# Petition for Writ of Certiorari — Chemical Manufacturers Ass'n v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0039%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 470 U.S. 116 ## Text 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 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 SEE +5 78h mad Hf He il Heh el aA a i a ut i An iL a i ot E rte l THLE fel uti Hill . ayy 4 ny ay" aH Hy Tot peti iad TEE Wi tii li pil ua » Mae 333 a3 Uva i ETT: 3 Bi citys nll Ait ele TH : sa Hail 3 hee ell ty as i: gt rt Hi i dl HL Bt THE ima pu ‘ a3 ¢ ll HELL 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- PerearaphiA) of thie nr oe ona 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): if fl 4. : i t st r : 1 Lt H | i Hy id | ; i sj u rf ; environmental (ineluding energy requirements), and such - ay ~ + appropriate; ip be- tween the costs of yi tay — pe the effluent reductiun derived, and the compari- HE if? Hie . ti He Hl Tk rAnE 535 ¥ 5f73 it § LST7b) (1976 & Sapp. V 1981 é. Section 387\b) of the Clean Water Act. as amended. 13 a wii 4 i iis a isi a at A i ist thei Hit i aint $403.13 Variances from categorical pretreatment stand- ii Hse i i ad i Hil : Hu i 1: i wba aa if i nah ‘tnt ij ; j if | fu sity HE a iy oY Lil | li ibebeat aH ae uae sideinraatas 11 nee li i Hi i i if it a! Ry i Hutte ma ile | i A Hine lity “344° Ae fiode,8 uel + i Hobe gt va T RTA TLE ES HE etal Aa ti ee | Fe i Hen alt uli tr flict in| it lihet Wil pattillat Hie “lily 9) Wy : ree ee bl | i: il sdnilelelsuileete eel anny aq882 43 ik :: i Ms ial 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0039%3A02. Public record. Not legal advice.