# Amicus Curiae 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%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1987 - **Citation:** 479 U.S. 1084 ## Text _ / ~\ Ir” _ Supreme Court. U.S. fAN ) was DD ~ 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 {as 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 CIID iis snssiscsinionsinciestsihvkscietsichdeepticenanianntameianneeaal 2 Statutes Clean Water Act, 33 U.S.C. § 1251 ef seq. ...............- passim USC. SIT) ...........-..... PRON Sani ee 2,6 SE ide Oe BA cn nities dnnevinnncsinhienchgstireeanpsamniaiguaneasiets 4 ee tk Ae IE CUD oven ccicniccacnicsetiaceinmninctanbaiainicns 4 Be ere BI oie ia icikincserpentichsienapnientiniaesipabssiadlietsatied 3 Se RG: NOE nisi cocninosnascachsencaisenchennampesierkinsanieonen 6, 7,9 Be a eID vsnsiseiccsinscctenschsenstsbgmndelsonieniasinnn 7 Be he OE anak cincicins si ccocnsnsisssictcaannenhneneichiainamanelaa 7 Regulations rs IG iin wiveneissiccterinsncevinincenenataniinininpaaaanintan 4 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 — [Ras atvesema ream 2 wee tz AS. att --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2337%3A6. Public record. Not legal advice.