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.
470 U. S.
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.
470 U. S.
125-126.
Page 470 U. S. 117
(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.
470 U. S.
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.
470 U. S.
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.
470 U. S. 134.
O'CONNOR, J., filed a dissenting opinion,
post, p.
470 U. S.
165.
Page 470 U. S. 118
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.
[
Footnote 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. [
Footnote 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). [
Footnote
3]
Page 470 U. S. 119
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, [
Footnote 4] EPA has set effluent
limitations for indirect dischargers under the same two-phase
approach applied to those discharging waste directly into navigable
waters.
Thus, for both direct and indirect dischargers, EPA considers
specific statutory factors [
Footnote 5] and promulgates regulations creating
categories and classes of sources and setting uniform discharge
limitations for those classes and categories. Since
Page 470 U. S. 120
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. [
Footnote
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. [
Footnote 7] Any
interested party may seek an FDF
Page 470 U. S. 121
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
Page 470 U. S. 122
EPA in setting the limitation, are either too lenient or too
strict. [
Footnote 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
Page 470 U. S. 123
quality reasons in §§ 301(c) and (g). [
Footnote 9] Section 301(1), however, added by the 1977
amendments, 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
Page 470 U. S. 124
requirements. The Agency also promulgated regulations explicitly
allowing FDF variances for pretreatment standards [
Footnote 10] and BAT requirements.
[
Footnote 11] Under these
regulations, EPA granted FDF variances, but infrequently. [
Footnote 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. [
Footnote 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
Page 470 U. S. 125
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
EPA might have adopted, but only that EPA's understanding of this
very "complex statute" is a sufficiently rational one to preclude a
court from substituting its judgment for that of EPA.
Train v.
NRDC, 421 U. S. 60,
421 U. S. 75,
421 U. S. 87
(1975);
See also Chevron U.S.A. Inc. v.
NRDC, 467 U. S. 837
(1984). Of course, if Congress has clearly expressed an intent
contrary to that of the Agency, our duty is to enforce the will of
Congress.
Chevron, supra, at
467 U. S. 843,
n. 9;
SEC v. Sloan, 436 U. S. 103,
436 U. S.
117-118 (1978).
A
NRDC insists that the language of § 301(1) is itself enough to
require affirmance of the Court of Appeals, since on its face it
forbids any modifications of the effluent limitations that EPA must
promulgate for toxic pollutants. If the word "modify" in § 301(1)
is read in its broadest sense, that is, to encompass any change or
alteration in the standards, NRDC is correct. But 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. Furthermore,
Page 470 U. S. 126
reading § 301(1) in this manner would forbid what § 307(b)(2)
expressly directs: EPA is there required to "revise" its
pretreatment standards "from time to time, as control technology,
processes, operating methods, or other alternatives change." As
NRDC does and must concede, Tr. of Oral Arg. 25-26, § 301(1) cannot
be read to forbid every change in the toxic waste standards. The
word "modify" thus has no plain meaning as used in § 301(1), and is
the proper subject of construction by EPA and the courts. NRDC
would construe it to forbid the kind of alteration involved in an
FDF variance, while the Agency would confine the section to
prohibiting the partial modifications that § 301(c) would otherwise
permit. Since EPA asserts that the FDF variance is more like a
revision permitted by § 307 than it is like a § 301(c) or (g)
modification, and since, as will become evident, we think there is
a reasonable basis for such a position, we conclude that the
statutory language does not foreclose the Agency's view of the
statute. We should defer to that view unless the legislative
history or the purpose and structure of the statute clearly reveal
a contrary intent on the part of Congress. NRDC submits that the
legislative materials evince such a contrary intent. We
disagree.
B
The legislative history of § 301(1) is best understood in light
of its evolution. The 1972 amendments to the Act added § 301(c),
which allowed EPA to waive BAT and pretreatment requirements on a
case-by-case basis when economic circumstances justified such a
waiver. Pub.L. 92-500, 86 Stat. 845. In 1977, the Senate proposed
amending § 301(c) by prohibiting such waivers for toxic pollutants.
See S.1952, 92d Cong., 2d Sess., 30 (1977), Leg.Hist. 584,
[
Footnote 14] and S.Rep.
Page 470 U. S. 127
No. 95-370, p. 44 (1977), Leg.Hist. 677. At the same time, the
Senate bill added what became § 301(g), which allowed waivers from
BAT and pretreatment standards where such waivers would not impair
water quality, but which, like § 301(c), prohibited waivers for
toxic pollutants. S.1952, at 28-29, Leg.Hist. 582-583. [
Footnote 15] The bill did not
contain § 301(1). That section was proposed by the Conference
Committee, which also deleted the toxic pollutant prohibition in §
301(c) and redrafted § 301(g) to prohibit water quality waivers for
conventional pollutants and thermal discharges as well as for toxic
pollutants. [
Footnote 16]
While the Conference Committee Report did not explain the reason
for proposing § 301(1), Representative Roberts, the House floor
manager, stated:
"Due to the nature of toxic pollutants, those identified for
regulation will not be subject to waivers from or modification of
the requirements prescribed under this section,
specifically,
neither section 301(c) waivers based on the economic capability of
the discharger nor 301(g) waivers based on water quality
considerations shall be available."
Leg.Hist. 328-329 (emphasis added).
Another indication that Congress did not intend to forbid FDF
waivers as well as §§ 301(c) and (g) modifications is its silence
on the issue. Under NRDC's theory, the Conference Committee did not
merely tinker with the wording of the Senate bill, but boldly moved
to eliminate FDF variances. But if that was the Committee's
intention, it is odd that the
Page 470 U. S. 128
Committee did not communicate it to either House, for, only a
few months before, we had construed the Act to permit the very FDF
variance NRDC insists the Conference Committee was silently
proposing to abolish. In
E. I. du Pont de Nemours & Co. v.
Train, 430 U. S. 112
(1977), we upheld EPA's class and category effluent limitations,
relying on the availability of FDF waivers.
Id. at
430 U. S. 128.
Congress was undoubtedly aware of
Du Pont, [
Footnote 17] and absent an expression of
legislative will, we are reluctant to infer an intent to amend the
Act so as to ignore the thrust of an important decision.
Edmonds v. Compagnie Generale Transatlantiqe, 443 U.
S. 256,
443 U. S.
266-267 (1979). [
Footnote 18]
Page 470 U. S. 129
NRDC argues that Congress' discussion of the Act's provisions
supports its position. Several legislators' comments seemed to
equate "modifications" with "waivers" or "variances." [
Footnote 19] Many of these
statements, however, came in the specific context of discussing the
"waiver" provisions of §§ 301(c) and (g), not the prohibition in §
301(1).
See, e.g., 123 Cong.Rec. 39183-39184 (1977),
Leg.Hist. 458, 461 (Sen. Muskie); 123 Cong.Rec. 38961 (1977),
Leg.Hist. 331 (Rep. Roberts); S.Rep. No. 95-370, pp. 40-44,
Leg.Hist. 673677 (discussing water quality based modifications).
Simply because Members of Congress or Committees referred to
modifications authorized by §§ 301(c) and (g) as "variance"
provisions, does not mean that FDF variances are also modifications
barred by § 301(1).
After examining the wording and legislative history of the
statute, we agree with EPA and CMA that the legislative history
itself does not evince an unambiguous congressional intention to
forbid all FDF waivers with respect to toxic materials.
Chevron, 467 U.S. at
467 U. S.
842-843, and n. 9.
C
Neither are we convinced that FDF variances threaten to
frustrate the goals and operation of the statutory scheme set
Page 470 U. S. 130
up by Congress. The nature of FDF variances has been spelled out
both by this Court and by the Agency itself. The regulation
explains that its purpose is to remedy categories which were not
accurately drawn because information was either not available to or
not considered by the Administrator in setting the original
categories and limitations. 40 CFR § 403.13(b) (1984). 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. As we have recognized,
the FDF variance is a laudable corrective mechanism,
"an acknowledgment that the uniform . . . limitation was set
without reference to the full range of current practices, to which
the Administrator was to refer."
EPA v. National Crushed Stone Assn., 449 U. S.
64,
449 U. S. 77-78
(1980). It is, essentially, not an exception to the
standard-setting process, but rather a more fine-tuned application
of it. [
Footnote 20]
We are not persuaded by NRDC's argument that granting FDF
variances is inconsistent with the goal of uniform effluent
limitations under the Act. Congress did intend uniformity among
sources in the same category, demanding that "similar point sources
with similar characteristics . . . meet similar effluent
limitations," S.Rep. No. 92-1236, p. 126 (1972). EPA, however, was
admonished to take into account the diversity within each industry
by establishing appropriate subcategories. Leg.Hist. 455.
Page 470 U. S. 131
NRDC concedes that EPA could promulgate rules under § 307 of the
Act [
Footnote 21] creating a
subcategory for each source which is fundamentally different from
the rest of the class under the factors the EPA must consider in
drawing categories. The same result is produced by the issuance of
an FDF variance for the same failure properly to subdivide a broad
category. [
Footnote 22]
Since the dispute is therefore reduced to an argument over the
means used by EPA to define subcategories of indirect dischargers
in order to achieve the goals of the Act, these are particularly
persuasive cases for deference to the Agency's interpretation.
Cf. Vermont Yankee Nuclear Power Corp. v. NRDC,
435 U. S. 519,
435 U. S. 543
(1978);
NLRB v. Bell Aerospace Co., 416 U.
S. 267,
416 U. S. 293
(1974).
