Respondents Brief — Chemical Manufacturers Ass'n v. Natural Resources Defense Council, Inc.

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Office - Supreme Court, US

FILED

ana

Nos. 83-1013, 83-1373 wade

} ALEXANDE® STEVAS

IN THE ;

Supreme Court of the United States - a

OcTosper Term, 1983

CHEMICAL MANUFACTURERS ASSOCIATION, ef al.,

Petitioners,

NATURAL Resources Derense COUNCIL, INC.

Respondent,

—s

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

Vv.

NATURAL Resources Derense CoUNCIL, INC..

Respondent.

On Writs of Certiora: ‘© the United States

Court of Appeals for (ne Third Circuit

BRIEF FOR RESPONDENT

FRANCES DUBROWSKI

Attorney for Respondent

1350 New York Avenue, N.W.

Washington, DC 20005

(202) 783-7800

August 20, 1984

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Third Circuit correctly held that Section

301()) of the Clean Water Act, 33 U.S.C. (Supp. V) 13110),

prohibits the Environmental Protection Agency from granting

variances from national pretreatment standards for toxic

pollutants.

TABLE OF CONTENTS

QUESTION PRESENTED ........................

TABLE OF CONTENTS .............06666606055.

TABLE OF AUTHORITIES ......................

COPERONUIEe BW 0... cece ccc cece eceseeess

STATUTES AND REGULATION .................

STATEMENT OF THE CASE ....................

SUMMARY OF ARGUMENT:....................

TTS: PEERS adneeescccecccccccccccccce

This case turns on the meaning of Section 301(/)

of the Clean Water Act .................25055.

Section 301(/) of the Clean Water Act clearly

prohibits FDF variances from pretreatment stan-

dards for toxic pollutants .....................

. The legislative history of the Clean Water Act

confirms that Congress intended to ban all vari-

ances, including FDF variances, from pretreat-

ment standards for toxic pollutants ............

FDF variances for toxic pretreatment siandards

are not reasonable given the purposes of the Clean

Tee ca ca ccscccecccece

DT CChES eS becccccccccecccccccccccces

APPENDIX

TABLE OF AUTHORITIES

Page

CASES:

American lron and Steel Institute v. EPA, 526 F.2d

1027 (3d Cir. 1975), modified, 560 F.2d 589 (3d Cir.

1977), cert. denied, 435 U.S. 914 (1978). ....... 38.39.41

Association of Pacific Fisheries v. EPA, 615 F.2d 794

SG GED 46040060 60cnndancenneenias kecéues 41

Edmonds v. Compagnie Generale Transatlantique , 443

es SEL, ocacbcdsedenncncedéctundedaniens 24

EJ. duPont de Nemours & Co. v. Train, 430 U.S. 112

EPUUD cecduckhsndnceecennasencenenséésncnnce: passim

Environmental Protection Agency v. National Crushed

Stone Ass'n., 449 U.S. 64 (1980) ©... 0.0.6... 11,12, 24,31

Kennecott Copper Corp. v. EPA, 612 F.2d 1232 (10th

Ge: Ge Beenccconceasncederecucetensennd eee

NRDC vy. Train, 8 Env't. Rep. Cas. (BNA) 2120(D.D.C.

1976). modified sub nom. NRDC v. Costle, 12 Env't.

Rep. Cas. (BNA) 1833 (D.D.C. 1979), modified sub

nom. NRDC v. Gorsuch, Nos. 2153-73, et al. (D.D.C.

Oct. 26, 1982). modified sub nom. NRDC v. Ruck-

elshaus, Nos. 2153-73, et al. (D.D.C. Aug. 2, 1983,

SR Ge EE 4oc oc oancannde beseconeideksine 5

Portland Cement Ass'n. v. Ruckelshaus, 486 7 .2d 375

(D.C. Cir. 1973), cert. denied 417 U.S. 921 (1974),

reh. denied 423 U.S. 1092 (1976)... .............4. 38

SEC v. Chenery Corp., 332 U.S. 194 (1947).......... 37

SEC v. Sloan, 436 U.S. 103 (1978)... 2.0... ee ee. 18,26

T.1.M.E. Inc. v. United States, 359 U.S. 464 (1959)... 28

Train v. Colorado Public Interest Research Group, 426

Sas B GED Kcccideddubentiaidsedes oceddnsendeses 20

Train v. NRDC, 421 U.S. 60 (1975). ................ 17

TVA v. Hill, 437 U.S. 183 (1978). 2.22... eee 9.23.26

United States v. Calamaro, 354 U.S. 351 (1957)...... 18,26

United States v. Culbert, 435 U.S. 371 (1978). ....... 20

United States v. Missouri Pacific Railroad Co., 278

Ss DEL cnncbaddbevbeocescueueeadscbaouue 20,28

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

es DE TEES on oceeesocehcséceccdasdestendsee 37

Volkswagenwerk v. FMC, 390 U.S. 261 (1968). ...... 18

Zuber v. Allen, 396 U.S. 168 (1969)... 00606 25

STATUTES:

Administrative Procedure Act, 5 U.S.C. 553......... 7

Clean Water Act, 33 U.S.C. (& Supp. V) 1251 ef seq. 2

§$208(bM 2K CKii), 33 U.S.C. 1288(bM2UCKMiI).. 2... 15

$301(bM IMA), 33 U.S.C. 13TMbMIMA) . 2.000... 2

§$301(bM 2A), 33 U.S.C. (& Supp. V) 1311 bM 2A) 2

§$301(bM20C), 33 U.S.C. (Supp. V) 131M bM2NC) ... 2

§$301(b 2D), 33 U.S.C. (Supp. V) 1311 by 2D)... 19

$301(bM 2 E), 33 U.S.C. (Supp. V) 1311 bM2,E) ... 4

$301(c), 33 U.S.C. ISTMC) 2... passim

$301(d), 33 U.S.C. IST)... 17

$301(g), 33 U.S.C. (Supp. V) 131Mg)........... passim

$301(h), 33 U.S.C. (Supp. V) 1311h) ............. 16

§$301(i 1), 33 U.S.C. (Supp. V) 131M)... 2.2... 16

$301(i(2), 33 U.S.C. (Supp. V) 13112)... ....... 16

§301(j), 33 U.S.C. (Supp. V) 1311) .............. 23

$301), 33 U.S.C. ISTID) 00. passim

§$304(b)(1), 33 U.S.C. 1S14(DID) ©. eee 3

§$304(b)(2), 33 U.S.C. 1314(b)2) 2. eee 3

$304(b)(4), 33 U.S.C. (Supp. V) 1314(b)(4)......... 4

$304(f)(1), 33 U.S.C. IST4(ID). cee 3

$306(b), 33 U.S.C. 13IG(D). 6. cece 13

$306(b)1)(B), 33 U.S.C. 1316(bM IMB) ............ 17

§307(a), 33 U.S.C. (Supp V) 1317fa) .............. 19

$307(aX(1), 33 U.S.C. (Supp V) 1317(ayl) ......... 6

$307(b), 33 U.S.C. (& Supp. V) 1317(b) ........ passim

§$307(b\ 1), 33 U.S.C. 1317(DI) 0... ee ee 3,13,36

§$307(b)(2), 33 U.S.C. 1317(b)2) .. 22 eee. 15,1739

$307(b)(3), 33 U.S.C. 1317(b)3) .. 2. ee 13

$307(d), 33 U.S.C. ISITE)... cece 13

i, i ccc nccedesteoectevceses eves 39

$501(a), 33 U.S.C. 1361a) 2... cece 18

§$50%b\1), 33 U.S.C. 13690DT) 0. cece ees 36,40

REGULATION:

Se EEE 6 Cob ccdcccesvocccéiccescoucess passim

ADMINISTRATIVE ACTIONS:

38 Fed. Reg. 30982 (1973) ........... ccc cece eee 28

39 Fed. Reg. 4034 (1974) .... 0... cc cen 28

39 Fed. Reg. 5704 (1974) ... 0.0... ccc ccc cee 28

3D Fed. Reg. S712 (1974) 2... ccc cece ccc eceess 28,29

39 Fed. Reg. 6590 (1974) 2... 0. ccc cece 29

3D Fed. Reg. 7526 (1974) .. 0... cc ccc ccc cccccccss 29

39 Fed. Reg. 7894 (1974) .... 0... ccc ccc cence 29

39 Fed. Reg. 9612 (1974) .... 2... 6c 29

39 Fed. Reg. 10512 (1974) ... 2... 6. 6c cen 29

39 Fed. Reg. 10862 (1974) ... 2... 00. 29

39 Fed. Reg. 11510 (1974) .... 0.0... ccc 29

39 Fed. Reg. 12502 (1974) ............. cece cuees 29

39 Fed. Reg. 13370 (1974) ... 0... 0. cc cece 29

39 Fed. Reg. 14676 (1974) .... 0.0... ccc ccc 29

39 Fed. Reg. 16578 (1974) ..... 0.00.00... ccc een. 29

39 Fed. Reg. 18594 (1974) 2.0... ccc ce 29

39 Fed. Reg. 18742 (1974) ... 2.0... ccc cnn 29

39 Fed. Reg. 24114 (1974) .......... 00.06. cece, 29,38

39 Fed. Reg. 24736 (1974) ... 0... 6. ccc cece 29

40 Fed. Reg. 4582 (1975) ... 0... 6 ccc 29

40 Fed. Reg. 6432 (1975) 2... 6c cece 28

40 Fed. Reg. 55770 (1975) .... 2.0... ccc ccc cee 28,29

41 Fed. Reg. 16272 (1976) ......... 6.060. c cece 28,29

41 Fed. Reg. 53930 (1976)... 2.0... ccc cee 28,29

42 Fed. Reg. 6476 (1977) .......... 0. ccc cece enue 30

42 Fed. Reg. 15684 (1977) .... 22... 6. cece 28

42 Fed. Reg. 15690 (1977) .. 2.0... cc cece 28

42 Fed. Reg. 15696 (1977) .... 2.0... occ cece 28

42 Fed. Reg. 26979 (1977) ... 2.0... ccc ccc cue 28

42 Fed. Reg. 35834 (1977) ... 0... ccc 28

42 Fed. Reg. 37294 (1977) .......... ccc cece eee 28

43 Fed. Reg. 27736 (1978) ........ 6.6... cc cece 6,30

43 Fed. Reg. 37078 (1978) .... 22.0... ccc ccna 30

44 Fed. Reg. 32854 (1979) ... 22... cece 6,30

46 Fed. Reg. 9404 (1981) 2... 0... cc ccc 6

48 Fed. Reg. 49126 (1983) ... 2.0... cece 40)

48 Fed. Reg. 49408 (1983) .. 2.0... 6 ccc cue 40

48 Fed. Reg. 49808 (1983) .... 0.0... cc ccc cca 40

48 Fed. Reg. 52380 (1983) .... 0... 0c ccc cee 40

48 Fed

49 Fed

. Reg. 55690 (1983) ............. 6. cee eee, 40

SED cccccescccesocevescosese 40

ED «cccoccccccececeeccccese 40

. Reg. 8742 (1984) . 0... cece 40

PRED cccccucececccccececocece 40

. Reg. 26352 (1984) 2.0... ccc cen 40

LEGISLATIVE MATERIALS:

A Legislative History of the Water Pollution Control

Act Amendments of 1972, Cong. Research Service,

Comm

. Print No. 1, 93d Cong., Ist Sess. (1973) . passim

Implementation of the Federal Water Pollution Control

Act, Hearings Before the Subcomm. on Investigations

and Review of the House Comm. on Public Works

and Transportation, 94th Cong., 2d Sess. (1976)... 41

Cong.

Cong.,

A Legislative History of the Clean Water Act of 1977,

Research Service, Comm. Print No. 14, 95th

2nd Sess. (1978). ......... 6. ccc eeeeeee passim

Possible Amendments to the Federal Water Pollution

Control Act, Hearings Before the Subcomm. on Water

Resources of the House Comm. on Public Works and

Transportation, 98th Cong., Ist Sess. (1983). ... 25, 26,42

MISCELLANEOUS:

Webster's Third New International Dictionary (1976) 15

In THE

Supreme Court of the United States

OcToBER TERM, 1983

No. 83-1013

CHEMICAL MANUFACTURERS ASSOCIATION, ef ai...

Petitioners.

Vv.

NATURAL ResourRCcES DEFENSE COUNCIL, INC..

Respondent.

No. 83-1373

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner.

Vv.

NATURAL Resources DEFENSE COUNCIL, INC.,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Third Circuit

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A96)'

is reported at 719 F.2d 624.

‘Pet. App.” refers to the appendix to the petition in No. 83-1013.

“Br. in Opp. App.”’ refers to the appendix to the brief in opposition to the

STATUTES AND REGULATION INVOLVED

Pertinent provisions of the Clean Water Act, 33 U.S.C.

(& Supp. V) 1251 ef seg., are set forth in Pet. App. All6-

Al2l or the Appendix to this brief. The ‘fundamentally

differemt factors’ (FDF) variance provision, 40 C.F .R. 403.13,

is reproduced at Pet. App. Al22-A127.

STATEMENT OF THE CASE

The Clean Water Act, 33 U.S.C. (& Supp. V) 125i er

seq.. directs EPA to control two types of industrial polluters:

(1) “direct” dischargers, which dump their waste water

directly into navigable waters, and (2) ‘indirect’ dischargers,

which dump their waste water into municipal sewage treatment

plants which, in turn, discharge to navigable waters.

When the law was first enacted, Congress required direct

dischargers to meet two progressively more stringent tech-

nology-based requirements: “‘best practicable conirol tech-

nology currently available’’ (BPT) by July |, 1977, and “best

available technology economically achievable’ (BAT) by July

1, 1983 (later amended to July 1, 1984). 33 U.S.C. (& Supp.

V) 1311bM TMA) and (bX 2A) and (C). Indirect dischargers

had no more than three years from the date of promulgation

to meet “pretreatment standards’ designed to prevent dis-

charge. of pollutants which harmed the environment or the

sewage treatment plant. 33 U.S.C. (& Supp. V) 131 1b 1A)

and (2A) and 1317(b). Pretreatment standards, too, were

technology -based.’

BPT. BAT, and pretreatment were each integral to the

overall scheme to clean up the nation’s waters, but the

pretreatment standards were especially important. Because

municipal sewage plants are ordinarily not designed to treat

industrial waste water, the pretreatment standards served a

dual function. Like BPT and BAT limits, they prevented

untreated or inadequately treated industnal wastes from en-

> The Act did not mitially tell EPA how to set pretreatment standards.

