourth Circuit in Appalachian
Power.
Il. The Decision Below Presents Important Questions Of
Law Which Should Be Settled By This Court.
The decision of the Third Circuit that FDF variances
are precluded for toxic pollutants undermines a central
feature of the effluent limitations and standards program.
This program is of singular importance to current efforts
under the Clean Water Act to reduce the discharge of
pollutants. EPA’s regulations affect thousands of in-
dustrial dischargers. The Third Circuit’s decision, issued
just as the last “BAT” phase of the program is being
implemented, is likely to cause confusion, further litiga-
tion, and delay in this program.
The Clean Water Act requires EPA to take into ac-
count relevant differences among plants in promulgating
21 The addition of § 301(1) to the Act after this Court’s decision in du
Pont was not intended to limit the applicability of FDF variances to
non-toxic pollutants, as discussed below in section III.
13
effluent limitations and standards. The Third Circuit’s
ruling thus leaves EPA and the public in a quandry. The
Agency has promulgated effluent guidelines and stand-
ards for many of the 21 major industries based upon a
consideration of typical plants, and relying on the FDF
variance clause to handle atypical plants. If the Third
Circuit’s decision is allowed to stand, then the basis for
the prior regulations is subject to question. If § 301(1) of
the Act were to preclude FDF variances for toxic or
priority pollutants, EPA would be subject to requests by
industry to reopen previously promulgated regulations to
address the atypical plants not previously considered. If
the Agency refused to do so, it would be subject to possi-
ble legal challenges in the courts.”
The Third Circuit’s decision also has an impact on
regulations currently being developed by the Agency.
EPA is under judicially imposed deadlines to issue the
technology-based regulations for the remaining industry
categories, which include the organic chemicals in-
dustry.” A change in procedures to address atypical or
unique plants will only complicate and delay EPA’s
efforts to complete the rulemaking process for those in-
dustries.
An important issue raised in this case is EPA’s discre-
tion to proceed by way of individual order rather than
2 EPA's effluent limitations and standards regulations have in the
past been held invalid for failure to consider relevant factors. Amer-
ican Iron & Steel Inst. v. EPA, 526 F.2d 1027 (3d Cir. 1975), cert.
denied, 435 U.S. 914 (1978); FMC Corp. v. Train, 589 F.2d 973 (4th
Cir. 1976); Tanners’ Council of America v. Train, 540 F.2d 1188 (4th
Cir. 1976). Some regulations were upheld by the courts on the
grounds that the FDF variance procedure was available to address
atypical situations. Kennecott Copper Corp. v. EPA, supra n.17.
™ See NRDC v. Train, supra n.3.
14
rulemaking to address atypical situations. EPA could in
theory have chosen to address all plants, including atypic-
al plants, by establishing sufficient subcategories of
plants in the original technology-based standards
regulations.” This course proved impractical due to data,
resource and time constraints. As a result, EPA pro-
ceeded to address the typical plants in the national
regulations, leaving to a deferred procedure atypical
plants not previously considered. The decision of the
Third Circuit, which deprives EPA of its chosen method
of proceeding, is contrary to this Court’s important deci-
sion in SEC v. Chenery Corp., 332 U.S. 194 (1947), and its
progeny.”
In Chenery the issue was whether the SEC was re-
quired to issue a rule prohibiting certain actions or
whether it could bar those same actions in individual
cases. The Court emphasized that, as here, “problems
may arise in a case which the administrative agency could
not reasonably foresee,” or the problems may be “so
specialized and varying in nature as to be impossible to
capture within the boundaries of a general rule.” (332
U.S. at 202-203). The Court concluded that “the choice
made between proceeding by general rule or by individ-
ual, ad hoc litigation is one that lies primarily in the
informed discretion of the administrative agency.” (/d. at
203). In barring EPA’s informed choice of the FDF proce-
dure to deal with atypical plants, the decision below is
contrary to the principles established by this Court in
Chenery.
* At oral argument below, counsel for NRDC agreed that EPA
“can implement the pretreatment standards flexibiy . . . through
subcategories.” (Transcript at 247.)
% See also NLRB v. Bell Aerospace Co., 416 U.S. 267, 292-95
(1974); NAACP v. FPC, 425 U.S. 662, 668-69 (1976).
15
The decision of the Third Circuit is directly applicable
to the FDF variance clause for pretreatment standards
under the Act. The regulations in question were reviewed
directly in the court of appeals under § 509(b) of the Clean
Water Act, 33 U.S.C. § 1369(b). Under that provision,
challenges to rules must be commenced within 90 days of
promulgation. Thereafter, the rules are not subject to
judicial review, not even as a defense in civil or criminal
litigation. Thus, only this Court can address the issues
raised by the decision below.”
There is a likelihood of further litigation of the FDF
issue as applied to direct dischargers. Pending in the D.C.
Circuit are cases involving EPA’s NPDES permit
regulations.” NRDC has notified the D.C. Circuit that it
intends to challenge the FDF variance clause for direct
dischargers on the same grounds raised in the Third
Circuit for pretreatment.
In the statement of the case, we described the complex-
ity and scope of EPA’s national rulemaking program for
BPT, BAT and pretreatment limitations and standards.
Because the decision of the Third Circuit raises fun-
damental questions as to the basis of this important pro-
gram, review by this Court is warranted.
III. The Decision Below Upsets EPA's Reasonable Construc-
tion Of The Act.
The iong-established FDF variance procedure is not
specifically provided for in the Clean Water Act. How-
* We do not, however, rule out the possibility of subsequent chal-
lenges to pretreatment standards by atypical plants not considered
by EPA, through judicial actions or petitions to EPA seeking revised
regulations. See text at n.22 above.
“NRDC, et al. v. EPA, D.C. Cir. Nos. 80-1607, et al.
16
_
.
ever, the Act does expressly authorize certain statutory
modifications to the technology-based standards. For ex- ~
ample, § 301(c) of the Act authorizes a modification of
BAT limits based on the economic capabilty of the partic-
ular plant or owner. 33 U.S.C. § 1311(c) (1976).* Section
301(1) of the Act, enacted in 1977, states that EPA may
not modify any of the requirements of that section for
toxic pollutants, which means that EPA cannot issue a
§ 301(c) modification for a toxic pollutant. However,
nothing in the language or history of § 301(1) of the Act
indicates that Congress intended to preclude FDF
variances for toxic pollutants.
When Congress adopted the 1977 amendments to the
Clean Water Act, this Court’s decision in du Pont had
already been rendered. Yet nothing in § 301(1) or its
legislative history indicates that Congress intended to
end the EPA’s long-standing practice of providing for
FDF variances or to overrule the du Pont decision requir-
ing variances. In fact, as the court below admitted, the
legislative history of § 301(1) indicates that Congress was
“primarily concerned with prohibiting modifications
under § 301(c). . . .” (Appx. at A-42.)” The court below
nonetheless rejected the Agency’s distinction between
* Such individualized economic capability is not one of the statuto-
ry factors for the technology-based limitations. See notes 4 and 20
above. Section 301(g) of the Act authorizes a modification of BAT
limits where water quality would be protected, but by its terms does
not apply to toxie pollutants. 33 U.S.C. § 1311(g) (Supp. V 1981).
2» Congressman Roberts, one of the leaders in the House of Repre-
sentatives for the 1977 amendments to the CWA, stated,
Due to the nature of toxic pollutants, Nmap atl rd
tion will not be subject to waivers from or modification
requirements under this se. Lion, , neither
section 301(c) waivers based on the economic ility of the
17
variances and § 301 modifications, stating that if Con-
gress was willing to prohibit § 301(c) modifications for
toxic pollutants, then it was difficult to imagine why
Congress would have permitted FDF variances for toxic
pollutants. (Appx. at A-43.) The Third Circuit’s decision
is based on a failure to understand the difference between
FDF variances and § 301(c) modifications as articulated
by this Court.
Section 301(c) allows a discharger to avoid compliance
with BAT requirements based on the discharger’s indi-
vidual economic capability. A discharger that satisfies the
requirements of § 301(c) qualifies for a variance “simply
because the (discharger] could not afford a compliance
cost that is not fundamentally different from those the
Administrator has already considered. ...” EPA v.
Nat'l Crushed Stone Ass'n, supra, 449 U.S. at 78 (empha-
sis added). Congress quite reasonably could have con-
cluded that such a discharger should be required to meet
applicable technology-based requirements for toxic pollu-
tants, regardless of its individual economic capability. A
section 301(c) modification is based upon a criterion out-
side of the technology-based factors of the Act.”
An FDF variance is not an “exemption” from the Act’s
technology-based requirements for BPT, BAT or
pretreatment. It is a determination of the BPT, BAT or
pretreatment requirements for an individual discharger,
base1 on the statutory factors and circumstances con-
i ~y~ \genennee water
ey faye on quality considera-
A Legislative History of the Clean Water Act of 1977, Cong. Re-
~~ aaaataaieaaaae Print No. 14, 95th Cong., 2d Sess. 328-29
( ).
* See notes 4, 20, and 28 above.
18
cerning the discharger that were not considered in the
development of standards for the industry. This distinc-
tion was explained by this Court as follows in discussing
the FDF variance:
In such situations, ~~ -tbi 4
ment that the uniform BPT limitation was set
out reference to the full range of current
which the Administrator was to refer. — ry
bn caenen, Uhan GA Gants FOP wate & b
creating a new subcategory for a plant, after notice and an
opportunity for a public hearing, and establishing stand-
ards for that subcategory based on the statutory factors.
Subcategorization of an industry is within the sound
discretion of the Agency unless the Agency acts arbitrari-
ly and capriciously. Kennecott Copper Corp. v. EPA,
supra n.17. The objective of subcategorization is to en-
sure that similar plants will be subject to similar
requirer ents.“ EPA cannot always collect or consider all
relevant data to establish the necessary subcategories,
however, particularly within the time frames con-
templated by the Act and imposed by the courts." EPA
has therefore provided the FDF variance mechanism as
the way in which EPA, a member of the public, or a
discharger may demonstrate, after public notice and an
“EPA v. Nat'l Crushed Stone Ass'n, supra, 449 U.S. at 77-78.
=S. Rep. No. 1236, 92d Cong., 2d Sess. 126 (1972).
™ See NRDC v. EPA, supra n.18.
EPA regulations provided for FDF variances well be-
fore this Court’s decision in du Pont. Congress
undoubtedly has been aware of EPA's interpretation of
the Act allowing such FDF variances, yet it has never
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
THEODORE L. GARRETT
(Attorney of Record)
CORINNE A. GOLDSTEIN
CovINGTON & BURLING
1201 Pennsylvania Avenue, N.W.
P.O. Box 7566
Washington, D.C. 20044
(202) 662-6000
Attorneys for Petitioners Chemical
Manufacturers Association, et al.
APPENDIX
eS
INDEX TO APPENDIX
Page
Y aPPinaoher tay BPA, Now. 7-226,
Finishers, et al. v. EPA, Nos. 79-2256, et al. (3d
Onder aes the Opinion filed Sep-
tember 20, 503 te National Association of Metal
Finishers, et al. v. EPA, Nos. 79-2256, et al. (3d
ed i ok ica ocadcenceas A-29
Certified Amended
tional Association of M 4, 1 etal.v. EPA,
Nos. 79-2256, et al. (3d Cir., Nov. 1, 1983) ..... A-97
Second Amended J of the Court in National
Association of Metal Finishers, et al. v. EPA, Nos.
79-2256, et al. (3d Cir., Dec. 7, 1983) .......... A-104
Petitioners’ Parent
Clean Water il ata A-116
“Fundamentally Different Factors” Variance
Regulation, 40 C.F.R. § 408.13 ...........-.... A-122
The Government's Request for an Extension of Time
Within Which to File a Petition for a Writ of Cer-
EE A EE ere A-128
A-l
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 79-2256
NATIONAL ASSOCIATION OF METAL FINISHERS,
ELECTROPLATERS OF YORK, INC. AND
PIONEER METAL FINISHING, INC.,
Petitioners
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
No. 79-2443
THE INSTITUTE FOR INTERCONNECTING
AND PACKAGING ELECTRONIC CIRCUITS.
. _ Petitioner
ENVIRONMENTAL PROTECTION AGENCY,
| Respondent
Nos 80-1008, 81-1210, 81-1279
FORD MOTOR COMPANY, INC..,
| Petitioner
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY and DOUGLAS
M. COSTLE, Administrator, United States
Environmental Protection Agency, |
' Respondents
NATURAL RESOURCES DEFENSE
COUNCIL, INC..,
Intervenor
A-2
No. 81-1351
NATIONAL ASSOCIATION OF METAL FINISHERS
and INSTITUTE FOR INTERCONNECTING
AND PACKAGING ELECTRONIC CIRCUITS,
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
No. 81-1712
GENERAL MOTORS CORPORATION,
Petitioner
v
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY aud WALTER
BARBER, Acting Administrator, United States
Environmental Protection Agency,
Respondents
NATURAL RESOURCES DEFENSE
COUNCIL, INC.,
Intervenor
No. 81-1977
NATURAL RESOURCES DEFENSE COUNCIL, INC.
917 15th Street, N.W., Washington, D.C. 20005,
Petitioner
v
U.S. ENVIRONMENTAL PROTECTION AGENCY,
401 M Screet, S.W., Washington, D.C. 20460 and
DOUGLAS M. COSTLE, ADMINISTRATOR,
U.S. Environmental Protection Agency,
401 M Street, S.W., Washington, D.C. 20460,
Respondents
A-3
CHEMICAL MANUFACTURERS ASSOCIATION
AMERICAN CYANAMID COMPANY
‘ _- FMC CORPORATION
UNION CARBIDE CORPORATION,
Intervenors
No. 81-1978
UNITED STATES BREWERS ASSOCIATION,
, - Petitioner
v
ADMINISTRATOR, ENVIRONMENTAL
PROTECTION AGENCY, and
ENVIRONMENTAL PROTECTION AGENCY,
) Respondents
NATURAL RESOURCES DEFENSE
COUNCIL, INC..,
‘ a Intervenor
No. 81-1979
MANUFACTURING CHEMISTS ASSOCIATION, .