NRDC argues, echoing the concern of the Court of Appeals below,
that allowing FDF variances will render meaningless the § 301(1)
prohibition against modifications on the basis of economic and
water quality factors. That argument ignores the clear difference
between the purpose of FDF waivers and that of §§ 301(c) and (g)
modifications, a difference we explained in
National Crushed
Stone. A discharger that satisfies the requirements of §
301(c) qualifies for a variance
"simply because [it] could not afford a compliance cost that is
not fundamentally different from those the Administrator has
already considered"
in creating a category and setting an effluent limitation. 449
U.S. at
449 U. S. 78. A
§ 301(c) modification forces
"a displacement of calculations already performed, not because
those calculations were incomplete or had unexpected effects, but
only because the costs happened to fall on
Page 470 U. S. 132
one particular operator, rather than on another who might be
economically better off."
Ibid. FDF variances are specifically unavailable for
the grounds that would justify the statutory modifications. 40 CFR
§§ 403.13(e)(3) and (4) (1984). Both a source's inability to pay
the foreseen costs, grounds for a § 301(c) modification, and the
lack of a significant impact on water quality, grounds for a §
301(g) modification, are irrelevant under FDF variance procedures.
Ibid.; see also Crown Simpson Pulp Co. v. Costle, 642 F.2d
323 (CA9),
cert. denied, 454 U.S. 1053 (1981).
EPA and CMA point out that the availability of FDF variances
makes bearable the enormous burden faced by EPA in promulgating
categories of sources and setting effluent limitations. Acting
under stringent timetables, [
Footnote 23] EPA must collect and analyze large amounts
of technical information concerning complex industrial categories.
[
Footnote 24]
Understandably,
Page 470 U. S. 133
EPA may not be apprised of, and will fail to consider, unique
factors applicable to atypical plants during the categorical
rulemaking process, and it is thus important that EPA's nationally
binding categorical pretreatment standards for indirect dischargers
be tempered with the flexibility that the FDF variance mechanism
offers, a mechanism repugnant to neither the goals nor the
operation of the Act. [
Footnote
25]
Page 470 U. S. 134
III
Viewed in its entirety, neither the language nor the legislative
history of the Act demonstrates a clear congressional intent to
forbid EPA's sensible variance mechanism for tailoring the
categories it promulgates. In the absence of a congressional
directive to the contrary, we accept EPA's conclusion that § 301(1)
does not prohibit FDF variances. That interpretation gives the term
"modify" a consistent meaning in §§ 301(c), (g), and (1), and draws
support from the legislative evolution of § 301(1) and from
congressional silence on whether it intended to forbid FDF
variances altogether and thus to obviate our decision in
Du
Pont.
Here we are not dealing with an agency's change of position with
the advent of a different administration, but rather with EPA's
consistent interpretation since the 1970's. [
Footnote 26] NRDC argues that its construction
of the statute is better supported by policy considerations. But we
do not sit to judge the relative wisdom of competing statutory
interpretations. Here EPA's construction, fairly understood, is not
inconsistent with the language, goals, or operation of the Act. Nor
does the administration of EPA's regulation undermine the will of
Congress. [
Footnote 27]
The judgment of the Court of Appeals is reversed.
It is so ordered.
* Together with No. 83-1373,
United States Environmental
Protection Agency v. Natural Resources Defense Council, Inc., et
al., also on certiorari to the same court.
[
Footnote 1]
Hereinafter, the Clean Water Act will be referred to,
interchangeably, by its entire name or simply as the Act.
[
Footnote 2]
EPA is required, under § 307(a)(1) of the Act, 33 U.S.C. §
1317(a)(1), to publish a list of toxic pollutants. Upon designation
of a pollutant as toxic, § 307(a)(2), 33 U.S.C. § 1317(a)(2),
requires EPA to set standards for its discharge.
[
Footnote 3]
See E. I. du Pont de Nemours & Co. v. Train,
430 U. S. 112,
430 U. S. 121
(1977). BAT standards are set on the basis of categories and
classes of sources under rules promulgated by the EPA under §
304(b), 33 U.S.C. § 1314(b). Although the statute indicated that
BPT standards be established for point sources, rather than
categories of sources, we held in
Du Pont that the EPA
could also set BPT limitations on the basis of classes and
categories, as long as allowance was made for variations in
individual plants through a variance procedure. 430 U.S. at
430 U. S.
128.
[
Footnote 4]
Lawsuits by NRDC resulted in a consent decree placing EPA under
deadlines for promulgating categorical pretreatment standards based
on BPT and BAT criteria.
NRDC v. Train, 8 ERC 2120, 6
Env.L.Rep. 20588 (DC 1976),
modified sub nom. NRDC v.
Costle, 12 ERC 1833, 9 Env.L.Rep. 20176 (DC 1979),
modified sub nom. NRDC v. Gorsuch, No. 72-2153 (Oct. 26,
1982),
modified sub nom. NRDC v. Ruckelshaus, No. 73-2153
(Aug. 2, 1983), and 14 Env.L.Rep. 20185 (1984). In the 1977
amendments to the Act, Congress sanctioned this approach to
establishing pretreatment standards for indirect dischargers.
Environmental Defense Fund, Inc. v. Costle, 205
U.S.App.D.C. 101, 115-116, 636 F.2d 1229, 1243-1244 (1980).
[
Footnote 5]
The factors relating to the assessment of BAT standards, set out
in § 304(b)(2)(B) of the Act, include the age of equipment and
facilities involved, the process employed, the engineering aspects
of the application of various types of control techniques, the cost
of achieving effluent reduction, and nonwater quality environmental
impacts. 33 U.S.C. § 1314(b)(2)(B).
[
Footnote 6]
See n 4,
supra.
[
Footnote 7]
The challenged FDF variance regulation with respect to indirect
dischargers, 40 CFR § 403.13 (1984), provides in relevant part:
"§ 403.13 Variances from categorical pretreatment standards for
fundamentally different factors."
"(a)
Definition. The term 'Requester' means an
Industrial User or a [publicly owned treatment work] or other
interested person seeking a variance from the limits specified in a
categorical Pretreatment Standard."
"(b)
Purpose and scope. (1) In establishing categorical
Pretreatment Standards for existing sources, the EPA will take into
account all the information it can collect, develop and solicit
regarding the factors relevant to pretreatment standards under
section 307(b). In some cases, information which may affect these
Pretreatment Standards will not be available or, for other reasons,
will not be considered during their development. As a result, it
may be necessary on a case-by-case basis to adjust the limits in
categorical Pretreatment Standards, making them either more or less
stringent, as they apply to a certain Industrial User within an
industrial category or subcategory. This will only be done if data
specific to that Industrial User indicates it presents factors
fundamentally different from those considered by EPA in developing
the limit at issue. Any interested person believing that factors
relating to an Industrial User are fundamentally different from the
factors considered during development of a categorical Pretreatment
Standard applicable to that User and further, that the existence of
those factors justifies a different discharge limit from that
specified in the applicable categorical Pretreatment Standard, may
request a fundamentally different factors variance under this
section or such a variance request may be initiated by the
EPA."
"
* * * *"
"(c)
Criteria -- (1)
General Criteria. A
request for a variance based upon fundamentally different factors
shall be approved only if:"
"(i) There is an applicable categorical Pretreatment Standard
which specifically controls the pollutant for which alternative
limits have been requested; and"
"(ii) Factors relating to the discharge controlled by the
categorical Pretreatment Standard are fundamentally different from
the factors considered by EPA in establishing the Standards;
and"
"(iii) The request for a variance is made in accordance with
[applicable procedural requirements]."
"(2)
Criteria applicable to less stringent limits. A
variance request for the establishment of limits less stringent
than required by the Standard shall be approved only if:"
"(i) The alternative limit requested is no less stringent than
justified by the fundamental difference;"
"(ii) The alternative limit will not result in a violation of
prohibitive discharge standards prescribed by or established under
§ 403.5;"
"(iii) The alternative limit will not result in a non-water
quality environmental impact (including energy requirements)
fundamentally more adverse than the impact considered during
development of the Pretreatment Standards; and"
"(iv) Compliance with the Standards (either by using the
technologies upon which the Standards are based or by using other
control alternatives) would result in either:"
"(A) A removal cost (adjusted for inflation) wholly out of
proportion to the removal cost considered during development of the
Standards; or"
"(B) A non-water quality environmental impact (including energy
requirements) fundamentally more adverse than the impact considered
during development of the Standards."
"(3)
Criteria applicable to more stringent limits. A
variance request for the establishment of limits more stringent
than required by the Standards shall be approved only if:"
"(i) The alternative limit request is no more stringent than
justified by the fundamental difference; and"
"(ii) Compliance with the alternative limit would not result in
either:"
"(A) A removal cost (adjusted for inflation) wholly out of
proportion to the removal cost considered during development of the
Standards; or"
"(B) A non-water quality environmental impact (including energy
requirements) fundamentally more adverse than the impact considered
during development of the Standards."
"(d)
Factors considered fundamentally different.
Factors which may be considered fundamentally different are:"
"(1) The nature or quality of pollutants contained in the raw
waste load of the User's process wastewater:"
"(2) The volume of the User's process wastewater and effluent
discharged;"
"(3) Non-water quality environmental impact of control and
treatment of the User's raw waste load;"
"(4) Energy requirements of the application of control and
treatment technology;"
"(5) Age, size, land availability, and configuration as they
relate to the User's equipment or facilities; processes employed;
process changes and engineering aspects of the application of
control technology;"
"(6) Cost of compliance with required control technology."
