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

Supreme Court, US

2 FILED

No. 83-1013

No. 83-1373 AUG 20 1984

ALEXANDER L SPEVAS

Ly THE CLERK

Supreme Court of the United States

October Term, 1983

CHEMICAL MANUFACTURERS ASSOCIATION, et al.,

Petitioners,

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al,

UNITED STATES ENVIRONMENTAL | ROTECTION AGENCY,

Petitioner,

vw.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.

On Writs oF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE Turep CIRcuIT

BRIEF FOR STATE OF NEW YORK AMICUS CURIAE

‘oc “a my

.

4 ‘

Rosert AspRaMs

Attorney General of the State of New York

Att of Record

The Capitol

Albany, NY 12224

(518) 474-1968

Peter H. Scuirr

Acting Attorney in Chief

Appeals and Opinions

James A. S&VINSKY

Assistant Attorney General

Assistant ~ pated General

of Counsel

i.

Question Presented for Review.

Whether the Court of Appeals for the Third Circuit cor-

rectly held that Section 301(1) of the Clean Water Act, 33

U.S.C. § 1311(1) prohibits the United States Environmen-

tal Protection Agency from granting variances from na-

tional pretreatment standards for toxic pollutants to in-

direct dischargers.

Table of Contents.

Statutes and Regulations Involved ...............

Interest of Amicus Curiae ....... ~~... ee enn

|. , 9 i, -

ARGUMENT:

Section 301(1) of the Clean Water Act pro-

hibits the issuance of FDF variances for in-

direct dischargers of toxic pollutants .......

CONCLUSION. For the foregoing reasons, the deci-

sion of the Court of Appeals for the Third

Circuit should be affirmed ................

TABLE OF AUTHORITIES.

CASE:

E. |. du Pont de Nemours & Co. v. Train, 420 U.S.

Ser cesépabecerseccceesss

STATUTES:

es ONE. occ cc ccccccccccccccees

Clean Water Act:

Section 301(1), 33 U.S.C. § 1311(1) (1982)...

Section 301(b), 33 U.S.C. § 1311(b) (1982)...

Sections 310(c) and (g), 33 U.S.C. § 1311(c)

chick esesectccescscccecees

Section 304(b), 33 U.S.C. § 1314(b) (1982). ..

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

LR Tom DF rrr rree reer

Dn occccccescceccececees

OTHER AUTHORITY:

A Legislative History of the Clean Water Act of

1977, Cong. Research Service, Comm. Print

No. 14, 95th Cong., 2d Sess. (1978) ........

Page

3,4

Nos. 83-1013 and 83-1373

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983.

e

CHEMICAL MANUFACTURERS ASSOCIATION, ef a/.,

Petitioners,

Vv.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ef a/.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

Vv.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ef ai.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT.

Brief for State of New York Amicus Curiae.

2

Opinion Below.

The opinion of the Court of Appeals for the Third Cir-

cuit is reported at 719 F.2d 624.

Jurisdiction.

The judgment of the Court of Appeals was entered on

September 20, 1983. The petition for a writ of certiorari in

No. 83-1013 was filed on December 19, 1983. By order

dated December 12, 1983, Justice Brennan extended the

time to file a petition for a writ of certiorari in No. 83-1373

until February 17, 1984, and the petition was filed on that

date. The petitions were granted, and the cases were con-

solidated on April 30, 1984. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

Statutes and Regulations Involved.

This case involves technology-based ‘‘pretreatment

standards”’ under Section 307(b) of the Clean Water Act,

33 U.S.C. § 1317(b) (1982). Section 301(b) of the Act, 33

U.S.C. § 1311(b) (1982), describes various effluent limita-

tions and standards that dischargers of pollutants are re-

quired to achieve. The factors that the Environmental

Protection Agency Administrator must consider in

establishing effluent limitations and standards are set

forth in § 304(b) of the Act, 33 U.S.C. § 1314(b) (1982).

Sections 301(c) and (g) of the Act, 33 U.S.C. § 1311(c) and

(g) (1982), authorize modifications of some of the § 30)

limitations and standards. Section 301(1) of the Act, 33

U.S.C. § 1311(1) (1982), provides that the Administrator

may not modify the requirements of § 301 for toxic

pollutants.

3

The EPA regulation at issue in this case governing the

establishment of ‘‘fundamentally different factors’’

(“‘FDF’’) variances is codified at 40 C.F.R. § 403.13

(1983), and in 1984 was amended to reflect the decision of

the court below (49 F.R. 5132, Feb. 10, 1984).

Interest of Amicus Curiae.

When the Congress enacted the Clean Water Act, 33

U.S.C. §§ 1251 et seq., it provided for a national scheme

to improve the nation’s water quality. Whilc the States re-

main free under the Act to promulgate stricter standards

should they choose to do so, they remain dependent upon

the United States Environmental Protection Agency

(‘‘EPA’’) to promulgate baseline national effluent limita-

tions. When EPA creates an unauthorized variance pro-

cedure, Congress’ intent that there be baseline uniformity

in regulating discharges is denied. This frustrates the water

quality goals of the Act, does violence to the federal-State

partnership envisioned by Congress, creates economic in-

equities by giving some plants economic advantages over

others, and carried to the extreme, promotes interstate

conflict.