AMERICAN PAPER INSTITUTE,. NATIONAL
FOREST PRODUCTS ASSOCIATION, NATIONAL
PAINT AND COATINGS ASSOCIATION,
SYNTHETIC ORGANIC CHEMICAL
MANUFACTURERS ASSOCIATION, AIR
PRODUCTS AND CHEMICALS, INC.,
AMERICAN CYANAMID COMPANY, FMC
CORPORATION, HERCULES INCORPORATED,
SHELL OIL COMPANY, and UNION
CARBIDE CORPORATION,
Petitioners
U
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
A-4
NATURAL RESOURCES DEFENSE
COUNCIL, INC.,
Intervenor
No. 81-1981
ASSOCIATION OF METROPOLITAN
SEWERAGE AGENCIES,
Petitioner
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
NATURAL RESOURCES DEFENSE
COUNCIL, INC.,
Intervenor
No. 81-1982
NATIONAL ASSOCIATION OF METAL FINISHERS,
Petitioner ~
v.
ENVIRONMENTAL PROTECTION AGENCY,
! Respondent
NATURAL RESOURCES DEFENSE
COUNCIL, INC.,
Intervenor
A-5
No. 81-1983
CHEMICAL MANUFACTURERS ASSOCIATION,
AMERICAN CYANAMID COMPANY, FMC
CORPORATION, UNION CARBIDE CORPORATION,
Petitioners
v
ENVIRONMENTAL PROTECTION AGENCY,
Respondent
NATURAL RESOURCES DEFENSE
COUNCIL, INC..
Intervenor
No. 81-1984
AMERICAN PAPER INSTITUTE and NATIONAL
FOREST PRODUCTS ASSOCIATION,
Petitioners
Uv
ENVIRONMENTAL PROTECTION AGENCY,
. Respondent
NATURAL RESOURCES DEFENSE
COUNCIL. INC..
Intervenor
No. 81-1985
NATURAL RESOURCES DEFENSE
COUNCIL, INC..
1725 Eye Street, N.W., Washington, D.C. 20006,
Petitioner
v
U.S. ENVIRONMENTAL PROTECTION AGENCY,
401 M Street, S.W., Washington, D.C. 20460,
Respondent
A-6
CHEMICAL MANUFACTURERS ASSOCIATION
AMERICAN CYANAMID COMPANY
FMC CORPORATION
UNION CARBIDE CORPORATION,
Intervenors
No. 81-2119
METAL FINISHING ASSOCIATION
OF SOUTHERN CALIFORNIA,
Petitioner
ENVIRONMENTAL PROTECTION AGENCY,
' Respondent
No. 81-2150
INTERLAKE, INC., REPUBLIC STEEL
CORPORATION and UNITED STATES
STEEL CORPORATION,
Petitioners
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
NATURAL RESOURCES DEFENSE
COUNCIL, INC.,
Intervenor
AMERICAN IRON & STEEL INSTITUTE
ROUGE STEEL Co..,
Intervenors
A-7
No. 81-215}
CHICAGO ASSOCIATION OF COMMERCE AND
INDUSTRY, ILLINOIS MANUFACTURERS’
ASSOCIATION, and MID-AMERICAN LEGAL
FOUNDATION,
Petitioners
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
NATURAL RESOURCES DEFENSE
COUNCIL, INC.,
Intervenor
ON PETITIONS FOR REVIEW OF ACTIONS
OF THE ENVIRONMENTAL PROTECTION AGENCY
Argued June 20, 1983
Before: GIBBONS, HUNTER and BECKER, Circuit Judges
Opinion filed September 20, 1983
Theodore Garrett (Argued)
Constance J. Chatwood
Corinne A. Goldstein
Covington & Burling
1201 Pennsylvania Ave., N.W.
P.O. Box 7566
Washington, D.C. 20044
Attorneys for National Association
of Metal Finishers, The
Institute for Interconnecting and
Packaging Electronic Circuits, and
Chemical Manufacturers Association
A-8
. \ 7 285 4 |
F Ab: : AL | ae i 1
TRL ERT aia AE
lull ual ihe Mi
A-10
& Wolff
Suite 900, 1101 Vermont Ave., N.W.
Washington, D.C. 20005
Attorneys for American Paper
Institute and The National Forest
A-ll
A-12
TABLE OF CONTENTS
lL BACKGROUND
A
B.
Cc.
D
The Statute
The Regulations
1. The General Pretreatment Regulations
2 The Categorical Electroplating Standards
The Consolidated Cases
The Standard of Review.
IL THE GENERAL PRETREATMENT
A
REGULATION
The Definitions of “Interference” and “Pass
Through”
l. Interference
2 Pass Through
Definition of “New Source”
The Fundamentally Different Factor Variance
1. Variances from Pretreatment Standards
2 Variances for Toxic Pollutants
The Removal Credits Provision
1. EPA Approval and Authorization
2 Unworkability
The Combined Wastestream Formula
1. Process Categories
2 Moving Target
3. Attainabiliry and Cost of Combined
Pretreatment
A-13
Ill THE CATEGORICAL ELECTROPLATING
A
B.
STANDARDS
Methodology of the Standards
1. The Regression Analysis
2 Lead and Cadmium
The Cost to Segregated Facilities
1. The NAMF Settlement Agreement
2 The Cost-Benefit Analysis
C. The Compliance Deadline for Integrated
. Facilities
IV. CONCLUSION
History
Metal in Infiluent
Metal Finishing Association of South-
ern California
Ls
2 43F
U.S.C. §1317(b), (c) (1976 & Supp. I 1977).
ed Reg 27,736 (1978), as amended, 46 Fed Reg 9404
(1981) (codified at 40 CFR. §§403.1.-16 (1982)).
3. 44 Fed Reg 52,590 (1979), as amended, 46 Fed Reg 9462
(1981) (codified at 40 C.F.R. §§413.01.-64 (1982)).
A-15
standard of review, we find invalid certain provisions
both of the general pretreatment regulations and of the
categorical electroplating standards. Because it is not for
us to rewrite those provisions, we will remand them to
the Administrator. |
L BACKGROUND
A. The Statute
2 In 1972 Congress amended the Federal Water
Pollution Control Act (“the Act” or “the Clean Water
Act”),® setting as a national goal the elimination, by
control technology currently available
id. §§ 1311061 XA), 1314(6X 1) (1976), and to
use by 1983-87 the best available technology economi-
cally achievable (“BAT”), id. §§1311(bX2) (1976 &
Supp. I 1977), 1314(6X2) (1976). For newly-constructed
direct dischargers the Administrator had until 1974 to
establish “new source” performance standards requiring
the best available demonstrated con-
BDT”). Id. §1316. The Administrator
set the BPT, BAT, and BDT limitations by consid-
ering the factors specified in sections 304(b) and 306(b)
6. Pub. L. No. 92-500, 86 Stat 816 (codified as amended in
sections of 33 U.S.C. ch. 26 (1976 & Supp. V 1981)).
i
A-16
of the Act, id. §§1314(b), 1316(b). He was to apply those
limitations to individual direct dischargers through the
National Pollutant Elimination System
(“NPDES”) permit issued to the discharger under sec-
tion 402 of the Act, id. §1342 (1976 & Supp. I 1977).
4. Second, the Act mandated that the Administrator
set effluent limitations for publicly owned treatment
works (“POTWs”) engaged in the treatment of munici-
pal sewage or industrial wastewater. See id. §1292(2)
(1976 & Supp. I 1977). Under the Act the Adminiscrator
had to establish effluent limitations, based on “second-
ary reatment,” which POTWs had to meet by 1977. Id.
§§131106X1XB), (C), 1314(d(1) (1976). The limita-
tions thus established were w be applied to each individ-
ual POTW through its NPDES permit Id. §1342 (1976
& Supp. I 1977).
5. Third, section 307 of the Act addressed the “indi-
rect dischargers,” point sources which discharged their
pollutants not directly into navigable waters but into
POTWs. Congress recognized tha. the pollutants which
some indirect dischargers release into POTWs could in-
terfere with the operation of the POTWs, or could pass
through the POTWs without adequate treatment To
prevent such discharges by existing sources, Congress
directed in section 307(b)1) of the Act:
not to be susceptible for treatment hy such treat-
ment works or which would interfere with the op-
eration of such treatment works. . . . Pretreatment
standards under this subsection. . . shall be estab-
lished to prevent the discharge of any pollutant
through [POTWs], which pollutant interferes with,
passes through or otherwise is incompatible with
such works.
A-17
33 U.S.C. §1317(bX1) (1976); see also id. §1314(g)
(Supp. I 1977). The Administrator had to designate the
categories of existing sources to which each such stand-
ard would apply, the standards by 1973, and
ern gaeemeye ately gn and indus-
trial processes changed. or newly-con-
structed indirect dischargers the Act directed that by
1974 the Administrator had to promulgate pretreatment
coemdaste Git cach canngary <f new cuusase wiles ae
prevent the discharge of any pollutant into such treat-
ment works, which pollutant may interfere with, pass
through, or otherwise be incompatible with such
works.” Id. §1317(c). New and existing indirect dis-
chargers did not need to obtain NPDES permits, but in-
stead had pretreatment standards imposed directly upon
them.
6. In 1977 Congress amended the Act by passing
the Clean Water Act of 1977, Pub. L. No. 95-217, 91
Stat. 1566 (“the 1977 Amendments”). Section 54 of the
1977 Amendments added a sentence to section
toxic pollutants released by that discharger. Id. §54(a),
91 Stat. 1591 (amending 33 U.S.C. §1317(b)(1) (Supp. I
1977)).
B. The Regulations as
aa oo dischargers —y his Nasional
to indirect
Pretreatment Strategy, 43 Fed. Reg. 27,759 (1978), and
in the consent decree in NRDC v. Train, 8 Env’t Rep.
Cas. (BNA) 2110 (D.D.C. 1976), modified sub nom.
NRDC v. Costle, 12 Env’t Rep. Cas. (BNA) 1833 (D.D.C.
1979), affd in part sub nom. Environmental Defense
Fund v. Costle, 636 F.2d 1229 (D.C. Cir. 1980), modified
on remand sub nom. NRDC v. Gorsuch, Nos. 2153-73 et
ence with or pass through POTWs. 43 Fed. Reg. 27,760,
27,771-73 (1978); NRDC v. Train, 8 Env’t Rep. Cas.
(BNA) at 2130-36. Categorical pretreatment standards
would be set to require the of similar levels of
control technology as the Act mandated for direct dis-
chargers. 43 Fed. Reg. 27,760-63 (1978); 42 Fed. Reg.
6480 (1977). The Administrator agreed to promulgate
categorical pretreatment standards “generally
able” (BPT) for eight industries by May 15, 1977. NRDC
v. Train, 8 Env’t Rep. Cas. (BNA) at 2128 913. For all
sources. 43 Fed. Reg. 27,760 (1978); see NRDC v.
Gorsuch; NRDC v. Train, 8 Env’t Rep. Cas. (BNA) at
2123-26.
9. The second type of pretreatment standard, tne
“prohibited discharge” standard, would not set numeri-
cal limits om the discharge of particular pollutants by
specified sources. 43 Fed. Reg. 27,759-60 (1978). Rath-
er, the prohibited discharge standard would establish a
general prohibition on the release of any pollutants by
any nondomestic source if those pollutants interfere
with or pass through a POTW. Id.
1. The General Pretreatment Regulations
10. The General Pretreatment Regulations for Ex-
isting and New Sources of Pollution, 40 C.F.R.
§403.1.-16 (1982), serve to implernent the two types of
standard generally forbidding interference and pass
through, id. §403.5, and define the terms “interference”
and “pass through,” id. §403.3(i), (n). Second, the gen-
eral pretreatment regulations establish the mechanisms
usted categorical limit where the industrial
user mixes the effluent from the regu'2ted process with
other wastewaters prior to (“the cornbined
wastestream formula”). Id. §403.6(e).
11. The Administrator first proposed the general
pretreatment on February 2, 1977. 42 Fed.
Reg. 6476 (1977). He promulgated the regulations on
June 26, 1978. 43 Fed. Reg. 27,736 (1978). On Octnber
29, 1979, the Administrator proposed amendments to
the regulations, 44 Fed Reg. 62,260 (1979), which he
promulgated on January 28, 1981, 46 Fed Reg. 9404
(1981). The Administrator then atternpte’i to postpone
indefinitely the effective date of first thet bac an18
the general pretreatment 4
(1982); 46 Fed. Reg. 19,936, 50,502, 50,503 (1981).
After we declared that indefinite postponement invalid
in NRDC v. EPA, 683 F.2d 752 (3d Cir. 1982), the Ad-
A-20
ministrator reinstated the ’ effective date of
March 30, 1981. 47 Fed Reg. 42,688 (1982); see 46
Fed. Reg. 11,971 (1981). On October 4, 1982, we grant-
ed the petitioners’ unopposed motion to extend the regu-
lations’ effective date until June 30, 1981. 48 Fed. Reg
Point Source 40 C.F.R.
§ §413.01.-84 (1982), are BPT-level pretreatment stand-
ards set t to the NRDC v. Train consent decree.
ing standards cover 7752 existing firms with electroplar-
ing operations, the firms falling in three broad groups:
independent “job shops,” firms performing electroplat-
zinc). 40 C.F.R. §§413.14.-84 (1982). Electroplating
sources discharging less than 10,000 gallons per day of
wastewater have to meet limits for
electroplating process
aaly tak. aiiihen ond channels anaiin, 0 “nap
grated” facilities, which combine the process waste-
7. The subcategories are electroplating of common metais,
review of Ford Motor Co., No. 80-1008, EPA
other changes, 45 Fed. Reg 19,245 (1980). Ford later
filed a petition for recumsideration of the 1979 standards.
J. App. at 2082. On January 28, 1981, the Administrator
deried Ford's petition
non-integrated
had a compliance date of May 12, 1982, 46 Fed. Reg.
9462 (1981), later modified to April 27, 1984, 48 Fed
Reg. 2775 (1983); 46 Fed. Reg. 43,973 (1982).
8 As a result of our decision in RDC v. EPA, 683 F.2d 752
(34 Cir. 1982), and of our order of October 4. 1982. the effective
date of the combined wastestream formula is June 20, 1981. The
deadline for compliance by integrated electropiaters is thus June 30.
1984. See 48 Fed. Reg. 2774 (1983).
15. pnaciet dai Cetent teeta On ted
Finishers (“NAMF™), Institute for Interconnecting and
that appeal in Ford Motor Co. v. EPA, — F.2d — (3d Cir.
1983).
16. Petitioners National Resources Defense Coun-
cil (“NRDC”), United States Brewers Association
(“USBA”), amd Chemical Manufacturing Association
(“CMA”) petition for review of the 1978 general
pretreatment regulations. Nos. 81-1977, 81-1978,
81-1979. Petitioners Ford, NAMF, CMA, NRDC,
Chicago
try (““CACI”) and others seek review of the 1981 general
pretreatment Nos. 81-1210, 81-1981,
81-1982, 81-1983, 81-1984, 81-1985, 81-2150, 81-2151.