"(e)
Factors which will not be considered fundamentally
different. A variance request or portion of such a request
under this section may not be granted on any of the following
grounds:"
"(1) The feasibility of installing the required waste treatment
equipment within the time the Act allows;"
"(2) The assertion that the Standards cannot be achieved with
the appropriate waste treatment facilities installed, if such
assertion is not based on factors listed in paragraph (d) of this
section;"
"(3) The User's ability to pay for the required waste treatment;
or"
"(4) The impact of a Discharge on the quality of the [publicly
owned treatment works'] receiving waters."
The regulation also provides for public notice of the FDF
application and opportunity for public comments and a public
hearing. EPA has promulgated an analogous provision for direct
dischargers, 40 CFR § 125.30 (1984).
[
Footnote 8]
Sources subject to new source performance standards (NSPS) under
the Act are those who begin construction after the publication of
proposed new source standards, 33 U.S.C. § 1316, and they are
ineligible for FDF variances.
See 40 CFR § 403.13(b)
(1984).
[
Footnote 9]
33 U.S.C.§§ 1311(c) and (g). Those provisions explain in
relevant part:
"(c) The Administrator may modify the requirements of [§ 301's
effluent limitations] with respect to any point source for which a
permit application is filed after July 1, 1977, upon a showing by
the owner or operator of such point source satisfactory to the
Administrator that such modified requirements (1) will represent
the maximum use of technology within the economic capability of the
owner or operator; and (2) will result in reasonable further
progress toward the elimination of the discharge of
pollutants."
"
* * * *"
"(g)(1) The Administrator, with the concurrence of the State,
shall modify the requirements of [§ 301's effluent limitations]
with respect to the discharge of any pollutant (other than
pollutants identified pursuant to section 1314(a)(4) of this title,
toxic pollutants subject to section 1317(a) of this title, and the
thermal component of discharges) from any point source upon a
showing by the owner or operator of such a point source
satisfactory to the Administrator that -- "
"
* * * *"
"(C) such modification will not interfere with the attainment or
maintenance of that water quality which shall assure protection of
public water supplies, and the protection and propagation of a
balanced population of shellfish, fish, and wildlife, and allow
recreational activities, in and on the water and such modification
will not result in the discharge of pollutants in quantities which
may reasonably be anticipated to pose an unacceptable risk to human
health or the environment. . . ."
EPA and NRDC appear to be at odds as to whether § 301(c) and §
301(g) modifications are available to indirect dischargers, as well
as direct dischargers.
Compare Brief for EPA 33, n. 23,
and Reply Brief for EPA 2-3,
with Brief for NRDC
29,
and n. 41. Resolution of the seeming disagreement is
not necessary to adjudicate these cases.
[
Footnote 10]
40 CFR § 403.13 (1984). This variance regulation was issued on
June 26, 1978, 43 Fed.Reg. 27736-27773, and amended on January 28,
1981, 46 Fed.Reg. 9404-9460. The 1978 regulation differed in
respects not relevant here.
[
Footnote 11]
See 44 Fed.Reg. 32854, 32893-32894 (1979).
[
Footnote 12]
NRDC acknowledges the limited availability of FDF variances.
Brief for NRDC in Opposition 7-8. By 1977, only 50 of 4,000 major
industrial dischargers covered by BPT limits had applied for FDF
variances, and only two variances had been granted.
Id. at
12. By 1984, a total of four FDF variances had been granted to
direct dischargers, and none had been granted to an indirect
discharger. EPA estimates that, in the entire country,
approximately 40 FDF variance requests filed by indirect
dischargers are still pending. Brief for EPA 36, n. 28.
[
Footnote 13]
In the Court of Appeals, NRDC also argued that EPA had neither
statutory nor inherent authority to issue FDF variances from either
BAT or pretreatment standards, even when toxic pollutants were not
involved. The court below did not reach this argument,
National
Assn. of Metal Finishers v. EPA, 719 F.2d 624, 643-645 (1983),
and we need not address it. For present purposes, we assume,
without deciding, that EPA would have authority under the Act to
issue the FDF variances in question here absent the provisions of §
301(1).
[
Footnote 14]
Citations to the legislative history (Leg.Hist.) are to Senate
Committee on Environment and Public Works, A Legislative History of
the Clean Water Act of 1977, prepared by the Environmental Policy
Division of the Congressional Research Service of the Library of
Congress (Comm. Print 1978).
[
Footnote 15]
The 1977 House bill to amend the Clean Water Act contained no
comparable water quality waiver provision. H.R. 3199, 95th Cong.,
1st Sess. (1977), Leg.Hist. 1167.
[
Footnote 16]
In view of § 301(1), the ban on toxic waste waivers in § 301(g)
was unnecessary. But there can be no doubt that § 301(1) forbade §§
301(c) and (g) modifications for toxic materials, and the presence
of a similar ban in § 301(g) lends little support for the notion
that § 301(1) forbids FDF variances.
[
Footnote 17]
A representative of NRDC testified before Congress that a
"fundamental variance provision" was integral to the Act's system
of "national, uniform, minimum effluent limitations."
See
Federal Water Pollution Control Act Amendments of 1977, Hearings
before the Subcommittee on Environmental Pollution, Senate
Committee on Environment and Public Works, 95th Cong., 1st Sess.,
Ser. No. 95-H25, pt. 9, p. 37 (1977).
There is other evidence that both this Court's decision in
Du Pont and an earlier decision of the Fourth Circuit
approving variances that took all statutory factors into account in
Appalachian Power Co. v. Train, 545 F.2d 1351 (1976), were
brought to the attention of Congress during the debates on the 1977
amendments. Referring to a Library of Congress report,
Representative Clausen, ranking minority member of the Subcommittee
on Water Resources, stated during the House debate on the
Conference Report to the final 1977 amendments that
"full understanding of [the 1972 Clean Water Act amendments] can
only be achieved by having an understanding of the case law
interpreting the public law."
123 Cong.Rec. 38976 (1977), Leg.Hist. 374. The Library of
Congress report Senator Clausen referred to specifically discussed
both
Du Pont and
Appalachian Power. See
Case Law Under the Federal Water Pollution Control Act Amendments
of 1972 (Committee Print compiled for the House Committee on Public
Works and Transportation by the Library of Congress), Ser. No.
95-35, pp. 20, 28 (1977).
[
Footnote 18]
NRDC suggests that eliminating FDF variances would not overrule
Du Pont, because the rationale for
Du Pont's
holding applied only to BPT standards. Since BPT standards were due
to be phased out, NRDC suggests, Congress had no reason to address
Du Pont's requirements of FDF waivers. Even if we were to
accept NRDC's narrow reading of
Du Pont -- and we
recognize that the
Du Pont opinion arguably applies to BAT
standards as well, 430 U.S. at
430 U. S. 128;
Brief for EPA 20-21 -- this argument ignores that the BPT
regulations at issue in
Du Pont contained a variance
clause, and applied to pollutants that Congress declared toxic in
the 1977 amendments.
See, e.g., 40 CFR §§ 415.62 and
415.172 (1976). Moreover, BPT standards remain in effect even
today. For many industries -- as a result of a consent decree
authored in relevant part by NRDC -- EPA is required to promulgate
BPT level pretreatment standards as an interim measure pending
development of potentially more technology-forcing BAT standards.
See NRDC v. Train, 8 ERC, at 2128, 6 Env.L.Rep. at 20588.
The electroplating pretreatment standards unsuccessfully challenged
in the consolidated lawsuit below were one such regulation.
[
Footnote 19]
See, e.g., S.Rep. No. 95-370, p. 44 (1978), Leg.Hist.
677; Sen. Muskie, 123 Cong.Rec. 39183 (1977), Leg.Hist. 458; Rep.
Roberts, 123 Cong.Rec. 38959-38961 (1977), Leg.Hist. 305.
[
Footnote 20]
As EPA itself has explained:
"No discharger . . . may be excused from the Act's requirement
to meet . . . a pretreatment standard through this variance clause.
A discharger may instead receive an individualized definition of
such a . . . standard where the nationally prescribed limit is
shown to be more or less stringent than appropriate for the
discharger under the Act."
44 Fed.Reg. 32854, 32893 (1979).
[
Footnote 21]
33 U.S.C. § 1317(b)(2).
[
Footnote 22]
In the aftermath of the decision by the Court of Appeals below,
EPA announced that it would entertain petitions for amended
rulemaking by certain indirect dischargers previously eligible for
FDF variances, explaining that, in such cases,
"it may be appropriate to issue specific categorical standards
for such facilities, treating them as a separate subcategory with
more, or less, stringent standards as appropriate."
48 Fed.Reg. 52396 (1983).
[
Footnote 23]
EPA was directed by § 304(g) of the Act, 33 U.S.C. § 1314(g), to
publish promptly guidelines for the establishment of pretreatment
standards and categories. As with the statutory deadlines for the
setting of guidelines for direct dischargers, 33 U.S.C. § 1314(c),
the time limits proved beyond the Agency's capability. As a result
of lawsuits brought by NRDC, EPA has been placed under
court-ordered deadlines for promulgating effluent limitations.
See n 4,
supra.
[
Footnote 24]
Typically, EPA must engage in an extensive data-collection
effort, compiling information on the pollutants discharged by an
industry, the process employed, the treatment technologies used by
the industry or available for use, the treatability of the
pollutants, and the economics of the industry. Often, the data
indicate differences among segments of the industry, and EPA will
establish subcategories to reflect those differences in the
effluent limitations and standards that are promulgated.