EPA adopted a technology-based approach to pretreatment in response to

a lawsuit filed by NRDC. Congress later ratified this approach. See

discussion, p. S$. infra.

tering waterways and drinking water supplies. In addition,

unlike BPT or BAT .imits, they protected the nation’s multi-

billion dollar investment in municipal sewage treatment plants.

A Legislative History of the Water Pollution Control Act

Amendments of 1972, Cong. Research Service, Comm. Print

No. 1, 93rd Cong., Ist Sess. 800, 1479 (1973)[hereinafter cited

as 1972 Legis. Hist.).

Louisville, Kentucky where the sewer system exploded from

industrial contaminants, according to EPA. Transcript of Oral

Argument in Court of Appeals at 271. The pretreatment

standards also were supposed to prevent toxic industrial

which, if laden with toxics, limits a municipality to expensive

or environmentally troublesome sludge disposal options. A

Legislative History of the Clean Water Act of 1977, Cong.

Research Service, Comm. Print No. 14, 95th Cong., 2nd Sess.

690 (1978) [hereinafter cited as 1977 Legis. Hist.|. Kokomo,

Indiana illustrates the point; that city’s sludge became so

toxic with electroplating wastes that the state, according to

EPA, declared the sludge a hazardous waste. Transcript of

Oral Argument in Court of Appeals at 271. Thus, Congress

put EPA on an even faster schedule for setting pretreatment

than for BPT and BAT requirements.’ It told EPA to use the

pretreatment standards ‘‘to prevent, to the maximum extent

feasible, the industrial pollutants from entering the [municipal

sewage treatment] plant in the first place."’ 1977 Legis. Hist.,

supra, at 690.

From 1972 to 1977, EPA issued a series of BPT, BAT,

and pretreatment requirements. Most of its BPT limits in-

cluded a provision authorizing variances for those sources

’ For example, Congress gave EPA one year to issue guidelines for

developing BPT and BAT, but only 120 days to do so for pretreatment. In

addition, EPA had only 180 days from enactment to propose, and 90 more

days to publish, pretreatment standards. Cf. Section 304(bx 1) and (2), 33

U.S.C. 1314061) and (2), with Sections 304(f\ 1) and 307(bM1), 33 U.S.C.

13140fK 1) and 1317(bK 1).

which were ‘‘fundamentally different’ (in terms of the factors

relevant to BPT) from the sources in EPA’s data base. The

pretreatment and BAT limits did not include such a variance.

EPA’s initial round of standard-setting led to substantial

litigation. The technological issues were, indeed, complex,

but EPA by its own admission failed to devote adequate

resources to the task and lacked a reservoiw of industry-

onented expertise in its infant regulatory program. /d. at 1463.

The result, in the eves of Congressional investigating staff,

was “uneven performance.” /d. at 335,

In addition, significant questions of statutory imterpreta-

tion arose. This Court resolved one such issue, upholding

EPA’s authority to issue industry-wide regulations for BPT

and BAT against an industry challenge in FJ. duPont de

Nemours & Co. v. Train, 490 U.S. 112 (1977). DuPont held

that Congress clearly contemplated national rules for BAT,

which, by its terms, applied to “categories and classes” of

sources. DuPont also held that the law authorized national

regulations for BPT. even though the statute, which spoke of

individual “point sources” rather than categories and classes

of sources, was not as clear on this point. The Court, however,

held that the “fundamentally different factors” or “FDF"

variance clause in EPA‘’s BPT rules made the rules sufficiently

flexitle for individual point sources. /d. at 126-128. DuPont

did not address variances from the Act's BAT or pretreatment

requirements, it did. however, hold that EPA could not create

vanances which were not authorized by statute from the Act's

new source standards. /d. at 137-139.

in 1977. shortly after duPont, Congress took stock of the

law. It found that progress in controlling conventional pollut-

ants, the principal targets of BPT requirements, had been

greater than anticipated, notwithstanding the challenges to

EPA's regulations. 1977 Legis. Hist.. supra, at 330. lt therefore

eased future control requirements for conventional pollutants.‘

*In Sechons Wivbw WE) and MM4ibw4) of the Act. 33 U.S.C. (Supp.

V) 13) bebe 24E) and 13140b4). Congress created a new technology-based

requirement. best conventional pollution control technology This new

requirement would be at least equal to BPT but possibly not as stringent

as BAT. 197° Legis Hist. supra. at 42°48

At the same time, Congress conceded that the principal

regulatory mechanism for control of toxics had failed. 1977

Legis. Hist., supra, at 326-327. Alarmed by mounting evidence

of the seriousness and ubiquity of these pollutants, Congress

ordered a “‘major redirection and refinement’’ of EPA's

regulatory program to focus control on toxics. /d. at 326-327,

454-455, 862-865. Firs . Congress elevated the importance of

pretreatment and BAT requirements. It directed EPA to use

these requirements to control toxics, essentially codifying a

settlement agreement’ formulated by NRDC and EPA. /d. at

455. This agreement required EPA to upgrade BAT, pretreat-

ment, and new source standards to include specific limits on

65 toxic compounds in 21 industrial categories. /d. at 336.

Second, Congress enacted several amendments strength-

ening the pretreatment program .° It reaffirmed the technology-

forcing aspects of pretreatment standards, repeatedly empha-

sizing that these standards should reflect technology compa-

rable to BAT for direct dischargers. /d. at 271. 342, 403, 461,

690

Finally, Congress defined when, and under what condi-

tions, sources could obtain variances from BAT and pretreat-

ment requirements. It cut back on the economic capability

variance in the 1972 law, eliminating its use for toxic pollut-

ants.’ It created a new “safety valve"’ to give flexibility to

BAT limitations, again prohibiting its use for toxics." It did

not create any variances from pretreatment standards, but it

did allow indirect dischargers to get a ‘‘credit’’ for removal

occurring at the m’ ticipal sewage treatment plant, in effect

splitting the pollution control between the indirect discharger

*NRDC vy. Train, 8 Env't. Rep. Cas. (BNA) 2120 (D.D.C. 1976),

modified sub nom. NRDC v. Costle, 12 Env't. Rep. Cas. (BNA) 1833

(D.D.C. 1979), modified sub nom. NRDC v. Gorsuch, Nos. 2153-73, et al.

(D.D.C. Oct. 26, 1982), modified sub nom. NRDC v. Ruckelshaus, Nos.

2153-73, et al. (D.D.C. Aug. 2, 1983 and Jan. 6, 1984).

* E.g., Congress gave EPA direct enforcement authority against non-

complying indirect dischargers and enhanced the ability of pretreatment

standards to protect sludge quality. 1977 Legis. Hist., supra, at 690.

” Section Wiic), 33 U.S.C. 131 Mc); 1977 Legis. Hist.. supra, at 328.

oe Wiig), 33 U.S.C. (Supp. V) 131 1(g); 1977 Legis. Hist., supra.

a6 .

and the sewage treatment plant.’ Simultaneously, it enacted

Section 31(/), 33 U.S.C. (Supp. V) 13110), which said: **The

Administrator may not modify any requirement of this section

as it applies to any [toxic] pollutant ***."’'’ It stressed that

EPA could only grant variances for non-toxic pollutants, and

urged: EPA to err on the side of caution in applying this

mandate .''

Six months later, EPA issued pretreatment regulations

which, unlike its pre-1977 pretreatment standards, contained

an FDF variance provision covering all pollutants, including

toxics. 40 C.F.R. 403.1 Pet. App. Al22)." EPA explained

that this variance could be used for information which *‘will

not be available or, for other reasons, will not be considered”

during standard-setting. 40 C.F.R. 403.1%(b). Neither the rule

nor the accompanying preamble made any reference to Section

W1(/). NRDC promptly challenged the variance.

One year later, EPA issued BAT rules which, for the

first time, contained a similar variance provision. 44 Fed.

Reg. 32854, 32893-32894 (June 7, 1979). Again, EPA made no

mention of Section 301(/). Again, NRDC sued. This suit is

still pending in the D.C. Circuit."

NRDC raised two arguments below. First, it contended

that all FDF variances from pretreatment standards were

illegal; they were not authorized by statute any more than the

new source variance invalidated in duPont. Second, NRDC

* Section 307(b), 33 U.S.C. (Supp. V) 1317(b); 1977 Legis. Hist.. supra.

at 271-272.

" Congress listed the toxic pollutants covered by Section W1i/),

mecorporating the list developed by NRDC and EPA in the Consent Decree.

n. 5, supra. EPA had authority to revise the list. Section W7(aX1), 33

U.S.C. (Supp. V) 1317(ant).

" E.g., “{T)he bill prohibits variances for [toxic] pollutants ***. The

committee's intent 1s to prohibit both those pollutants knov. a to be toxic

or hazardous and those suspected of being toxic or hazardous.’’ 1977 Legis.

Hist., supra, at 677.

" EPA issued the variance on June 26, 1978, 43 Fed. Reg. 27736-27773,

and amended it on January 28, 1981, 46 Fed. Reg. 9404-9460. The 1978

regulations differed in several respects which are not relevant here.

" NRDC. et al. v. FPA, Nos. 80-1607, ef al.

argued that FDF variances from pretreatment standards for

toxics violated the newly-enacted Section W1(/).

The Third Circuit declined to address the broader question

raised by NRDC's first argument.'* Instead, it held that EPA’s

FDF variance clause violated Section 301(/). (Pet. App. A36-

A43).

SUMMARY OF ARGUMENT

The question before this Court is whether the Third

Circuit correctly held that Section 301(/) of the Clean Water

Act prohibits EPA from granting variances from national

pretreatment standards for toxic pollutants. To resolve this

decide a broader issue: whether EPA may grant variances

from pretreatment standards so long as the variances do not

involve toxics [and, hence, do not violate Section 301(/)). The

broader issue is not properly presented to this Court because

the court of appeals did not reach it.

This case, therefore, does not require this Court to review

its decision ir duPont. The question before the Third Circuit

was whether Section 301(/), enacted after duPont, prohibits

FDF variances from pretreatment standards for toxic pollut-

ants. This turns on the meaning of Section 301(/), something

duPont could not address. Therefore, it is not surprising that

the Third Circuit's decision does not even address duPont in

its discussion of Section 301(/). (Pet. App. A40-A43). Hence,

petitioners’ reliance on duPont is misplaced.

The Third Circuit held that Section 301(/) of the Clean

Water Act clearly prohibits variances from pretreatment

standards for toxic pollutants. Because EPA's FDF variance

allows case-by-case modifications to these very standards,

the Third Circuit ruled that EPA's variance flies in the face

of Section 301(/).

“ The Third Circuit found it unnecessary to reach this question because

it found that EPA had only issued pretreatment standards for toxic

pollutants.

Neither petitioner offers a convincing reason for ignoring

the statute's plain language. CMA says that the PDF variance

is not really a “variance.” even though it relaxes uniform.

national pollution control requirements for individual sources.

CMA’s argument distorts the common understanding of the

term “variance. EPA takes a different tack. EPA says that

the statute ‘s not clear at all, because if Section W1(/) is held

to prohibit modifications of pollution control requirements.

then it must also be read to prohibit EPA from upgrading

standards to reflect new developments in technology. This.

says EPA, is so absurd a result that EPA is free to develop

its own construction of the statute.

EPA's argument fails on two counts. First, the statute—

and the legislative ‘istory—make it clear that Congress ad-

dressed Section ¥)1(/) to vanances, not periodic improvements

im the standards. Thus EPA cannot allow an individual source

to get by with less stringent pollution control requirements

than others im the same industrial class. It can, however.

revise the requirements for all.

Second. EPA's construction of the statute does not square

with the Act itself. Section 301(/) broadly bans all variances

for toxics. EPA cannot narrow its scope to only certain

variances |i.¢.. economic or water quality variances] so that

EPA is free to create other variances of its own choosing.

Congress wanted a comprehensive ban on variances for toxics:

it deliberately restructured Section 301 so that the toxics ban

in subsection (/) would cover all Section 301 requirements.

not just Sections 301l(c) and (g) as EPA maintains.

The legislative history confirms that Congress intended

to ban all variances for toxic pollutants. There is no legislative

history to support EPA's view that Congress banned only

certain types of variances. leaving EPA free to create others.

EPA. in effect. says that because Congress did not

mention FDF variances, Congress approved them despite

Section 301(/). EPA's argument is absurd. Congress's primary

goal in the 1977 amendments was strict control of toxics.

Recognizing that variances could negate the plain thrust of

the amendments, Congress carefully circumscribed EPA's

authority to grant variances.

It defies common sense—and ordinary principles of sta-

tutory construction, see, ¢.¢., TVA v. Hill, 437 U.S. 153

(1978}—to believe that Congress simultancously gave EPA

broad authority to create its own variances. Nor did duPont

give EPA such authority. Thus, EPA's se -h for Congres-

sional intent to reverse duPont is misguide:

More important, EPA had a well-defined practice in 1977

of restricting FDF variances to BPT limits. EPA did not

include FDF variances in its pretreatment or BAT standards.

if, as EPA maintains, Congress's silence affirmed agency

practice, then Congress ratified the absence, not the presence,

of FDF variances from pretreatment standards.

IV.

FDF variances for toxic pretreatment standards are not

permissible or reasonable. They allow individual sources to

escape otherwise applicable national standards, contrary to

Congress's intent. It does not matter that EPA tries to restrict

the scope of the variance to a reexamination of the statutory

factors behind BAT. The statute has its own vehicle for

applying BAT factors to individual sources: Section 301(c).

Since Section 301(c) variances are not available for toxics,

An FDF variance cannot be passed off as mere subcat-

egorization or revision of a rule. EPA designed the FDF

variance for use by a single source ‘within *** a subcategory.”

40 C.F.R. 403.13(b)Pet. App. A122). FDF variances thus

defy Congress's instruction to avoid single plant evaluations

in the technology-forcing context of BAT and pretreatment

standards. In addition, FDF variances take close to a year or

more to resolve. They interfere with the Act's strict comphli-

ance deadlines for pretreatment in a way that subcategonza-

tion during a rulemaking does not. Finally, the FDF variance

is, procedura'iy, a Rube Goldberg contraption. It wastes

EPA's scarce resources and delays compliance with the law.

Standard rulemaking (or rule-revising) procedures are simple

by comparison.

There are no convincing policy justifications for an FDF

variance from pretreatment standards. The variance is not a

necessary aspect of pretreatment standards development. It

may have served, in a few past cases, to cover agency

rulemaking mistakes on BPT limits. But the technology-based

regulatory program is long past its infancy. It now has more

industry-oriented expertise and more rulemaking experience.