A-23
17. Consideration of the cases was necessarily heid
18. Under section 10(e) of the Administrative Pro-
cedure Act, we may not invalidate agency actions unless
we find them to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5
U.S.C. §706(2XA) (1976). This standard sets the level of
deference with which we must review the agency’s ac-
tions for their statutory authority, ae
and procedural regularity. See Weyerhaeuser Co. v.
Costle, S90 F.2d 1011, 1024 (D.C. Cir. 1978).
19. We must extend “great deference to the inter-
pretation given the statute by the officers or agency
with its administration.” EPA v. National
Crushed Stone Association, 449 U.S. 64, 83 (1980)
(quoting Udall v. Tallman, 380 U.S. 1, 16 (1965));
American Iron & Steel Institute v. EPA (“AISI I”), 526
F.2d 1027, 1041-42 (3d Cir. 1975), mandate recalled in
part, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S.
914 (1978). If an act is susceptible to more than one rea-
sonable interpretation, we must accept any reasonable
interpretation chosen by the agency. Udall v. Tallman,
380 U.S. 1, 16 (1965); see NRDC v. Train, 421 U.S. 60,
9. Specifically. briefing on the challenges of the indusrrial
petititioners to the general pretreatment regulations was limited ro
the removal credits provision. 40 C.F.R. §403.7 (1982). the com-
bined wastestrearmn formula. id. §403.6(e). and the definidons of “in-
terference™ and “pass through.” id. §403.3(1). (n).
A-24
meaning of a statute, as revealed by its language, pur-
pose and history.” International Brotherhood of Team-
sters v. Daniel, 439 U.S. 551, 556 n.20 (1979); see FEC
v. Democratic Senatorial Campaign Committee, 454
U.S. 27, 32, 37 (1981).
20. Our inquiry into the substantive basis for the
agency’s actions must be searching and careful, but our
review is 2 narrow one. As the Supreme Court has re-
cently stated:
; The scope of review under the arbitrary and
capricious standard is narrow and a court is not to
substitute its judgment for that of the agency. Nev-
ertheless, the agency must examine the relevant
data and articulate a satisfactory explanation for its
action including a “rational connection between the
facts found —s the choice made.” Burlington
Truck Lines v. United States, 371 U.S. 156, 168
(1962). In reviewing that explanation, we must
“consider whether the decision was based on a con-
sideration of the relevant factors and whether there
has been a clear error of judgment” Bowman
Transp. Inc. v. Arkansas-Best Freight System, (419
U.S. 281, 285 (1974)], Citizens to Overton
Park v. Volpe, (401 U.S. 402, 416 (1971)]. Normal-
ly, an agency rule would be arbitrary and capricious
if the agency has relied on factors which Congress
has not intended it two consider, entirely failed to
consider an irmportant aspect of the problem, offered
an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible
that it could not be «scribed to a difference in view
or the product of agency expertise. The reviewing
court should not atwernpt itself to make up for such
deficiencies: “We may not supply a reasoned basis
for the agency's action that the agency itself has not
given.” SEC v. Chenery Corp., 332 U.S. 194, 196
(1947). We will, however, “uphold a decision of less
A-25
than ideal clarity if the agency’s path may reason-
ably be discerned” Bowman Transp. Inc. v.
Arkansas-Best Freight Systems, [419 U.S. at] 286.
Motor Vehicle Manufacturers Asscciation v. State Farm
Mutual Automobile Insurance Company, 51 U.S.L.W.
en 4956-57 (U.S. 1983).
. Our review of an agency's “observance of pro-
amine law,” 5 U.S.C. §706(2\(D) (1976), is
more exacting. v. EPA, 683 F.2d 752, 760 (3d Cir.
1982); see Weyerhaeuser, 590 F.2d at 1027-28. Under
must first publish a gen-
eral notice which includes “either the terms or sub-
stance of the proposed rule or a description of the sub-
jects and issues involved.” 5 U.S.C. §553(b\3) (1976).
Such notice must “fairly apprise interested persons” of
the subjects and issues dealt with in the rule
promulgated. American Iron & Steel Institute v. EPA
(“AISI II”), 568 ae Ay Tr ne (3d Cir. 1977); see
Ethyl Corp. v. EPA, 541 F.2d 1, 48 (D.C. Cir. 1976) (en
sem), ene. dented, 48 S. 941 (1976). The agency
must then give interested persons an opportunity to par-
Gatgat te dhe Selemtahonn Geen through the submission of
written comments. 5 U.S.C. §553(c) (1976). After con-
sidering the relevant comments submitted, the agency
must incorporate in the promulgated rules “a concise
general statement of their basis and purpose.” /d. To en-
sure meaningful judicial review, the agency in that
staternent and in its g materials must articu-
late the rational basis for the choices it has made; how-
ever, as stated above, we “should not reverse an agency's
decision that is not fully articulated where we can rea-
sonably discern the basis for the agency's action.” A/S! /,
526 F.2d at 1047; see AJS/ I], 568 F.2d at 295-96.
22. Finally. we note that the Administrator's ac-
tions are entitled to a presumption of regularity. Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402, 415
overcoming presump-
tion. Lewes Dairy v. Freeman, 401 F.2d 308, 316 (3d
Cir. U.
:
4
[
:
g
8
24. Section 403.3 of the general pretreatment regu-
lations defines “interference” and “pass through.” 40
C.F.R. §403.3(i), (m) (1982). The induszial
(5) Heat in amounts which will inhibit biological activtrv in the
POTW resulting in Interference... .
40 C.F.R. §403.5(b) (1982).
A-28
prohibited standard is unlawful and renders
the violator liable to suit by the Administrator, by the
State, by the POTW, or by any adversely affected party
33 U.S.C. §§1317(d), 13190), (ce), ®, 1340bX7).
ee Ange 0 Supp. I 1977). Violations may carry civ-
il penalties of up to $10,000 per day, and criminal penal-
aan ef up wo 000,000 pares and oo geeeneen oA
§1319(cX 1), (d). In addition, if the violation is likely to
recur the POTW is required to develop and enforce such
specific effluent limits for its users as are necessary to
ensure the POTW’s future compliance with its NPDES
permit. 40 C.F.R.§403.5(cX2) (1982).
26. Section 403.3 provides the definition of “inter-
ference” as that term is used in the prohibited discharge
standard As originally promulgated in the 1978 general
pretreatment regulations, section 403.3 definec “inter-
ference” as “an inhibition or disruption of a POTW’'s
sewer system, treatment processes or operations which
contributes to a violation of any requirement of [the
POTW's} NPDES Permit.” 43 Fed Reg. 27747 (1978)
(emphasis added). In 1979 the Administrator proposed
to narrow the ambit of the definition by requiring an in-
hibition or disruption which “causes or significantly con-
tributes” to the violation of the POTW’s permit, and by
including a “safe harbor” provision exempting from the
caused by an indi-
rect discharger “in compliance with specific prohibitions
or standards developed by Federal, State or local govern-
ments.” 44 Fed. Reg. 62,260, 62,265 (1979). As promul-
gated, however, the 1981 general pretreatment amend-
ments omitted the safe harbor prevision and defined
“significantly contributes” using three numbered cate-
gories. 46 Fed Reg. 9413 (1981). The amended regula-
tions thus redefine “interference” as:
an inhibition or disruption of the POTW. . . which
is a cause of or significantly contributes to either a
violation of any requirement of the POTW’s NPDES
(1) Discharges a daily pollutant loading in ex-
cess of that allowed by contract with the POTW or
by Federal, State or local law;
The words “leads to” and “gives rise to” do
not appear in the definition. Instead, the promulgated
definition requires only that the discharge “is a cause of
or significantly contributes,” and defines “significantly
contributes” by substituting three categories of dis-
. Charger misconduct, at least two of which exclude any
ee ae caused the inhi-
disruption. 40 C.F.R. §403.3(iX1), (2)
Ry A te er rg
tion to require causation, we cannot rewrite the defini-
tion to match the representations of counsel '?
29. Given that section 403.3(i)’s definition of inter-
permit violation or sludge
problern.” 46 Fed. Reg. $413 (1981). In the second category, “if the
. is in substantial variance with the User's
i
A-31
ther the language of the Act nor the intent of Congress
appears to contemplate liability without causation. First,
sections 307(b) and (c) requires that pretreatment
standards “prevent the discharge of any pollutant. . .,
which pollutant interferes with such works.” Id.
§1317(b), (c) (1976 & Supp. I 1977) (emphasis added).
Section 307(c) explains that such standards must be
promulgated “to insure that any source introducing pol-
lutants into a [POTW]. . . will not cause a violation of
the effluent limitations of such treatment works.” Id.
§1317(c) (1976) (emphasis added).
30. Second, Congress made plain its intent that
“liJn no event is it intended that pretreatment facilities
be required for cornpatible wastes as a substitute for ade-
quate waste treatment works.” S. Conf. Rep.
No. 1236, 92d Cong., 2d Sess. 130, reprinted in 1972
U.S. Code & Ad. News 3776, 3807; accord H.R. Rep.
No. 911, 92d Cong., 2d Sess. 113, reprinted in Senate
Comm. on Public Works, 93d Cong., 1st Sess., Legisla-
tive History of the Water Pollution Control Act Amend-
ments of 1972, at 753, 800 (1973) [hereinafter cited as
“1972 Legis. Hist.”].'* If the inhibition or disruption is
caused not by the industrial user’s discharge but by a
mistake or malfunction at the POTW, the industrial user
will be punished for failing to substitute its own
pretreatment for the POTW’s impaired treatment. We do
not think that Congress intended such liability. See also
AISI I, 526 F.2d at 1056 (rejecting penalties for circum-
stances beyond discharger’s control).
31. We conclude that given the language and pur-
pose of the Act, an indirect discharge cannot be liable
under the prohibited discharge standard unless it is a
cause of the POTW’s permit violation or sludge problem.
13. Relying primarily on those statements in the legislative
history. USBA argues that the definition of interference must in-
clude a requirement that the POTW be well-designed and
well-maintained. Our resolution of the causation issue makes it un-
necessary for us to reach USBA’'s argument
A-32
If the definition of “interference” required that an indi-
rect discharger be both “the cause of” and “significantly
contribute to” the POTW’s permi: violation, it would be
consistent with that causation requirement As written,
however, the definition fails to require such causation,
and thus. violates the clear meaning of the Act.'* We will
therefore remand the entire definition of interference’*
to the Administrator. '®
2. Pass Through
32. Joint petitioners allege that the definition of
pass through in 40 C.F.R. §403.3(n) (1982) w~s promul-
gated without the notice and comment required under
section 4 of the Administrative Procedures Act, 5 U.S.C.
§553(c) (1976). They point out that the amendments
14. USBA, Interlake and NAMF challenge the Administraror's
omission of the safe harbor provision in the 1981 amendments. See
46 Fed Reg. 9414 (1981). Our resolution of the causation issue
makes it unnecessary for us to determine whether a safe harbor pro-
vision must be included in the definition. Similariy, we need not
consider the argument of joint petitioners and Interlake that parts of
the definition of “significandy contributes” are impermissibly
vague.
15. We recognize that the definition makes an indirect dis-
charger liable if it is “a cause” as well as if it “significantly contrib-
utes.” 40 C.F.R. §403.3(1) (1982). We also note that the third ele-
ment in the definition of “ contributes” appears to
require causation. /d. §403.3(1X3); see 46 Fed. Reg 9414 (1981).
Theoretically, those fragments of the definition could be left unaf-
fected by our holding. Given EPA's litigation position that “cause”
and “significandy contributes” were meant to be read
ly, however, we think it more appropriate to rernand the definition
in its entirety rather than leave the remnant as a
judicially-refashioned definition.
16. Joint petitioners also argue that the present definition of
“interference” was improperiy prornulgated because the d: “nicon
proposed in 1979 provided inadequate notice that the Administrator
would define “significandv contributes” or delete the safe harbor
provision. As the Administrator must subject the entire definition to
notice and cornment before it can again be effective. our remand of
the definition renders petitioners’ argument moot.
A-33
proposed in 1979 contained no suggestion that the Ad-
ministrator intended to use or to define the term “pass
through” in the general pretreatment regulations. See 44
Fed. Reg. 62,260-71 (1979). The Administrator none-
theless promulgated the definition of “pass through” in
the 1981 general pretreatment amendments, justifying
his failure to first propose the definition by saying that it
was “almost identical” to the promulgated definition of
interference. 46 Fed. Reg. 9416 (1981).
33. EPA now admits that the definition of “pass
- through” was promulgated without the notice and com-
ment required by the Administrative Procedure Act
Brief for Respondent (No. 79-2256) at 132-33. EPA sug-
gests that for that reason we should remand the defini-
tion to the Administrator; nevertheless, it contends that
we are not barred from passing on the definition’s sub-
stantive validity. Jd. at 133 & n.*. We believe that it
would be fruitless for us to review the definition before it
has been submitted for public comment We will there-
fore remand the definition of “pass through” in section
403.3(n) to the Administrator.'’
B. Definition of “New Source”
34. “New source” is defined in section 403.3(k) of
the general pretreatment regulations, 40 C.F.R.
§403.3(k) (1982). Under that definition, if the Adminis-
trator fails to promulgate a new source pretreatment
standard within 120 days of its publication, those
sources whose construction after the publication
but before the promulgation of the proposed standard
are not considered to be new sources. Petitioner NRDC
argues that by excluding those sources the definition is
inconsistent with the Act and is contrary to our holding
17. Jotnt petitioners request that we also remand the prohib-
ited discharge standard, 40 C.F.R. §403.5 (1982). Thar provision is
not within the scope of briefing set in our October 29, 1982 order.
however.
A-34
in Pennsylvania of Environmental Re-
sources v. EPA, 618 F.2d 991 (3d Cir. 1980). We agree,
and will accordingly grant NRDC’s petitions for review
in Nos. 81-1977 and 81-1985."*
35. Under section 307(c) of the Act, the Adminis-
trator must promulgate new source pretreatment stand-
ards for any indirect that would be a “new
source” under section 306 of the Act if it were a direct
. 33 U.S.C. §1317(c) (1976). Section
306(aX2) defines a “new source” as
any source, the construction of which is com-
menced after the puLlication of proposed regula-
tions prescribing a standard of performance under
this section which will be applicable to such source,
if such standard is thereafter promulgated in accor-
dance with this section.