The scope of the task of formulating national categorical
standards is illustrated by the procedures followed by EPA in
developing the BPT-level pretreatment standards for electroplating,
which were unsuccessfully challenged in the consolidated lawsuit
below. Of the 500 plants identified as potentially within the
category of sources and sent questionnaires by EPA, approximately
200 provided some of the requested information. EPA conducted
on-site visits of 82 of these in order to take samples of raw and
treated waste water over several days, inspect treatment technology
already in place, and collect other firsthand information. From
these visits, EPA determined that 25 of the plants were
representative in treatment technology, character of raw waste
water, and other factors. The data from these plants were then used
to derive achievable effluent limitations, using a combination of
statistical methodologies and engineering judgments. Brief for EPA
5, n. 3.
The FDF variances at issue here are available only for sources
fundamentally different in a way which would have required EPA to
place them initially in a separate category had their situation
been considered.
EPA v. National Crushed Stone Assn.,
449 U. S. 64,
449 U. S. 77-78
(1980). Particularly in light of the limited availability of FDF
variances,
see n
12,
supra, and the requirement that such variances are
permissible only when standards were originally set after
considering a range of facilities which did not include those
similar to the source covered by the requested variance, we harbor
no fear that the variance scheme will lead to the breakdown of the
categorical approach taken by Congress, so long as the EPA, as it
is required, grants variances only for sources
fundamentally different. 40 CFR § 403.13(b) (1984). This
does not allow EPA to single out for different treatment the least
or most efficient plants legitimately within a category that was
drawn after considering the relevant range of factors.
[
Footnote 25]
In the aftermath of
Du Pont, Congress well may have
chosen to allow the FDF variance procedure in order to ensure that
the Act's pretreatment standards were not overturned. This Court
has previously upheld regulations in part because of a provision
for an exception or variance helped assure the parties of due
process.
See United States v. Allegheny-Ludlum Steel
Corp., 406 U. S. 742,
406 U. S. 755
(1972);
FPC v. Texaco, Inc., 377 U. S.
33,
377 U. S. 40-41
(1964);
United States v. Storer Broadcasting Co.,
351 U. S. 192,
351 U. S. 205
(1956). Other courts have found that the YDF variance procedure is
critical to EPA's promulgation of treatment requirements of
existing sources.
See, e.g., Kennecott Copper Corp. v.
EPA, 612 F.2d 1232, 1243-1244 (CA10 1979) (upholding
regulations challenged for failure to take the statutory factors
into account across the industry, since FDF variance procedures
were available to apply those factors to fundamentally different
plants);
Weyerhaeuser Co. v. Costle, 191 U.S.App.D.C. 309,
338-339, 590 F.2d 1011, 1040-1041 (1978) (upholding the
promulgation of industry-wide effluent limitations because the
"crucial" variance mechanism provided the necessary
flexibility).
[
Footnote 26]
See n 10,
supra.
[
Footnote 27]
See n 12,
supra.
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join, and with whom JUSTICE O'CONNOR joins as to Parts I, II, and
III, dissenting.
In these cases, the Environmental Protection Agency (EPA)
maintains that it may issue, on a case-by-case basis,
individualized variances from the national standards that limit the
discharge of toxic water pollutants. EPA asserts
Page 470 U. S. 135
this power in the face of a provision of the Clean Water Act
that expressly withdraws from the agency the authority to "modify"
the national standards for such pollutants. The Court today defers
to EPA's interpretation of the Clean Water Act even though that
interpretation is inconsistent with the clear intent of Congress,
as evidenced by the statutory language, history, structure, and
purpose. I had not read our cases to permit judicial deference to
an agency's construction of a statute when that construction is
inconsistent with the clear intent of Congress.
I
The Clean Water Act requires the EPA Administrator to regulate
two types of industrial facilities: (1) "direct" dischargers,
i.e., facilities that discharge waste water directly into
navigable waters; and (2) "indirect" dischargers,
i.e.,
facilities that discharge waste water into publicly owned treatment
works prior to discharge into navigable waters. For both types of
requirements, EPA conducts rulemaking proceedings and promulgates
nationwide, categorical limitations, that is, limitations
applicable to categories of dischargers (
e.g., iron and
steel plants).
The Act provides for the phased implementation of progressively
more stringent requirements for direct dischargers. By July 1,
1977, existing direct dischargers were required to meet effluent
limitations based on the "best practicable control technology
currently available" (BPT). § 301(b)(1)(A), 86 Stat. 844, 33 U.S.C.
§ 1311(b)(1)(A). By July 1, 1984, such dischargers were obligated
to meet limitations based on the "best available technology
economically achievable" (BAT). § 301(b)(2)(A). [
Footnote 2/1]
Indirect dischargers are subject to "pretreatment" standards
applicable to pollutants, including toxic pollutants, that
Page 470 U. S. 136
are not susceptible to treatment by or would interfere with the
operation of public treatment facilities. § 307(b). Pursuant to a
consent decree, EPA has set limitations on existing indirect
dischargers using the same two-phase scheme used for direct
dischargers.
See ante at
470 U. S. 119.
Thus, pretreatment standards for existing indirect dischargers are
set by reference to BPT and BAT levels.
In 1978, EPA issued pretreatment regulations that contained a
variance provision for "fundamentally different factors" (FDF).
See 43 Fed.Reg. 27757 (1978). An FDF variance is a
case-by-case adjustment of the relevant nationwide standard.
See 40 CFR § 403.13(b)(1) (1984). A discharger may obtain
such a variance if the factors relating to its discharges are
fundamentally different from those taken into account by EPA in
setting the nationwide standard. § 403.13(c)(ii).
In a petition for review filed in the Court of Appeals for the
Third Circuit, respondent NRDC challenged the FDF variance
provision on two grounds. First, it argued that EPA lacked the
inherent authority to issue such variances. Second, it argued that,
even if, in general, EPA had the authority to grant such variances,
it could not do so in the case of toxic pollutants, because §
301(1), which was enacted as part of the 1977 amendments to the
Act, bans all "modifications" from the toxic standards. The Third
Circuit agreed with the latter argument, holding that § 301(1)
prohibits FDF variances in the case of toxic pollutants.
National Assn. of Metal Finishers v. EPA, 719 F.2d 624,
644-646 (1983). [
Footnote 2/2]
The
Page 470 U. S. 137
court remanded the variance provision back to EPA without
considering the question of EPA's inherent authority to grant such
variances. [
Footnote 2/3]
EPA advances -- and the Court defers to -- two independent
statutory constructions in support of its position that § 301(1)
does not ban FDF variances from the toxic standards. First, EPA
argues that § 301(1) prohibits only modifications otherwise
expressly allowed by two other statutory provisions -- §§ 301(c)
and (g) -- and thus does not apply to FDF variances, which are
nonstatutory. The plain meaning of § 301(1), the changes made prior
to enactment to the bill containing this provision, and the clearly
expressed congressional objectives in enacting § 301(1) to deal
vigorously and comprehensively with the extremely serious
environmental problem caused by toxic pollutants -- establish that
this provision's scope was meant to be considerably broader than
that attributed to it by EPA. As part of its effort to strengthen
the control of toxic pollutants, Congress clearly intended to
prohibit all exceptions to the nationwide, categorical
standards.
Second, in a strained attempt to characterize the challenged
variances in a way that would bring them outside the scope of the §
301(1) prohibition, EPA contends that the case-by-case FDF variance
procedure provides a permissible alternative to the statutory
mechanism for "revising" standards. The Court defers to this
argument, and in so doing, it ignores the relevance of the central
feature of the 1972 amendments to the Act -- that Congress
pointedly determined that water pollution control standards should
take the form of general rules, to apply uniformly to categories of
dischargers. As a result, the Court validates outcomes
substantially less protective of the environment than those
Page 470 U. S. 138
mandated by Congress. The only view of FDF variances consistent
with the scheme of the Clean Water Act is that they are individual
exceptions that soften the hardship of general rules. As such, they
are undoubtedly disallowed by § 301(1).
These cases are not about whether exceptions are useful adjuncts
to regulatory schemes of general applicability. That is a policy
choice on which courts should defer to Congress in the first
instance, and to the administrative agency in the absence of a
clear congressional mandate. Here, Congress has made the policy
choice. It has weighed competing goals and determined that,
whatever the general merits of exceptions schemes, they are simply
inappropriate in the context of the control of toxic water
pollution. As a result, an exceptions scheme such as the one
challenged here simply cannot stand.
II
I first consider EPA's argument that § 301(1) proscribes only
those modifications otherwise authorized by §§ 301(c) and (g).
Under these provisions, EPA can "modify" the categorical standard
if a discharger makes an adequate showing that such a standard is
not within the discharger's economic capability and that a less
stringent standard would nonetheless result in reasonable
environmental progress, § 301(c), [
Footnote 2/4] or that a less stringent standard
adequately protects
Page 470 U. S. 139
water quality, § 301(g). [
Footnote
2/5] This limited view of 301(1)'s scope is clearly
inconsistent with congressional intent; the plain meaning of the
statute and its legislative history show a clear congressional
intent to ban all "modifications."
A
Section 301(1) 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. 1690, 33 U.S.C. § 1311(1).
The statute does not define either "modify" or "modification."
The phrase "may not modify any requirement," however, expressly
proscribes all "modifications" of the standards for toxics. Nothing
on the face of the statute suggests that Congress intended that
qualifying language be read into this prohibition. On the contrary,
the prohibition is unqualified.
