# Supplemental Brief — Chemical Manufacturers Ass'n v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2337%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Supplemental Brief - **Published:** January 1, 1987 - **Citation:** 479 U.S. 1084 ## Text ™~ FILED NY, vil 81 Nos. 86-239 &) FEB 20 » PANIOL, JR. RK Iu the Supreme Court of the United States OCTOBER TERM, 1986 CHEMICAL MANUFACTURERS ASSOCIATION, PETITIONER Vv. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. CHICAGO ASSOCIATION OF COMMERCE AND INDUSTRY, ET AL., PETITIONERS Vv. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT SUPPLEMENTAL BRIEF FOR THE UNITED STATES IN OPPOSITION CHARLES FRIED Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 VY ef | J Iu the Supreme Court of the United States OCTOBER TERM, 1986 No. 86-239 CHEMICAL MANUFACTURERS ASSOCIATION, PETITIONER Vv. a NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. No. 86-608 3 CHICAGO ASSOCIATION OF COMMERCE AND * INDUSTRY, ET AL., PETITIONERS ¥ NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. ; ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT SUPPLEMENTAL BRIEF FOR THE UNITED STATES IN OPPOSITION (1) 2 This supplemental brief is filed pursuant to Rule 22.6 of the Rules of this Court to notify the Court of a development occurring subsequent to the filing of our brief in opposition that may affect the Court’s disposition of the two petitions for a writ of cer- tiorari. On February 4, 1987, Congress enacted into law, over the President’s veto, the Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 et seg. Section 406 of that Act amends Section 405(d) of the Clean Water Act, 33 U.S.C. 1845(d), the meaning of which is the subject of the two petitions. In our brief in op- position, we argue that the two petitions should be denied because EPA rulemaking efforts now in progress should eventually alleviate the principal burdens created by the decision. In our view, the new statutory amendments make this Court’s review even less appropriate. Section 406(a) of the Water Quality Act of 1987 amends Section 405(d)(2) of the Clean Water Act to provide that EPA should promulgate sludge rules by August 31, 1987, for certain toxic pollutants and by June 15, 1988, for others. In addition, Section 406(e) of the 1987 Act stays until August 31, 1987, the relevant portion of the decision of the court of appeals in this case with respect to those publicly owned treatment works that either received removal credits prior to February 4, 1987, or that applied for removal credits and whose application was pending on February 4th, and is approved by August 31, 1987. Finally, Section 406(e) provides that “[t]he Admin- istrator shall not authorize any other removal credits under such Act until the Administrator issues the [sludge] regulations required by paragraph (2) (A) 3 (ii) of section 405(d) of [the Clean Water] Act, as amended.’’* Respectfully submitted. CHARLES FRIED Solicitor General FEBRUARY 1987 * A copy of the pertinent provision of the Water Quality Act of 1987 is appended. APPENDIX SEC. 406. SEWAGE SLUDGE. (a) IDENTIFICATION AND REGULATION OF TOXIC POLLUTANTS.—Section 405(d) is amended— (1) by inserting “(1) REGULATIONS.—” be- fore ‘‘The Administrator, after” ; (2) by striking “(1)”, “(2)”, and “(3)” and inserting in lieu thereof “(A)”, “(B)”, and “(CC)”, respectively ; and (8) by adding at the end the following new paragraphs: “‘(2) IDENTIFICATION AND REGULATION OF TOXIC POLLUTANTS.— “(A) ON BASIS OF AVAILABLE INFORMA- TION.— “(i) PROPOSED REGULATIONS.—Not later than November 30, 1986, the Ad- ministrator shall identify those toxic pollutants which, on the basis of avail- able information on their toxicity, per- sistence, concentration, mobility, or potential for exposure, may be present in sewage sludge in concentrations which may adversely affect public health or the environment, and propose regulations specifying acceptable man- agement practices for sewage sludge containing each such toxic pollutant and establishing numerical limitations for each such pollutant for each use identified under paragraph (1) (A). “(ii) FINAL REGULATIONS.—Not later than August 31, 1987, and after op- (1a) 2a portunity for public hearing, the Ad- ministrator shall promulgate the reg- ulations required by subparagraph (A) (i). “(B) OTHERS.— “(j) PROPOSED REGULATIONS.—Not f later than July 31, 1987, the Admin- istrator shall identify those toxic pollu- tants not identified under subparagraph (A) (i) which may be present in sew- age sludge in concentrations which may adversely affect public health or the environment, and propose regulations specifying acceptable management prac- tices for sewage sludge containing each such toxic pollutant and establishing numerical limitations for each pollu- tant for each such use identified under paragraph (1) (A). “(ji) FINAL REGULATIONS.—Not later than June 15, 1988, the Administrator shall promulgate the regulations re- quired by subparagraph (B) (i). “(C) REVIEW.—From time to time, but not less often than every 2 years, the Ad- ministrator shall review the regulations promulgated under this paragraph for the purpose of identifying additional toxic pol- lutants and promulgating regulations for f such nollutants consistent with the require- y ments of this paragraph. “(D) MINIMUM STANDARDS; COMPLIANCE DATE.—The management practices and nu- merical criteria established under subpara- iiasinintniinememenaimiamiinis 3a graphs (A), (B), and (C) shall be ade- quate to protect public health and the envi- ronment from any reasonably anticipated adverse effects of each pollutant. Such regu- lations shall require compliance as expedi- tiously as practicable but in no case later than 12 months after their publication, un- less such regulations require the construc- tion of new pollution control facilities, in which case the regulations shall require compliance as expeditiously as practicable but in no case later than two years from the date of their publication. “(3) ALTERNATIVE STANDARDS.—For purposes of this subsection, if, in the judgment of the Administrator, it is not feasible to prescribe or enforce a numerical limitation for a pollutant identified under paragraph (2), the Administra- tor may instead promulgate a design, equipment, management practice, or operational standard, or combination thereof, which in the Adminis- trator’s judgment is adequate to protect public health and the environment from any reasonably anticipated adverse effects of such pollutant. In the event the Administrator promulgates a de- sign or equipment standard under this subsec- tion, the Administrator shall include as part of such standard such requirements as will assure the proper operation and maintenance of any such element of design or equipment. “(4) CONDITIONS ON PERMITS.