Id. §1316(a)2). Section 306(bX1XB) directs the Ad-
posed regulations. Id. §1316(bX 1 XB).
36. Section 403.3(k) of the general pretreatment
regulations defines “new source” as any source whose
construction commenced
[a]fter proposal of Pretreatrnent Standards in accor-
dance with section 307(c) of the Act which are ap-
plicable to such source, but only if the Standards
are promulgated in accordance with section 307(c)
within 120 days of their proposal.
40 C.F.R. §403.3(k\(2) (1982) (emphasis added). If the
standards are not promulgated within 120 days of their
proposal, only those sources whose construction began
after promulgation are considered “new sources.” /d.
§403.3(k)(1); see id. §403.6(b).
18. We therefore need not reach NRDC's additional argument
that the definition was improperly promulgated.
A-35
37. In Department of Environmental Resources we
considered a similar definition of “new source” promul-
gated for a category of direct dischargers. We rejected
EPA's definition as inconsistent with the basic policies of
the Act. Congress, we found, “intended to subject as
many firms as possible to the new source regulations.”
618 F.2d at 999. By its plain meaning the definition of
“new source” in section 306(a)(2) achieved that goal by
promulgate pro-
posed standards within section 306(b\1\B)’s 120-day
deadline, the proper remedy was not the exemption of
new construction from new source standards, but was a
citizen suit under 33 U.S.C. §1365 (1976) seeking FPA
compliance with the deadline. We therefore held that
section 306(a)(2) had to be given its plain meaning, and
we struck down the EPA's definition. 618 F.2d at 1000.
38. In this case EPA has conceded that the “new
trator, in establishing the categorical standard, has con-
sidered factors different” from the fac-
tors relating to that source. 40 C.F.R. §403.13 (1982).
Petitioner NRDC contends that the FDF variance is not
authorized by the Act and is specifically prohibited
insofar as it would permit the discharge of toxic pollut-
ants. We need not determine whether the Administrator
has authority to issue FDF variances, for we agree that
_ 20. CMA notes that in Department of Environmental Re-
sources we reserved the situation where substandial delay and sub-
stantial change in the regulations occurred between the dates of
A-37
40. Section 307(b) of the Act directs the Adminis-
trator to promulgate pretreatment standards for existing
indirect dischargers by category or categories of sources.
33 U.S.C.§1317(6X 1), €3) (1976 & Supp. I 1977). As he
pretreatment
the BPT and BAT levels of contro] technology set forth
for direct in section 301(b) of the Act Id.
§1311(b). The Administrator determines those levels for
existing indirect by considering the factors
specified in section ). Id. §1314(b).*
41. The fundamentally different factor variance in
section 403.13 is also adopted from the regulatory
scheme governing direct Under the Con-
solidated Permit Regulations, 40 C.F.R. §§125.30.-32
(1982), existing direct may obtain FDF
variances from BPT and BAT effluent limitations.
Terming the concept equally applicable to pretreatment
standards, the Administrator modeled the FDF variance
provision for existing indirect after the FDF
variance provision for direct dischargers. See 46 Fed.
Reg. 9435-36 (1981); 44 Fed. Reg. 62,264-65 (1979); 43
Fed. Reg. 27,738 (1978); 42 Fed. Reg. 6481 (1977)..
42 The purpose of the FDF variance provision for
indirect dischargers is stated in section 403.13(b):
22 Section 304(b) states tha’ the factors to be taken into ac-
count when determining BPT or SAT for a category of sources must
quality environmental impact (including energy requirements). /d.
§1314(6X 1B), (2XB). For BPT the Administrator must also con-
sider the total cost of the application of technology in relagon
effiuent reduction benefits to be achieved from such application.
§1314(6X1XB). For BAT the Administrator considers instead
cost of achieving the effluent reductions attainable
§1314(6X 2A). (B).
6
ageg
A-38
In establishing Pretreatment Standards
for existing sources, the EPA wil] take into account
all the information it cam collect, develop and solicit
regarding the factors relevant to pretreatment
standards under section 307(b). In sore cases, in-
formation which may affect these Pretreatment
Standards will not be available or, for other reasons.
will not be considered during their development As
a result, it may be necessary on a case-by-case basis
to adjust the limits in categorical Pretreatment
Standards. . . as they apply to a certain Industrial
User within an industrial category or subcategory.
40 C.F.R. §403.13(b) (1982); see id. §125.30(b)
(near-identical statement of purpose). Indirect discharg-
ers, POTWs and other interested parties may request
that an indirect discharger receive a variance. /d.
§403. 13(a), (b) (1982). Variances can be used to estab-
lish limits more or less stringent than that specified by
the applicable categorical pretreatment standard. See id.
§403. 13(¢ 2), (3). An industrial user seeking to obtain a
discharge limit less stringent than required by the cate-
gorical standard must establish that the alternative limit
is justified by factors relating to the discharge regulated
by the categorical pretreatment standard which are fun-
damentally different from the factors considered by the
Administrator in establishing the standard. Id.
§403.13(b), (cX 1 Xi), (2). im Fang the factors
to be considered fundamentally different, section 403.13
includes most of the factors which section 304(b) directs
the Administrator to consider in determining BPT and
BAT standards. Id. §403.13(d); see id. §403.13¢e).
1. Variances from Pretreatment Standards
43. NRDC argues that FDF variances from BPT
and BAT pretreatment standards are contrary to the Act.
NRDC correctly notes that while Congress expressly
A-39
provided for modification of other discharge limits,* the
Act does not explicitly authorize FDF variances from the
categorical pretreatment standards. EPA contends that
the Act implicitly authorizes FDF variances for indirect
and relies on the approval to the FDF
variances for direct dischargers in E.J. du Pont de
Nemours & Co. v. Train, 430 U.S. 112 (1978).
44. In du Pont the Supreme Court held that the Ad-
ministrator had to for variances for direct dis-
chargers from BPT effluent limitations. Id. at 128; see
EPA v. National Crushed Stone Association, 449 U.S.
64, 72 & n.12 (1980). The Court found that section
301(bX 1) required that “some allowance [be] made for
variations in individual plants” under categorical BPT
effluent limitations because that section spoke of “efflu-
ent limitations for point sources.” 33 U.S.C.
§1311(bX 1A) (1976), rather than “effluent limitations
for categories and classes of point sources,” id.
§1311(bX2XA) (1976 & Supp. I 1977). 430 U.S. at 128.
As section 307(b) states that pretreatment standards ap-
ply to “categ-.1es of sources,” id. §1317(bX3) (1976),
the Administrator is not required under du Pont to make
any provision for variances from pretreatment standards.
45. Agreeing that a variance provision is not re-
quired, EPA asserts that the Administrator in his discre-
tion may permit FDF variances from the pretreatment
standards as an ae aoa Se Oe
categorical standards are not applied inequitably to
particular . See NRDC v. EPA, 537 F.2d 642.
646-47 (2d Cir. 1976).2* We need not consider whether
23. see 33 U.S.C. §131 1c). (g). Ch). 1326 (1976 & Supp. V
1981): 33 U.S.C.A §1311¢m) (West Supp. 1983); see also 33
U.S.C. §1317(bxK 1) (Supp. I 1977).
24. The Supreme Court in National Crushed Stone has as-
cribed such a role to FDF variances from BPT effiuer: limitations:
If a point source can show that its situation. . . is not within
the range of circumstances considered by the Administrator.
then it may receive a variance... . In such situations, the
variances for toxic pollutants are forbidden by section ,
301(1) of the Act, 33 U.S.C. §1311(1) (Supp. I 1977).
We agree.* ‘
2 Variances for Toxic Pollutants
~ 46. The elimination of the discharge of toxic pollut-
ants has always received special emphasis under the
‘Act. Id. §1251(aX3) (1976); see id. §1362(13). In 1972
NOTE — (Continued )
variance is an acknowledgement: that the uniform BPT limita-
tion was set without reference to the full range of current prac-
tices, to which the Administrator was to refer. Insofar as a BPT
National Crushed Stone, 449 U.S. at 77-78; see Appalachian Power ‘
Co. v. EPA, 671 F.2d 801, 809 (4th Cir. 1982); Weyerhaeuser Co. v.
Costie, 590 F.2d 1011, 1035 (D.C. Cir. 1978).
25. The Administrator has focused his efforts on regulacding
toxic pollutants, see 43 Fed. Reg. 27.761 (1978); NRC v. Train, 8
Env't Rep. Cas. (BNA) at 2124 *4, 2126 “6, and apparently has not
yet issued pretreacmnen: standards for non-toxic pollutants. Conse-
quently, we believe thar the question of his inherent authority to is-
sue FDF variances from precreatrnen: standards for 10n-toxic pol-
is not now ripe. See generally Toilet Goods Ass'n v. Gardner,
387 U.S. 158, 162 (1967).
A-4l
of Cong. Roberts) (hereinafter cited as “1977 Legis.
Hist.”]; id. at 454 (statement of Sen. Muskie). In section
53 of the 1977 Amendments, Congress itself added toxic
pollutants to the Administrator's list and required that he
BAT effluent limitations for those pollutants
by 1980.2* Section 53 also added subsection (/) to sec-
tion 301:
(1) The Administrator may not modify any re-
of this section as it applies to any specific
pollutant which is on the toxic pollutant list under
section 1317(aX1) of this title.
33 U.S.C. §1311(1) (Supp. I 1977).
47. EPA does not dispute that the pretreatment
26. Pub. L. Na 95-217 §53(a). (6b), 91 Seac 1589-90
(amending 33 U.S.C. §1317(a) (Supp. | 1977)); see also H.R. Conf.
Rep. No. 830, 95th Cong.. 1st Sess. 87, reprinted in 1977 U.S. Code
4424.
27. U.S.C. §131 (DK 1XAXM). (2KAXH) (1976); see
also H.R. Conf. Rep. No. 830. 95th Cong. 1st Sess. 84, reprinted in
A-42
48. The legislative history of section 301( 1 ) does in-
dicate that Congress was primdrily concerned with pro-
hibiting modifications under section 301(c) and (g).™
Nonetheless, it does not appear that Congress used
“modification” as a term of art so as to.exclude variance
provisions from the proscription of section 301(/).
Spokesmen for the 1977 Amendments used the terms
“waiver” and “modification” interchangeably. 1977.
Legis. Hist. 328-29 (statement of Rep. Roberts); id. at
458 (statement of Sen. Muskie). More important, Sena-
tor Muskie termed section 301(c) a “variance” provision.
1977 Legis. Hist. 461. As “modification” is thus not a
term of art, section 301(]) includes variances in its
broad prohibition.
49. EPA's attempt to distinguish the policy behind
FDF variances from the policies behind the “modifica-
tion” provisions-is equally unsuccessful The Supreme
Court has stated that section 301(c)'s modifications of
BAT lnniks serve the same function as FDF variances of
BPT limits:
A §301(c) variance, thus, creates for a particular
point source a BAT standard that represents for it
the same sort of economic and technological corm-
mitment as the general BAT standard creates for
the class.
NOTE — (Continued)
33 U.S.C. §131 l(c) (1976). Section 301(g) requires the Administra-
tor to modify a direct discharger's BAT effluern limnitations with re-
spect to the discharge of non-toxic pollutants if the Jischarger cun
show that the modified limit will not jeopardize compliance with
BPT limits or incerfere with the attainment of water quality goals.
Id. §1311¢g) (Supp. I 1977).
29. 1977 Legis. Hist. at 328-31 (statement of Rep. Roberts):
id. at 458 (statement of Sen. Muskie); S. 1952. 95th Cuong. Is:
Sess. §26(a). (c) (1977): S. Rep. No. 370. 95th Cong.. 1st Sess. 44.
reprinted in 1977 U.S. Code Cong. & Ad News 4326. 4369.
A-43
National Crushed Stone, 449 U.S. at 74. lf Congress was
willing to prohibit section 301(c) modifications where
toxic pollutants are concerned, it is difficult to imagine
why would have permittea similar FDF
variances for those same
50. In Appalachian Power Co. v. Train, 620 F.2d
1040 (4th Cir. 1980), NRDC argued that section 301(1)
prohibited FDF variances from BPT effluent limitations
for toxic pollutants. That court deferred to the Adminis-
trator’s construction of the Act and upheld the FDF vari-
ance provision, rernarking that “the best that can be said
for §301(1) is that it is not clear.” Id. at 1046-48. Be-
cause we find that section 301(/]) is clear, we must dis-
agree. Section 301(1) forbids modifications, and FDF
variances are no less modifications than those provisions
pe di em ye laredimer
concern throughout the 1977 Amend-
anise Gib Ghieamne of ents Gdemems, we bald Gxt
FDF variances for toxic pollutant discharges are forbid-
den by the Act. We will therefore remand the FDF vari-
ance provision.
D. The Removal Credits Provision
51. Section 403.7 of the general pretreatment regu-
lations establishes the criteria and procedures by which
a POTW may revise an indirect discharger’s numerical
discharge limit for a pollutant, as set in its categorical
pretreatment standard, to reflect the POTW’s removal of
that pollutant. 40 C.F.R. §493.7 (1982). Joint petition-
ers, Interlake and CACI argue that section 403.7 ex-
ceeds the Administrator’s authority under section
307(bX 1) of the Act, is unworkable, and was improperly
promulgated. We disagree, and will deny the petitions
for review on this issue.
52. Section 307(b) of the Act authorized the Ad-
ministrator to establish pretreatment standards for any
A-44
pollutant that “interferes with, passes through, or other-
wise is incompatible” with “POTWs. 33 U.S.C.
§307(bX 1) (1976). In enacting that section Congress in-
dicated that pretreatment of compatible pollutants may
not be necessary, and added that pretreatment shouid
not be required as a substitute for adequate treatment by
POTWs.™ In a further effort “to avoid treatment for
treatment’s sake,” 1977 Legis. Hist. 343 (staternent of
Rep. Roberts), Congress in section 54(a) of the 1977
Amendments to the Act added a sentence to section
307(6X 1):
If, in the case of any toxic pollutant under
subsection (a) of this section introduced by a source
into a publicly owned treatment works, the treat-
ment by such works removes all or any part of such
toxic pollutant and the discharge from such works
does not violate that effluent limitation or standard
which would be applicable to such toxic pollutant if
it were discharged by such source other than
through a publicly owned treatment works, and
does not prevent sludge use or disposal by such
works in accordance with section 405 of this Act,
then the pretreatment requirements for the sources
actually discharging such toxic pollutant into such
publicly owned treatment works may be revised by
- the owner or of such works to reflect the
rernoval of such toxic pollutant by such works.
