470 U.S. 116 (1985), 83-1013, Chemical Manufacturers Association v. Natural Resources Defense Council, Inc.

Docket Nº:No. 83-1013.
Citation:470 U.S. 116, 105 S.Ct. 1102, 84 L.Ed.2d 90, 53 U.S.L.W. 4193
Party Name:Chemical Manufacturers Association v. Natural Resources Defense Council, Inc.
Case Date:February 27, 1985
Court:United States Supreme Court
 
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470 U.S. 116 (1985)

105 S.Ct. 1102, 84 L.Ed.2d 90, 53 U.S.L.W. 4193

Chemical Manufacturers Association

v.

Natural Resources Defense Council, Inc.

No. 83-1013.

United States Supreme Court

Feb. 27, 1985

Argued November 6, 1984

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Syllabus

Under the Clean Water Act (Act), the Environmental Protection Agency (EPA) is required to promulgate regulations establishing categories of pollution sources and setting effluent limitations for those categories. Because of the difficulties involved in collecting adequate information to promulgate regulations, EPA has developed a "fundamentally different factor" (FDF) variance as a mechanism for ensuring that its necessarily rough-hewn categories of sources do not unfairly burden atypical dischargers of waste. Any interested party may seek an FDF variance to make effluent limitations either more or less stringent if the standards applied to a given source, because of factors fundamentally different from those considered by EPA in setting the limitation, are either too lenient or too strict. In a consolidated lawsuit, the Court of Appeals held that EPA was barred from issuing FDF variances from toxic pollutant effluent limitations by § 301(1) of the Act, which provides that EPA may not "modify" any effluent limitation requirement of § 301 insofar as toxic materials are concerned. The court rejected EPA's view that § 301(1) prohibits only modifications as to toxic materials otherwise permitted by other provisions of § 301 on economic or water quality grounds, and that § 301(1) does not address the issue of FDF variances.

Held: The view of the agency charged with administering the statute is entitled to considerable deference, and EPA's understanding of the statute is sufficiently rational to preclude a court from substituting its judgment for that of EPA. Pp. 125-133.

(a) The statutory language does not foreclose EPA's view of the statute. Although the word "modify," if read in its broadest sense in § 301(1), would encompass any change in effluent limitations, it makes little sense to construe the section to forbid EPA to amend its own standards, even to correct an error or to impose stricter requirements. The word "modify" has no plain meaning as used in § 301(1), and is the proper subject of construction by EPA and the courts. Pp. 125-126.

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(b) The legislative history does not evince an unambiguous congressional intent to forbid FDF waivers with respect to toxic materials. An indication that Congress did not intend to forbid FDF waivers is its silence on the issue when it amended § 301 with regard to waivers on other grounds. Pp. 126-129.

(c) EPA's construction of § 301(1) as not prohibiting FDF variances is consistent with the Act's goals and operation. EPA's regulation as to such variances explains that its purpose is to remedy categories that were not accurately drawn because information was either not available to or not considered by EPA in setting the original categories and limitations. An FDF variance does not excuse compliance with a correct requirement, but instead represents an acknowledgment that not all relevant factors were taken sufficiently into account in framing that requirement originally, and that those relevant factors, properly considered, would have justified -- indeed, required -- the creation of a subcategory for the discharger in question. The availability of FDF variances makes bearable the enormous burden faced by EPA in promulgating categories of sources and setting effluent limitations. Pp. 129-133.

719 F.2d 624, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, and in Parts I, II, and III of which O'CONNOR, J., joined, post, p. 134. O'CONNOR, J., filed a dissenting opinion, post, p. 165.

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These cases present the question whether the Environmental Protection Agency (EPA) may issue certain variances from toxic pollutant effluent limitations promulgated under the Clean Water Act, 86 Stat. 816, as amended, 33 U.S.C. § 1251 et seq.1

I

As part of a consolidated lawsuit, respondent Natural Resources Defense Council (NRDC) sought a declaration that § 301(1) of the Clean Water Act, 33 U.S.C. § 1311(1), prohibited EPA from issuing "fundamentally different factor" (FDF) variances for pollutants listed as toxic under the Act.2 Petitioners EPA and Chemical Manufacturers Association (CMA) argued otherwise. To understand the nature of this controversy, some background with respect to the statute and the case law is necessary.