EPA's argument that § 301(1) bans only those modifications
otherwise authorized by §§ 301(c) and (g) is therefore
inconsistent
Page 470 U. S. 140
with the plain meaning of the statute. By its terms, the
statutory prohibition has universal scope, not the limited scope
attributed to it by EPA.
B
Moreover, the legislative history demonstrates that Congress
meant what it said, and it evidences a clear congressional intent
to ban all "modifications." First, the legislative history firmly
establishes that § 301(1) was enacted as part of a program to deal
effectively and comprehensively with the problem of toxic
pollutants, and that its prohibition was an integral part of this
program. Under any canon of statutory construction, the
congressional purposes in enacting a provision would be deemed
relevant to the question of the scope of that provision, but the
Court simply fails to discuss this issue.
In 1977, when it enacted the amendments to the Clean Water Act
containing § 301(1), Congress regarded the problem of toxic
pollution as a very serious one. For example, Senator Muskie, the
major drafter and Senate manager of the bill containing § 301(1),
remarked:
"The seriousness of the toxics problem is just beginning to be
understood. New cases are reported each day of unacceptable
concentrations of materials in the aquatic environment, in fish and
shellfish, and even in mother's milk. Empirical evidence has shown
a statistical correlation between materials in New Orleans'
drinking water and cancer mortality rates; Kepone has destroyed the
James River, one of America's most productive, and most historic
rivers; PCB's are pervasive, and have ruined the fishing in the
Hudson River and the Great Lakes; carbon tetrachloride is only the
most recent material to contaminate the Ohio River; the
Page 470 U. S. 141
pesticide endrin has been found in Mississippi; perhaps worst of
all are the ones we do not know yet."
"The more we find out, the more cause there is for concern. It
is imperative that these materials be controlled."
123 Cong.Rec. 39181 (1977), Legislative History of the Clean
Water Act of 1977, p. 454 (1978) (1977 Leg.Hist.). [
Footnote 2/6] Similarly, Representative Roberts,
the House manager of the bill, stated:
"[Toxics] have not only polluted drinking water and destroyed
both commercial and sport fishing, but in many major water bodies
they also constitute a hazard to aquatic environment and public
health that has yet to be fully recognized."
123 Cong.Rec. 38960 (1977), 1977 Leg.Hist. 327.
See
also 1977 Leg.Hist. 334 (House Subcommittee memorandum).
The primary purpose of the 1977 amendments was to strengthen the
regulation "of the increasingly evident toxic hazard." 123
Cong.Rec. 38960 (1977), 1977 Leg.Hist. 326 (Rep. Roberts).
See
also 123 Cong.Rec. 39219 (1977), 1977 Leg.Hist. 549 (Sen.
Moynihan) ("There is no room for compromise here: toxics must be
controlled"). The § 301(1) ban on "modifications" was an integral
part of this effort to make the environment safe from toxics, and
through it, Congress sought to prevent any weakening of the
categorical standards for the control of toxic pollutants. It is
clear that Congress knew full well what effects the rule might have
on industry, and that it went forward nonetheless. For example, the
legislators were aware that the prohibition against
Page 470 U. S. 142
"modifications" of the standards for toxic pollutants could lead
to "new regulations more restrictive than any previously
contemplated." 123 Cong.Rec. 38993 (1977), 1977 Leg.Hist. 411 (Rep.
Buchanan). Congress also realized that such regulations would cost
industry "millions of dollars and result only in a little more
cleanup of our waters." 123 Cong.Rec. 38952 (1977), 1977 Leg.Hist.
305 (Rep. Roberts). But Congress found that for toxics, unlike for
other pollutants,
ibid., such high costs of pollution
control were justified in view of the serious environmental dangers
at stake.
Cf. § 502(13) (defining "toxic" pollutants as
pollutants that "cause death, disease, behavioral abnormalities,
cancer, genetic mutations, physiological malfunctions (including
malfunctions in reproduction) or physical deformations").
It is readily apparent that a complete ban on modifications
would most directly and completely accomplish the congressional
goal. EPA offers no evidence in the legislative history to explain
why this goal would be promoted by banning the statutory
modifications of §§ 301(c) and (g), but would not more effectively
be advanced by banning other modifications as well. It points to no
evidence that Congress singled out the §§ 301(c) and (g)
modifications as more pernicious from the standpoint of an
effective toxic control program than modifications based on other
factors. In fact, the statutory scheme suggests that the converse
is true, as Congress specifically provided for statutory exemptions
in these areas, but not in other areas.
In the case of § 301(c), Congress was aware that certain firms
would be driven to bankruptcy if they were required to comply
strictly with the categorical standards. Congress determined that
avoiding bankruptcies was an important social goal, and one that
was not automatically outweighed by the goal of protecting the
environment. Section 301(c) reflects the tension between these two
goals: as long as a firm can make reasonable pollution control
progress, it will not be driven to bankruptcy by its inability to
meet higher pollution control standards.
Page 470 U. S. 143
Similarly, in the case of § 301(g) water quality modifications,
Congress decided not to force dischargers to meet standards higher
than those that could be justified by legitimate environmental
considerations. Thus, as long as a discharge did not interfere with
the attainment of adequate water quality, a discharger would not be
forced to expend additional resources in pollution control merely
because a higher standard was "economically achievable."
Cf. 123 Cong.Rec. 38960 (1977), 1977 Leg.Hist. 326 (Rep.
Roberts).
If these two modifications are the only ones now prohibited, the
result is wholly counterintuitive. EPA is in effect contending that
economic and water quality factors present the most compelling case
for modification of the standard in the nontoxic context -- as they
are explicitly authorized by statute -- but the least compelling
case for modification in the toxic context -- as they are the only
modifications prohibited by § 301(1). As might be expected, EPA
does not present any theory, much less a logical argument, or
evidence in the legislative history, to support this extremely
inconsistent result.
Moreover, if Congress had not intended to prohibit all
modifications, it would almost certainly either have defined
explicitly the scope of permissible modifications, or given the
agency some guidance on how to go about doing so. Only in this way
would Congress have had any assurance that modifications would be
allowed only when they promoted interests of sufficient importance
to outweigh Congress' foremost goal of protecting the environment
against toxic pollution.
C
The changes made in conference to the 1977 amendments, which
ultimately included § 301(1), provide further support for the
proposition that Congress did not intend to limit § 301(1) in the
way suggested by EPA. Of the three provisions that undergird EPA's
theory -- subsections (c), (g), and (1) of § 301 -- only subsection
(c) was adopted before the 1977
Page 470 U. S. 144
amendments, as part of the 1972 amendments.
See 33
U.S.C. § 1311(c). The 1977 Senate bill contained two provisions of
interest here. First, the bill proposed amending subsection (c) to
prohibit, in the case of toxic pollutants, variances based on
economic factors. S.1952, 95th Cong., 1st Sess., § 26(c) (1977),
1977 Leg.Hist. 584. Second, the Senate proposed what ultimately
became subsection (g), which authorized modifications that did not
interfere with water quality goals. Like the proposed amendment to
subsection (c), subsection (g) prohibited modifications in the case
of toxic pollutants. The Senate bill did not contain subsection
(1).
The Conference Committee changed the Senate bill in three
relevant ways. First, it took out of subsection (c) the ban against
modifications for toxics. Second, it reworded subsection (g) to
prohibit water quality modifications for conventional pollutants
and for all thermal discharges, but it left unaffected the Senate
bill's prohibition against modifications for toxic pollutants.
Third, it added subsection (1), which creates a ban of general
applicability on modifications for toxic pollutants.
In explaining these changes, petitioner CMA contends that during
the Conference Committee deliberations,
"it was decided that, rather than repeating the identical
limiting clause [for toxic pollutants] at the end of § 301(c) and
what had become § 301(g) of the Act, the limitation would be put
into a separate § 301(1)."
Brief for Petitioners in No. 83-1013, pp. 29-30. The debates of
the Conference bill do not suggest that such a thing was "decided";
in fact, the reasons for the changes are not discussed at all.
Moreover, if cleaning up the statutory language was in fact the
objective of the changes, the Conference Committee was remarkably
unsuccessful at doing so. Indeed, while the Committee took the
prohibition against toxic modifications out of subsection (c), it
left this prohibition undisturbed in subsection (g). Thus, the
language of the Act simply belies CMA's explanation.
Page 470 U. S. 145
More importantly, the wording of § 301(1) strongly suggests that
the purpose of the change was not to improve the style of the
statute, but to expand the scope of the prohibition against
"modifications." Indeed, there is an important difference in the
wording of subsections (c), (g), and (1). Subsections (c) and (g),
which authorize exceptions, apply by their terms only to
modifications of "the requirements of subsection (b)(2)(A)."
[
Footnote 2/7] If the Conference
Committee was attempting merely to consolidate the bans on
modifications of toxic standards, then it would similarly have
limited the applicability of subsection (1) to subsection (b)(2)(A)
requirements. Instead, subsection (1) applies to "any requirement
of this section," which includes numerous standards in addition to
those of subsection (b)(2)(A). [
Footnote 2/8]
In fact, it appears that EPA once agreed that the changes made
in conference expanded the scope of the ban on "modifications." In
the past, EPA construed § 301(1) to prohibit, in the case of
toxics, not only subsection (c) and (g) modifications, but also
modifications from secondary treatment standards otherwise
authorized by subsection (h), Brief for EPA on Petition to Enforce
Mandate and Petitions for Review 24 in
Appalachian Power Co. v.