Pub. L. No. 95-217 §54(a), 91 Stat. 1591 (amending 33
U.S.C. §1317(6X1) (Supp. I 1977)). The legislative his-
tory of the section made clear that “[ijn promulgating
national pretreatment standards the Administrator shall
30. S. Conf Rep. No. 1236, 92d Cong., 2d Sess. 130, reprinted
ma Ag ym Ge tet ty og HLR. Rep. No.
911, 92d Cong. 2d Sess. 113, reprinted in 1972 Legis. Hist 753,
800; see 1972 Legis. Hist. 233 (staternent of Rep. Jones) (inefficient
duplicative treatment not required).
A-45
include a provision recognizing the option of {a POTW]
Rep. No. 830, 95th Cong., Ist Sess. 88, reprinted in
977 U.S. Code Cong. & Ad. News 4424, 4463.
53. In the removal credits provision the Adminis- .
trator has set conditions and procedures for such revi-
sion of categorical pretreatment standards. 40 C.F.R.
§403.7 (1982). To be eligible to grant revisions to reflect
the toxic pollutants it removes, a POTW must first have
a pretreatment program approved by the responsible Ap-
proval Authority.*' Id. §403.7(b\2).22 The POTW must
then obtain authorization from the Approval Authority to
revise the discharge limits for specific pollutants. /d.
§403.7(bX 1). To obtain authorization the POTW must
demonstrate “consistent rernoval” of each pollutant suf-
ficient to justify the revision. Id. §403.7(b); see
id. at 403.7(aX1), (2). Lf once a year or more untreated
_—
31. The Approval Authority for a POTW either is the head of its
state water pollution control agency, if the state has an approved
program to administer its own NPDES permits under section
402(b) of the Act, 33 U.S.C. §1342(b) (1976 & Supp. | 1977). or is
the appropriate Regional Administrator of the EPA. 40 C.F.R.
§§403.9( a), 403.3(c), (d), (e), (s) (1982); see id. §403.10; see also
id. §403.7(£X4). (g).
32. Accord 40 C.F.R. §403.8(a) (1982). A POTW’'s
pretreatment prograrn will be approved only if the POTW: (1) has
the legal authority to apply and enforce the pretreatment require-
ments of §307(b) and (c) and the POTW reporting requirements of
§402(b) of the Act; (2) has developed and implemented procedures
to ensure compliance with the requirements of a pretreatment pro-
gram; and (3) has sufficient resources and personnel to carry out its
legal authority and procedures. Id. §403.8(f1)<3). See also id.
§403.9(g). The POTW's application must detail al] this information.
Id. §§403.8(f), 403.9(b). After notice and comment, the Approval
Authority may approve a pretreatment program unless EPA objects.
Id. §403.9(e), §403.11.
A POTW that has applied for pretreatrnent program approval
and meets all other requirements may conditionally grant rernoval
credits. Id. §403.7(b)2).
A-46
wastewaters overflow before they reach the POTW and
thus bypass the POTW’s treapment process, the POTW
cither must show that its indirect dischargers compen-
sate for the overflows, or it must reduce the amount of
consistent removal claimed. Id. §403.7(b)\3): see id.
§403.7(a3). The POTW must also show that the revi-
sion will not prevent it from meeting applicable sludge
management requirements. Jd. §403.7(b)4). Once au-
thorization for the revision has been granted, the POTW
must monitor and report semiannually on its capability
to rernove the ed pollutants. Id. §403.7(f)(1); see
id. §§403.7(d), 403, 12(i), (j). If the Approval Authority
determines that the discharge limit revision no longer
meets the requirements of section 403.7. or is signifi-
canuy contributing to a violation of the POTW's NPDES
permit, the Approval Authority after an opportunity for
corrective action may withdraw or modify the revision.
Id. §403.7(£5).
1. EPA Approval and Authorization
54. Joint petitioners challenge the Administrator's
authority under the Act to mandate that POTWs must
have approved pretreatment programs before they may
grant removal credits. See id. §403.7(b\2). Joint peti-
tioners first correctly observe that section 307(b)( 1) does
not expressly impose such a condition. They then
claim that the Administrator has improperly transplant-
33. Joint petitioners argue that because §307(b\ 1) expressly
conditions the grant of removal credits only on POTW removal of
the pollutant. nonviolation of the POTW’'s effluent limit. and
unimpeded sludge disposal. we should refuse to recognize any other
conditions under the maxim expressio unius est exclusio alterius.
See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980); Wii-
liams v. Wohigemuth, 540 F.2d 163. 169 (3d Cir. 1976). We cannox
rely on that m»xirn. however. because there is persuasive evidence
of a contrary legislative intent. See Andrus vr. Glover Constr. Co.,
+46 U.S. at 617.
A-47
ed that condition from section 402(b\8) of the Act, 33
U.S.C. §1342(bX8) (Supp. I 1977). ©
55. Section 402(b) sets the terms, conditions and
requirements for permits issued under federal and state
NPDES permit programs. Id. §1342(a3), (b) (1976 &
Supp. I 1977). As amended in 1977, section 402(b\8)
authorizes the Administrator to insure that a POTW’'s
permit includes conditions to require “a program to
assure compliance with [section 1317(b)] pretreatment
standards by each [significant] source” introducing reg-
ulated pollutants into the POTW. Pub. L. No. 95-217
§54(c), 91 Stat. 1591 (amending 33 U.S.C. §1342(bx8)
. (Supp. L 1977)). The amended section 402(b\8) and
the rernoval credits provision were both added by section
54 of the 1977 amendments, and the legislative history
makes clear that the two provisions are closely related.
The conference report and spokesmen in the House stat-
ed that the conferees had added the provision to allow a
POTW to revise pretreatment standards to reflect rernov-
al “in applying these t standards through its
pretreatment program.” H.R. Conf. Rep. No. 830, 95th
Cong., Ist Sess. 87, reprinted in 1977 U.S. Code Cong.
& Ad. News 4424, 4462; 1977 Legis. Hist. 342-43 (state-
mem of Rep. Roberts); id. at 403 (statement of Rep. An-
derson). Senator Muskie, the legislation’s sponsor, in-
formed the Senate that the new provision permitted
POTWs to grant removal credits “[w)here a local compli-
ance program is approved.” 1977 Legis. Hist. 461. He
explained:
Tying local [removal] credits to local compliance
programs not only provides an incentive for local
participation, but more importantly, it provides as-
surance that the rernoval levels which justified the
local credits will be maintained by a publicly-owned
treatrnent works committed to a sound pretreat-
ment program.
A-48
Id. at 462 In light of this persuasive legislative history,“
we believe that the Administrator may require an ap-
proved pretreatment program as a condition upon a
POTW's grant of removal credits.
; 56. Petitioner CACI, emphasizing that Congress in
section 307(b)(1) authorized POTWs, not EPA, to grant
removal credits, claims the Administrator may not re-
quire that POTWss obtain his authorization for each pro-
posed removal credit. There is support, however, for
such an authorization requirement in the legislative his-
tory. Senator Muskie stated that “EPA and the [states
and listed several conditions the EPA might place on its
authorization. 1977 Legis. Hist 461. Moreover, the Ad-
ministrator’s authorization fits within the scheme of the
Act as established by section 54 of the 1977 Amend-
ments. As noted above, the Administrator may require
that a POTW seeking to grant removal credits have an
approved pretreatment program to assure compliance by
its indirect dischargers with the section 1317(b)
pretreatment standards. Section 54 also allowed the Ad-
ministrator to bring an action to compel the POTW to
enforce the pretreatment standards under its program.
Pub. L. No. 95-217 §54(b), 91 Stat 1561 (adding 33
U.S.C. §1319(f) (Supp. I 1977)). Together those provi-
sions endow the Administrator with the power to deny
34. Joint petitioners argue that Senator Muskie's statements
conflict with the conference report and with the Act. and are thus
entitled to little weight First, we see no conflict between Senator
Muskie's statement and the words of the conference report and
$402(bX8). Second, although we recognize that “|t)he remarks of a
single legislator. «ven the sponsor, are not controlling in analyzing
legislative history,” Chrysier Corp. Broun. 441 U.S. 281. 311
(1979), we must look to the sponsors of legislation when the mean-
ing of the words of the enactment, and of the conference report. are
in doubt, National Woodwork Mfrs. Ass'n v. NLRB. 386 U.S. 612.
640 (1967).
2
its. CACI acknowledges that power, but argues thar the
Administrator must set the conditions on his authoriza-
tion by litigation rather than See Air Reduc-
tion Co. v. Hickel, 420 F.2d 592 (D.C. Cir. 1968). We
4-50
which the POTW simply discharges into navigable wa-
ters. Such a requirement is consistent with the mandate
of section 307(bX 1) that any revision “reflect the remov-
pollutants by such works.” 33 U.S.C.
§1317(bX 1) (Supp. I 1977). It is also consonant with the
legislative
movals” and “a demonstration that the pollutant is
or treated,” 1977 Legis. Hist 461 (statement
dict the proportion of pollutants which it will remove.
would cause us to invalidate the regulations as
unworkable.2® Joint petitioners have thus failed to docu-
35. First, petitioners cite comments submitted by POTWs dur-
img the rulemaking on the 198] general pretreacmen:
amendments. Only one of the commentators cited asserts that the
on the specific “defects” dealt with above. ts remaining contendons
are. first. that it would have to set separate local pretreatment re-
quirements for each of its POTWs 'ecause each has « different re-
moval percentage. and. second. that in granting removal credits to
the numerous indirect dischargers seeking removal credits it will
have to spend thousands of man-hours preparing thousands of re-
ports. App. at 397-98 (Comments of Metropolitan Sanitary District
of Greater Chicago). Those contentons raise nocung rendering the
provision invalid
Second. joint petitioners cite the report of a congressional over-
sight committee. Subcommittee on Oversight and Review of the
Committee of Public Works and Transportation. House of Kepre-
sentatives. 96th Cong. 2¢ Sess. implementation of the Federal
Water Pollution Control Act 42. 59 (Comm. Print 1980). The sub-
commiriee did nove the reluctance of POTW's to grant removal cred-
its due to the compiexiry of the regulations. *"d stated that such re-
luctance would result in duplicative tm « condo capabiliucs
contrary to the intent of the 1977 Amendm.i = The subcommittec
did not point to any specific part of the remowai credit provision 4»
being unworkable. however. In any case. the views of a singic sub-
committee. not engaged in the formuladon of legisiauon. regardin
the intent of a prior Congress are not encided to great weight Ser
Consumer Products Safety Commission v. CTE Sylvania. Inc. 447
U.S. 102. 116 (1980): First State Bank v. United States. 599 F.2d
558, 563 n.3 (3d Cir. 1979), cert. denied. 444 U.S. 1013 (1980).
A-52 A-53
~ynworkable.” See AISI I, 526 F.2d at 1049, 1064. Ac- 61. Section 307(b) of the Act directs the Adminis-
trator to regulate discharges, not pollutant by pollutant,
qetege. Go Galiee Se Ee Se Sees but by categories of sources. 33 U.S.C. §1317(bX3)
issue. ee ee ee eed
pretreatment regulations “specific- industrial
E. The Combined Wastestream Formula subcasegeries.” 40 C.F.R. $403.6 (1088): se 42 Fed.
30. In the general pretreatment regulations, sec- qd The Administrator established
‘a ant. i Aeontal amummton ter Ono Guamies @ Coamtien
, 40 C.F.R. §413.01(a) (1982) (applicable to
operations”); id. §420.01(a) (applicable
in the Iron and Steel Point
Fed. 9419 (1982). Con-
standard, or are not regulated at all. Id. Such a
may segregate the wastestreams from each proc-
target.” Those petitioners also contend that the formula or all of its wastestrearns prior to pretreatment (an
is invalid because EPA failed to consider the cost and “tntegrated” faciliry). See id. Similarly, an industrial fa-
feasibility of treating such combined wastestreams. ay on Ghee Ses ome, ao oe
Interlake makes that argument with reference to the water, that it segregate from or combine with its
iron and steel industry, and also contends that the for- regulated wastestreams before pretreatment The com-
mula is void for vagueness. Finally, GM asserts that the »tmation of strearns obviously the task of set-
formula was improperly Given our con- ting categorical standards. As the Adminis-
struction of the formula, however, we find nothing in trator recognized, however, “[s|eparate treatment of
those challenges that requires the invalidation of the wastes at an integrated plant can be costly, wasteful of
formula. 7 and environmentally counter-
" Id. at 9420.
; ts. Thev - ene eummensatst’s pretreatment standards for the universe of industrial
Ree ee ee Tihs) renuks in a cnihang cundand. che Samne sources is compounded by the way in which the level of
commentator’s complaint that each of its POTWs would have a sep- pollutants in a discharge is measured. For most
arate local because of different rernoval standards the Administrator has decided to
rates. J. App. at 397. and the “chorus” of comments that the removal set numerical limits on the concentration of polJutants in
cally
(1981). The Administrator promulgated a revised formu-
streams. 40 C.F.R.§403.6(e 1 Xi) (1982).** The formu-
la has three basic effects. See 46 Fed. 9477 (1981).
64. We note at the outset that behind the promul-
forrmula’s three effects lie three assumptions.
the formula assumes that dilute streams as
defined in 40 C.F.R§403.6(e) (1982) are free of the reg-
ulated pollutant. 46 Fed. Reg. $421 (1982). Second, the
ess wastestreams enurely exernpe from categorical standards be-
cause the Mm quesnon is present in smal] quancoes 40
C.F.R. §403.6(eX 11), (i) (1982); see NRDC wv. Coste, 12 Env't
Rep. Cas. (BNA) at 1842-43 “8.
processes. Third, the formula assumes that unregulated
streams are just as pretreatable as regulated streams.