It makes no sense for a mature regulatory program to fail to

consider information submitted in a rulemaking. Indeed, by

doing so, EPA runs the risk that its rules will be overturned

in court. It also makes no sense, as a matter of policy, to

reward sources which withhold relevant information during a

rulemaking with an additional opportunity for relief from

otherwise applicable standards.

There are sound policy reasons for prohibiting FDF

variances from toxic pretreatment standards. Focusing on

atypical plants during the rulemaking could generate infor-

mation which enhances the technology-forcing nature of the

pretreatment standards for an entire industrial class. It will

use agency resources more efficiently. It will avoid prolonged

uncertainty over pollution control obligations for some plants.

It will prevent unqualified applicants from using the variance

process to buy time. And it will avoid the competitive

inequities inherent in a phased approach to standard-setting

within the same industrial category. Thus, the Third Circuit's

decision will facilitate, rather than disrupt, implementation of

the Act.

ARGUMENT

1. This case turns on the meaning of Section 301(/) of the Clean

Water Act.

The question before this Court is whether the Third

Circuit correctly held that Section 301(/) of the Clean Water

Act prohibits EPA from granting FDF variances from national

pretreatment standards for toxic pollutants. The Third Circuit

began with an analysis of Section 301(/). It found that Section

301(/) was clear, that it prohibited any varie zes from toxic

pretreatment standards, and that this prohibition was fully in

accord with the thrust of the 1977 amendments to the law. It

also found no convincing policy grounds to differentiate FDF

variances from other variances indisputably prohibited by

Section 301(/). Thus, the Third Circuit ruled that the FDF

variance for toxic pretreatment standards violated Section

Wi). (Pet. App. A40—A43).

EPA therefore invites this Court to begin its analysis with

something other than the plain words of the statute. Neither

the Clean Water Act nor its legislative history mention the

FDF variance, so EPA retreats to duPont and EPA v. National

Crushed Stone Ass'n., 449 U.S. 64, 72 (1980), which recog-

nized EPA's implicit authority to grant FDF variances from

BPT effluent limits.

Before duPont, EPA had ured the FDF variance only for

BPT limits. Its pretreatment and BAT standards did not

contain FDF variance clauses. The variance, however, proved

a convenient crutch for the standard-setters. In 1978, there-

fore, EPA added an FDF variance to the pretreatment program

for the first time. In 1979, it added the same variance to its

BAT standard-setting program. EPA now seeks justification

for its expanded use of the FDF variance in duPont. DuPont,

says EPA, prospectively sanctioned FDF variances from BAT

as well as BPT limits (and hence, by analogy, from pretreat-

ment standards too). EPA is wrong.

DuPont and National Crushed Stone Ass'n. were, indeed,

pivotal cases. They cleared the way for the first phase of

EPA's regulatory program. They allowed EPA to sidestep the

quagmire of case-by-case standard-setting with industry-wide

rules. In the words of one enthusiastic Member of Congress,

duPont especially ‘‘quashed any hopes these industries had

of getting around the law."’ 1977 Legis. Hist., supra, at 1318.

But neither case had the broad reach EPA now ascribes to

it.

DuPont tried to reconcile the Clean Water Act's appli-

cation of BPT to “‘point sources’ with the overall statutory

scheme which applies BAT (and pretreatment and new source

standards) to ‘categories and classes"’ of sources. The Court

concluded that BPT, like BAT, could be set by industry-wide

regulations ‘‘so long as some allowance is made for variations

in individual plants, as EPA has done by including a variance

clause in its /977 |i.e., BPT) limitations.’’ 430 U.S. at 128

(emphasis added). In short, duPont held that the FDF variance

was a ‘necessary aspect’’ of BPT limits. National Crushed

Stone Ass'n., supra, 449 U.S. at 72. DuPont also implicitly

found that an FDF variance was not a necessary aspect of

BAT limits because it upheld BAT rules which did not contain

an FDF variance clause."

Congress may have been ambiguous in its instructions to

EPA with respect to BPT, but it was explicit regarding BAT.

Congress created its own BAT variance in Section 301(c) of

the Act, 33 U.S.C. 1311(c), and deemed this the sole deviation

from otherwise uniform, national standards:

Except as provided in section 301(c) of this Act, the

intent of the Conferees is that effluent limitations

applicable to individual point sources within a given

category or class be as uniform as possible. The

Administrator is expected to be precise in his guide-

lines *** so as to assure that similar point sources

with similar characteristics, regardless of their lo-

cation or the.nature of the water into which the

discharge. is made, will meet similar effluent limita-

tions. °

1972 Legis. Hist., supra, at 309 (emphasis added).

EPA seizes duPont's statement that there is no ‘‘radical

difference in the mechanism used to impose limitations for

the [BPT] and [BAT] deadlines."* 430 U.S. at 127. EPA takes

the statement out of context. As this Court explained: **[N]o

proper inference could be drawn from duPont that the grounds

for issuing variances from the [BAT] limitations should also

be the grounds for permitting individual point sources to

depart from [BPT] standards. Indeed, our opinion recognized

that 301(c) was designed for BAT limitations.’ National

Crushed Stone Ass'n., 449 U.S. at 73, n.13 (citation omitted).

Just because variances niay be granted from BPT limits on

grounds that a source is ‘‘fundamentally different’’ from others

in the category does not mean that the same arguments entitle

" As the Court explained, “The regulations for each subcategory

contain a variance clause applicable only to the [BPT] limitations’ 430

U.S. at 122-123 (emphasis added).

a source to a variance from BAT or pretreatment standards.

(See discussion, pp. 33-35, infra).

Indeed, duPont struck down nonstatutory variances for

new source standards for reasons equally applicable to »e-

treatment standards. Both pretreatment and new source stan-

dards cover categories of sources, rather than individual point

sources. Cf. §307(b\(3), 33 U.S.C. 1317(b)(3) with $306(b), 33

U.S.C. 1316(b). Pretreatment, unlike BPT limits, are expressly

labelled *‘standards"’ in the Act. /d. Pretreatment, like new

source, standards may require ‘‘no discharge.’’'* As with new

source standards, it is ‘‘unlawful for amy owner or operator

of any source to operate any source in violation of" a

pretreatment standard. Section 307(d), 33 U.S.C. 1317(d)

(emphasis added). Finally, there is no statutory provision for

variances,'’ and a variance provision would be inappropriate

because Congress intended pretreatment, like new source

standards, to ensure national uniformity and maximum feasible

control. See generally 430 U.S. at 138."* Thus, duPont does

* Section 307(b\ 1), 33 U.S.C. 1317(b)(1), specifies that a pretreatment

standard must “prevent the discharge of any pollutant *** which ***

interferes with, passes through, or otherwise is incompatible with [the

publicly owned treatment works]."’ (emphasis added).

'7 Sources may be able to get a ‘‘credit’’ for pollutant removal occurring

at the publicly owned treatment works, §307(b)(1), 33 U.S.C. (Supp. V)

1317(b\M 1), but there are no exceptions to the level of control demanded by

the standards.

" EPA takcs issue with duPont's distinction between new source

standards and BPT limits. EPA asserts that BPT limits have, at times,

required ‘no discharge” just like new source standards, and that BPT

limits cannot be violated once they are incorporated in a permit either.

(EPA Br. 22, n.15). This misses the point. New source standards are not

interim measures like BPT. They force technology to the level of the best

possible performer. Pretreatment standards, like BAT, serve the same

function. 1977 Legis Hist., supra, at 271, 342, 403, 461, 690. As noted

earlier, pretreatment standards should ‘‘prevent. fo the maximum extent

feasible, the industrial pollutants from entering [the municipal sewage} plant

in the first place."’ /d. at 690 (emphasis added).

CMA, on the other hand, argues that new sources are distinguishable

from existing indirect dischargers on policy grounds. New sources have

not yet been constructed, says CMA, so uniform standards will not require

changes in technology, operation or processes for these plants. (CMA Br.

(fvotnote continues)

not give EPA broad authority to create variances from

pretreatment or BAT standards. More important, duPont does

not address Section 301(/), which was enacted after duPont.

The question here, however, is the meaning of Section 301(i).

DuPont has no bearing on this issue. Hence, petitioners’

reliance on duPont is misplaced.

2. Section 301(/) of the Clean Water Act clearly prohibits FDF

variances from pretreatment standards for toxic pollutants.

The essence of the Third Circuit's ruling is that Section

301(1) of the Clean Water Act is clear: it provides that EPA

“may not modify any requirement of [Section 301) as it applies

to”’ a toxic pollutant. Pretreatment standards are indisputably

requirements of Section 301. EPA’s FDF variance would

nonetheless have allowed EPA ‘‘on a case-by-case basis" to

‘‘adjust"’ pretreatment standards, making them less stringent

for some plants.'? The court of appeals correctly ruled that

these changes *‘modify’’ pretreatment standards so as to fall

within the prohibition of Section 301(/). (Pet. App. A40-A43).

Below, petitioners were united in their theory of this

case. They now part ways. CMA argues that an FDF variance

is not a “‘variance”’ at all, but rather “‘an individualized BAT

limitation or standard, based on the application of the statutory

BAT factors to that plant."’ (CMA Br. 28). Hence, says CMA,

an FDF variance could not possibly *‘modify"’ a requirement

of Section 301. CMA engages in sophistry. Once EPA pro-

(footnote continued)

21, n.22). This argument is specious. New sources can be just as variable

in their processes as existing sources—or more so. Moreover. variability

for new sources is more difficult to anticipate in a rulemaking because the

companies which will be affected and the processes they will seek to

construct may not yet be identifiable. In any event, it is up to Congress to

decide whether variances from pretreatment and BAT standards for toxics

should be prohibited as they are for new sources. Arguments as to whether

Congress made the proper choice are irrelevant.

" 40 C.F.R. 403.1¢bMPet. App. Al22). The rules would also have

allowed EPA to make pretreatment standards “‘more stringent.” but this

addition 1s purely disingenuous. as all FDF variance applications for both

control limits.

mulgates a pretreatment standard, all sources in the affected

industrial category must comply with a uniform, national

standard unless they obtain an FDF variance. Whether the

FDF alteration is called a ‘‘variance™’ or an “‘individualiza-

tion,” it “‘modifies"’ otherwise applicable requirements. See

pp. 30-32, infra.

EPA initially agreed with CMA. Throughout this litiga-

tion—indeed, in its petition for certiorari—EPA argued that

an ‘‘FDF variance does not ‘modify’ a requirement of Section

301 ***."’ (EPA Pet. 13). Now EPA concedes that “‘on first

reading the statutory language appears to support the Third

Circuit's analysis *** and an FDF variance ‘modifies’ such a

[pretreatment] standard in the dictionary sense of the word,

i.e., it changes or alters it."" (EPA Br. 24).

Instead, EPA now advances a new justification for ig-

noring the plain language of Section 301(/). EPA fabricates a

conflict between Section 301(/)'s prohibition against *‘modi-

fying” toxic limits for particular sources and EPA's duty to

as control technology, processes, operating methods, or other

alternatives change."’ Section 307(b\(2), 33 U.S.C. 1317¢b).

(EPA Br. 25).

EPA's new theory is a red herring. It confuses variances

to-date."’ Webster's Third New International Dictionary 1944

(1976). **“Modify,"" on the other hand, has two senses. EPA

mentions one, i.¢e., ““change,"’ but omits mention of the other,

‘*make more temperate and less extreme: lessen the severity

of: moderate."” Jd. at 1452.

Congress used both senses of the word “‘modify”’ in the

Clean Water Act to mean simply any change, such as a change

in an industrial facility subject to the Act,” or a specific type

of change, i.e., a variance. It consistently used the latter sense

of the word throughout Section 301—indeed, it did so twenty-

* E.g., Section 208(bK2"C\ii), 33 U.S.C. 288(bK2"CKii), of the Act

requires that areawide waste treatment management plans regulate the

‘location, modification, or construction” of polluting facilities.

five times. Each time Congress employed the word “modify”

to create authority to vary pollution control requirements.

Each time, it allowed EPA to tailor national standards to

individual plants. Thus, a company could, under carefully

circumscribed conditions, obtain relief from Section 301 re-

quirements for economic reasons, Section 301(c), 33 U.S.C.

131 l(c); water quality reasons, Section 31g), 33 U.S.C.

(Supr V) 1311(g); or lack of a publicly owned treatment

works to accept the company's wastes, Section 301(i(2), 33

U.S.C. (Supp. V) 1311012). In addition, a publicly owned

treatment works could obtain a reduction of Section 30!

requirements for discharges to marine waters, Section 301(h).

33 U.S.C. (Supp. V) 1311th), or lack of federal construction

grant funds, Section 301(iK 1), 33 U.S.C. (Supp. V) 131101).

Congress plainly understood “‘modify"’ in Section 301 to

be synonymous with “‘variance:"’ it repeatedly equated the

words “modification” and ““waiver,’’*' and it called Section

Wiic) a “variance” Provision even though the language of

that section speaks solely of “modified” pollution control

requirements. 1977 Legis. Hist., supra, at 461.

Because the latter legislative history is so at odds with

EPA's position here, EPA tries to dismiss it as a “passing”

reference during floor debate. (EPA Br. 28). The speaker was,

however, Senator Muskie, Chairman of the Subcommittee on

Environmental Pollution and principal author of the 1977

amendinents on toxics. His words, entitled to considerable

weight on their own, are buttressed by the equation of the

two terms in the Senate Committee Report.” Indeed, EPA

changeably four times in its Senate testimony.*> This Court.

™ See. ¢.g.. the discussion of Section Wiic), 1977 Legis. Hist.. supra.

at 328-329, 331; Section Wiig). id. at 328-329, 331, 355, 641, 074-676, 866.

876; and Section With), id. at 320-321, 447-448, 639, 677-678, 859, 876. the

tively.

= Id. at 676-677. The Committee called the statutory 301(g) modification

provision a “variance.”

” EPA used the term “variance” to describe both the statutory Wiic)

modification provision, id. at 1102, 1124, and the statutory 301(h) modifi-

cation provision, id. at 1419. 1438.

too, has equated the two terms in construing the very section

of the Clean Water Act at issue here. In short, ° “modify” in

Section 301 means a ‘‘waiver™’ or ‘“variance’’ from pollution

control standards.

There is no conflict between a ban against variances and

the duty to revise national standards. There are, for example,

no variances from the Clean Water Act's new source per-

formance standards, duPont, 430 U.S. at 137-139, yet EPA

standards. Section 306(b)1)(B), 33 U.S.C. 1316(b 1B). This

Court has already ruled that ‘‘a variance is generally thought

to be of specific applicability," whereas a revision may be

general or specific depending on the circumstances. Train v.