New York, like 30 other States, is not authorized by

EPA to administer the fundamentally different factor

(‘‘FDF’’) variance EPA created for indirect dischargers of

toxic pollutants. In addition, under EPA’s regulations,

New York and 30 other States have no formal role when a

discharger requests a variance from EPA; they may not

even be aware of the request. EPA’s never-ending deci-

sion-making process on FDF variances for toxic pollutants

operates as a disincentive to the timely installation of

pollution control devices because plants applying for the

variance defer such expenditures in the hope they may

qualify for a variance and thus cut costs.

4

Such inequities, the State of New York suggests, were

not only not contemplated by Congress in enacting and

amending the Clean Water Act, but are contrary to Con-

gress’ intentions.

This brief is therefore submitted in sipport of the posi-

tion urged by the respondent, the Natural Resources

Defense Council, Inc. seeking affirmance of the decision

below of the Third Circuit Court of Appeals.

Statement of the Case.

The Clean Water Act, 33 U.S.C. §§ 1251 ef seq., re-

quires the United States Environmental Protection Agency

to regulate two types of industrial dischargers: (1)

“‘direct’’ dischargers, who discharge their wastewater

directly into navigable waters, and (2) “‘indirect’’ dis-

chargers, who discharge into municipally operated, pub-

licly-owned treatment works, which in turn discharge their

collective wastewaters into navigable waters. For both

types of dischargers, EPA conducted rulemaking proceed-

ings and promulgated national technology-based requir<-

ments applicable to categories of dischargers (e.g., metal

finishing, electroplating). In each rulemaking proceeding,

EPA inventoried industrial plants to gather information

about the types and quantities of pollutants in a typical

plant’s wastewater and the costs and effectiveness of

various wastewater treatment technologies prior to pro-

mulgating regulations.

EPA also, however, included a provision allowing an

atypical plant to obtain a variance from the limits in a

categorical standard where the plant made a satisfactory

showing of factors ‘‘fundamentally different’’ from those

considered by EPA in promulgating the regulations. This

‘*fundamentally different factor’’ variance is theoretically

5

available to lower as well as raise a plant's limits (although

there are no indications in the record of requests to lower

the limits) and is available not only upon the request of a

plant, but of “‘any interested person’’, including EPA (40

C.F.R. § 403.13(b)).

The variance mecharism is somewhat cumbersome.

New York and 30 other States are not authorized by EPA

to grant or deny requests for variances from the pretreat-

ment standards. Variance requests must be filed with the

EPA, and the public is invited to comment (40 C.F.R.

§ 403.13(g), (j)). The EPA Enforcement Division Director

then decides whether to grant or deny the variance (40

C.F.R. 403.13(1)). After his decision is issued, any inter-

ested person may petition the EPA Kegional Administrator

for a hearing within 30 days of the EPA Enforcement Di-

vision Director’s decision (40 C.F.R. § 403.13(m)(1)), and

if the petition is denied, the denial may be appealed to the

EPA Administrator himself (40 C.F.R. § 403.13(m)(2)).

Experience has shown that once a plant files for an FDF

variance, compliance with the Clean Water Act is deferred

to some uncertain future date. Some applications, still

undecided, date from 1976. Not surprisingly, while this

process is going on, plants are unwilling to make substan-

tial capital investments in expensive pollution control

devices because there exists the hope that a variance will be

issued and that the expenditure may not be necessary.

Summary of Argument.

By its express terms, Section 301(1) of the Clean Water

Act prohibits the issuance of a variance for indirect

dischargers of toxic pollutants. It is reasonable to assume

that Congress, which expressly included several provisions

authorizing variances relatiig to conventional, i.e., non-

toxic, pollutants in other sections of the Clean Water Act,

enacted the prohibition barring variances for toxic pol-

lutants in Section 301(1) because it chose to treat toxic

pollutants differently.

EPA's argument that the ban against variances applies

to some variances but not to the FDF variances at issue is

inconsistent with the broad language of the ban and Con-

gress’ historic treatment of toxic pollutants under the

Clean Water Act.

EPA's argument that the ban must be read flexibly in its

favor or, conversely, rigidly to prohibit any amendment or

revision of effluent limitations or standards in the absence

of rule-making must be rejected because a reasonable con-

struction which accords with the statute’s express terms

and intent is available.

ARGUMENT.

Section 301(1) of the Clean Water Act prohibits the is-

suance of FDF variances for indirect dischargers uf toxic

pollutants.

Section 301(1) of the Clean Water Act was enacted by

Congress in 1977 and provides:

The Administrator may not modify any require-

ment of this section as it applies to any specific

pollutant which is on the toxic pollutant list under

section 307(a)(1) of this title.

