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

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Nos. 86-239 & 86-608 JAN 14 1997

Q rm. OF ANIOL, JR.

IN THE CLERK

Supreme Cot of the United States

OCTOBER TERM, 1986

CHEMICAL MANUFACTURERS ASSOCIATION,

Petitioner,

V.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

CHICAGO ASSOCIATION OF COMMERCE AND

INDUSTRY, et al.,

pe Petitioners,

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE

OF THE MUNICIPAL PRETREATMENT GROUP

IN SUPPORT OF THE PETITIONS FOR CERTIORARI

LEE C. WHITE

Attorney of Record

ROBERT J. SANER It

REBECCA L. BURKE

WHITE, FINE & VERVILLE

Suite 1100

1156 15th Street, N.W.

Washington, D.C. 20005

(202) 659-2900

Attorneys for the

Municipal Pretreatment

Group, Amicus Curiae

WILSON - Epes PRINTING Co., INC. - 789-OC96 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

STATEMENT OF INTEREST OF THE MUNICIPAL

PRETREATMENT GROUP

REASONS FOR GRANTING THE WRIT

I. The Decision Below Raises Issues of National

Importance

II. The Decision Below Upsets EPA’s Longstanding

interpretation of the Clean Water Act Relied

Upon by POTWs

CONCLUSION

Page

ii

TABLE OF AUTHORITIES

Cases Page

National Association of Metal Finishers v. U.S.

Environmental Protection Agency, 719 F.2d 624

(3rd Cir. 1983), rev’d in part, sub nom. Chemi-

cal Manufacturers Association v. National Re-

sources Defense Council, Inc., 470 U.S. 116

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

Nos. 86-239 & 86-608

CHEMICAL MANUFACTURERS ASSOCIATION,

Petitioner,

V.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

CHICAGO ASSOCIATION OF COMMERCE AND

INDUSTRY, et al.,

Petitioners,

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Respondents.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE

OF THE MUNICIPAL PRETREATMENT GROUP

IN SUPPORT OF THE PETITIONS FOR CERTIORARI

The City of Albuquerque, Buffalo Sewer Authority,

Metropolitan Sanitary District of Greater Chicago, Gulf

Coast Waste Disposal Authority (Texas), City of Indian-

apolis, City of Memphis, Milwaukee Metropolitan Sewer-

age District, and Sanitary District of Rockford, Illinois

(hereinafter “The Municipal Pretreatment Group”) file

this brief, amicus curiae in support of the petitions for

certiorari filed in this case. All parties of record have

given their consent to this filing.

2

STATEMENT OF INTEREST OF THE

MUNICIPAL PRETREATMENT GROUP

The Municipal Pretreatment Group has a substantial

interest in the outcome of this case. The Municipal Pre-

treatment Group is an unincorporated coalition of munic-

ipalities and special purpose sewerage districts, all of

which own and operate publicly owned waste water treat-

ment works (“POTW”s). These municipal authorities

either have approved “removal credit” programs under

Section 307(b) of the Clean Water Act, 33 U.S.C. § 1317(b)

(1982), or have programs under development and in

some cases awaiting only final agency approval. Its mem-

bers, along with other interested cities, constitute the

Conference on Removal Credits of the Association of

Metropolitan Sewerage Agencies (‘““AMSA’’), a national

non-profit association of 100 municipal agencies and spe-

cial purpose districts which own and operate nearly all

of the nation’s large POTWs serving a combined popula-

tion of over 80 million people.

AMSA was a petitioner in the Third Circuit’s earlier

review of “removal credits”, which resulted in a decision

upholding the United States Environmental Protection

Agency’s (EPA) removal credit regulation. National

Association of Metal Finishers v. U.S. Environmental

Protection Agency, 719 F.2d 624 (8rd Cir. 1983) rev’d

in part, sub nom. Chemical Manufacturers Association v.

National Resources Defense Council, Inc., 470 U.S. 116

(1985).

The Municipal Pretreatment Group filed a motion for

late intervention with the Third Circuit in the instant

case after the decision was issued but before the denial

of rehearing. That motion was denied.