Train, 620 F.2d 1040 (CA4 1980).
Cf. FMC v. Seatrain
Lines, Inc., 411 U. S. 726,
745
Page 470 U. S. 146
(1973) (administrative interpretation entitled to additional
deference if "longstanding").
In summary, the Conference changes provide further support for a
broad reading of § 301(1).
See FTC v. Raladam Co.,
283 U. S. 643,
283 U. S. 648
(1931). The Court, however, appears to draw the opposite
conclusion. But in doing so, it completely ignores the difference
in the scope of §§ 301(c) and (g) on the one hand, and § 301(1) on
the other, and instead rests on an explanation of congressional
activity that in fact explains almost nothing.
See ante at
470 U. S.
126-127.
D
The Court and EPA both attach great importance to the
congressional silence regarding FDF variances. EPA argues that
E. I. du Pont de Nemours & Co. v. Train, 430 U.
S. 112 (1977), held that FDF variances are
"appropriate." According to EPA, if Congress had intended to
reverse this result, it would have made its intention clear.
See Brief for EPA 28-29. This contention, which the Court
finds persuasive,
see ante at
470 U. S.
127-128, is based on a misunderstanding of what was at
stake in
Du Pont. That case did not authorize the issuance
of variances in any context that is relevant here.
Du Pont involved a challenge to EPA's authority to
issue, to direct dischargers, categorical effluent limitations for
BPT and BAT. The Court had little difficulty in upholding such
categorical limitations in the BAT context, as the statute provided
that the limitations be set for "categories and classes" of
dischargers, § 301(b)(1)(B).
See Du Pont, supra, at
430 U. S. 127.
In contrast, the statute provided that BPT limitations be set for
"point sources." § 301(b)(1)(A). Several chemical manufacturers
argued that, given this language, individualized BPT limitations
were necessary, and that regulation by categories and classes of
dischargers was inappropriate. This Court rejected the industry's
challenge, holding that BPT
Page 470 U. S. 147
limitations could be set by industry-wide regulation, so long as
some allowance -- such as FDF variances -- was made for variations
in individual plants. 430 U.S. at
430 U. S.
128.
In support of its position that the Court broadly endorsed the
issuance of FDF variances and that the congressional silence is
noteworthy, EPA cites as dispositive one sentence in the opinion,
which reads:
"We conclude that the statute authorizes the 1977 limitations
[BPT] as well as the 1983 limitations [BAT] to be set by
regulation, so long as some allowance is made for variations in
individual plants, as EPA has done by including a variance clause
in its 1977 limitations."
Ibid. Only by taking this sentence out of context can
one find support for the proposition that
Du Pont requires
FDF variances from BAT limitations, just as it does in the case of
BPT limitations. [
Footnote 2/9]
When read in context, the sentence cited by EPA clearly means that
BPT standards, like BAT standards, can be set by regulation, but if
EPA does so in the BPT context, it must allow for variances.
Indeed, the Court had earlier concluded that "§ 301 unambiguously
provides for the use of regulations to establish the [BAT] effluent
limitations."
Du Pont, supra, at
430 U. S. 127.
The Court did not qualify this conclusion in any way, but instead
went on to discuss the BPT problem. The sentence that EPA refers to
comes at the end of the discussion of BPT limitations, and is thus
logically related to that discussion.
Page 470 U. S. 148
Furthermore, the Court upheld the regulations challenged in
Du Pont even though they did not contain an FDF variance
clause for BAT limitations.
See 430 U.S. at
430 U. S. 123,
430 U. S. 127.
[
Footnote 2/10] If the sentence
in question has the meaning that EPA now ascribes to it, the Court
would presumably have had to reverse on that point.
In summary, the portion of
Du Pont on which EPA relies
has absolutely no bearing on the question of whether FDF variances
are "appropriate" -- to use the language employed by EPA,
see 470
U.S. 116fn2/9|>n. 9,
supra -- when the statute
calls for limitations for categories or classes of dischargers.
See EPA v. National Crushed Stone Assn., 449 U. S.
64,
449 U. S. 72
(1980) ("[
Du Pont] indicated that a variance provision was
a necessary aspect of BPT limitations applicable by regulation to
classes and categories of point sources");
id. at
449 U. S. 73, n.
12 ("[
Du Pont] held that a uniform BPT limitation must
contain a variance provision, if it is to be valid"). Both the
facts and the rationale of this portion of
Du Pont are of
relevance only to cases in which EPA issues categorical standards
in the face of a statutory scheme that calls for regulation of
"point sources."
This distinction is of crucial significance, because the
standards for toxic pollutants, like all BAT and pretreatment
standards, are to be set not for "point sources," but instead "for
the applicable
category or class of point sources." §
307(a)(2) (emphasis added) (toxics);
see also §
301(b)(2)(A) (BAT); § 307(b)(3) (pretreatment).
Du Pont
did not consider whether such standards are necessary, or even
appropriate, in this context. [
Footnote 2/11] We should scarcely attribute any
significance
Page 470 U. S. 149
to the legislative failure to discuss
Du Pont because
Du Pont considered a fundamentally different scheme of
regulation. It may be that, one day, the Clean Water Act will be
read to permit, for nontoxic pollutants, FDF variances from BAT and
pretreatment standards; however, there is no reason why Congress
should have said anything in 1977, when it enacted § 301(1), about
a legal development that has not yet taken place eight years
later.
There is, moreover, another reason for the legislative silence
on FDF variances. The legislative history of the 1977 amendments
shows that Congress believed -- correctly, as it turns out -- that
the courts had not yet determined whether FDF variances were
permissible in the BAT context.
See S.Rep. No. 95-370
(1977), 1977 Leg.Hist. 674. [
Footnote
2/12] Only by misreading
Du Pont and ignoring the
relevant legislative history can the Court say that
Du
Pont "construed the Act to permit the very FDF variance NRDC
insists the Conference Committee was silently proposing to
abolish."
Ante at
470 U. S. 128. [
Footnote
2/13]
Page 470 U. S. 150
E
EPA also relies heavily on a statement by Representative
Roberts:
"Due to the nature of toxic pollutants, those identified for
regulation will not be subject to waivers from or modification of
the requirements prescribed under this section,
specifically, neither section § 301(c) waivers based on
the economic capability of the discharger nor 301(g) waivers based
on water quality considerations shall be available."
123 Cong.Rec. 38960 (1977), 1977 Leg.Hist. 328-329 (emphasis
added).
However, other statements in the debates fail similarly to
restrict the scope of the provision. For example, Senator Muskie
stated:
"
Like toxic pollutants for which there are no waivers or
modifications, there are no potential waivers or modifications
for conventional pollutants."
123 Cong.Rec. 39183 (1977), 1977 Leg.Hist. 458 (emphasis added).
See also 123 Cong.Rec. 38952 (1977), 1977 Leg.Hist. 305
("Strict requirements are still in effect for damaging pollutants,
such as toxics. However, for certain other pollutants, industry may
get a waiver") (Rep. Roberts); 123 Cong.Rec. 38993 (1977), 1977
Leg.Hist. 411 (referring to "denial of
any waiver" with
respect to toxics) (Rep. Buchanan) (emphasis added).
Taken as a whole, the legislative history firmly supports the
plain meaning of the statute, namely, that § 301(1) bans all
Page 470 U. S. 151
"modifications," and not just those otherwise permitted by §§
301(c) and (g). EPA's strongest argument in support of its position
on this score is that, during the course of debates, one of the
bill's managers used the word "specifically" instead of "for
example." Under any accepted canon of construction, this choice of
words is insufficient to overcome the other, more probative
indications of congressional intent that emerge from an analysis of
the legislative history. And, with the language and the legislative
history pointing so definitely in the same direction, there can be
no doubt that congressional intent was clear.
F
The determination that Congress clearly intended that § 301(1)
do more than just ban modifications otherwise permitted by §§
301(c) and (g) compels the conclusion that EPA's construction to
the contrary cannot stand. As this Court has repeatedly stated:
"The interpretation put on the statute by the agency charged
with administering it is entitled to deference, but the courts are
the final authorities on issues of statutory construction. They
must reject administrative constructions of the statute, whether
reached by adjudication or by rulemaking, that are inconsistent
with the statutory mandate or that frustrate the policy that
Congress sought to implement."
FEC v. Democratic Senatorial Campaign Committee,
454 U. S. 27,
454 U. S. 31-32
(1981) (citations omitted).
See also SEC v. Sloan,
436 U. S. 103,
436 U. S.
117-118 (1978);
FMC v. Seatrain Lines, Inc.,
411 U.S. at
411 U. S.
745-746;
Volkswagenwerk v. FMC, 390 U.
S. 261,
390 U. S. 272
(1968);
NLRB v. Brown, 380 U. S. 278,
380 U. S. 291
(1965);
Social Security Board v. Nierotko, 327 U.
S. 358,
327 U. S. 369
(1946);
Burnet v. Chicago Portrait Co., 285 U. S.
1,
285 U. S. 16
(1932);
Webster v. Luther, 163 U.
S. 331,
163 U. S. 342
(1896).
Page 470 U. S. 152
This case is thus unlike
Chevron U.S.A. Inc. v.
NRDC, 467 U. S. 837
(1984), on which the Court and EPA rely. In
Chevron, the
Court reviewed an EPA regulation that treated all
pollution-emitting devices within the same industrial grouping as
though they were encased within a single "bubble." This regulation
was challenged on the ground that it was not based on a proper
construction of the statutory term "stationary source." Analyzing
the statutory language, the Court concluded that "parsing of
general terms in the text of the statute" would not reveal the
actual intent of Congress.