NRDC, 421 U.S. 60, 88-89 (1975). The instruction to revise

pretreatment standards here was intended to avoid techro-

logical stagnation of national standards. It paraliels the lan-

guage Congress used to require EPA to update other nationally

applicable rules after either periodic review of the rule or new

developments in pollution control. Cf. Sections 301(d) (effluent

guidelines) and 306(b)( 1)(B) (new source standards), 33 U.S.C.

131 1d) and 1316(b) 1B), with Section 307(b\(2), 33 U.S.C.

1317(bK 2)".

EPA's obligations clear: EPA has a duty to develop the best

national pollution control standards possibie within the limits

of current scientific knowledge. It has a concomitant duty to

review these standards from time to time and update them to

reflect new developments in technology. It cannot, however,

plants, at least where toxics are concerned. This result may

be decidedly inconvenient to EPA, but it is neither absurd

nor unreasonable.

™* In National Crushed Stone Assn., thus Court referred to the statutory

Wiic) modification provision as a ‘‘variance."’ 449 US. at 71.

* Elsewhere in its bref, EPA acknowledges that revisions are more

broadly applicable than variances. See, ¢.¢.. EPA Br. 35, 0.26: “Clearly

*** this [revision] provision is intended to reflect periodic changes in the

industry ***."

Since the statute ts not ambiguous, EPA can't substitute

its own interpretation for the plain words of Section W1(/).

See SEC v. Sloan, 4% U.S. 103, 117-119 (1978). This is

particularly true where, as here, EPA's interpretation of the

statute does not square with the structure of the act itself,

See Volkswagenwerk v. FMC, 390 U.S. 261, 272-275

(1968 rejected narrow reading of statutory provision because

it did not square with the structure of the statute) Nothing

on the face of this statute authorizes EPA to read qualifying

language into the plain words of Section Wi(/P*. The statute

does not say, “The Administrator may not, pursuant to

subsections (c) and (g) of this section, modify any requirement

of this section ***;""*’ it simply says there can be no modifi-

cations of any sort.

This Court has repeatedly held that an agency can neither

enlarge upon, nor narrow, the terms of a statute. VolAswa-

genwerk, 390 U.S. at 273-275; United States v. Calamaro,

354 U.S. 351 (1957). Just because the act uses the word

“modification” in Sections l(c) and (g) does not mean that

EPA can construe Section 301(/) to apply only to modifications

under subsections (c) and (g). This construction of the statute

would make Section 301(/) largely redundant—at least insofar

as it applies to subsection (g), which, by its terms, cannot be

applied to toxics.”

* CMA contends that the general rulemaking authority contained in

Section SOlia) of the Act, 33 U.S.C. 136l(a), constitutes independent

Statutory authority for the FDF vanance. a claim that EPA itself does not

advance. (CMA Br. 23). Section SOl(a) authorizes the Administrator of

EPA to ° ‘prescribe such regulations as are necessary to carry out his

functions under this Act." Citation to Section SOl(a) adds nothing to this

case. This general grant of authority does not overnde the specific prohibition

of Section W1i/). Moreover, the FDF variance may be an administrative

convenience to EPA in the short run, but it is not “necessary” to

development of pretreatment standards. See discussion, pp. 37-39. infra.

” Section Wiic), 33 U.S.C. 131K), allows BAT standards to be

modified if they surpass the economic capability of the discharger. Section

Wiig). 33 U.S.C. (Supp. V) 1311(g), allows similar modifications to BAT

standards where water quality warrants. EPA contends here that Section

WI) apples only to subsections (c) and (g) of Section 301.

* Section Wig) allows the Administrator to modify standards govern-

ing the discharge of any pollutant ‘‘other than *** toxic pollutants.”’

In addition, if Congress intended subsection (/) to apply

primarily to subsection (c), it would have had no reason to

move the ban against variances for toxics oui of Section

Wiic) and into a separate, more broad-reaching statutory

section. Yet this is precisely what the conferees did. S. 1952,

the bill reported out of the Senate Environment and Public

Works Committee, added a proviso to the original economic

variance provision in Section 301(c) in order to ban variances

for BAT and pretreatment standards.” This provision passed

the Senate intact. 1977 Legis. Hist., supra, at 1076. The

conferees deleted the proviso from Section Wlic). Instead,

they added subsection (/) and reworded the ban on variances

so that it applied not only to pretreatment and BAT standards,

but to all requirements of Section 301, including any more

stringent toxic effluent standards.“

Significantly, the conferees did not affix the new subsec-

tion (/) to Sections 43 through 46 of the Conference bill, which

amended Section 301 of the law and were entitled **Waiver™’

or **Modification’’ provisions. 1977 Legis. Hist., supra, at 203-

207. Instead, they affixed subsection (/) to Section 53 of the

Conference bill, entitled *‘Toxic Pollutants.’ /d. at 210-211.

This section bypassed cumbersome rulemaking proceedings

and listed the specific toxic pollutants of concern to Congress.

It required each source of these pollutants to meet effluent

limitations reflecting best available technology, and gave the

Administrator authority to set even more stringent toxic

effluent standards (or an outright prohibition on discharge) if

warranted. It also made a series of other statutory changes,

all intended to enhance control of toxics. /d. at 459-460.

Congress's deliberate placement of Section 301(/) here, rather

than in portions of the bill amending Section 301(c) of the

* The proviso read: *‘{T)he Administrator may not modify the require-

ments of subsection (b 2) A) of this section [i.¢., the BAT and pretreatment

standards} with respect to any specific pollutant which the Administrator

is charged with a duty to regulate as a toxic or hazardous pollutant ***."’

“ The Administrator has discretion to set toxic effluent limits more

stringent than BAT if BAT is not effective against persistent, hazardous

toxics. Sections 301(bM2D)and 307(a), 33 U.S.C. (& Supp. V) 131 (bx 2D)

and 1317(a).

law. further evidences Congress's intent that subsection (/)

operate as a general ban on variances for toxics and not, as

EPA contends, as a mere refinement of the conditions for

obtaiming a Section Wiic) economic variance."

4. The legislative history of the Clean Water Act confirms that

Congress intended to ban all variances, including FDF

variances, from pretreatment standards for toxic pollutants.

Having decided that th language of Section WIU/) was

clear, the court of appeals properly examined the legislative

history to confirm its reading of the statute. United States v.

Culbert, 438 U.S. V1, 374, 2.4 C1978): Train v. Colorado

Public interest Research Group, 426 U.S. 1, 1001976). United

States ¥. Missourt Pacific Railroad Co. 278 U.S. 269, 278

(1929). The court found two overriding themes: first, the

elimination of the discharge of toxic pollutants had always

received special emphasis under the Act, increasingly so

during the 1977 amendments. (Pet. App. A40). Second, Con-

gress used the term “modification” interchangeably with

“waiver” and “‘vanance.”’ Since Section W1(/) forbids mod-

ications, the court reasoned, it forbids variances such as the

FDF vanance. (Pet. App. A41-A4}).

EPA counters with two arguments. First, says EPA,

Congress was primarily focusing on the statutory modifications

which Congress had authorized |/.¢. Sections Wiic) and (g)).

rather than on the FDF variance. Second, and in EPA‘s view

“more telling.” ts the absence of any express indication that

Congress intended to alter EPA's allegedly “well-established”

~ EPA does not address the implications of moving the ban on variances

for tous out of subsection ic) and into a separate subsection. CMA does.

but offers an explanation that 1s both meffectual and wholly unsupported

by citation to the legislative history. (CMA Br. 29-30). CMA hypothesizes

that Congress consolidated the ban in subsection (/) to avoid repeating it

in bot! subsections ic) and ig). If so. Congress's action was futile, because

subsection (g) stull contaims an express prohibition on vanances for toxics.

Moreover. CMA ignores the fact that Congress not only moved the ban. it

also amended the language so that subsection (/) now reaches beyond the

BAT standards addressed in subsection Wlic). This makes it even more

unhkely that Congress only had Section Wiic) in mind when it wrote

Section WIi/)

and “well-known” practice of “‘granting FDF variances.”

(EPA Br. 28). Neither argument withstands analysis.

EPA's first point, that Congress's focus lay elsewhere,

is simply a subterfuge for the lack of any legislative history

to demonstrate that Section WI(/) limits only Section Wiic).

EPA's case hinges on a single word in Congressman Roberts’

floor explanation of the conference bill:

Due to the nature of toxic pollutants. those identified

for regulation will not be subject to waivers from or

modification of the requirements prescribed under

this section, specifically, neither section WIic) warv-

ers based on the economic capability of the discharger

nor Wig) waivers based on water quality consid-

erations shall be available.

1977 Legis. Hist., supra, at 328-329 (emphasis added). This

alone proves nothing. Congressman Roberts had no reason

to list other examples of variances prohibited by section 301(/).

Congress did not believe other variances were authorized,

1972 Legis. Hist., supra, at 172, 309, and EPA had not yet

promulgated an FDF variance for either pretreatment or BAT

standards. (See discussion of EPA practice, p.28-29, infra).

In any event, the impetus for restricting variances came from

the Senate. and the conferees intended the more explicit

discussions in the Senate Report to govern. 1977 Legis Hist.,

supra, at 434.

The Senate Report plainly states: “In order to reem-

phasize that modifications to BAT are intended for non-toxic

*** pollutants” only, the bill prohibits variances for [toxic]

pollutants."” 1977 Legis. Hist., supra, at 677. Senator Muskie

reiterated this point during the debate on the conference

substitute: “Like toxic pollutants for which there are no

waivers or modifications, there are no potential waivers or

modifications for conventional pollutants.” /d. at 458 (em-

phasis added).

pollutants. but this was deleted in conference in favor of “best conventional

pollution control’ requirements. See n. 4, supra.

The House. which accepted the Senate language in

conference. understood the bill to contam a ban on waivers

for toxics. Mr. Roberts said:

Another major problem area was the law's strict

requirements for mdustry that would cost millions

of dollars and result only in a little more clean-up of

our waters. The conferees wrestled with this problem

and developed a fair and workable compromise.

Strict requirements are still in effect for damaging

pollutants, such as toxics. However, for certain other

pollutants, industry may get a waiver.

Id. at WS (emphasis added). Indeed. some House Members

wondered aloud whether Congress had. by denying any

waivers for toxics, gone too far: ““[T)he classification of an

extensive new listing of substances as ‘toxic’ —an action not

taken im either the House or Senate versions of the bill—and

denial of anv waiver with respect to these materials can lead

to new regulations more restrictive than any previously

contemplated." /d. at 411 (emphasis added). These repeated

assertions of no variances. waivers. or modifications for toxics

contain no qualifying language.

To create an exception for the FDF variance, EPA must

resort to inference. Even if this were a permissible way to

read either the statute or the legislative history—and we

submit it rs not—the inference here does not fit the direction

m which Congress sought to move the law. The 1977 amend-

ments effected a “major redirection’ of EPA’s regulatory

program in order to control toxics. Jd. at 326, 454. Congress

found “the only practical way” to solve this ubiquitous

problem was “‘on an industry-by-industry basis *** [by]

category or subcategory.” /d. at 455. Variances for individual

sources could only impede the effectiveness of this statutory

scheme.

Thus. the 1977 amendments plainly sought to curtail

EPA's authority to grant case-by-case variances from upcom-

ing pollution control requirements. For example, Congress

eliminated. at least for toxics, the only provision in the 1972

Act allowing modifications of BAT standards [i.e., the eco-

nomic capability waiver of Section 3Ol(c)}."’ At the same

time, Congress created only one new modification provision

for BAT, the water quality variance of Section 301(g). It

expressly precluded toxics from the reach of this variance

and, even with respect to other pollutants, imposed strict

conditions on its use, including possible filing of a bond or

other security to assure compliance.“ Finally, Congress re-

question [of] which changes are allowed and which are

proscribed."’ (EPA Br. 26). Indeed, EPA's assertion that

Section 301(/) must have been intended to rule out statutorily

created variances, not ‘‘nonstatutory’’ variances such as the

FDF violates a cardinal rule of statutory construction. Where

Congress has expressly created exceptions to a statute,

““nonstatutory’’ exceptions are not available. TVA v. Hill,

437 U.S. 153, 188 (1978).

EPA argues that the well-settled rule of law restated in

TVA v. Hill is “flatly inconsistent with duPont.”’ (EPA Br.

30). EPA misconstrues both cases. TVA addressed the ex-

“ The Senate wanted to extend this ban to nonconventional pollutants,

those in the gray area between toxics and conventionals, as well, but

abandoned this point in conference only ° ‘in order to obtain action on this

legislation."’ 1977 Legis. Hist., supra. at 429.

“ To qualify for a Section 301(g) variance, a source must show: |) that

it will comply, at a minimum, with any applicable BPT . secondary treatment.

state law, or water quality requirements, 2) that a variance for this source

will not result in any additional requirements for any other source; and 3)

that a variance will not adversely affect human health or the environment.

In addition, while its application is pending. the source must continue to

comply with the standards from which a variance is sought unless the

Administrator grants a stay after finding that there 1s a substantial likelihood

the application will succeed on the merits. If the Administrator so finds.

he may condition a stay on the filing of a bond or other security to assure

timely compliance in the event that the variance is denied. 33 U.S.C. (Supp.

V) 131 1g) and (j).

cepiions to a statutory rule, duPont wrestled with Congress's

silence on what the rule itself should be. DuPont was precip

tated by the Clean Water Act's failure to say whether APT

hts should be set nationally or case-by-case. The Act

appeared to warrant national standards akin to BAT and new

source standards, but it used different language to describe

the BPT limits. The BAT provisions focused on ‘categories

and classes” of sources; the BPT provisions spoke of indi

vidual “‘pount sources””. Dufont resolved the tension between

the amtiguous language of Section WH and the overall thrust

of the statute with a hybrid resolution of the issue. The Court

concluded that BPT, like BAT. can be set by industry-wide

regulations “so long as some allowance ts made for variations

m individual plants, as EPA has done by including a variance

clause im its [BPT] lmitations.”’ 440 US. at 128.

DuPont did not, as EPA claims, hold that nonstatutory

vananees are appropriate for either BAT of any other stan-

dards. To the contrary, the court struck down a nonstatutory

vanance for new source standards, id. at 147-199, and it

upheld EPA’s BAT limits even theugh they did not contain

an FDF vanance clause. /d. at 122-123. Hence duPont and

IVA are not inconsistent. Both cases underscore that EPA

May Not create exceptions to Section 401(/)'s ban on variances

from national pretreatment standards.