Under Section 307(b) of the Clean Water Act, EPA

promulgates categorical pretreatment standards for in-

dustrial discharges to POTWs. Congress authorized

POTWs to grant “removal credits” to industrial dis-

3

chargers where pretreatment by industry and subsequent

treatment at the POTW would result in duplicative treat-

ment. Removal credits therefore modify categorical pre-

treatment standards promulgated by the EPA. These

credits have become an integral part of the pretreatment

programs, either in place or under development, in many

industrial communities throughout the country.

The decision of the Third Circuit struck down EPA’s

removal credit regulations on, inter alia, the grounds that

EPA has not promulgated sufficiently comprehensive reg-

ulations governing the use or disposal of municipal sew-

age sludge under Section 405 of the Act, 33 U.S.C. § 1345.

The decision below would invalidate all EPA approved

pretreatment programs which include removal credits.

The decision would aiso indefinitely suspend the author-

ity of POTWs to grant removal credits in the future. The

effect of the decision, if permitted to stand, would be to

disrupt years of planning, negotiations, and commitment

of resources by POTWs in the development of effective

local pretreatment programs.’

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW RAISES ISSUES OF NA-

TIONAL IMPORTANCE

The decision of the Third Circuit, if allowed to stand,

would invalidate EPA’s removal credit regulations and

thereby dismantle for an indefinite period an essential

element of the Clean Water Act’s pretreatment program.

As a result of that decision, POTWs such as members of

the Municipal Pretreatment Group are threatened with

substantial and serious disruption of their pretreatment

programs.

1 Other aspects of the decision find EPA’s removal credit pro-

gram deficient for reasons unrelated to § 405 and could be cured

by EPA without necessarily invalidating existing removal credits,

or unduly disrupting local pretreatment programs.

4

These public agencies have developed local pretreatment

programs as required by Section 402(b) (8) of the Clean

Water Act, 33 U.S.C. § 1842(b) (8). As an integral part

of these pretreatment programs, they have applied for

and received approval (or have applications under devel-

opment and pending approval) under 40 C.F.R. § 403.7

to grant “removal credits” to industrial concerns which

discharge treated waste water effluent into their POTW

systems (“indirect dischargers”). Where already

granted, approval for such credits is reflected in NPDES

discharge permits issued under Section 402 of the Act,

33 U.S.C. § 1342.

These agencies have invested considerable public re-

sources in the development of pretreatment programs tail-

ored to the particular facts and circumstances of the

communities they serve. These investments include sam-

pling, monitoring and reporting with respect to POTW

removal capabilities, indirect dischargers’ pretreatment

systems, receiving water quality and sewage sludge char-

acteristics; developing necessary local industrial waste

ordinances; building staff and laboratory capacity for

the implementation of the local pretreatment effort; co-

operation and negotiation with industrial dischargers;

application to and review by state permitting authorities

and EPA; and involvement of the public through com-

ment and hearing procedures.’

2 The experience of the Sanitary District of Rockford, Illinois

is illustrative. The District is a unit of local government under

the Illinois Constitution and is established pursuant to statutory

authority independent of other municipal governments. It first

submitted an application for removal credits in draft form to

EPA in 1980 based upon its monitoring of influent and effluent

data over the previous year. Meanwhile, in preparation for sub-

mitting a final application, the District staff substantially revised

its local pretreatment ordinance and obtained approval of its Board

of Trustees for such changes. This was accomplished in late

1982. Because of ongoing changes in EPA regulations and sur-

rounding uncertainty it was not until September 2, 1983 that the

5

To the extent that »emoval credit authority is an in-

tegral component of an agency’s pretreatment strategy,

the Third Circuit’s decision in this case effectively de-

stroys these investments of time, money and _ public

credibility made over many years.

The Municipal Pretreatment Group will be particularly

affected by that aspect of the decision which, read liter-

ally, precludes any removal credit program until EPA

issues comprehensive sludge management regulations un-

der Section 405(d) of the Act, 33 U.S.C. § 1845(d).

With this one stroke of the pen, the Court has invali-

dated elements of local ordinances, industry/POTW con-

tracts, pretreatment program approvals, and NPDES

permits.