Id. at
467 U. S. 861.
Similarly, it found the legislative history "unilluminating."
Id. at
467 U. S. 862.
Given these two conclusions, the Court determined that deference to
the Agency's reasonable interpretation was appropriate.
Chevron's deference requirement, however, was
explicitly limited to cases in which congressional intent cannot be
discerned through the use of the traditional techniques of
statutory interpretation. Indeed,
Chevron reaffirmed the
principle that
"[t]he judiciary is the final authority on issues of statutory
construction, and must reject administrative constructions which
are contrary to clear congressional intent."
Id. at
467 U. S. 843,
n. 9. [
Footnote 2/14]
My disagreement with the Court does not center on its reading of
Chevron, but instead on its analysis of the congressional
purposes behind § 301(1). If I agreed with the Court's analysis of
the statute and the legislative history, I too would conclude that
Chevron commands deference to the administrative
construction.
III
EPA's second construction of the statutory scheme is, on the
surface, a more plausible one. EPA argues that FDF
Page 470 U. S. 153
variances do not excuse compliance with the correct standards,
but instead provide a means for setting more appropriate standards.
It is clear that, pursuant to § 307(b)(2), EPA can "revise" the
pretreatment standards, as long as it does so "following the
procedure established . . . for the promulgation of such
standards." The statute contemplates that the standards will be set
and revised through notice-and-comment rulemaking, and will be
applicable to categories of sources.
See §§ 307(b)(2),
(3);
see also Brief for EPA 9. EPA argues that such a
"revision," which is clearly not proscribed by § 301(1), would be
substantively indistinguishable from an FDF variance. Thus,
according to the Agency, NRDC's concern stems not from the result
achieved when an FDF variance is granted, but rather from the
procedure employed in reaching that result. EPA relies on
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.
S. 519 (1978), for the proposition that an agency is
free to choose between two procedures for reaching the same
substantive ends.
See Brief for EPA 11, 36.
To support its argument, EPA points out that the factors that
may justify an FDF variance are the same factors that may be taken
into account in setting and revising the national pretreatment
standards.
Compare § 304(b)(2) (statutory standard)
with 40 CFR § 403.13(d) (1984) (FDF variance provision).
EPA also points out that, in considering whether an FDF variance
will be granted, it cannot take into account factors that could not
have justified a change in the national standards.
See
Brief for EPA 31; 40 CFR § 403.13(e)(1984). EPA acknowledges that
the statute requires that the national pretreatment standards be
established -- and therefore revised -- for "categories" of
dischargers,
see § 307(b)(3) (pretreatment standards);
Brief for EPA 11;
see also § 307(a)(2) (toxic standards),
and not on a case-by-case basis. It argues, however, that nothing
in the Clean Water Act precludes EPA from defining a subcategory
that has only one discharger.
See Brief for EPA 31.
Page 470 U. S. 154
The logic of EPA's position is superficially powerful. If EPA
can, through rulemaking, define a subcategory that includes only
one discharger, why should it not be able to do so through a
variance procedure? In fact, if rulemaking and the variance
procedure were alternative means to the same end, I might have no
quarrel with EPA's position, which the Court has accepted.
Ante at
470 U. S.
132-133. Indeed,
"[a]bsent constitutional constraints or extremely compelling
circumstances, the administrative agencies should be free to
fashion their own rules of procedure and to pursue methods of
inquiry capable of permitting them to discharge their multitudinous
duties."
Vermont Yankee, supra, at
435 U. S. 543
(citations omitted);
see also SEC v. Chenery Corp.,
332 U. S. 194,
332 U. S.
202-203 (1947).
However, the Agency's position does not withstand more than
superficial analysis. An examination of the legislative history of
the 1972 amendments to the Clean Water Act -- the relevance of
which both the Court and EPA ignore -- reveals that Congress
attached great
substantive significance to the method used
for establishing pollution control requirements.
The Conference Committee Report directed EPA to
"make the determination of the economic impact of an effluent
limitation on the basis of classes and categories of point sources,
as distinguished from a plant-by-plant determination."
1972 Leg.Hist. 304 (emphasis added). [
Footnote 2/15] Representative Dingell, one of the House
conferees, described this principle as "very important," and stated
that
"a plant-by-plant determination of the economic impact of an
effluent limitation is neither expected, nor desired, and, in fact,
it should be avoided."
118 Cong.Rec. 33758 (1972), 1972 Leg.Hist. 254-255.
Page 470 U. S. 155
Similarly, Senator Muskie stated:
"The Conferees intend that the factors described in section
304(b) be considered only within categories and classes of point
sources,
and that such factors not be considered at the time of
the application of an effluent limitation to an individual point
source within such a category or class."
118 Cong.Rec. 33697 (1972), 1972 Leg.Hist. 172 (emphasis added).
See also Du Pont, 430 U.S. at
430 U. S. 130;
American Iron & Steel Institute v. EPA, 526 F.2d 1027,
1051 (CA3 1975) ("Congress clearly intended that the Administrator
consider costs on a class or category basis,
rather than on a
plant-by-plant basis") (emphasis added). Moreover, in a letter
urging the President to approve the 1972 amendments, William
Ruckelshaus, EPA's Administrator, observed that the Act's standards
should be set
"for industrial categories, taking into account processes
involved, age of equipment, and cost, considered on a
national,
industry-wide basis."
118 Cong.Rec. 36775 (1972), 1972 Leg.Hist. 145 (emphasis added).
It is difficult to imagine a legislative history that would make
more clear that standards should not be set -- and therefore should
not be revised -- on an individual basis.
The legislative history also makes clear why Congress found it
so important that the standards be set for "categories" of
dischargers, and not for individual dischargers. Congress intended
to use the standards as a means to "force" the introduction of more
effective pollution control technology. Thus, Congress directed EPA
to establish BPT levels by reference to "the average of the best
existing performance by plants of various sizes, ages, and unit
processes within each industrial category." 118 Cong.Rec. 33696
(1972), 1972 Leg.Hist. 169 (Sen. Muskie). In establishing BAT
levels, it directed EPA to look at "the best performer in an
industrial category." 118 Cong.Rec. 33696 (1972), 1972 Leg.Hist.
170. By requiring that the standards be set by reference to
Page 470 U. S. 156
either the "average of the best" or very "best" technology, the
Act seeks to foster technological innovation. 118 Cong.Rec. 33696
(1972), 1972 Leg.Hist. 170.
See generally La Pierre,
Technology-Forcing and Federal Environmental Protection Statutes,
62 Iowa L.Rev. 771, 805-829 (1977); Note, Forcing Technology: The
Clean Air Act Experience, 88 Yale L.J. 1713 (1979).
Unlike the statutory revision mechanism of § 307(b), FDF
variances are set not by reference to a category of dischargers,
but instead by reference to a single discharger. In evaluating an
application for a variance, EPA does not look at the group of
dischargers in the same position as the applicant, but instead
focuses solely on the characteristics of the applicant itself.
Under the FDF program, there is no mechanism for EPA to ascertain
whether there are any other dischargers in that position. Moreover,
there is no mechanism for EPA to group together similarly situated
dischargers. Quite to the contrary, a scheme in which the initial
screening may be done by the individual States, at times determined
by when the variance application is filed, is unlikely to lead to
the identification of new subcategories.
See 40 CFR §
403.13(k) (1984).
The FDF variance procedure leads to substantive results that are
different in two fundamental ways from those attained through the
rulemaking for categories of dischargers contemplated in § 307(b).
First, it is less protective of the environment. If, for example, a
discharger shows that its production processes -- and, as a result,
its costs of compliance -- are significantly different from those
taken into account in setting the categorical standards, that
discharger would be eligible for an FDF variance, and EPA could set
a new requirement based on the applicant's peculiar situation.
See 40 CFR §§ 403.13(d)(5), (6) (1984); Tr. of Oral Arg.
14. It may turn out, however, that there are many other dischargers
in the same situation, and that all of these dischargers use
production processes that make pollution control possible
Page 470 U. S. 157
at a much lower cost. If EPA took into account the production
processes of these more efficient dischargers -- as it presumably
would have to do if it proceeded through rulemaking on a
categorical scale -- it would set a requirement far more stringent
than that adopted as part of the FDF variance mechanism.
In the aggregate, if EPA defines a new pretreatment subcategory
through rulemaking, the BAT-level pollution control requirement of
each discharger would be determined by reference to the capability
of the "best" performer. In contrast, if EPA provides individual
variances to each plant in this group, only one discharger would
have a requirement based on the capability of the best performer --
the best performer itself. The others would necessarily be subject
to less stringent standards. [
Footnote 2/16]
The second important difference is that FDF variances do not
spur technological innovation to the same extent as § 307(b)
revisions. In the preceding example, the discharger with
environmentally unsound production processes would probably be
compelled to purchase new technology if it were subjected to a
pollution control requirement set by reference to the
characteristics of the "best" discharger. Under the less stringent
requirement adopted through the FDF variance procedure, it might
not need to do so. The additional demand for new technology that
results from the § 307(b) procedures creates incentives for
technological innovation. In the long run, such innovation would
lead to even better technology and to the possibility of further
tightening of the pollution control requirements, as such
technology became cheaper. In fact, Congress envisioned that this
iterative procedure would ultimately lead to an elimination of
harmful discharges.
See 118 Cong.Rec. 33696 (1972), 1972
Leg.Hist. 170 (Sen. Muskie).