1. Process Categories
65. Ford makes an assertion which, though raised
types of
§1316(0K2> oe Piast of Reg Wright)
Finally. Ford noces the NRDC v. Trem consent decree
mandates that in setting standards “\«/be
scope of pom
by the
numbers
if
+]
A-59
3. Attatnability and Cost of Combined Pretreatment
68. Joint petitioners, Interlake and GM also con-
i Ht He if
HE il 8242 quis
il
a
a Fe
iy +
ul iil
ie 3 Hi
43. GM argues that because the formuls proposed in 1979 had
ar et ee ee
conc ete form in each standard’s rulemaking proceedings
A-60 A4l
only in reviewing the categorical standards applicabie to
(2) (1976). Sceten S08() of ho Act sequins Oe Ae
Id. $1316(a), (>). When the Administrator sets pretreat- 7. To determine whether a challenge to an admin-
ment standards using the BPT, BAT, or BDT levels of istrative regulation is ripe for review.
technology. he must consider those statutorily-relevant a two-fold inquiry must be made first to determine
factors for the wastestreams he regulates, whether they whether the issues tendered are appropriate for ju-
ase caguaguens 2 comianad, Eee qonnesy ee ot dicial resolution, and second to assess the hardship
sa ee eeten tho niieems eatecten emanaie Wy an cho pasties © potiatel sxliat te Contes at Coat ctnge
pretreatment of combined wastestreams. and the cost of Toilet Goods Association v. Gardner, 387 U.S. 158, 162
attaining that reduction **
70. EPA admits that in the combined
wastestream “rmula the Administrator “did not consid-
er — in fact could not have taken into account — every
relevant factor for every ” Brief for Respondent
(No. 79-2256) at 78; see 46 Fed Reg 9422 (1982) (stat-
ing EPA urges instead that the
amplification
cost of an alternative discharge limit Hooker Chemical
Co. v. EPA, 642 F.2d 48, 52 (3d Cir. 1961). It is only in
our review of such categorical standards that we can re-
46. Moreover, while the formula is itself “final.” & does nox
generae final, enforceabie alernacve discharge uruts und a cate
eS ea
a 147, 149-52
5
:
oe
ta,
U
3
bia
in }- isi Th
iu i 4 i
at eh
' ti Hii
Hi uf
IF ti rift
providing separate precrearrment
46 Fed Reg 9422 (1962) We
comoirung reguiaced
of segregaung and
and unregulated stearns
IIL THE CATEGORICAL ELECTROPLATING
STANDARDS
78. The categorical pretreatment regulations estab-
upon the discharge of certain pollutants by electroplat-
ing operations. 40 C.F.R. §§413.01-.84 (1982). Petition-
conmol technology
A-65
compliance date for integrated electropiaters is arbitrary
and capricious.
A. Methodology of the Standards
79. Ford contends chat the A-imimistrator has im-
ogy from section 301(bX 1A), 33 U.S.C. §131106X1XA)
(1976). The requirements for determining BPT limits
are set forth in section 304(b\ 1), which directs the Ad-
miunistrator to “identify, in terms of amounts of constitu-
ents and chemical, physical, and biological characteris-
tics of pollutants, the degree of effluent reduction
attainable through the application of the best
currently available for classes and
categories of point sources.” 33 U.S.C. §1314(bX1)
(1976). The stringency required by BPT is indicated in
the legislative history: :
subjects electropiaters to a moving target, it should not be applied to
ther. As we have considered and rejected those arguments in
denying the petitions for review of those two provisions. we decline
NAMF's invitation to set aside the electroplating -egulanons on
NAMF also argues that the definitions of “interference” and
“pass through” are invalid and undermine the stand-
ards. We agree that the definicons are invalid However, the defini-
uons play no part in either the setting or the administration of the
categorical pretreatment standards. We can therefore see no reason
why cheir invalidity should affect the validity of the electroplating
standards.
1972 Legis. Hist. 170 (staternent of Sen. Muskie); see S.
Rep. No. 414, 92d Cong., 1st Sess. 50, reprinted in 1972
U.S. Code Cong. & Ad. News 3668, 3716.°' Unless the
present practices of al] sources in the category are “uni- .
formly inadequate,” 1972 Legis. Hist. 169-70 (staternent
of Sen. Muskie), “the average of the best” is a measure
of BPT. Hooker Chemical & Plastics Corp. v. Train, 537
F.2d 620, 633 (2d Cir. 1976); American Meat Institute
v. EPA, 526 F.2d 442, 453 (7th Cir. 1975); see Nat‘onal
Crushed Stone, 449 U.S. at 76 & n.15; AISI I, 526 F.2d
at 1057.
81. To set the BPT electroplating standards the Ad-
82. Ford challenges the data and methodology used
by the Administrator in his calculations. Under the arbi-
its expertise. In particular. *’.e choice of scientific data
and statistical to be used is best left to the
sound discretion of the Administrator. See BASF Wyan-
dotte Corp. v. Costle, 598 F.2d 637, 655 (Ist Cir. 1979):
American Petroleum Institute v. EPA, 540 F.2d 1023.
1036 (10th Cir. 1976), cert. denied, 430 U.S. 922
(1977); FMC Corp. v. Train, 539 F.2d 973, 986 (4th Cir.
1976); American Meat Institute, 526 F.2d at 457.
1. The Regression Analysis
was able to base the long-term averages directly on em-
pirical data from the average of the best plants. For cop-
per, nickel,
(“Me”); the concentration in the influent of all Precipi-
table Metals (“PM”™); and the concentration in the efflu-
ent of the Total Suspended Solids (“TSS”). J. App. at
1346. The Administrator
believe, however, that both the assigned values are
strating the invalidity of that approach. Ford questions
using Xme. J. App. at 1364-65: 44 Fed. Reg. 52.609 (1979).
34. Ford questions the Administrator's decision to use TSS and
Xme data from only some of the plarus EPA visited, but fails to ad-
dress the criteria used by the Adminiscrator to
the adequacy of creatment at the visited plants. See J. Apn. at
1357-58.
A-59
median variability factor. We sec nothing in Ford's crit-
cismms that satisfies its burden. :
2 Lead and Cadmium
86. Finally, Ford claims that, in contrast to the
each poilutant’s long-term average. J. App. at 1347-49,
1359. For lead and cadrniurn, however, the Administra-
were available. Therefore, this equation is used to
derive average [cadmium] and [lead] limits as well
SS. We can find no indication that any comments during the
rulernaking called the Administrator's attention to the lack of data
behind the lead and cadmium limits. We note. however. that the
Administrator was nonetheless aware of the problem. Indeed. given
its centrality to his efforts to sex limits for those pollutants. the lack
of data could hardly have been overlooked. See A/S! |, 526 F.2d ac
1050. In amy case, EPA does not argue that Ford should be barred
from raising the problem because of any failure to raise it before the
Administrator.
A-70
J. App. at 1359, 1361 (reference and footmote omitted).
metals wil] predict wel] the treatability of lead and cad-
mium. We can reasonably discern, however, that the Ad-
ministrator found lead and cadmium to be equally as
treatable as the other metals. Ford has failed to rebut
that implicit assumption, for it has never dernonstrated,
either in the administrative record or before us, that lead
and cadmium are not equally creatable.
88. We note, moreover, that the Administrator but-
however. Therefore. it cannot serve as support for the
tor's decision. A/S/ 11, 568 F.2d at 296-97. EPA also cites daca im the
record fromm the facilicies of Ford and other automakers which
and argues tha" NAMF is barred from raising its conten-
water did not comsider che data from those facines to be usabic.
however. wnat data can be gven lice weight
EPA mext noces tha the Admurustr or requested data from the
electroplating industry and tha: the thre bead and three cadmium
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A-78
quires that the standards be “economically achievabie.”
Id. The remaining dischargers need only commit “the
maximum resources economically possible,” National
Crushed Stone, 449 U.S. at 74; if the BAT standard is not
sufficient progress, he need make only such efforts as
are economically achiev«bie for him. 33 U.S.C. §1311(c)
(1975); see National Crushed Stone, 449 U.S. at 74.
99. In National Crushed Stone, the Supreme Court
point see
ation Ap ad Fisheries v +p 615 F.2d 794, 808-09
1
while a severe
plating standards unless the Administrator has failed to
consider those costs in relation to the effiuent reduction
benefits, or has improperly concluded that the benefits
are worth the costs
NOTE — (Continued)
71: accord 1972 Legis. Hist. 170 (statement of Sen. Muskie). In-
stead. the Administrator looks only at the cost of achieving the req-
uisise effivernt reduction. 33 U.S.C. §1314(b 2 B) (1976). See A/S/
1, 526 F.2d at 1051-52
101. Contrary to NAMF’s assertion, it appears that
H
3
|
)
;
the costs to could be cut in half.
EPA denies that the Administrator must make any such
analysis for BPT.
A-80
technology. 33 U.S.C. §1314(bX1XA) (1976).@ The
legislative history of this requirernent leads us to con-
clude that Congress intended that the Administrator
consider “the additional degree of effluent reduction” in
relation to “the costs of achieving such marginal level of
reduction.” 1972 Legis. Hist 170 (statement of Sen.
Muskie) (emphasis added); see AJSI I, 526 F.2d at 1076
n.19 (Adams, J., concurring). Indeed, given the place of
BPT standards in the two-phase statutory scheme, a bal-
ancing solely of net costs and net effluent reduction
benefits would make no sense under the Act By setting
as a national goal the elimination of pollutant dis-
charges, Congress at least preliminarily has the
costs and benefits of achieving such a goal has de-
termined that society would thus be better off — that the
net benefits exceed ihe net costs. See Weyerhaeuser, 590
F.2d at 1037. If the BPT cost-benefit analysis were to be
conducted on a net basis, the national goal could be at-
tained by BPT standards alone. Congress envisioned
BPT standards as only a first stage, however. It provided
for the second-stage BAT standards to make further
progress towards the national goal, and at the same time
Sdieaned Goat Geo EOF eouvbanaihe enchets carved “ee
limit the application of technology” required of discharg-
ers under BPT standards. 1972 Legis. Hist. 170 (state-
ment of Sen. Muskie). To perform its limiting function,
and to preserve any role for BAT standards in the statu-
tory scherne, RPT cost-benefit analysis must be conduct-
od ono canmndl bane: _
65. In using the words “total” cost Congress desired only to en-
sure that the Administrator would consider both the “incernal™ dol-
lar costs if a plant made the expenditures (o meet the standards. and
“external” costs. such as economic dislocation. if a plant went out of
business instead. 1972 Legis. Hist. at 231. 237-38 (staternent of
Rep. Jones); id. at 259 (staternent of Rep. Wright): see H.R. No.
11896, 92d Cong. 2d Sess. §304(bX1XB) (1972): see also
Weyerhaeuser, 590 F.2d at 1036 n.35.
A-81
104. In Weyerhaeuser Corp. vu Costle, 590 F.2d
1011 (D.C. Cir. 1978), the petitioners argued that the
Administrator had to make an incremental balancing of
g certain BPT effluent
limitations. Id. at 1047. The court replied:
ioe eee when an incremental analysis has
soda dase dete ieee
the risk of hidden imbalances between cost
e
z
jl
iS
™
R
°
a
-
&
and benefits. Id.
105. \\ ile we agree that for BPT “the cost of com-
pliance was © a factor to be given primary impor-
tance,” AJSI |, 526 F.2d at 1051 (emphasis added), both
cost and benefit remain factors that the Administrator
must consider and compare. See Weyerhaeuser, 590
F.2d at 1045-46. Such comparison is meanin un-
less conducted on a margindl Basis. analysis
may indeed be an elaborate task, see AJS] |, 526 F.2d at
1076 n.19 (Adams, J., concurring), but Congress antici-
pated that the Administrator would have to engage in
“complex balancing.” 1972 Legis. Hist. 181 (staternent
of Sen. Muskie); see H.R. Rep. No. 911, 92d Cong., 2d
Sess. 107, reprinted in 1972 Legis. Hist 753, 794.
Moreover, while we agree that only marginal analysis
A-82
will reveal hidden imbalances between cost and benefit,
we cannot understand why the Act would require such
analysis only on request. We therefore conclude that the
Administrator on his own must undertake a sufficient
marginal analysis to indicate that the marginal cost is
not wholly out of proportion to the marginal effluent re-
duction benefit See also American Paper Institute v.
EPA, 660 F.2d 954, 961 (4th Cir. 1981).
106. We note that despite his legal position in this
case the Administrator apparently ernployed marginal
cost-benefit analysis in setting the electroplating stand-
ards. See AISI II, 568 F.2d at 297. He stated:
Although the Clean Water Act does not require con-
sideration of alternative timing, or alternative meth-
ods of ensuring compliance, EPA has considered al-
ternative stringency levels, and alternative types of
regulations.
44 Fed. Reg. 52,593 (1978); see J. App. at 1693. The Ad-
ministrator lifted many requirements from electroplaters
with smaller flows, finding that his action would “greatly
[reduce] the projected economic impact of the standards
while relaxing controls on less than one percent of the
flow.” 43 Fed. Reg. 6561 (1978). He set the required
flow rate at 10,000 gallons per day by balancing the mar-
ginal economic L.ipact the effluent reduction
benefits. 44 Fed. Reg. 52,603-04 (1979). Similarly, the
Administrator eliminated the hexavalent chromium lim-
its because it reduced the cost of the electroplating
standards without significant environmental effect. /d.
at 52,591.
107. NAMF claims, however, that it demonstrated
a hidden imbalance between marginal costs and benefits
by submitting a less burdensome alternative in its com-
ments on the 1978 proposed pretreatment standards. In
those comments NAMF suggested that the standards be
made less stringent so that electroplaters could release
their rinse waters without pretreatment. J. App. at 853.
q
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q
|
|
bi
78
|
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ij
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tf
rf
i
ad
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Lt
i
:
|
i
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F
1
109. We are chus left with NAMF's assertion thar
the met costs of the 1979 electroplating standards are
wholly
Second. NA.AF assails the Adminiscrator's assumpuon char job
A-3S
was worth $1.34 billion plus $425 million annually with
the loss of 737 firms and 12.584 jobs.
C. The Compliance Deadline for Integrated Facilities
110. Section 413.01(a) of the electroplating stand-
ards direc. _hat imtegrated electroplaiers mist comply
, agocr”
§403.6(e) (19682) 40 CF.R§413.0Ma (: «1 GM
claims that the Administrator's unsuccessful erfort to in-
petition for review on this issue.
111. Section 307(b) of the Act directs the Adminis-
years
§1317(>X1) (1976 & Supp. I 1977). When the Adminis-
promulgated the standards in 1979.
A-36
uve date of March 13. 1961. 46 Fed. Reg 9464 (1961):
see id. at 9404. The Adminiscrator justified the extension
Uv stating chat the formula “would have to be
ed in final form before integrated facilides would under-
siand their compliance obligations under the electropiat-
ing standards. Id. at 9464.
