ELR Citation: ELR 20648
No(s). 84-3701 (3d Cir. Jul 8, 1985)

The court holds that the Environmental Protection Agency's (EPA's) decision that Federal Water Pollution Control Act §301(g) variances do not apply to pretreatment standards was not arbitrary or capricious. The court rules that petitioner failed to meet its burden of showing that EPA's decision was unreasonable for reasons stated in the EPA letter rejecting the variance request. The letter, published as an appendix to the opinion, concludes that Congress did not intend §301(g) variances to apply to pretreatment standards for a number of reasons. Section 301(g) refers to "discharges of pollutants," a term limited in the statutory definitions and legislative history to direct discharges. This conclusion is consistent with the terms of §§301(b)(2)(A) (establishing the requirement from which the variance is sought) and 301(j)(1)(B) (establishing the deadline for §301(g) applications). Section 301(g) is linked to §301(c), which is limited to direct discharges. Applying §301(g) to pretreatment standards would create confusing and limiting distinctions that Congress probably would not have decreed without explanation. There is no affirmative indication in the Act that Congress intended the variances to apply to pretreatment standards. Finally, §301(g)'s water quality-based modifications could not practically be implemented with discharges to publicly owned treatment works, since the water quality effect of a change for one of thousands of inputs to the treatment works could not be determined.

Counsel for Petitioner
Robert L. Collings, Kenneth R. Myers, William F. Mongan
Morgan, Lewis & Bockius
2000 One Logan Sq., Philadelphia PA 19103
(215) 963-5000

Templeton Smith
Koppers Company, Inc.
Koppers Bldg., Pittsburgh PA 15219
(412) 227-2000

Kenneth A. Rubin
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 872-5000

Counsel for Respondent
F. Henry Habicht II, Ass't Attorney General; Scott E. Slaughter, Margaret M. Strand, Michael W. Steinberg
Land and Natural Resources Division
Department of Justice, Washington DC 20520
(202) 633-2701

Gerald H. Yamada, Acting General Counsel; Susan G. Lepow
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Before Aldisert, Gibbons, and Bechtle,^* JJ.