EPA nonetheless frames the question before this Court

as follows: did Congress intend to reverse duPont?” This

misses the mark. DuPont only approved FDF variances for

BPT limits. The BAT regulations then before the Court did

not contain an FDF variance clause. The Court appropriately

assumed that the only BAT variance was the economic

capability waiver under Section lic) of the Act. and it

lumited its discussion of BAT variances to Section Wl(c).

Congress did address this aspect of duPont in 1977: it

eluminated Section 301 variances for toxics. 1977 Legis. Hist.,

supra, at 328. Of course. Congress was fully cognizant of the

“ EPA cites Edmonds v. Compagnie Generale Transatlantique, 443

U.S. 256. 266-267 (1979) to no avail. The traditional admiralty rule at issue

there was both well-settled and well-known. In Edmonds. unlike here. there

could be no question that Congress acted with the rule in mind.

many arguments that would be put before reviewing courts

to find the BAT standards variable. That is why it created

Section WI(g) variances:

The bill intends to give the Administrator of EPA a

safety valve in the event that the courts find he does

not have flexibility in administering the 1983 [BAT]

requirements for industries. It authorizes a case-by-

case exemption for industries which demonstrate, to

the satisfaction of the Administrator, that pollutants

in their discharge are not toxic *** [and] will not

interfere with the attainment of the national water

quality standard ***.

Id. at 674 (emphasis added). But Section 301(g), like 301(c),

variances were not available for toxics. /d. The intent is clear:

Congress did not want EPA to vary toxic BAT and pretreat-

ment standards. It did not need to reverse duPont to accom-

plish this. DuPont is fully consistent with a ban on variances

for pretreatment and BAT standards.

EPA's final argument is that Congress, by its inaction,

ratified the agency-created FDF variance. This Court has,

pata previously ruled that silence is, at best, a “‘treach-

* guide to Congressional intent; Congress's inaction

may costainen nothing more than unawareness or preoccupation

with other issues. Zuber v. Allen, 396 U.S. 168, 185-186, n.

21 (1969).

This case, more than most, illustrates the wisdom of that

maxim. EPA cannot show that Congress was actually aware

of EPA's creation; to the contrary, EPA concedes that the

legislative history is ‘“devoid of any reference’ to the FDF

variance. (EPA Pet. 14). Instead, EPA argues that Congress

must have known, exaggerating how ‘‘well-entrenched”’ the

variance was in EPA practice. (EPA Br. 29). EPA’s argument

flouts the facts. Only two of 4,000 sources covered by BPT

effluent guidelines had actually received an FDF variance by

1977.* EPA did not deem the variance sufficiently noteworthy

* Hearings Before the Subcomm. on Water Resources of the House

Comm. on Public Works and Transportation, 98th Cong., Ist Sess. 2741

(1983) (hereimafter cited as 1983 Hearings}.

to mention in testimony to either the House, 1977 Legis.

Hist., supra, at 1399-1472, or the Senate, id. at 1093-1139."

True, EPA had regulations which, though largely not

invoked in practice. had at least theoretically established FDF

variances from BPT limits. But this Court has previously

ruled that the mere existence of agency regulations ts not a

sufficient basis from which to presume Congress's knowledge

of their content. United States v. Calamaro, 354 U.S. 4351

(1957). It has even refused to infer Congressional approval of

agency action in the face of express indications that Congress

knew of the action. 7VA v. Hill, 437 U.S. 153 (1978); SEC v.

Sloan, 436 U.S. 103, 121-123 (1978 Senate Committee Report

not sufficient indication of widespread Congressional aware-

ness). It does not necessarily follow that because EPA had

regulations, Congress knew of them.

Nor would duPont have warned Congress that it needed

to renounce FDF variances for BAT and pretreatment stan-

dards by name. First, duPont did not, as EPA claims, promi-

nently discuss FDF variances. (EPA Br. 29). As noted earlier,

duPont resolved the broader question of whether EPA could

even set industry-wide regulations under the Clean Watcr

Act. A few sentences in that opinion mention the existence

of a variance, but the Court otherwise declined to address its

content or proper scope. Congress focused on the case's

broad holding: as one Member said, it “quashed any hopes

these industries had of getting around the law.’ 1977 Legis.

Hist., supra, at 1318.

More important, while duPont discussed BPT and BAT

rules, it approved an FDF variance only for BPT. As noted

earlier, the rules reviewed in duPont contained an FDF

variance clause applicable only to the BPT rules. In 1977,

" By contrast, Congress was made aware of the FDF variance during

the current reauthorization of the Clean Water Act. EPA brought the issue

prominently to Congress's attention, asking the House Subcommittee on

Water Resources to reverse the Third Circuit's decision. 1983 Hearings at

2705-2706, 2724-2726, 2740-2741, 2747-2748. The House passed a bill which

declined to do so. H.R. 3282, 98th Cong., 2d Sess. (1984). The bill reported

out of the Senate Environment and Public Works Committee the day after

the Third Circuit's decision does not contain authority for FDF variances

either. S. 431, 98th Cong... Ist Sess. (1983).

however, Congress focused on BAT, not BPT. BPT was

merely an interim, “‘time-limited"’ measure before final pol-

lution controls. 1977 Legis. Hist., supra, at 459. BPT con-

trolled conventional pollutants, not toxics; any toxic removal

it obtained was purely incidental to its primary purpose. /d.

at 335, 1101. By 1977, most sources had complied with BPT,

id. at 641, and the pollution control results had been greater

than anticipated. /d. at 330. Therefore, in the reauthorization,

Congress's attention shifted sharply toward toxic pollutants

and the BAT and pretreatment requirements designed to

control them. Jd. at 335-336, 454-455, 689-691, 1135-1136.

Since Congress considered, and curtailed the circumstances

under which these requirements could be modified, it does

not make sense to assume that Congress, without mention,

wuuld have simultaneously authorized EPA to grant nonsta-

tutory variances for toxic pollutants.

EPA notes that BPT regulations sometimes apply to

toxics, citing the rules at issue in duPont and in an agency

decision granting an FDF variance to a steam electric plant.

(EPA Br. 30). EPA infers that if Congress had intended to

ban FDF variances for toxics, it would have criticized this

aspect of duPont. Nothing in duPont, however, suggests this

fact to Congress and the cited agency decision is unpublished.

This is a slim reed on which to rest an argument that Congress's

failure to act makes new law. Congress knew that BPT would

have “incidental benefits in control of toxics in some indus-

tres.’ EPA had told it so, but had also warned that “even

with BPT controls there will continue to be major discharges

of toxic pollutants, many of which are potential threats to

public health.”’ 1977 Legis. Hist., supra, at 1101. In BAT,

Congress committed to a second, major, and more stringent

phase of technology-based controls. /d. at 454-455. Its failure

to direct EPA to spend scarce resources wringing more out

of BPT for a few plants when BAT would shortly be on line

for all is not significant.

In any case. it defies logic to say, as EPA apparently

does, that because EPA had adopted an FDF variance for

one purpose (i.e.. for modifying BPT limits), Congress ac-

quiesced in the use of the variance for other purposes, such

as adjusting pretreatment or BAT standards. This Court has

already ruled that Congress will not be presumed to have

adopted an agency's construction of a statute when the

construction does not apply to the precise conditions passed

on prior to re-enactment. United States v. Missouri Pacific

Railroad Co., 278 U.S. 269, 279-280 (1929). See also T.1.M.E.

Inc. v. United States, 359 U.S. 464 (1959).

EPA had a well-established practice in 1977 of distin-

guishing in its regulations between BPT limits, on the one

hand, and pretreatment and BAT standards, on the other, for

Fed. Reg. 5704-5708 (Feb. 14, 1974) (feedlot); 39 Fed. Reg. 5712-5719

(footnote -ontinues)

Several early pretreatment and BAT rulemakings pre-

sented the very facts which EPA now uses to justify an FDF

variance (i.e., unique plants within a larger industrial cate-

gory). In each case, EPA resolved industry's concern without

resort to an FDF variance. It chose a variety of tools. In

some Cases, it created a new subcategory: in others, it told

sources to avail themselves of the economic variance con-

tained in section 301(c) of the Act.*' In still others, it empha-

sized that pretreatment and BAT standards (unlike BPT)

would be revised and encouraged sources to participate in

the revision.“ Throughout, EPA applied FDF variances only

to BPT limits.

(footnote continued)

(Feb. 14, 1974) (glass manufacturing); 39 Fed. Reg. 6590-6594 (Feb. 20.

1974) (cement manufacturing); 39 Fed. Reg. 7526-7533 (Feb. 26, 1974)

(asbestos manufacturing); 39 Fed. Reg. 7894-7906 (Feb. 28. 1974) (meat

products); 39 Fed. Reg. 9612-9635 (March 12, 1974) (inorganic chemical

manufacturing); 39 Fed. Reg. 10512-i0518 (March 20, 1974) (grain mills):

39 Fed. Reg. 10862-10868 (March 21. 1974) (canned and preserved fruits

and vegetables processing); 39 Fed. Reg. 11510-11514 (March 28, 1974)

(electroplating); 39 Fed. Reg. 12502-12522 (April 5, 1974) (plastics and

synthet'-s), *9 Feg. Reg. 13370-13393 (April 12, 1974) (soap and detergent

manufacturing), 39 Fed. Reg. 14676-14683 ( April 25. 1974) (orgamic chemical

manufacturers); 39 Fed. Ree. 16578-16581 (May 9. 1974) (builders paper

and roofing felt segment of th. builders paper and board mills category):

39 Fed. Reg. 18594-18609 (May 28, 1974) (dairy products processing); 39

Fed. Reg. 18742-18752 (May 29, 1974) (pulp. paper and paper board); 39

Fed. Red. 24114-24130 (June 28, 1974) (iron and steel manufacturing): 39

Fed. Reg. 24736-24748 (July 5, 1974) (textile industry); 40 Fed. Reg. 4582-

4607 (Jan. 30, 1975) (canned and preserved seafood processing): 40 Fed.

Reg. 55770-55801 (Dec. 1, 1975) (canned and preserved seafood processing):

41 Fed. Reg. 16272-16286 (Apr. 16, 1976) (canned and preserved fruits and

vegetable processing).

“ E.g., 99 Fed. Reg. 24736 (July 5, 1974).

“ E.g., 4 Fed. Reg. 55770, 55776 (Dec. 1, 1975).

“© E.g., EPA designated the timber p-oduct processing pretreatment

round of rulemaking: *‘[T}).cre may be sp2cific situations where the costs

may be underestimated. However, these cots are considered average. The

Agency solicits the submission of cost u:formation to support the contention

that the costs presented are too low."’ 41 Fed. Reg. 539350, 53933 (Dec. 9,

1976). See also 40 Fed. Reg. 55770, 55776 (Dec. 1, 1975).

In 1977, EPA rethought the matter and proposed to adopt

FDF variances for future pretreatment standards. 42 Fed.

Reg. 6476, 6497 (Feb. 2, 1977). It never notified Congress of

its potential change of heart, nor did it resolve the matter at

any time during 1977 when EPA's new policy could have been

brought to the attention of Congress.*’ Instead, EPA continued

to deliberate until mid-1978, when it first announced that it

EPA surely can’t argue that Congress ratified its proposed

rule, for this would amount to adopting an agency's thinking

before the agency had itself completed or committed to the

thought. Instead, EPA asks this Court to infer that Congress,

4. FDF variances for toxic pretreatment standards are not

reasonable given the purposes of the Clean Water Act.

a. Lacking a compelling legal argument, EPA turns to

policy, alleging first that an FDF variance serves a different

“ 43 Fed. Reg. 27736, 27757 (June 26, 1978).

“ 43 Fed. Reg. 37078, 37088, 37132 - 37134 (Aug. 21, 1978).

44 Fed. Reg. 32854, 32893 - 32894, 32950 - 32951 (June 7, 1979).

at all, but rather a part of the standard-setting process in

which EPA corrects prior errors. An FDF variance simply

sets a BAT or pretreatment standard for an individual plant,

says EPA, while a Section 301(c) variance excuses compliance

with a requirement applicable to the larger class of dischargers.

This is a distinction without a difference. In National

Crushed Stone Assn., 449 U.S. at 74, this Court found that a

Section 301(c) variance performs the precise role EPA ascribes

to an FDF variance: it ‘creates for a particular point source

a BAT standard that represents for it the same sort of economic

and technological commitment as the general BAT standard

creates for the class.""*’

Section 301(c) is a reexamination of BAT factors for an

individual source. It does not matter whether the reexami-

nation is triggered because an individual source is simply a

more marginal operation than others in the same industry or

because the factors that determine BAT (i.¢., raw waste load,

discharge volume, energy requirements, age, process config-

uration) at a single plant are sufficiently different that the cost

of achieving BAT-level performance is no longer affordable.

In either case, Congress said there could be no escape from

uniform BAT requirements for toxics because of inability to

pay for available controls. It would be ironic indeed for

Congress to have permitted the same result by reexamination

of the factors contributing to a source's economic difficulty.

Both FDF and Section 301(c) variances set either a new BAT

or pretreatment standard for a single source. Both excuse the

source from an otherwise applicable national standard. The

criteria for each variance: Section W1(c) asks whether a modification * ‘will

represent the maximum use of technology within the economic capability

of the owner or operator ***,”’ 33 U.S.C. 131 1c), while an PDF variance

addresses the statutory factors relevant to BPT. 449 U.S. at 78. This

distinction does not, however, invalidate the Court's statement that the

two variances serve the same purpose, it simply underscores the fact that

BPT and BAT limits differ. As this Court explained, the Section Wlic)

factors bear a substantial relationship to the considerations underlying

BAT: they would, however, be inapposite in the BPT context because they

would not apply the general requirements to an individual pot source. /d_

at 75.

two serve the identical function. It makes no sense to assume

that Congress prohibited one, and not the other, for toxics.

b. EPA next claims that an FDF variance is ‘substantively

indistinguishable"’ from either subcategorizing an industry

during the rulemaking or revising a final rule. (EPA Br. 35-

3%6). EPA mixes apples and oranges. Procedure aside, there

are two striking differences between establishing special

categories for a group of plants within a larger industrial

category before issuing a rule and granting individual plant

variances from a final standard. The first lies in the scope of

the decision; the second, in its timing.

EPA here characterizes the FDF variance as a standard

for either a plant or a group of plants (and thus akin to a

subcategory), but the rule is actually designed for a single

“Industrial User within *** [a] subcategory.” 40 C.F.R.