—Prior to the promulgation of the regulations required by par- agraph (2), the Administrator shall impose con- ditions in permits issued to publicly owned treat- ment works under section 402 of this Act or take 4a such other measures as the Administrator deems appropriate to protect public health and the en- vironment from any adverse effects which may occur from toxic pollutants in sewage sludge. “(5) LIMITATION ON STATUTORY CONSTRUC- TION.—Nothing in this section is intended to waive more stringent requirements established by this Act or any other law.”. (b) MANNER OF SLUDGE DISPOSAL.—Section 405 (e) is amended to read as follows: “(e) MANNER OF SLUDGE DISPOSAL.—The deter- mination of the manner of disposal or use of sludge is a local determination, except that it shall be un- lawful for any person to dispose of sludge from a publicly owned treatment works or any other treat- ment works treating domestic sewage for any use for which regulations have been established pursuant to subsection (d) of this section, except in accord- ance with such regulations.”. (c) IMPLEMENTATION THROUGH PERMITS.—Sec- tion 405 is further amended by adding at the end thereof the following: “(f) IMPLEMENTATION OF REGULATIONS.— ‘“‘(1) THROUGH SECTION 402 PERMITS.—Any permit issued under section 402 of this Act to a publicly owned treatment works or any other treatment works treating domestic sewage shall include requirements for the use and disposal of sludge that implement the regulations established pursuant to subsection (d) of this section, un- less such requirements have been included in a permit issued under the appropriate provisions of subtitle C of the Solid Waste Disposal Act, 5a part C of the Safe Drinking Water Act, the Marine Protection, Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under State permit programs approved by the Admin- istrator, where the Administrator determines that such programs assure compliance with any applicable requirements of this section. Not later than December 15, 1986, the Administrator shall promulgate procedures for approval of State programs pursuant to this paragraph. “(2) THROUGH OTHER PERMITS.—In the case of a treatment works described in paragraph (1) that is not subject to section 402 of this Act and to which none of the other above listed permit programs nor approved State permit au- thority apply, the Administrator may issue a permit to such treatment works solely to impose requirements for the use and disposal of sludge that implement the regulations established pur- suant to subsection (d) of this section. The Ad- ministrator shall include in the permit appropri- ate requirements to assure compliance with the regulations established pursuant to subsection (d) of this section. The Administrator shall es- tablish procedures for issuing permits pursuant to this paragraph. “(g) STUDIES AND PROJECTS.— “(1) GRANT PROGRAM; INFORMATION GATHER- ING.—The Administrator is authorized to con- duct or initiate scientific studies, demonstration projects, and public information and education projects which are designed to promote the safe and beneficial management or use of sewage sludge for such purposes as aiding the restora- 6a tion of abandoned mine sites, conditioning soil for parks and recreation areas, agricultural and horticultural uses, and other beneficial purposes. For the purposes of carrying out this subsection, the Administrator may make grants to State water pollution control agencies, other public or nonprofit agencies, institutions, organizations, and individuals. In cooperation with other Fed- eral departments and agencies, other public and private agencies, institutions, and organizations, the Administrator is authorized to collect and disseminate information pertaining to the safe and beneficial use of sewage sludge. “(2) AUTHORIZATION OF APPROPRIATIONS.— For the purposes of carrying out the scientific studies, demonstration projects, and public in- formation and education projects authorized in this section, there is authorized to be appropri- ated for fiscal years beginning after September 30, 1986, not to exceed $5,000,000.” (d) ENFORCEMENT.—(1) Section 308(a)(4) is amended by inserting “405,” before “and 504”. (2) Section 505(f) is amended by striking out “or” before “(6)” and by inserting before the period “or (7) a regulation under section 405(d) of this Act,”’. (3) Section 509(b) (1) (E) is amended by striking out “or 306” and inserting in lieu thereof “306, or 405”. (e) REMOVAL CREDITS.—The part of the decision of Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, No. 84-8530 (3d. Cir. 1986), which addresses section 405(d) of the Federal Water Pollution Control Act is stayed until August 31, 1987, with respect to— Ta (1) those publicly owned treatment works the owner or operator of which received authority to revise pretreatment requirements under section 307(b) (1) of such Act before the date of the enactment of this section, and (2) those publicly owned treatment works the owner or operator of which has submitted an application for authority to revise pretreatment requirements under such section 307(b) (1) which application is pending on such date of en- actment and is approved before August 31, 1987. The Administrator shall not authorize any other re- moval credits under such Act until the Administrator issues the regulations required by paragraph (2) (A) (ii) of section 405(d) of such Act, as amended by subsection (a) of this section. (f) CONFORMING AMENDMENTS.—Section 405 (d) is further amended— (1) by inserting “REGULATIONS.—” after rT: (d) os (2) by indenting paragraph (1) (as desig- nated by subsection (a) (1) of this section) and aligning such paragraph with paragraph (38), as added by subsection (a) (3) ; and (3) in such paragraph (1) by aligning sub- paragraphs (A), (B), and (C) (as designated by subsection (a) (2) of this section) with sub- paragraph (C) of paragraph (2), as added by subsection (a) (3) of this section. We o&. 8. covernment paintine orrice; 1987 181483 40228 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2337%3A4. Public record. Not legal advice.