The Clean Water Act, the basic federal legislation dealing with water pollution, assumed its present form as the result of extensive amendments in 1972 and 1977. For direct dischargers -- those who expel waste directly into navigable waters -- the Act calls for a two-phase program of technology-based effluent limitations, commanding that dischargers comply with the best practicable control technology currently available (BPT) by July 1, 1977, and subsequently meet the generally more stringent effluent standard consistent with the best available technology economically achievable (BAT).3

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Indirect dischargers -- those whose waste water passes through publicly owned treatment plants -- are similarly required to comply with pretreatment standards promulgated by EPA under § 307 of the Act, 33 U.S.C. § 1317(b), for pollutants not susceptible to treatment by sewage systems or which would interfere with the operation of those systems. Relying upon legislative history suggesting that pretreatment standards are to be comparable to limitations for direct dischargers, see H.R.Rep. No. 95-830, p. 87 (1977), and pursuant to a consent decree,4 EPA has set effluent limitations for indirect dischargers under the same two-phase approach applied to those discharging waste directly into navigable waters.

[105 S.Ct. 1105] Thus, for both direct and indirect dischargers, EPA considers specific statutory factors5 and promulgates regulations creating categories and classes of sources and setting uniform discharge limitations for those classes and categories. Since

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application of the statutory factors varies on the basis of the industrial process used and a variety of other factors, EPA has faced substantial burdens in collecting information adequate to create categories and classes suitable for uniform effluent limits, a burden complicated by the time deadlines it has been under to accomplish the task.6 Some plants may find themselves classified within a category of sources from which they are, or claim to be, fundamentally different in terms of the statutory factors. As a result, EPA has developed its FDF variance as a mechanism for ensuring that its necessarily rough-hewn categories do not unfairly burden atypical plants.7 Any [105 S.Ct. 1106] interested party may seek an FDF

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variance to make effluent limitations either more or less stringent if the standards applied to a given source, because of factors fundamentally different from those considered by

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EPA in setting the limitation, are either too lenient or too strict.8

The 1977 amendments to the Clean Water Act reflected Congress' increased concern with the dangers of toxic pollutants. The Act, as then amended, allows specific statutory modifications of effluent limitations for economic and water

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quality reasons in §§ 301(c) and (g).9 Section 301(1), however, added by the 1977 amendments, [105 S.Ct. 1107] provides:

The Administrator may not modify any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list under section 307(a)(1) of this Act.

91 Stat. 1590. In the aftermath of the 1977 amendments, EPA continued its practice of occasionally granting FDF variances for BPT

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requirements. The Agency also promulgated regulations explicitly allowing FDF variances for pretreatment standards10 and BAT requirements.11 Under these regulations, EPA granted FDF variances, but infrequently.12

As part of its consolidated lawsuit, respondent NRDC here challenged pretreatment standards for indirect dischargers and sought a declaration that § 301(1) barred any FDF variance with respect to toxic pollutants.13 In an earlier case, the Fourth Circuit had rejected a similar argument, finding that § 301(1) was ambiguous on the issue of whether it applied to FDF variances, and therefore deferring to the administrative agency's interpretation that such variances were permitted. Appalachian Power Co. v. Train, 620 F.2d 1040, 1047-1048 (1980). Contrariwise, the Third Circuit here ruled in favor of NRDC, and against petitioners EPA and CMA, holding that § 301(1) forbids the issuance of FDF variances for toxic pollutants. National Assn. of Metal Finishers

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v. EPA, 719 F.2d 624 (1983). We granted certiorari to resolve this conflict between the Courts of Appeals and to decide this important question of environmental law. 466 U.S. 957 (1984). We reverse.

II

Section 301(1) states that EPA may not "modify" any requirement of § 301 insofar as toxic materials are concerned. EPA insists that § 301(1) prohibits only those modifications expressly permitted by other provisions of § 301, namely, those that § 301(c) and § 301(g) would allow on economic or water quality grounds. Section 301(1), it is urged, does not address the very different issue of FDF variances. This view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that...

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