403.13(b). (Pet. App. Al22). It seeks data specific to the

industrial variance applicant without regard to whether or not

there are other similarly situated sources within the subcat-

egory. It does not appear to recognize any connection

between the information produced in the variance proceeding

and the control requirements of the larger industrial category.

If, for example, a variance requires more stringent controls

for a particular facility (there have never been any such

variance requests although EPA maintains their theoretical

possibility), the rules do not seem to require EPA to decide

whether to order further process changes in other sources or

otherwise upgrade the standards to the level of this “best

performer.’’ The FDF variance is, in essence, a single plant

evaluation designed primarily |. waive coutrol requirements

for a single source.

Congress gave EPA «ome discretion to differentiate

among sources within a category—i' recognized, for example,

the possibility of a ‘‘subcategory, 1977 Legis. Hist., supra,

at 455—but not without limit. It did not give EPA carte

blanche to entertain single plant evaluations. Congress wanted

to avoid hobbling the standard-setting process with atypical

concerns:

[T)he pretreatment standards *** [should] be national

in scope and addressed to the most significant pre-

treatment problems. The Committee expects that the

standards would vary with the broad type of treat-

ment processes used, but the Committee does not

intend that each individual treatment works would

have its pretreatment standards set up by the Ad-

ministrator.

1972 Legis. Hist., supra, at 800.

Pretreatment standards set control requirements for in-

direct dischargers comparable to BAT for direct sources. 1977

Legis. Hist., supra, 271, 342-343, 403, 461, 690-691. Thus,

EPA should weigh the factors relevant to pretreatment stan-

dards, like those for BAT, only across whole industrial classes

or categories:

The Conferees intend that the factors described in

section 304(b) be considered only within classes or

categories of point sources and that such factors not

be considered at the time of the application of an

effluent limitation to an individual point source within

such a category or class. Except as provided for in

section 301(c) of the Act, the intent is that effluent

limitations applicable to individual point sources

within a given category or class be as uniform as

possible.

1972 Legis. Hist., supra, at 172 (emphasis added).

Congress expressly cautioned against single plant eval-

uations:

The conferees intend that the Administrator or the

State, as the case may be, will make the determination

of the economic impact ef an effluent limitation on

the basis of classes and categories of point sources,

as distinguished from a plant by piant determina-

tion.

Thus, a plant-by-plant determination of the eco-

nomic impact of an effluent limitation is neither

expected, nor desired, and, in fact, it should be

avoided.

id. at 255. (emphasis added).

This caution took on added importance in the context of

BAT because Congress intended BAT to be more technology-

forcing than BPT. 1972 Legis. Hist., supra, at 170, 1468. BPT

was geared to ‘‘the average of the best existing performance

by plants of various sizes, ages, and unit processes within

each industrial category.’ /d. at 169. Congress pegged BAT,

by contrast, to ‘the best performer in any industrial category .”’

Id. at 170.

It stands to reason that, in coming up to the level of the

best performer in a category, individual plants might incur

costs, energy requirements, or process disruptions wholly out

of proportion to others, especially where local officials had

previously required little pretreatment. Congress recognized

that some plants might close, not just because they were less

able to pay for pollution controls than others, but also because

they would be required to make more ‘‘significant advance-

ments in their levels of pretreatment’’ than others within the

same industry. 1977 Legis. Hist., supra, at 404.

Congress did not authorize less stringent standards for

these plants (except for Section 301(c) variances for nontox-

ics). For toxic pretreatment standards, it insisted on state-of-

the-art technology, suggesting other options such as removal

credits or municipal pretreatment to shift the burden of control

where feasible. /d. at 690-691. It remained, however, steadfast

in its goal: “to prevent, to the maximum extent feasible, the

industrial pollutants from entering the [municipal sewage

treatment] plant in the first place."’ /d. at 690.

An FDF variance has no place in this technology-forcing

scheme because it allows some sources to escape “best

performance”’ levels for reasons that have nothing to do with

what technology can achieve. For example, one strong indi-

cation that EPA has gone awry in transferring the FDF

variance from the BPT to the pretreatment and BAT contexts

lies in the agency's treatment of the cost factor. EPA told

sources they could request an FDF variance for a ‘‘removal

cost *** wholly out of proportion to the removal cost consid-

ered during development of the Standards ***."’ 40 C.F.R.

403.13(cK2MivMAMPet. App. A123) (emphasis added). EPA

took this language virtually intact from BPT standard-setting

where Congress told EPA to do a “‘limited cost-benefit

analysis’’ to ascertain whether “the additional degree of

effluent reduction is wholly out of proportion to the costs

*** ' 1972 Legis. Hist.. supra, at 170. (emphasis added).

Where costs are significantly greater than normal, the cost-

benefit calculus for BPT changes.

For BAT and pretreatment, however, Congress adopted

an entirely different cost test: “‘what is ‘economically achiev-

able’ should reflect an evaluation of what needs to be done

to move toward the elimination of the discharge of pollutants

and what is achievable through the application of available

technology—without regard to costs.’ Id. (emphasis added).

EPA has consistently defined BAT as tha’ technology which

is affordable across a whole industrial category. Comparative

costs are not relevant to this inquiry.“ Hence, EPA’s FDF

variance rules are out of place in the BAT context.

A second critical difference between the FDF variance

and subcategorizing during a rulemaking is the timing of the

decision on pollution control requirements. Here Congress

poate p= ter ame Congress wanted industry's pollution

control obligations defined quickly. It gave EPA only nine

months to set pretreatment standards.” It gave industry no

more than three years from the date of promulgation to

comply. Section 307(b), 33 U.S.C. 1317(b).

If sources are to meet this timetable, they have to embark

at once on all the steps necessary to attain compliance—

preliminary engineering, obtaining bids, awarding construc-

tion contracts, purchasing major equipment components,

tuning. The advanced technology required by these standards

is, after all, hardly an off-the-shelf consumer item.

An FDF variance is antithetical to this timetable. FDF

variance applicants must wait close to a year in the best of

cases—considerably more on the average—to know their

“ By contrast, comparative costs—both among industnes and between

control technology” requirements, 1977 Legis. Hist., supra., at 458, but

there is no economic capability waiver from these requirements. /d. at 461.

” This deadline has been extended by the district court on several

occasions, see n. 5, supra.

pollution control obligations.” If they wait for the variance

to be resolved, they will miss the compliance deadline. If

they do not wait, the variance is purely illusory. Nothing

could be further from the scheme Congress had in mind.

An FDF variance is closer in timing to amendment or

revision of a rule—at least each takes place after the rule is

and categories of sources, not single plants.

Revisions also differ procedurally. The Clean Water Act

standards in the first place. Section 307(bM1), 33 U.S.C.

1317(bK 1). Congress wanted quick, direct, and uniform cor-

rections to erroneous or outdated rules.*' The FDF variance,

by contrast, is a Rube Goldberg contraption. It may entail

review by as many as four separate tiers of government,” an

* EPA's FDF vanance rules outline the following minimal procedures:

180 days from the effective date of the standard (longer if a “category

determination request 1s made) to apply for a vamance. an unspecified

amount of me for the agency to review the application, set the admunis-

trative machinery im motion, and notify the public that an application is

pending: at least 3) days for public comment on the application: and an

unspecified amount of time for either the State or the EPA regional

enforcement division director to weigh the public comments and decide the

request. If the request 1s demed. the following additional procedures may

be invoked: §0 days to request a hearing from the Regional Admunistrat. .

enforcement division director's decision and determine whether to hold a

hearing. 30 days to appeal to the Administrator (apparently only if the

hearing request 1s dened). additional time for the hearing itself, and an

unspecified amount of time for esther the Regional Admunistrator or the

Administrator to render a decision. 40 C_F_R. 403.1 ¥g) and (j) to (m) (Pet.

App. Al22-Al27).

“ For example. sources have only 9 days to ask a court to remand

an erroneous EPA rule, unless they can show that their challenge is based

on information arising after 9%) days. Section SOWb\ 1), 33 U.S.C. 1368bK 1).

“= An application is reviewed by the state. the EPA Enforcement

Division Director. the EPA Regional Administrator and the EPA Admin-

istrator. 40 C_F.R. 403.13. (Pet. App. Al22).

informal public comment period, a hearing, and coordination

between EPA's rulemaking experts and diffuse state and

regional office personnel. (See procedures described in n.

50, supra). Not surprisingly, the process has proved extraor-

dinasily slow of resolution.*’

EPA scoffs at this procedural issue, shielding its inept

handling of FDF variance applications behind Vermont Yankee

Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978). EPA

claims that, according to Vermont Yankee, an agency is free

to choose its own rulemaking procedures. CMA cites SEC v.

Chenery, 332 U.S. 194 (1947) for the same general proposition.

Petitioners take both Vermont Yankee and Chenery too far.

These cases are irrelevant where, as here, Congress has made

the choice for EPA.

c. EPA also pleads that it needs an FDF variance because

its final pretreatment standards may not always reflect the

full range of factors the Administrator was supposed to

consider. (EPA Br. 31). This could occur in one of three

situations: when EPA overlooks information in its possession,

when it is ignorant of information available to industry, or

when relevant information is simply unavailable at the time

of rulemaking.

The first situation occurs when EPA errs: it simply fails

tv consider information presented to it in a rulemaking. EPA

cites two such cases in its brief. In Kennecott Copper Corp.

v. EPA, 612 F.2d 1232, 1243 (10th Cir. 1979), EPA fell back

* EPA fabricates an inconsistency in NRDC's position on FDF variance

procedures, alleging that NRDC wavers between calling the procedures too

summary and too slow. (EPA Br. 36 and 34-35, n.26). EPA swings at its

own straw man. See Transcript of Oral Argument in Court of Appeals at

249. NRDC has never said EPA would—or should—issue variances without

public notice; it has simply said, correctly, that EPA's public notice

procedures for FDF variances are laxer than those required for setting

pretreatment standards because proposed variances need not be published

in the Federal Register as proposed rules must clearly be. 5 U.S.C. 553.

Congress mapped out for the agency. Whichever approach to public notice

EPA takes, however, the reality remains that an after-the-fact definition of

pollution control requirements is both slower and more cumbersome than

what Congress had in mind.

on the FDF variance when confronted with countervailing

factors which it had been ‘‘fully aware of’ for nearly two

years before completing the rulemaking. 43 Fed. Reg. 29771

(1978). Likewise, in American Iron and Steel Institute v.

EPA, 526 F.2d 1027, 1061 (3d Cir. 1975), modified, 560 F.2d

589 (3d Cir. 1977), cert. denied, 435 U.S. 914 (1978), EPA

proferred the FDF variance in response to industry criticism

of its data base, even though the flaw at issue had been clearly

pointed out to EPA during the rulemaking. 39 Fed. Reg.

24114, 24115 (1974)(discussing sinter plants).*°

In these situations, the FDF variance is nothing more

than a fig leaf for inadequate agency rulemaking. This Court

need not sanction such obviously flawed rulemaking. Congress

wanted EPA to do an adequate job during rulemaking.” It

told EPA to be “‘precise’’ with effluent guidelines so that

effluent limits would be uniform and, hence, universally

applicable. 1972 Legis. Hist., supra, at 172, 309. The FDF

variance thwarts this scheme.

In addition, reliance on the so-called ‘‘safety valve’’ of

the FDF variance makes EPA's rules more, not less, vulnerable

to challenge. EPA, in effect, puts its eggs in a basket it doesn’t

control. If a source contests the pretreatment standards on

the merits rather than in a variance proceeding, EPA runs the

risk that its rules will be overturned for failure to respond to

relevant rulemaking comments. See, e.g., Portland Cement

Ass'n. Vv. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973),

cert. denied 417 U.S. 921 (1974), reh. denied, 423 U.S. 1092

(1976). The weight of each rulemaking comment turns on its

“ This flaw did not prove critical. Kennecott upheld the BPT standards,

relying in large part, on the st~tutory obligation to base effluent guidelines

on the “best plant,”’ rather than on the availability of the FDF variance as

a safety valve. 612 F.2d. at 1243.

* AISI accepted the adequacy of the FDF variance as a safety valve

for this error in the BPT rules. A/S/ did not address FDF variances from

BAT standards as the BAT rules at issue in A/S/ did not contain an FDF

variance clause. 39 Fed. Reg. 24114-24130 (1974). Nor did A/S/ address

Section 301(/), which it predated.

* Senator Muskie, for example, explained: **[T}here are no waivers or

modifications ***. An adequate consideration of costs is made at the time

of promulgation of the effluent guidelines’. 1977 Legis. Hist., supra, at

458.

validity, not on whether it is supported by few or many

sources. Hence, it is far safer for EPA to be careful during,

not after, the rulemaking.

A second type of error occurs when industry fails to

bring relevant information to EPA's attention during a rule-

making. An FDF variance does not cure this type of error; it

abets it. The variance gives industry an incentive to treat the

rulemaking more casually. If a company fails to produce

relevant information, it will have a second bite at the apple

in a variance proceeding. Without the variance, industry must

come forward with all relevant information during a rulemak-

ing. Where it fails to do so, the courts will not entertain a

challenge to the rule. E.g., Kennecott and AlS/.*’ In addition,

EPA is not totally at industry's mercy. Congress gave EPA

broad authority to obtain from industry whatever information

it needs to issue pretreatment standards. Section 308, 33

U.S.C. 1318.

Finally, EPA can issue rules which become dated in the

wake of new information. EPA does not need an FDF variance

for these situations either. As EPA concedes, it already has

authority—indeed, is required—to revise its rules when this

occurs. Section 307(b)(2), 33 U.S.C. 1317(b)(2). In short, the

FDF variance is at best useless and at worst positively

detrimental to EPA's overall standard-setting effort.

d. EPA also claims that the Third Circuit's decision could

disrupt implementation of the Act. It might, says EPA,

endanger existing regulations, presumably because some com-

panies will try to reopen rules issued in partial reliance on

the availability of an FDF variance as a safety valve. (EPA

Br. 37). There will, however, be few, if any, opportunities to

do so. EPA’s rules required plants to apply for their variance

within 180 days of the effective date of a pretreatment

standard. (Pet. App. Al22, A124). By September 1983, the

date of the Third Circuit's decision, only 12 companies had

” Both Kennecott and AlS/ rejected industry challenges based on

information not presented to EPA during the rulemaking (e.g., ferrocyanide

formation, 612 F.2d at 1245; water scarcity, 526 F.2d at 1050; and engineering

factors, 526 F.2d at 1049).

met the FDF variance application deadline. These companies

can still take advantage of any relevant information which

could not have been brought to EPA’s attention during the

rulemaking. Section 50%b)(1), 33 U.S.C. 136%b)(1).% The

FDF variance, by contrast, could prove very disruptive since

CMA forecasts that some companies will apply well beyond

the 180 day application deadline in EPA’s current rules—

indeed, well after the deadline for complying with the appli-

cable pretreatment standard. (CMA Br. 38, n.62).