Many POTWs have relied upon the participation of

ratepaying industrial indirect dischargers. Without the

authority to grant removal credits, when appropriate,

local industries which, under the decision below, would

now be required to meet categorical pretreatment stand-

ards may see little advantage to discharging into POTWs

and may elect to become direct dischargers. More signifi-

cant than the loss of revenue to municipal agencies, would

be the undesirable consequences of industrial firms becom-

ing direct dischargers rather than being a part of re-

gional systems with better monitoring and control fea-

tures, one of the principal goals of the Clean Water Act.

District submitted a final application to EPA based upon more

recent data and monitoring. The development and submittal of

the application for removal credits, extending as it did over a

number of years involved extensive staff and management time

and a major diversion of scarce resources.

That application was not approved until May 30, 1984 and it

was not until January of 1986 that removal credits were in-

corporated into the District’s NPDES permit—approximately six

years after the first application was submitted in draft form. As

finally approved, the program permits the District to grant re-

moval credits for copper, zinc, chromium, nickel, and lead to 39

separate local metal plating and metal finishing industries. All of

these metals are subject to State regulations which limit land

application of sludge.

6

If such industries become direct dischargers, the en-

forcement and monitoring responsibilities for their ef-

fluent would be transferred to the state and Federal en-

vironmental protection agencies, thereby increasing the

burden on those agencies which may lack the staff and

the funding to handle such an increase in work load.

Another potential consequence of the decision below is

industry closure. If POTWs are not able to grant re-

moval credits many local industries, particularly those

with aging physical plants, may decide to abandon these

facilities rather than make the substantial capital im-

provements necessary to comply with categorical pre-

treatment standards. If this occurs, the loss of jobs and

the erosion of the economic and tax base in these com-

munities will be significant.

II. THE DECISION BELOW UPSETS EPA’S LONG-

STANDING INTERPRETATION OF THE CLEAN

WATER ACT RELIED UPON BY POTWs.

Prior to the decision below, EPA has interpreted Sec-

tion 307(b) of the Act to permit local removal credit pro-

grams as long as the POTW’s chosen method of sludge

use or disposal was in compliance with any applicable

federal, state or local sludge requirements. (See, Federal

Respondent’s Brief, p. 4). This interpretation is reason-

able and consistent with the language of the statute, and

permitted the effectuation of the removal credits concept

by interested POTWs. The Municipal Pretreatment

Group relied on this interpretation in the development of

local programs, just as industries relied on local removal

credits in planning for their compliance with categorical

pretreatment standards.

The decision of the Third Circuit now makes the is-

suance of additional sludge management guidelines under

Section 405(d) a pre-condition for the issuance of re-

moval credits under Section 307(b), effectively render-

ing that portion of Section 307 a nullity in the interim,

7

a result Congress could not have intended. The Clean

Water Act, through express language makes the removal

credit program discretionary with local POTWs under

Section 307(b) (1). Yet the Third Circuit’s decision re-

moves that discretion entirely despite the fact that, again

through express language, the Act makes determinations

with respect to sludge disposal or use a matter of local

discretion under Section 405(e), 33 U.S.C. § 1345(e),

and regardless of the POTW’s compliance with all local,

state and Federal requirements currently applicable to

sludge management practices.

Nothing in the express language of either Section 307(b)

or Section 405(d) requires promulgation of sludge reg-

ulations for all pollutants and all use or disposal options

before any removal credit programs can be implemented.

Congress anticipated that the Federal sludge guidelines

would evolve over time, and expressly provided not just

for initial rulemaking by a date certain, but also for

additional promulgations “from time to time thereafter”.

33 U.S.C. § 405(d). Had Congress intended to delay the

removal credit program until all Section 405(d) rule-

makings had been completed, it could easily have pro-

vided some explicit trigger mechanism in Section 307(b),

or elsewhere in the Act. It did not.

Furthermore, by tying the removal credit authority in

Section 307(b) to only federally promulgated sludge reg-

ulations under Section 405(d), the Third Circuit has

failed to give proper effect to Congress’ intent that, ir.

the absence of a Section 405(d) guideline, “the manner

of disposal or use of sludge is a local determination”.

