ELR Citation: ELR 20230
No(s). s. 83-1013,- 1373 (U.S. Feb 27, 1985)

With a five-Justice majority, the Court rules that §301(l) of the Federal Water Pollution Control Act (FWPCA) does not bar issuance of fundamentally different factors (FDF) variances from pretreatment standards governing discharges of toxic pollutants from industry categories. The Court first notes that it must defer to the Environmental Protection Agency's (EPA's) interpretation of the statute if rational and not contrary to the expressed congressional intent. The Court then rules that the plain language of §301(l), which states that EPA "may not modify any requirement" of §301 for toxic pollutants, does not preclude the variances. Read literally, the prohibition would be that broad, but that reading cannot be correct since it would outlaw revisions of §301 standards, which Congress expressly required under certain circumstances.

The Court then rules that the legislative history does not reveal an unambiguous congressional intent to bar FDF variances of toxics. Section 301(l) was added to the 1977 amendments in the Conference Committee, which also deleted a proposed new provision barring extension of §301(c) ability-to-pay variances to toxic pollutants, and added to a new §301(g) water quality waiver, which by its own terms did not apply to toxics, a further prohibition on waivers for discharges of conventional or thermal pollutants. The Court finds that the combination of actions does not illuminate Congress' intent for FDF variances, but places great weight on a statement by a key congressman that §301(l) applies to §301(c) and (g) modifications. And in 1977, Congress knew that the Court recently had required provision variances like FDF from uniform categorical standards, so its silence on this specific question strongly suggests that such variances were not to be affected.

The Court next rejects arguments that allowing FDF variances from toxics standards will frustrate the goals or operation of the FWPCA. The FDF variance is not an exception from the uniform categorical standard, but a realization that the broad standard is inapplicable to a plant which is fundamentally different from the category in terms of the factors on which the standard is based. EPA could accomplish the same end by promulgating a categorical standard for the individual source, with the only difference one of procedures, and the Court notes, the judiciary must be especially deferential to an agency's selection of procedures. Allowing FDF variances does not render §301(l)'s prohibition meaningless since §301(l) still prohibits §301(c) and (g) modifications. And, FDF variances aid the statutory scheme, by making it possible for EPA to defend uniform standards that cannot take into account all the variation in individual facilities. The Court concludes that since EPA's interpretation of §301(l) is reasonable and has been consistent since the 1970s, it must be upheld.

A dissent subscribed to in its entirety by three Justices would interpret §301(l) to bar FDF variances for toxics. The dissent finds the plain meaning of the section to bar all variances and reads the legislative history to support this reading. It rejects the argument that the FDF variance is simply a revision with a different procedure, concluding that the procedure of category by category rulemaking required for revisions had substantive significance to Congress, for it enabled EPA to set standards that would be technology forcing for the dirtier plants in a category. The dissent also would rule that §301(l) bars all toxics variances, not just those for pretreatment standards. A fourth Justice agrees with the dissent on all points save the applicability of §301(l) to standards other than pretreatment.

Counsel for Petitioner CMA
Theodore L. Garrett
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20044
(202) 662-5398

Counsel for Petitioner EPA
Barry S. Neuman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2664

Counsel for Respondent
Frances Dubrowski
Natural Resources Defense Council
1350 New York Ave. NW, Washington DC 20005
(202) 783-7800