EPA also claims that it may have to delay issuing future

standards if it cannot rely on the FDF variance as a safety

valve. (EPA Br. 37-38). This, too, is hyberbole. Since the

Third Circuit's decision, EPA has issued six final® and four

proposed pretreatment standards.*' All were issued on or

about the agency's deadline (i.e., the date established in the

Consent Decree).” Since EPA has apparently had no problem

* The filing deadline had expired for ten of thirteen pretreatment

standards issued after EPA created the variance. These standards covered

11,316 (83%) of the 13,696 sources subject to categorical pretreatment

standards. Of the 12 variance applicants, one company requested variances

for two plants; another, for 24 plants. (Br. in Opp. App. AS-A7).

* An FDF variance is not subject to this restriction; it can cover any

facts, including those which could easily have been brought to EPA's

attention during a rulemaking. However, no useful purpose would be

served—indeed it would delay enforcement of this program—to allow

sources to raise new excuses for noncompliance from final rules. The

restriction is therefore both wise and equitable, even as applied to the 12

sibly affected by the Third Circuit's decision.

Te ie ie 49126-49171 (Oct. 24, 1983) (aluminum forming); 48

Fed. Reg. 49808-49831 (Oct. 27, 1983) (pharmaceutical manufacturing); 48

Fed. Reg. 52380-52400 (Nov. 17, 1983) (coil coating); 48 Fed. Reg. 55690-

§5705 (Dec. 14, 1983) (electrical and electronic components): 49 Fed. Reg.

8742-8831 (Mar. 8, 1984) (nonferrous metals manufacturing); 49 Fed. Reg.

9108-9152 (Mar. 9, 1984) (battery manufacturing).

* 48 Fed. Reg. 49408-49436 (Oct. 25, 1983) (inorganic chemicals

manufacturing); 49 Fed. Reg. 5862-5883 (Feb. 15, 1984) (plastics molding),

49 Fed. Reg. 8112-8182 (Mar. 5, 1984) (nonferrous metals an“ iron and

steel/copper/aluminum metal power production and powder metauurgy); 49

Fed. Reg. 26352-26483 (June 27, 1984) (nonferrous metals manufacturing).

® EPA's deadlines are embodied in a consent decree entered into with

NRDC and approved by the district court in 1976. See n 5, supra.

Administrator Ruckelshaus signed all of the above-referenced standards

within a month of this deadline and all but two within a week of the

deadline. The standards appeared in the Federal Register shortly thereafter.

issuing rules in the absence of an FDF variance, there is no

reason to believe it will develop a problem in the future. EPA

has not, for example, had a problem issuing either new source

performance standards or new source pretreatment standards,

yet neither are eligible for an FDF variance.

Moreover, since few indirect dischargers avail themselves

of the FDF variance, incorporating their concerns in the

national rulemaking will not significantly burden EPA. This

does not add a new feature to EPA rulemaking; EPA routinely

considers unique features of individual plants in rulemaking

for both direct and indirect dischargers, notwithstanding its

desire to focus on the more “‘typical’’ plants. (EPA Br.

37). Indeed, requests to establish separate subcategories for

one or a few plants which are somehow “‘‘different’’ from

others in the same industrial category are a common feature

of these rulemakings.** Eliminating the FDF variance simply

closes off another avenue for raising the same concerns. It

frees EPA to concentrate its resources on rulemaking, rather

than dispersing them throughout variance proceedings and

litigation over variance applications.

e. There are sound policy reasons for avoiding FDF

variances. Understanding what makes one plant's perform-

ance different from others may be a key to improving the

performance of all. Thus, considering this issue in the rule-

making may actually enhance the technology-forcing nature

of the standard.

In addition, it is far more efficient to decide whether

plants are different or similar to the rest of an industrial

™ See, e.g., Association of Pacific Fisheries v. EPA, 615 F.2d 794, 808

n.10 (9th Cir. 1980) (subcategories divided for analytical purposes into

subdivisions of one, two, or three plants); Kennecott Copper Corp., 612

F.2d at 1246 (subcategorization of two mills was arbitrary); American Iron

and Steel Institute, 526 F.2d at 1050-1051 (addressed sole plant in country

with water supply problem). Indeed, subcategorization has been one of the

most frequently disputed issues in litigation over EPA's effluent limitations.

Report of the Effluent Standards and Water Quality Information Advisory

Committee. reprinted in Implementation of the Federal Water Pollution

Control Act, Hearings Before the Subcomm. on Investigations and Review

of the House Comm. on Public Works and Transportation, 94th Cong., 2d

Sess. 197-208 (1976).

category during, not after, a rulemaking. During the rulemak-

when the data base is still fresh before them. By contrast,

EPA's FDF variance procedures require state and regional

enforcement personnel to make the same decisions _ the

basis of a rulemaking record which is unfamiliar to them.

Their decisions, in turn, may be reviewed by the EPA regional

office (if a state makes the decision), the Regional Adminis-

trator, or the Administrator. Th's, at best, duplicates efforts,

wasting scarce agency resources. It also prolongs the period

of uncertainty over pollution control obligations.

Experience with BPT requirements shows that once a

plant files an FDF variance application, it enters a regulatory

limbo. Plants which applied for an FDF variance from BPT

requirements before 1980 are still awaiting EPA's decision.“

Some of these applications date to 1976 and 1977. As long as

EPA demurs, the applicants are unwilling to make the required

capital expenditures for pollution controls. This creates in-

postpone pollution control expenditures gain a competitive

edge over those which pay to install, operate, and maintain

controls. Yet Section 301 was added to the law for the very

purpose of eliminating such economic disparities. 1972 Legis.

Hist., supra, at 156.

Experience also shows that many variance applications

lack merit,” a fact that weighed heavily with Congress.* Yet

variance applications delay enforcement efforts. Congress

rejected a proposal for case-by-case administrative extensions

of the 1977 BPT deadline for this very reason. At the end of

EPA's decision-making process, those denied a variance

would “‘almost certainly’’ appeal to the courts, Congress

“ Variance applications 76-09, 77-06, 77-14, 77-15, 77-16, 77-19, 78-02,

78-05, and /9-03 are still pending, according to EPA's June 29, 1984 status

report.

* E.¢.. EPA approved only four of the 53 BPT variance applications.

Fourteen were denied; '6 withdrawn. The rest are still pending. 1983

Hearings, supra, at 2740.

“ Congress repeatedly expressed the fear that variances would be

pursued by unqualified sources in order to buy time for compliance. See,

¢.@., 1977 Legis. Hist., supra, at 452, 463-464, 683, 695, 860.

reasoned, perhaps obtaining a stay of the applicable require-

ments. This, in turn, would mean that “these discharges

would continue unabated until final judicial resolution, first

of the variance, and then, if necessary, of the ensuing

enforcement order.” 1977 Legis. Hist., supra, at 860-862."

Indeed, Congress took a dim view of variances altogether:

The conferees are aware of the administrative and

judicial implications of modifications of a law as

complex as the Clean Water Act. There was only one

exception provided in the 1972 act and in that case.

there had been great abuse. More than 100 steam

electric powerplants applied for modification of ther-

mal effluent limits. None have yet been placed on a

compliance schedule to meet effluent limitations

because of extensive delay as a result of this excep-

tion. And there is little question that after the aa-

ministrative process there will be extensive litigation.

Heat has become an unregulated pollutant, clearly

not the intent of Congress. The Congress intended

that there be a very limited waiver ***. That limited

exception has been turned into a gaping loophole.

Id at 456-457, 641-642, 867. It therefore carefully circum-

scribed, through Section 301(/), the availability of variances

where toxic pollutants are concerned.

Petitioners’ construction of the Act ignores the clear

language of Section 301(/), is inconsonant with the overall

statutory scheme for strict control of toxics, and would give

a handful of companies an unfair competitive advantage over

the thousands of sources now embarking on a pollution control

program. The Third Circuit correctly rejected it.

even though few companies apply. (EPA Br. 35, 1.26). There is no

imconsistency. The fact that a source is subject to a pretreatment standard

means that it is, by definition, a ‘significant’ environmental problem. 1972

Legis. Hist., supre , at 800. When that source delays compliance, it thwarts

Congress's overall scheme for strict toxics control and gains a competitive

advantage over others in the same industry who comply with the law.

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

Frances Dubrowski

Counsel for the Natural

Resources Defense Council,

Inc.

August 20, 1984

A-l

CLEAN WATER ACT PROVISIONS

1. Section 208(b)(2)(C) of the Clean Water Act, as amended,

33 U.S.C. 1288(b\2C):

(2) Any plan prepared under such process shall include,

but not be limited to—

(i) implement the waste treatment management require-

ments of section 201(c),

(ii) regulate the location, modification, and construction

of any facilities within such area which may result in any

discharge in such area, and

(iii) assure that any industrial or commercial waste dis-

charged into any treatment works in such area meet applicable

pretreatment requirements.

2. Section 3i(c) of the Clean Water Act, as amended, 33

U.S.C. 131 Me):

subsection (b)(2)(A) of this section with respect to any point

source for which a permit application is filed after July 1,

1977, upon a showing by the owner or operator of such point

source satisfactory to the Administrator that such modified

requirements (1) will represent the maximum use of technology

within the economic capability of the owner or operator; and

(2) will result in reasonable further progress toward the

elimination of the discharge of pollutants.

3. Section 301(g) of the Clean Water Act, as amended, 33

U.S.C. (Supp. V) 1311(g):

(gX1) The Administrator, with the concurrence of the

State, shall modify the requirements of subsection (b\(2)A)

of this section with respect to the discharge of any pollutant

(other than pollutants identified pursuant to section 304(a)(4)

of this Act, toxic pollutants subject to section 307(a) of this

Act, and the thermal component of discharges) from any point

source upon a showing by the owner or operator of such

point source satisfactory to the Administrator that—

A-2

(A) such modified requirements will result at a minimum

in compliance with the requirements of subsection (b)(1)(A)

or (C) of this section, whichever is applicable;

(B) such modified requirements will not result in any

additional requirements on any other point or nonpoint source;

and

or maintenance of that water quality which shall assure

protection of public water supplies, and the protection and

propagation of a balanced population of shellfish, fish, and

wildlife, and allow recreational activities, in and on the water

and such modification will not result in the discharge of

pollutants in quantities which may reasonably be anticipated

to pose an unacceptable risk to human health or the environ-

ment because of bioaccumulation, persistency in the environ-

ment, acute toxicity, chronic toxicity (including carcinogen-

icity, mutagenicity or teratogenicity), or synergistic propensities.

‘2) If an owner or operator of a point source applies for

a modification under this subsection with respect to the

discharge of any pollutant, such owner or operator shall be

eligible to apply for modification under subsection (c) of this

section with respect to such poilutant only during the same

time-period as he is eligible to apply for a modification under

this subsection.

4. Section With) of the Clean Water Act, as amended, 33

U.S.C. (Supp. V) 1311(h):

(h) The Administrator, with the concurrence of the State,

may issue a permit under section 402 which modifies the

requirements of subsection (b)1)(B) of this section with

respect to the discharge of any pollutant in an existing

discharge from a publicly owned treatment works into marine

waters, if the applicant demonstrates to the satisfaction of the

Administrator that—

(1) there is an applicable water quality standard specific

to the pollutant for which the modification is requested, which

has been identified under section 304(a)(6) of this Act;

(2) such modified requirements will not interfere with the

attainment or maintenance of that water quality which assures

A-3

propagation of a balanced. indigenous population of shellfish,

fis’: 1d wildlife, and allows recreational activities, in and on

the water;

(3) the applicant has established a system for monitoring

the impact of such discharge on a representative sample of

aquatic biota, to the extent practicable:

(4) such modified requirements will not result in any

additional requirements on any other point or nonpoint source.

. (S) all applicable pretreatment requirements for sources

introducing waste into such treatment works will be enforced:

(6) to the extent practicable, the applicant has established

a schedule of activities designed to eliminate the entrance of

toxic pollutants from nonindustrial sources into such treatment

works,

(7) there will be no new or substantially increased dis-

charges from the point source of the pollutant to which the

modification applies above that volume of discharge specified

in the permit;

(8) any funds available to the owner of such treatment

works under title II of this Act will be used to achieve the

degree of effluent reduction required by section 201(b) and

(gX2MA) or to carry out the requirements of this subsection.

For the purposes of this subsection the phrase ‘‘the discharge

of any pollutant into marine waters” refers to a discharge

into deep waters of the territorial sea or the waters of the

contiguous Zone, or into saline estuarine waters where there

Is strong tidal movement and other hydrological and geological

charactenstics which the Administrator determines necessary

to allow compliance with paragraph (2) of this subsection,

and section 101(aX2) of this Act.

5. Section 301(i) of the Clean Water Act, as amended, 33 U.S.C.

(Supp. V) 1311(i):

(11) Where construction is required in order for a planned

or existing publicly owned tree went works to achieve limi-

tavons under subsection (bX 1K) or (bX 1KC) of this section,

but (A) construction cannot be completed within the time

A-4

required in such subsection, or (B) the United States has

failed to make financial assistance under this Act available in

time to achieve such limitations by the time specified in such

subsection, the owner or operator of such treatment works

may request the Administrator (or if appropriate the State) to

issue a permit pursuant to section 402 of this Act or to modify

a permit issued pursuant to that section to extend such time

for compliance. Any such request shall be filed with the

Administrator (or if appropriate the State) within 180 days

after the date of enactment of this subsection. The Adminis-

trator (or if appropriate the State) may grant such request and

issue or modify such a permit, which shall contain a schedule

of compliance for the publicly owned treatment works based

on the earliest date by which such financial assistance will be

available from the United States and construction can be

completed, but in no event later than July |, 1983, and shall

contain such other terms and conditions, including those

necessary to carry out subsections (b) through (g) of section

201 of this Act, section 307 of this Act, and such interim

effluent limitations applicable to that treatment works as the

Administrator determines are necessary to carry out the

provisions of this Act.