112 After an inical of the formula's
effective date to March 30. 1961. the Administrator then
indefinitely postponed the formula’s effective date. See
47 Fed Reg 4516 (1962); 46 Fed. Reg 50.502-03
(1981): see also id. at 11.971 (1981). He explained thar
because he had received numerous comments cridciz-
ing the “highly controversial” formula’s effect on inte-
grated facilines. he believed the formula should be de-
ferred “while the Agency studies the implications of the
presemt formula further.” 47 Fed Reg 4519. 4520
(1982). The Administrator that the indefinite
postponernent of the formula also postponed the date by
which integrated facilives had to comply
standards. 46 Fed 43.973 (1981).
113. In NRDC v. EPA, 683 F.2d 752 (3d Cir. 1982).
mula. effective March 30. 1981. Id. at 768-69. We
stated:
Id. at 768-69. Soon after our decision. on August 10.
1982. GM filed a petition for reconsideration asking the
i
|
pTine
5
115. We will grant the petitions for review in Nos.
81-1279, 81-1977. 81-1962, 81-1983, 81-1964. 81-1985.
81-2150, and 81-2151. We wil] deny all other
We will also deny EPA's motion regarding MF ASC.
116. We will remand to the Adminisrrator:
(c) 40 C.F.R. §403.3(n) (1982). establishing
the definition of “pass through:” and
(d) 40 C.F.R. §403.13 (1982). the
Sunteeanndine Giitaues hater weslenen pete
A-89
UNITED STATES COURT OF APPEALS
For Tee Temp Crecurr
No. 79-2256
NATIONAL ASSOCIATION OF METAL FINISHERS.
ELECTROPLATERS OF YORK. INC. AND
Petitioners
ENVIRONMENTAL PROTECTION AGENCY.
. Respondent
No. 79-2443
THE INSTITUTE FOR INTERCONNECTING
AND PACKAGING ELECTRONIC CIRCUITS.
Clerk of the United States Court uf Apprels |
for the Third Circuit Petitioner
v.
ENVIRONMENTAL PROTECTION AGENCY.
Respondent
as Nos. 80-1008, 81-1210, 81-1279
FORD MOTOR COMPANY. INC..
Petitioner
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY and DOUGLAS
M. COSTLE. Administrator. United States
Environmental Protection Agency.
Respondents
‘A. U. S Courts The Legal inelligencer. Phila. Pa) >
A-9%)
NATURAL RESOURCES DEFENSE
COUNCIL. INC..
Incervenor
No. 61-1351
NATIONAL ASSOCIATION OF METAL FINISHERS
and INSTITUTE FOR INTERCONNECTING
AND PACKAGING ELECTRONIC CIRCUITS.
Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY.
Respondent
No. 61-1712
GENERAL MOTORS CORPORATION.
Petitioner
NATURAL RESOURCES DEFENSE
COUNCIL, INC...
Intervenor
No. 81-1977
A-91
U.S. ENVIRONMENTAL PROTECTION AGENCY.
401 M Street. S.W.. W D..C. 20460 and
DOUGLAS M. COSTLE. ADMINISTRATOR.
U.S. Environmental Protection Agency.
401 M Street. S.W.. Washington. D.C. 20460.
Respondents
CHEMICAL MANUFACTURERS ASSOCIATION
AMERICAN CYANAMID COMPANY
FMC CORPORATION
UNION CARBIDE CORPORATION.
Intervenors
No. 61-1978
UNITED STATES BREWERS ASSOCIATION.
Respondents
NATURAL RESOURCES DEFENSE
COUNCIL. INC..
Intervenor
No. 81-1979
MANUFACTURING CHEMISTS ASSOCIATION.
AMERICAN PAPER INSTITUTE. NATIONAL
FOREST PRODUCTS ASSOCIATION. NATIONAL
PAINT AND COATINGS ASSOCIATION.
SYNTHETIC ORGANIC CHEMICAL
MANUFACTURERS ASSOCIATION. AIR
No. 81-1981 Intervenor
ASSOCIATION OF METROPOLITAN
SEWERAGE AGENCIES. He. 61-1908
Petitioner
vo
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY.
Responde
NATURAL RESOURCES DEFENSE
COUNCIL. INC..
intervenor
No. 81-1982 a
NATIONAL ASSOCIATION OF METAL FINISHERS. eemnenes enitiieinin oeenee
ae COUNCIL, INC..
v 1725 Eye Street. N.W.. Washington. D.C. 20006.
ENVIRONMENTAL PROTECTION AGENCY. Petitioner
Ao A-%
- AMERICAN IRON & STEEL INSTITUTE
| ROUGE STEEL Co..
U.S. ENVIRONMENTAL PROTECTION AGENCY.
401 M Street. $.W., Washington. D.C. 20460.
Responden: No. 81-2151
CHEMICAL MANUFACTURERS ASSOCIATION “HICAGO ASSOCIATION OF COMMERCE AND
Intervenors
AMERICAN CYANAMID COMPANY INDUSTRY. ILLINOIS MANUFACTURERS
FMC CORPORATION
UNION CARBIDE CORPORATION. FOUNDATION.
Intervenors Petitioners
v.
No. 81-2119 UNITED STATES ENVIRONMENTAL
METAL FINISHING ASSOCIATION PROTECTION AGENCY.
|] SOUTHERN CALIFORNIA. parece
- COUNCIL. INC..
ENVIRONMENTAL PROTECTION AGENCY.
Respondent ON PETITIONS FOR REVIEW OF ACTIONS
No. 81-2150
INTERLAKE. INC.. REPUBLIC STEEL Argued June 20. 1983
CORPORATION and UNITED STATES Before: GIBBONS, HUNTER and BECKER. Circuit
STEEL CORPORATION. Judges
Opinion filed September 20. 1963
v.
UNITED STATES ENVIRONMENTAL ORDER AMENDING OPINION
PROTECTION AGENCY. | 1 The slip opinion filed in this case on September
Respondent 20. 1983 is hereby amended as follows:
NATURAL RESOURCES DEFENSE a The last two sentences of paragraph | shall
COUNCIL. INC. be amended to read as follows:
A
Under that standard of review. we find in-
valid certain provisions of the general pre-
treatment regulations. Because it is not for
us to rewrite those provisons. we will re-
mand them to the Administrator.
b. The reference to the petition for review in
No. 61-1279 shall be deleted from paragraph 115.
By THE COURT.
/ James Hunter. 0!
Circutt Judge
Dated: October 5. 1963
A True Copy:
Teste:
Clert of tne Unued States Court of Appeais
Jor tha Thed Cvcutt
AO US Courts CMC Preeemg Pree Pe 315 660-4086)
Usrrep States Exvirowmewtat Protection AGENCY and
Doveias M. Costie, Administrator, United States
Natural Resoveces Derense Councit, Lwc., /atervenor
No. $1-1351
NaTIONAL AssoctaTion of Meta. Fintswers and
ey y+ —
ExvironMeNtal Prorection Acency, Respondent
A®
No. 81-1712
General Motors Conporation, Petitioner
Unsrrep States Ewvimowwew tat Prorection AGENCY and
Wacrer Barser, Acting Administrator, United States
Environmental Protection Agency. Respondents
Natural Resoweces Derense Couwcn., Inc., /ntervenor
No. 81-1977
Natural Resovrces Derewse Counc, Inc.
917 15th Street, N.W.. Washington, D.C. 20005, Petitioner
U.S. Exvimowmewtat Protection AGENCY
#01 M Street, S.W.. Washington, D.C. 20460 and
Dove as M. CostLe, ADmmwterTraTor,
U.S. Environmental Protection Agency, 401 M Street, S.W..,
Washington. [ C 2460, Respondents
Americas Cranamip Company
FMC CoumrosatTiow
Ustow Cazsipe Comporation, /ntervenors
No. $1-197s
Usrrep States Beewers Association, Petitioner
a
Apmuwisteaton, Ex~vinowmewta: Protection AGENCY, and
Natural Resoveces Derense Cocwecn. Inc., /ntervenor
A-99
No. 81-1979
MANUFACTURING CHEMISTS ASSOCIATION,
AMERICAN Paper INSTITUTE,
NATIONAL Forest Products ASSOCIATION,
NATIONAL PAINT AND COATINGS ASSOCIATION,
SYNTHETIC ORGANIC CHEMICAL MANUFACTURERS ASSOCIATION,
Arr Propucts aNnD CHEMICALS, INCc.,
AMERICAN CYANAMID Company, FMC Corporation,
HERCULES INCORPORATED, SHELL O1L Company,
and Union Carsipe CorporaTion, Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondents
NaTuRAL Resources Derense Counci, Inc., /ntervenor
No. 81-1981
ASSOCIATION OF METROPOLITAN SEWERAGE AGENCIES, Peti-
tioner
v.
Unrrep States ENVIRONMENTAL PrRoTecTION AGENCY, Re-
spondent
NaTURAL Resources Derense Counci., INc., /ntervenor
No. 81-1982
NATIONAL ASSOCIATION OF METAL FINISHERS, Petitioner
Vv
ENVIRONMENTAL PROTECTION AGENCY, Respondent
NaTURAL Resources Derense Counc, INc., /ntervenor
A-100
No. 81-1983
CHEMICAL MANUFACTURERS ASSOCIATION,
AMERICAN CYANAMID Company, FMC Corporation,
Union CARBIDE Cor’ ORATION, Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent
NATURAL Resources Derense Counci., Inc., /ntervenor
No. 81-1984
AMERICAN Paper INSTITUTE and
NATIONAL Forest Propucts ASsociaTION, Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent
NaTURAL Resources Derense Councit, Inc., /ntervenor
No. 81-1985
NATURAL Resources Derense Counci., INc.,
1725 Eye Street, N.W., Washington, D.C. 20006, Petitioner .
v.
11S. ENVIRONMENTAL PROTECTION AGENCY,
401 M Street, S.W., Washington, D.C. 20460, Respondent
CHEMICAL MANUFACTURERS ASSOCIATION
AMERICAN CYANAMID COMPANY
FMC CorPoRATION
Union CARBIDE CORPORATION, /ntervenors
A-101
No. 81-2119
METAL FINISHING ASSOCIATION OF SOUTHERN
CaLirornia, Petitioner
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent
No. 81-2150
INTERLAKE, INc., Repusiic STEEL CorPoRATION and
Unirep States STEEL Corporation, Petitioners
Vv.
UniTeD STATES ENVIRONMENTAL PROTECTION AGENCY, Re-
NATURAL Resources Derense Counci., INc., /ntervenor
AMERICAN [Ron & STEEL INSTITUTE
Rovuce Steer Co., /ntervenors
No. 81-2151
CHICAGO ASSOCIATION OF COMMERCE AND
INDUSTRY, ILLINOIS MANUFACTURERS’ ASSOCIATION, and
MID-AMERICAN LEGAL FounbDaTion, Petitioners
Vv.
Unitrep States ENVIRONMENTAL Prorection AcEency, Re-
NATURAL Resources Derense Counci., Inc., /ntervenor
ON PETITION FOR REVIEW OF ACTIONS OF THE
ENVIRONMENTAL PROTECTION AGENCY
Present: Gippons, HUNTER and Becker, Circuit Judges
A-102
AMENDED JUDGMENT
These causes came on to be heard on the record from the
Environmenta! Protection Agency, and were argued by coun-
sel June 20, 1983.
On consideration whereof, it is now ordered and adjudged by
this Court that:
1. The petitions for review of the regulations tg ty: teed
at 46 Fed.
1), docketed at C.A. Nos. 8 1977 orl 4%
1984, 81-2150 and 81-2151, wh owed 2
granted; and,
2. The said causes, at 1 supra, are hereby remanded to
the said for further proceedings consistent
with the of this Court.
It is further ordered and adjudged that the petitions for
review docketed at C. A. Nos. 79-2256, 79-2443, 80-1008, 81-
1210, 81-1279, 81-1351, 81-1712, 81-1978, 81-1979, 81-1981,
81-1982, 81-1985 and 81-2119, be, and the same are hereby
denied and the respective actions of the said Agency are
hereby affirmed in accordance with the opinion of the Court.
It is further ordered and adjudged that the following provi-
sions of the Code of Federal Regulations be, and the same are
hereby remanded to the Administrator for further proceedings
in accordance with the opinion of this Court:
(a) 40 C.F.R. § 403.3(i, (1982), establishing the defini-
tion of “interference, ”
(b) 40C.F.R. § 408.3(k) (1982), establishing the defini-
tion of “new source;”
(ec) 40 C.F.R. a establishing the defini-
tion of “pass through;” and
(d) 40 C.F.R. § 403.13 (1982), containing the
fundamentally different factor variance maw Ray
It is further ordered and adjudged that that portion of the
Environmental Protection Agency’s motion filed February 11,
1983, regarding whether the Metal Finishing Association of
A-103
Southern California is bound by the 1980 Environmental
Protection Agency—National Association of Metal Finishers
settlement, is hereby denied.
Costs taxed against respondents in C. A. 81-1977, 81-1983,
81-1984, 81-2150, and 81-2151. Costs taxed against petitioners
in C. A. Nos. 79-2256, 79-2443, 80-1008, 81-1210, 81-1279,
81-1351, 81-1712, 81-1978, 81-1979, 81-1981, 81-1982, 81-1985,
and 81-2119. All of the above in accordance with the opinion of
this Court.
ATTEST:
/s/ Sally Mrvos
SALLY Mrvos
Clerk
October 5, 1983
Certified as a true copy and issued in lieu
of a formal mandate on November 1, 1983.
ATTEST:
/s/ Sally Mrvos
SALLY Mrvos
Clerk, U.S. Court of Appeals for the Third Circuit.
A-104
UNITED STATES COURT “'F APPEALS
POR THE THIRD CIRCUIT
No. 79-2256
NATIONAL ASSOCIATION OF METAL FINISHERS,
ELECTROPLATERS OF YorK, INC. AND PIONEER
Mera Finisuine, Inc., Petitioners
Vv
ENVIRONMENTAL Protection AcEency, Respondent
No. 79-2443
THE INSTITUTE FOR INTERCONNECTING AND
PACKAGING ELectronic Circurts, Petitioner
v
ENVIRONMENTAL Prorection Acency, Respondent
Nos. 80-1008, 81-1210, 81-1279
Forp Motor Company, Inc., Petitioner
Vv.
al Unrrep StTaTes ENVIRONMENTAL PROTECTION AGENCY and
Dovuctas M. CostLe, Administrator, United States
Environmental Protection Agency, Kespondents
NATURAL Resources Derense Counci., Inc., /ntervenor
No. 81-1351
NATIONAL ASSOCIATION OF METAL FINISHERS and
INSTITUTE FOR INTERCONNECTING AND PACKAGING
E.ectronic Circurts, Petitioners
v.