This is in stark contrast to Sections 301(c) and (g) of the

Clean Water Act which expressly authorize variances:

7

(c) The Administrator may modify the re-

quirements of 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 show-

ing by the owner or operator of such point source

satisfactory to the Administrator that such modi-

fied requirements (1) will represent the maximum

use of technology within the economic capability of

the owner or operator; and (2) will result ir rea-

sonable further progress toward the elimination of

the discharge of pollutants.

(g) (1) The Administrator, with the concurrence

of the State, shall modify the requirements of sub-

section (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 title,

toxic pollutants subject to section 307(a) of this

title, 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) euch modified requirements will resuh 9: 0

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

(C) such modification will not interfere with the

attainment or maintenance of that water quality

which shall assure protection of public water sup-

plies, 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 wiii 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 car-

cinogenicity, mutagenicity or teratogenicity), or

synergistic propensities.

(2) If an owner or operator of a point source ap-

plies 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 pollutant only during the same

time period as he is eligible to apply for a modifica-

tion under this subsection. (Emphasis added).

Had Congress wished to authorize a variance from toxic

pollutants for indirect dischargers, it certainly had the op-

portunity. Instead, it chose to prohibit such variances and

plainly said so. The Third Circuit had no difficulty with

this rationale. As that Court pointed out, Congress has

always treated toxic pollutants specially under the Act (719

F.2d at 645). Indeed, the ban against variances for toxic

pollutants is the only express ban against variances in the

entire Act.

The reasoning this Court applied in £./. du Pont de

Nemours & Co. v. Train, 430 U.S. 112, 138 (1977) is

equally appropriate here:

In striking contrast to § 30l{c), there is no

Statutory provision for variances, and a variance

provision would be inappropriate in a standard that

was intended to insure national uniformity and

“maximum feasible control of new sources.’’ 430

U.S. at 138 (emphasis added).

Congress’ intention to insure national uniformity is

counter-manded by creation of an FDF variance.

EPA’s argument that the ban against variances for toxic

pollutants applies not to FDF variances but only to those

authorized by Sections 301(c) and (g)—based on eco-

nomics or the high quality of waters receiving the

discharge—is belied by the broad terms of the prohibition

in Section 301(1). It is nothing more than an argument of

convenience for the administrators and does not reflect

Congress’ intention—or most obviously—Congress’

words.

EPA’s argument that a “‘literalistic’’ reading of the ban

would mean that EPA could never revise effluent limita-

tions and pretreatment standards for toxic pollutants even

if it discovered errors in its analysis goes too far. The ban

does not prohibit EPA from amending or revising

nationally-uniform limitations or standards within a rule-

making context; such amendments or revisions would still

provide for national uniformity, rather than for case-by-

case exceptions administered on a regional rather than na-

tional basis, some by mere default for years, as the FDF

variance procedure does now.

10

New York strongly disagrees with EPA’s argument that

a rule-making proceeding and the FDF variance procedure

would achieve the same substantive result. Rule-making

achieves national uniformity in accordance with the goals

of the Clean Water Act, while individual plant-by-plant

determinations made by regional, not national, EPA per-

sonnel under the FDF variance procedure do not.

It is significant that Senator Edmund S. Muskie,

acknowledged by this Court in du Pont as ‘‘perhaps the

Act’s primary author’’ (430 U.S. at 129) used the terms

“*modification’’ and ‘‘variance’’ interchangeably during

the Senate floor debate, on the 1977 amendments (A

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

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

Sess. [1978]). His understanding of the meaning of the

term ‘‘modification’’, and his explanation to his col-

leagues, who presumably relied upon it, is clear: modifica-

tion means variance, not rule-making. And as this Court

also stated in du Pont, Senator Muskie also ‘‘emphasized

the importance of uniformity in setting § 301 limitations.

He explained that this goal of uniformity required that

EPA focus on classes or categories of sources in for-

mulating effluent limitations’’ (430 U.S. at 129). EPA's

FDF variances which creat« plant-by-plant rather than

categorical exceptions are inconsistent with Senator

Muskie’s representations. Senator Muskie’s statements,

given his unique role in obtaining passage of the legislative

provisions at issue here, are entitled to significant weight.

Thus, EPA’s argument that a literal interpretation is re-

quired should be rejected because it would lead to an

unreasonable result, and that would be inconsistent with

elementary principles of statutory construction.

il

CONCLUSION.

For the foregoing reasons, the decision of the Court of

Appeals for the Third Circuit should be affirmed.

Dated: August 20, 1984

ROBERT ABRAMS

Attorney General of the

State of New York

Attorney of Record

The Capitol

Albany, New York 12224

(518) 474-1968

PETER H. SCHIFF

Acting Attorney in Chief

Appeals and Opinions

JAMES A. SEVINSKY

Assistant Attorney General

in Charge

KATHLEEN LISTON MORRISON

Assistant Attorney General

of Counsel