(2A) Where a point source (other than a publicly owned

treatment works) will not achieve the requirements of sub-

sections (b 1A) and (b)(1(C) of this section and—

(i) if a permit issued prior to July |, 1977, to such point

source is based upon a discharge into a publicly owned

treatment works; or

(ii) if such point source (other than a publicly owned

treatment works) had before July |, 1977, a contract (enforce-

able against such point source) to discharge into a publicly

owned treatment works; or

(iii) if either an application made before July |, 1977, for

a construction grant under this Act for a publicly owned

treatment works, or engineering or architectural plans or

working drawings made before July |, 1977, for a publicly

owned treatment works, show that such point source was to

discharge into such publicly owned treatment works,

and such publicly owned treatment works is presently unable

A-S

to accept such discharge without construction, and in the case

of a discharge to an existing publicly owned treatment works,

such treatment works has an extension pursuant to paragraph

(1) of this subsection, the owner or operator of such point

source may request the Administrator (or if appropriate the

State) to issue or modify such a permit pursuant to such

section 402 to extend such time for compliance. Any such

request shall be filed with the Administrator (or if appropriate

the State) within 180 days after the date of enactment of this

subsection or the filing of a request by the appropnate publicly

owned treatment works under paragraph (1) of this subsection,

whichever is later. If the Administrator (or if appropriate the

State) finds that the owner or operator of such point source

has acted in good faith, he may grant such request and issue

or modify such a permit, which shall contain a schedule of

compliance for the port source to achieve the requirements

of subsections (bx 1A) and (C) of this section and shall

contain such other terms and conditions, including pretreat-

ment and intenm effluent limitations and water conservation

requirements applicable to that point source, as the Admin-

istrator determines are necessary to carry out the provisions

of this Act.

(B) No time modification granted by the Adminiaweter

(or if appropnate the State) pursuant to paragraph (2A) of

this subsection shall extend beyond the earliest date practic-

able for compliance or beyond the date of any extension

granted to the appropriate publicly owned treatment works

pursuant to paragraph (1) of this subsection, but in no event

shall m extend beyond July 1. 1983, and no such time

modification shal! be granted unless (i) the publicly owned

treatment works will be in operation and available to the point

source before July |. 1983, and will meet the requiremen’s to

subsections (6 1B) and (C) of this section after rec iving

the discharge from that pount source: and (ii) the point source

and the publicly owned treatment works have entered into an

enforceable contract requiring the point source to discharge

ito the publicly owned treatment works. the owner or

operator of such pout source to pay the costs required under

sechon 204 of this Act. and the public!, owned treatment

works to accept the discharge from the point source: and (ii)

A-6

the permit for such point source requires point source to meet

all requirements under section 307(a) and (b) during the period

of such time modification.

6. Section 301(j) of the Clean Water Act, as amended, 33 U.S.C.

(Supp. V) 1311¢j):

(1) Any application filed under this section for a mod-

ification of the provisions of—

(A) subsection (b 1B) under subsection (h) of this

section shall be filed not later than 270 days after the date of

enactment of the Clean Water Act of 1977:

(B) subsection (b2)A) as it applies to pollutants iden-

tified in subsection (b)\2)F) shall be filed not later than 270

days after the date of promulgation of an applicable effluent

guideline under section 304 or not later than 270 days after

the date of enactment of the Clean Water Act of 1977,

whichever is later.

(2) Any application for a modification filed under subsec-

tion (g) of this section shall not operate to stay any requirement

under this Act, unless in the judgment of the Administrator

such a stay or the modification sought will not result in the

discharge of pollutants in quantities which may reasonably be

anticipated to pose an unacceptable risk to human health or

the environment because of bioaccumulation, persistency in

the environment, acute toxicity, chronic toxicity (including

carcinogenicity, mutagenicity or teratogenicity), or synergistic

propensities. and that there is a substantial likelihood that the

applicant will succeed on the merits of such application. In

the case of an application filed under subsection (g) of this

section, the Administrator may condition any stay granted

under this paragraph on requiring the filing of a bond or other

appropriate security to assure timely compliance with the

requirements from which a modification is sought.

7. Section 304(f)(1) of the Clean Water Act, 33 U.S.C. 1314(f\(1)

(1972):

(11) For the purpose of assisting Stites in carrying out

programs under section 402 of this Act, ‘he Administrator

shall publish, within one hundred and twenty days after the

date of enactment of this title, and review at least annually

A-7

thereafter and, if appropriate, revise guidelines for pretreat-

ment of pollutants which he determines are not susceptible

to treatment by publicly owned treatment works. Guidelines

under this subsection shall be established to control and

prevent the discharge into the navigable v ‘aters, the contiguous

zone, or the ocean (either directly or through publicly owned

treatment works) of any pollutant which interferes with, passes

through, or otherwise is incompatible with such works.

8. Section 306(b)(1) of the Clean Water Act, as amended, 33

U.S.C. 1316(b)(1):

(bX 1A) The Administrator shall, within ninety days after

the date of enactment of this title publish (and from time to

time thereafter shall revise) a list of categories of sources,

which shall, at the minimum, include:

pulp and paper mills;

paperboard, builders paper and board mills;

meat product and rendering processing;

dairy product processing;

grain mills;

canned and preserved fruits and vegetables processing:

canned and preserved seafood processing:

sugar processing:

textile mills;

cement manufacturing;

feedlots;

electroplating:

organic chemicals manufacturing;

inorganic chemicals manufacturing:

plastic and synthetic materials manufacturing:

soap and detergent manufacturing:

fertilizer manufacturing:

petroleum refining:

iron and stee! manufacturing:

nonferrous metals manufacturing:

A-8

phosphate manufacturing:

steam electric powerplants;

ferroalloy manufacturing:

leather tanning and finishing:

glass and asbestos manufacturing:

rubber processing; and

timber products processing.

(B) As soon as practicable, but in no case more than one

year, after a category of sources is included in a list under

subparagraph (A) of this paragraph, the Administrator shall

propose and publish regulations establishing Federal standards

of performance for new sources within such category. The

Administrator shall afford interested persons an opportunity

for written comment on such prcvosed regulations. After

considering such comments, he shal! promulgate, within one

hundred and twenty days after publication of such proposed

regulations, such standards with such adjustments as he deems

appropriate. The Administrator shall, from time to time, as

technology and alternatives change, revise such standards

following the procedure required by this subsection for pro-

mulgation of such standards. Standards of performance, or

revisions thereof, shal) become effective upon promulgation.

In establishing or revising Federal standards of performance

for new sources under this section, the Administrator shall

take into consideration the cost of achieving such effluent

reduction, and any non-water quality environmental impact

and energy requirements. "

9. Section 306(e) of the Clean Water Act, as amended, 33

U.S.C. 1316(e):

(e) After the effective date of standards of performance

promulgated under this section, it shall be unlawful for any

owner or operator of any new source to operate such source

in violation of any standard of performance applicable to such

source.

A-9

10. Section 307(a) of the Clean Water Act, as amended, 33

U.S.C. (& Supp. V) 1317(a):

Sec. 307(aX 1) On and after the date of enactment of the

Clean Water Act of 1977, the list of toxic pollutants or

combination of pollutants subject to this Act shall consist of

those toxic pollutants listed in table | of Committee Print

Numbered 95-30 of the Committee on Public Works and

Transportation of the House of Representatives, and the

Administrator shall publish, not later than the thirtieth day

after the date of enactment of the Clean Water Act of 1977,

that list. From time to time thereafter, the Administrator may

revise such list and the Administrator is authorized to add to

or remove from such list any pollutant. The Administrator in

publishing any revised list, including the addition or removal

of any pollutant from such list, shall take into account the

toxicity of the pollutant, its persistence, degradability, the

usual or potential presence of the affected organisms in any

waters, the importance of the affected organisms, and the

nature and extent of the effect of the toxic pollutant on such

organisms. A determination of the Administrator under this

paragraph shall be final except that if, on judicial review, such

determination was based on arbitrary and capricious action

of the Administrator, the Admimstrator shall make a redeter-

mination.

(2) Each toxic pollutant listed in accordance with para-

graph (1) of this subsection shall be subject to effluent

limitations resulting from the application of the best available

technology economically achieveable for the applicable cat-

egory or class of point sources established in accordance with

section 301(b2 A) and 304 (b\(2) of this Act. The Adminis-

trator, in his discretion, may publish in the Federal Register

a proposed effluent standard (which may include a prohibition)

establishing requirements for a toxic pollutant which, if an

effluent limitation is applicable to a class or category of point

sources, shall be applicable to such category or class only if

such standard imposes more stringent requirements. Such

published effluent standard (or prohibition) shall take into

account the toxicity of the pollutant, its persistence. degrad-

ability, the usual or potential presence of the affected orga-

A-10

nisms in any waters, the importance of the affected organisms

and the nature and extent of the effect of the toxic pollutant

on such organisms, and the extent to which effective control

is being or may be achieved under other regulatory authority.

The Administrator shall allow a period of not less than sixty

days following publication of any such proposed effluent

standard (or prohibition) for written comment by interested

persons on such proposed standard. In addition, if within

thirty days of publication of any such proposed effluent

standard (or prohibition) any interested person so requests,

the Administrator shall hold a public hearing in connection

therewith. Such a public hearing shall provide an opportunity

for oral and written presentations, such cross-examination as

the Administrator determines is appropriate on disputed issues

of material fact, and the transcription of a verbatim record

which shall be available to the public. After consideration of

such comments and any information and material presented

at any public hearing held on such proposed standard or

prohibition, the Administrator shall promulgate such standards

(or prohibition) with such modifications as the Administrator

finds are justified. Such promulgation by the Administrator

shall be made within two hundred and seventy days after

publication of proposed standard (or prohibition). Such stand-

ard (or prohibition) shall be final except that if, on judicial

review, such standard was not based on substantial evidence,

the Administrator shall promulgate a revised standard. Ef-

fluent limitations shall be established in accordance with

sections 301(b2A) and 304(b)(2) for every toxic pollutant

referred to in table | of Committee Print Numbered 95-30 of

the Committee on Public Works and Transportation of the

House of Representatives as soon as practicable after the date

of enactment of the Clean Water Act of 1977, but no later

than July 1, 1980. Such effluent limitations or effluent standards

(or prohibitions) shall be established for every other toxic

pollutant listed under paragraph (1) of this subsection as soon

as practicable after it is so listed.

(3) Each such effluent standard (or prohibition) shall be

reviewed and. if appropriate. revised at least every three

years.

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(4) Any effluent standard promulgated under this section

shall be at that level which the Administrator determines

provides an ample margin of safety.

(5S) When proposing or promulgating any effluent standard

(or prohibition) under this section, the Administrator shall

designate the category or categories of sources to which the

effluent standard (or prohibition) shall apply. Any disposal of

dredged material may be included in such a category of

sources after consultation with the Secretary of the Army.

(6) Any effluent standard (or prohibition) established

pursuant to this section shall take effect on such date or dates

as specified in the order promulgating such standard. but in

no case, more than one year from the date of such promul-

gation. If the Administrator determines that compliance within

one year from the date of promulgation is technologically

infeasible for a category of sources, the Administrator may

establish the effective date of the effluent standard (or pro-

hivition) for such category at the earliest date upon which

compliance can be feasibly attained by sources within such

category, but in no event more than three years after the date

of such promulgation.

(7) Prior to publishing any regulations pursuant to this

section the Administrator shall, to the maximum extent

practicable within the time provided. consult with appropnate

advisory committees, States, independent experts. and Fed-

eral departments and agencies.

11. Section 307(d) of the Clean Water Act, as amended, 33

U.S.C. 1317(d):

(d) After the effective date of any effluent standard or

prohibition or pretreatment standard promulgated under this

section, it shall be unlawful for any owner or operator of any

source to operate any source in violation of any such effluent

standard or prohit ition or pretreatment standard.

12. Section 308(a) and (b) of the Clean Water Act, as amended,

33 U.S.C. 1318(a) and (b):

(a) Whenever required to carry out the objective of this

Act. including but not limited to (1) developing or assisting

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in the development of any effluent limitation. or other limi-

tation, prohibition, or effluent standard. pretreatment stand-

ard, or standard of performance under this Act; (2) determining

whether any person is in violation of any such effluent

limitation, or other limitation, prohibition or effluent standard.

pretreatment standard, or standard of performance: (3) any

requirement established under this section: or (4) carrying out

sections 305, 311, 402, 404 (relating to State permit programs).

and 504 of this Act—

(A) the Administrator shall require the owner or operator

of any point source to (i) establish and maintain such records,

(ii) make such reports, (iii) install, use, and maintain such

monitoring equipment or methods (including where appropri-

ate biological monitoring methods), (iv) sample such effluents

(in accordance with such methods, at such locations, at such

intervals, and in such manner as the Administrator shall

prescribe), and (v) provide such other information as he may

reasonably require: and

(B) the Administrator or his authorized representative.

upon presentation of his credentials—

(i) shall have a right of entry to, upon, or through any

premises in which an effluent source is located or in which

any records required to be maintained under clause (A) of

this subsection are located, and

(ii) may at reasonable times have access to and copy any

records, inspect any monitoring equipment or method required

under clause (A), and sample any effluents which the owner

or operator of such source is required to sample under such

clause.

(b) Any records, reports, or information obtained under

this section (1) shall, in the case of effluent data, be related

to any applicable effluent limitations, toxic, pretreatment, or

new source performance standards. and (2) shall be available

to the public, except that upon a showing satisfactory to the

Administrator by any person that records, reports, or infor-

mation, or particular part thereof (other than effluent data).

to which the Administrator has access under this section, if

made public would divulge methods or processes entitled to

protection as trade secrets of such person, the Administrator

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shall consider such record, report. or information, or particular

portion thereof confidential in accordance with the purposes

of section 1905 of title 18 of the United States Code, except

that such record, report, or information may be disclosed to

other officers. employees. or authorized representatives of

the United States concerned with carrying out this Act or

when relevant in any proceeding under this Act.

13. Section SOl(a) of the Clean Water Act, as amended, 33

U.S.C. Liab:

Sec. 501. (a) The Administrator is authorized to prescribe

such regulations as are necessary to carry out his functions

under this Act.

14. Section S0%b)(1) of the Clean Water Act, as amended, 33

U.S.C. L369 bi Th:

(bX 1) Review of the Administrator's action (A) in pro-

mulgating any standard of performance under section 306,(B)

in making any determination pursuant to section 306(bK 1 KC).

pretreatment standard under section 307. (D) im making any

determination as to a State permit program submitted under

section 402(b), (E) in approving or promulgating any eifvent

limitation or other limitation under sections 301, 302, or 306,

and (F) in issuing or denying any permit under section 402,

may be had by any interested person in the Circuit Court of

Appeals of the United States for the Federal judicial district

in which such person resides or transacts such business upon

application by such person. Any such application shall be

made within ninety days from the date of such determination.

approval, promulgation, issuance or denial, or after such date

only if such application is based solely on grounds which

arose after such ninetieth day.

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.