33 U.S.C. § 405(e).

Section 510 of the Act, 33 U.S.C. § 1370 expressly pro-

vides that nothing in the Act shall prohibit states from

adopting and enforcing pollution abatement measures

provided that the state standards are not less stringent

than standards promulgated under the Act. In this case,

where there are no federally promulgated sludge stand-

8

ards that are more stringent, the Act clearly states that

state or local laws and regulations shall prevail.*

It is entirely possible that existing limitations on sludge

disposal in some states will be more stringent than some

future EPA promulgated regulations under Section 405

(d). In such a case it is the stricter state regulations

already in existence which will govern. The Third Cir-

cuit’s decision essentially ignores these state and local

limitations and the important role they play and may

continue to play in the future in protecting the public

health.

A particularly burdensome aspect of the decision below

is that it leaves both public agencies and indirect dis-

chargers in a legal “no man’s land” of sudden non-

compliance. Both have relied in good faith on the avail-

ability of removal credits. Now, for some indefinite future

until Section 405(d) sludge regulations are promulgated,

both are potentially subject to enforcement proceedings.

Industrial dischargers that completed capital equipment

programs in reliance on credits may be immediately out

of compliance with categorical pretreatment standards.

POTWs, no longer able to grant credits, will be obligated

under the terms of their pretreatment program approvals

to enforce the categorical standards against industry, or

risk enforcement themselves from EPA, state agencies

and citizen suits. These significant new enforcement obli-

gations will require increased commitments of resources

and personnel. POTWs will have to put local industries

on compliance schedules, monitor that compliance, and

prosecute those who cannot comply.

The government’s opposition to certiorari essentially

ignores this aspect of the case. While maintaining that

3’ For example, the state of Illinois has regulations in place which

limit the land application of sludge containing any of the metals

for which the Sanitary District of Rockford has authority to grant

removal credits. Similarly, the City of Racine, Wisconsin was

granted authority to issue removal credits for chromium, zinc and

lead, all of which are subject to state sludge regulations.

9

the Third Circuit’s decision is erroneous, and recognizing

the hardship it will impose on the regulated community

(See, Federal Respondent’s, Brief, pp. 7, 9-10), the gov-

ernment nonetheless argues against further review on the

ground that further “rulemaking efforts now in progress

should eventually alleviate the principal burdens created

by the decision.” (Jd., p. 7). EPA’s efforts to promulgate

sludge regulation under Section 405(d) have already been

“in progress” for many years. Proposed rules are ex-

pected no earlier than August of 1987. Final rules will

undoubtedly require an additional six months to a year to

be promulgated if EPA’s experience on major regulations

is a reliable indicator. Moreover, the odds are great that

the final regulations will be challenged judicially, adding

another year or two to the process. Thus, for an indefinite

and lengthy period, the POTWs and industries effected

by the decision below remain at risk of civil and even

criminal enforcement proceedings. EPA may eventually

alleviate this burden prospectively, but it has done noth-

ing, and offers nothing in its Opposition, to remedy the

immediate dilemma faced by both POTWs and their indi-

rect industrial dischargers. '

CONCLUSION

The decision below raises issues of national significance.

If that decision stands, the removal credit portion of the

pretreatment program will be indefinitely suspended and

POTWs throughout the country will be faced with the

burden of substantially altering their local pretreatment

programs. In addition, the significant time and resources

POTWs have already committed to the development of

programs in compliance with EPA’s 1984 regulations will

have been largely for naught.

The Third Circuit’s decision is also contrary to EPA’s

reasonable and longstanding interpretation of the Act—

an interpretation relied upon by municipalities and indus-

try in the development of effective industrial pretreat-

ment programs.

10

For all of the foregoing reasons, the Municipal Pre-

treatment Group urges the Court to grant the petitions

for a writ of certiorari.

Respectfully submitted,

LEE C. WHITE

Attorney of Record

ROBERT J. SANER II

REBECCA L. BURKE

WHITE, FINE & VERVILLE

Suite 1100

1156 15th Street, N.W.

Washington, D.C. 20005

(202) 659-2900

Attorneys for the

Municipal Pretreatment

Group, Amicus Curiae —

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