ENVIRONMENTAL PRoTEecTION AGENCY, Respondent
A-105
No. 81-1712
Vv
Untrep States ENVIRONMENTAL PROTECTION AGENCY and
WALTER Barser, Acting Administrator, United States
Environmental Protection Agency, Respondents
NaTURAL Resources Derense Counc, Inc., Intervenor
No. 81-1977
NaTuRAL Resources Derense Councit, inc.
917 15th Street, N.W., Washington, D.C. 20005, Petitioner
Vv
U.S. ENvironmen1. t Prorection AGENCY
401 M Street, S.W., Washington, D.C. 20460 and
Dovucias M. CostLe, ADMINISTRATOR,
U.S. Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, Respondents
CHEMICAL MANUFACTURERS ASSOCIATION
AMERICAN CYANAMID COMPANY
FMC Corporation
Union Carsipe Corporation, Intervenors
NaTuRAL Resources Derense Counc, Inc., Intervenor
A-108
Neo. 51-1979
Americas Parte Leetrrure.
National Forest Prooucts Association,
RARE TURNS GD COMES AER,
Exvimoxnwenwval Protection AcENcY, Ax ondents
Natural Resoweces Derexse Couwcn.. bec. Jaterwenor
Neo. 51-1981
AssectaTios of Mereorourran Seweract Acewcies, Pet.
fomer
Usrrep States Exvirmoxwewta: Peorection Acency, Re-
spondes!
Natural Resoweces Derexse Couwcn.. Inc.. Jeternesor
Ne. $1-1982
Natiowal AssoctaTiow of Meta: Poewswers Petitioner
¥.
A-107
No. 51-1983
Cremical MaNUPaCTURERS Associa TION,
American Cyanamip Company, FMC Comroration,
Exvimowmentat Protection Acency, Respondent
No. 51-1984
Ampaican Parer Lestrrute and
National Forest Prooucts Association Petihoners
Exvimonmentat Protection Acency, Respondent
1725 Eye Street, N.W.. Washington. D.C. 20006, Petitioner
U.S. Ewvrmowmewta: Protection Acewcy,
#01 M Street, S.W.. Washington, D.C. 3660, Respondent
American CYaxasmp Company
FMC Comroaation
Ussow Caxerpe Compoaation, / afervenors
No. 51-2150
Unsrrep States Stree: Comroration, Petehoners
v
Unrrep States Exvimonwwewtat Protection Acency, Re
spomden!
Natural Resources Derense Counc, Lwc., /atervenor
Amenican Leow & Sree. Leetrrvute
No. $1-2151
Cwrcaco Association of Commence and
¥
Unsrrep States Ewvirowwewtat Prorectioow Acency, Re-
sponden!
Natura Resoweces Derense Councn, Iwc., /atervenor
ON PETITIONS FOR REVIEW OF ACTIONS OF THE
ENVIRONMENTAL PROTECTION AGENCY
Present: Gassows, Hunter and Becker, Circus Judges
It us further ordered and adjudged that
review docketed at C. A. Nos. 79-2254, 79-2443, 80-1008, #1.
1230, 81-1279, 81-1351, 81-1712, 81-1978, 81-1979, 81-1981,
81-1982 and 81.2119, be, and the same are hereby demied and
the respective actions of the said Agency are hereby affirmed
mm accordance with the opumon of the Court.
|
It ws further ordered and adjudged that the following prov
mons of the Code of Federal Regulations be. and the same are
hereby remanded to the Admurustrator for further proceedings
im accordance with the opinion of this Court:
(a) @C_F_R. § 408.) (1982), establishing the defini-
“interference,”
ven of
) 40 C.P._R. § 403. 2k) (1982), establishing the defini-
(>)
tien of “new source,”
(>) @C.P.R. § 408. mn) ( establshin, he defim-
tion of “pass through:”
@ 40 C.F.R. § 403.13 (1982), containing the
fundamentally different factor vanance provimon
It ws further ordered and adjudged that the portion of the
Environmental Protection Agency's motion filed February | 1.
1983. regarding whether the Metal Firushing Association of
81-1279, 81-1351, 81-1712, 81-1978, 81-1979, 81-1981, 81-1982
and $1-2119. All of the above in accordance with the opinion of
this Court.
DECEMBER 7. 19%
A-lll
Lest of Corporate Petitioners Parents.
Suberdiaries. And Affiliates Pursuant to
Supreme (Court Rule 28 |
Thus list is submitted pursuant to Rule 28 | of the Supreme
Court Rules.
AMERICAN CYANAMID COMPANY
Subesdianes and Affiliates
as A-113
FMC—Foret, Compania Colectiva
FMC Guatemala, S.A.
FMC (Ireland) Limited
FMC Machinery (Germany) GmbH
FMC de Mexico, S.A. de C.V.
FMC Saudi Arabia Limited
FMC—Servicos e Empreendimentos S/C. Ltda.
FMC Spain S.A.
FMC Wellhead de Venezuela, S.A.
Foret, S.A.
Foret Arif Libanaise, S.A.R.L.
Huron Forge and Machine Company
IMRX Corpevation
Jamex, S.A.
UNION CA tBIDE CORPORATION
Subsidiaries and Affiliates
ACM Services
Administracion Y Servicios Carmex S. A. De C. V.
Chemos Industries Pty. Ltd.
Chrome Corporation (South Africa) (Pty.) Ltd.
er ae aS. : Cia Nr.ional de Caleareos e Derivados
Seciedad Anonyma Comercial, In- Dai Nippon Jushi Co. Ltd.
a Delvan Pty. Ltd.
Elektrode Maatskapy Van Suid Africa (Eiendoms) Be-
perk
Eletro Manganes Ltda.
Eletrometalurgica Suadade Ltda.
Empresa Brasileira De Reflorestamento e Argo-Pecuaria
Ltda.
A-1l4
Empress Brasileira De Cilendros Ltda.
Incarmex, S. A. De C. V.
Indugas N. V.
Joint Industries (Hycel) 1970 Ltd.
Karaj Road Property Co. Ltd.
P. T. Karmi Arafura Fisheries
La Littorale S. A.
Miami Welding Supply, Inc.
Montrose Exploration Co. S. A. (Pty.) Ltd.
Nepal Battery Co. Ltd.
Nippon Unicar Co.
Nita . pet, S. A.
Oxigenio Edy S. A.
Oxigeno Del Norte, S. A.
Oy Unifos A.B.
Servicos Administrativos Carmex S. A. De C. V.
Servicos DYC S. A. De C. V.
Societe Civile Des Produits Lifine
Sony-Eveready Inc.
Tubatse Ferrochrome (Pty.) Ltd.
Ucar Plastics Ghana Ltd.
Unifos Kemi A. B.
Union Carbide Argentina S. A. I. C. S.
Union Carbide Australia & New Zealand Ltd.
Union Carbide Australia Ltd.
Union Carbide Canada Ltd.
Union Carbide Ceylon Ltd.
Union Carbide Egypt S. A. E.
Union Carbide France, S. A.
Union Carbide Ghana Ltd.
Union Carbide India Ltd.
Union Carbide Kenya Ltd.
Union Carbide Malaysia Sdn. Bhd.
Union Carbide Mexicana, S. A.
Union Carbide New Zealand Ltd.
Union Cartide Nigeria Ltd.
Union Carbide Pakistan Ltd.
Union Carbide Sudan Ltd.
A-115
Union Carbide Yemen Ltd.
Union Gas Co. Ltd.
Union Polymers Sdn. Bhd.
Union Showa K. K.
United States Welding, Inc.
Sociedad Anomima White Martins
S. A. White Martins Nordeste
A-116
CLEAN WATER ACT PROVISIONS
. Section 301(b) of the Clean Water Act, as amended, 33
U.S.C. § 1311(b) (1976 & Supp. V 1981):
(b) Timetable for achievement of objectives
In order to carry out the objective of this chapter there
shall be achieved—
(1MA) not later than July 1, 1977, effluent limitations
ior pies, comsens, oper Chee eatiey cunes Gamnent
works, (i) which shall require the application of the best
control technology currently available as de-
the Administrator pursuant to section 1314 (b) of
this , or (ii) in the case of a discharge into a publicly
owned treatment works which meets the requirements of
subparagraph (B) of this , which shall require
compliance with any poets rere
See SEP SY eS See Gee Ee this
title;
(B) for Say aa eee w rks in existence
977, or approved to section 1283 of
A, A be A. E 4 (for which construction
ing the of all pollutants, as determined in
accordance with regulations issued by the Administrator
A-117
pursuant to section 1314(b\(2) of this title, which such
Sanat Retetege atl rovie the eamnatien of So
on
com-
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not
after the date such are established;
(E) not later than July 1, 1984, effluent limitations for
and classes of point sources, other than icly
owned treatment works, which in the case of
identified pursuant to section '314(a)(4) of this title shal!
— of the best conventional pollutant con-
. 3 determined in accordance with regula-
tions issued
1314(b)4) of title; and
(F) for all ; (
arty ame
Apef the eremenk later than
not 3 after the date
such limitations are established, or not later than July 1,
—_ whichever is later, but in no cas later than July |,
A-118
2. Section 301(1) of the Clean Water Act, as amended, 33
U.S.C. § 131401) (Supp. V 1981):
(1) Texie pollutants
The Administrator may not any requirement of
this section as it applies to pollutant which is
"= pee eeemenine section 1317(a)(1) of this
3. Section 304(b) of the Clean Water Act, as amended, 33
U.S.C. § 1314(b) (1976 & Supp. V 1981):
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A-128
.
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1983
Unrrep Staves ENVIRONMENTAL PROTECTION AGENCY,
Petitioner
v.
NATURAL Resources Derense Council, INc.
APPLICATION FOR AN EXTENSION OF TIME WITHIN
WHICH TO FILE A PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
ALLL
The Solicitor General, on behalf of the United States En-
vironmental Protection Agency, requests an extension of 60
days, to and including February 17, 1984, within which to file a
petition for a writ of certiorari to the United States Court of
Appeals for the Third Circuit in this case.
The judgement of the court of appeals was entered on Sep- /
tember 20, 1983. A copy of the court’s opinion is attached. ' The
time for filing a petition for a writ of certiorari, unless ex-
tended, will expire on December 19, 1983. The jurisdiction of
this Court would be invoked under 28 U.S.C. 1254(1).
This case concerns the validity of an Environmental Protec-
tion Agency regulation (40 C.F.R. 403.13) permitting
ve~iances from national standards limiting the quantity of pol-
| The court’s decision (National Association of Metal Finishers v.
EPA, Nos. 79-2256, 80-1008, 81-1210, 81-1279, 81-1351, 81-1712,
81-1977, 81-1978, 81-1979, 81-1981, 81-1982, 81-1983, 81-1984, 81-
1985, 81-2119, 81-2150, 81-2151 (3d Cir., Sept. 20, 1983), concerned
1985).
A-129
lutants that industrial dischargers may discharge into publicly
owned treatment works. An industrial discharger may qualify
for « variance from applicable national standards if it can
demunstrate that its situation involves factors “fundamentally
different” from those considered by the Agency when it estab-
lished the relevant national standards. Section 307(b) of the
Clean Water Act, 33 U.S.C. (& Supp. V) 1317(b), requires the
Administrator of EPA to promulgate “pretreatment standards
for introduction of pollutants into [publicly owned treatment
works] for those pollutants which are determined not to be
to treatment by such treatment works or which
would interfere with the operation of such treatment works.”
The pretreatment standards are to apply to categories of in-
dustrial sources which introduce such pollutants to treatment
works. Because of the complexity in developing national
t standards for various categories of sources
under Section 307(b), occasionally the EPA may overlook data
showing that a particular plant within a certain category may
differ from the plants considered during the rulemaking in
ways that affect the plant’s ability to comply with the national
standards. Accordingly, EPA has promulgated a limited safe-
ty valve in its General Pretreatment Regulations, 40 C.F.R.
403.13, by which the Agency may establish more or less strin-
gent standards for an industrial discharger if the discharger
can demonstrate that its plant is “fundamentally different”
from the plants considered by EPA when it promulgated the
relevant national standards.
unlawful because Section 301(1) of the Clean Water Act, 33
U.S.C. (Supp. V) 1311(1), prohibits the Agency from modify-
ing any requirement applicable to toxic pollutants. The lower
court concluded that a variance based on fundamentally differ-
ent factors, as applied to a toxic pollutant, constitutes a “modi-
fication” of otherwise applicable national pretreatment stand-
ards and is therefore forbidden by Section 301(1).
The court of appeals’ conclusion seems incorrect. Section
301(1) was intended only to prohibit modifications under Sec-
A-130
appeals
does indicate that Congress was primarily concerned with
modifications under Section 301(c) and (g)” (sl> op.
at 42). Furthermore, prior to the enactment of 301(1) in 1977,
part of numerous other national rulemakings, and this Court
had held in E. J. duPont de Nemours & Co. v. Train,430 U.S.
112 (1977), that EPA was required to provide variances from
certain national effluent limitations and standards for direct
dischargers. There is no hint in the legislative history of the
1977 amendments to the Clean Water Act that Congress
sought to end the Agency’s adrr‘nistrative practice or overrule
this Court’s decision in duPont.
The Third Circuit’s decision also appears to be at odds with
the Fourth Circuit’s decision in Appalachian Power Co. v.
Train, 620 F.2d 1040 (1980). There, the Fourth Circuit re-
jected the Natural Resources Defense Council's claim that
Section 301(1) prohibits EPA from granting similar variances
to direct dischargers, i.e., industrial sources that discharge
wastes directly into navigable waters instead of into publicly
owned sewage treatment works. Thus, under the Fourth Cir-
cuit’s decision, EPA may grant variances based upon
fundamentally different factors for direct dischargers, but
under the Third Circuit’s decision, the Agency may not grant
such variances for indirect dischargers. This disparate treat-
Because of the importance of this issue to the Agency's
of national pretreatment standards for various
industrial categories and the apparent conflict between the
circuits, further review by this Court may be warranted. The
A-131
additional time is requested in order to permit careful consid-
eration of whether a petition for a writ of certiorari should be
filed in this case. The additional time is also needed to confer
wih etesestengvemmnent eqns, exe detiten te Give
petition for a certiorari is reached, to and pri
the petiti prepare and print
Respectfully submitted,
Rex E. Lee
Solicitor General
DECEMBER 1983
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.