Page 470 U. S. 158
It is true, of course, that even the statutory revision
procedure might identify a subcategory with only one discharger.
That procedure, however, will have established that this discharger
is indeed uniquely situated. In contrast, an FDF variance sets an
individual requirement even where there may be similarly situated
dischargers.
In summary, whatever else FDF variances might do, they do not
further the same congressional goals as the notice-and-comment
rulemaking required for § 307(b) revisions. [
Footnote 2/17]
Vermont Yankee is simply
inapposite; Congress intended, for substantive reasons, that the
pretreatment standards be set and revised through rulemaking for
categories of dischargers. [
Footnote
2/18] The Court's conclusion to the contrary stems exclusively
from its failure to consider why Congress chose to require
categorical standards.
IV
The analysis of Parts II and III compels the conclusion that
neither of the alternative arguments advanced to support EPA's
construction of the statute can stand. That analysis
Page 470 U. S. 159
also leads directly to the conclusion that § 301(1) in fact
disallows FDF variances from the standards for toxic pollutants.
Congress clearly intended that § 301(1) ban variances such as those
at issue here, and the language and legislative history permit no
other interpretation.
A
470 U. S. the
purposes that led to the adoption of the provision, and the changes
made by the Conference Committee indicate a clear congressional
intent to ban all "modifications" to the standards for toxics, not
merely those otherwise authorized by §§ 301(c) and (g). The
legislative history also establishes that Congress banned
"modifications" because it wanted to ensure that the serious
problem of toxic pollution not be exacerbated by the granting of
exceptions to the general rulemaking standards.
See
470 U. S.
supra.
It is true, of course, that in many cases exceptions serve the
important purpose of softening the impact of rules of general
applicability. They mediate between demands for comprehensive
solutions, on the one hand, and individualized application of law,
on the other.
See generally Diver, Policymaking Paradigms
in Administrative Law, 95 Harv.L.Rev. 393 (1981).
Exceptions, however, are not without costs. For example, they
are inappropriate where small errors could lead to irreversible or
catastrophic results. [
Footnote
2/19] In such cases, individual
Page 470 U. S. 160
equity should give way to comprehensive rationality.
See
id. at 431-432; Note, Regulatory Values and the Exceptions
Process, 93 Yale L.J. 938, 955, and n. 85 (1984).
The decision of when exceptions are required, when they are
permissible, and when they are prohibited is, in the first
instance, one for Congress to make. It is an administrative
decision only where Congress has left a gap for the agency to fill.
See Chevron, 467 U.S. at
467 U. S.
843-844. In this case, Congress determined that the
flexibility resulting from exceptions would interfere with the
furtherance of the more important goal of controlling toxic
pollution. There is no question that courts should defer to this
congressional judgment.
In fact, when Congress has attached great importance to certain
environmental goals, we have disallowed exceptions even in the
absence of an explicit statutory ban. For example, in
TVA v.
Hill, 437 U. S. 153
(1978), we reviewed a provision of the Endangered Species Act that
required federal agencies "to insure that actions authorized,
funded, or carried out by them do not jeopardize the continued
existence" of an endangered species or "result in the destruction
or modification of habitat of such species. . . ." 16 U.S.C. § 1536
(1976 ed.). Even though Congress had not expressly banned
exceptions from the statutory requirements, the Court focused on
the quoted language and found that it "admits of no exception."
Id. at
437 U. S. 173.
It further found that both the language and the legislative history
"clearly" showed that Congress viewed the preservation of
endangered species as a goal of great importance.
Id. at
437 U. S.
187-188. In light of this statutory construction, the
Court concluded that any exemption from the statute's requirements
-- other than exemptions specifically approved by Congress -- would
be inappropriate. [
Footnote
2/20]
Page 470 U. S. 161
Similarly, in
Du Pont itself, the Court disallowed FDF
variances from the Clean Water Act's standards of performance for
new sources, reasoning that such variances would be inconsistent
with the environmental goals expressed in the statute and the
legislative history. There, the Court stated that FDF variances
"would be inappropriate in a standard that was intended to insure
national uniformity and
maximum feasible control of new
sources.'" 430 U.S. at 430 U. S. 138
(citation omitted). In this case, of course, Congress has not only
indicated that the environmental goal at stake is extremely
important, but it has also explicitly disallowed exceptions. Under
such circumstances, it would be especially inappropriate to defer
to the Agency's decision to create exceptions.
B
470 U. S. They
do not implement the Clean Water Act's technology-based
requirements; instead, like §§ 301(c) and (g) modifications, they
are case-by-case departures from such requirements. In fact, in the
past, EPA itself has referred to FDF variances as "exception[s] to
[a] general rule of applicability." Brief for EPA 47 in
NRDC v.
EPA, 537 F.2d 642 (CA2 1976).
FDF variances not only take the same form as §§ 301(c) and (g)
modifications, but they also serve closely analogous functions. As
I have discussed, the purpose of exceptions is to soften the
harshness of general rules.
See supra at
470 U. S. 159.
A § 301(c) modification, for example, relieves a firm of its
obligation to meet an applicable rule when compliance with
Page 470 U. S. 162
that rule would place the firm in a serious hardship.
See
EPA v. National Crushed Stone Assn., 449 U.S. at
449 U. S. 78;
S.Rep. No. 95-370, p. 41 (1977), 1977 Leg.Hist. 674 (Sen. Muskie);
Brief for EPA 32-33. FDF variances also temper -- albeit in a
slightly different way -- the effects of the nationwide,
categorical standards. They relieve a firm of its obligation to
comply with a rule that would impose on that firm a
disproportionate share of the regulatory burden.
See Tr.
of Oral Arg. 14. [
Footnote 2/21]
In fact, EPA itself has characterized FDF variances as "
safety
valves' in regulatory schemes of general applicability." Brief for
EPA 44 in NRDC v. EPA, 537 F.2d 642 (CA2 1976); see
also Hearings on Possible Amendments to the Federal Water
Pollution Control Act
Page 470 U. S. 163
before the Subcommittee on Water Resources of the House
Committee on Public Works and Transportation, 98th Cong., 1st
Sess., 2706, 2741 (1983) (EPA Administrator Ruckelshaus describing
FDF variances as "safety valves");
NRDC v. EPA, 537 F.2d
at 646 ("[T]he `variance' clause was assertedly adopted as an
administrative safety valve"). Thus, FDF variances are exceptions
that provide the type of flexibility that § 301(1) sought to ban.
[
Footnote 2/22]
The Court accepts EPA's present characterization that FDF
variances are a hybrid: "more like" a revision permitted
Page 470 U. S. 164
by § 307 than like a §§ 301(c) and (g) modification.
Ante at
470 U. S. 126.
But a requirement that, by definition, applies to only one
discharger cannot be considered "more like" a rule of general
applicability than like an exception to such a rule. Clearly, it is
an exception. [
Footnote 2/23]
The Court's error is to overlook the distinction between general
rules and exceptions. Instead, it focuses on the differences
between the grounds for exceptions provided by §§ 301(c) and (g),
on the one hand, and by the FDF provisions, on the other. Thus, the
Court makes its cuts along an entirely different -- and irrelevant
-- axis. For EPA to prevail, the Court must show that Congress
found that exceptions based on economic capability or water quality
factors were especially undesirable. If this were true, then
exceptions based on other factors would be less undesirable, and it
would make sense to decide the cases on the basis of the extent to
which the factors taken into account in granting FDF variances
differ from §§ 301(c) and (g) factors. The Court's position,
however, is inconsistent with the clear purpose of § 301(1). As I
have shown, there is absolutely no reason to believe that this
provision was designed to ban §§ 301(c) and (g) modifications
because there was something particularly pernicious about such
exceptions.
See supra at
470 U. S. 143.
Rather, the congressional concern was that exceptions would weaken
the standards for the control of toxic pollutants. This concern
defines the relevant criterion: whether something is a general rule
or an exception to such a rule. Sections 301(c) and (g)
modifications are at one end of the axis not because they are based
on economic or water
Page 470 U. S. 165
quality factors, but because they are exceptions to general
rules. Section 307(b) revisions are at the other end of the axis
not because they are based on factors taken into account in setting
the standards, but because they are rules of general applicability.
Of course, FDF variances, which are nothing but exceptions to
general rules, are at the same end of the axis as §§ 301(c) and (g)
modifications.
For the foregoing reasons, it is apparent that § 301(1)
prohibits FDF variances from the pretreatment standards for toxic
pollutants. I therefore dissent.
[
Footnote 2/1]
New plants must meet new source performance standards (NSPS)
based on the "best available demonstrated control technology." §
306.
[
Footnote 2/2]
Following the Third Circuit's decision, EPA revised its FDF
regulation to comply with that decision.
See 49 Fed.Reg.
5132 (1984); 40 CFR § 403.13(b)(2) (1984) ("A fundamentally
different factors variance is not available for any toxic pollutant
controlled in a categorical Pretreatment Standard"). The Agency
explicitly stated that it was adopting this change directly as a
result of the Third Circuit's decision. 49 Fed.Reg. 5132 (1984). No
suggestion of mootness has been made by any of the parties, and
EPA's position before this Court is consistent with the view that
it desires to reinstate its prior regulation. Given all of these
circumstances, the revision of the regulation does not render this
case moot.
See Maher v. Roe, 432 U.
S. 464,
432 U. S.
468-469, n. 4 (1977).
[
Footnote 2/3]
Under the Court's decision, the Third Circuit will now have to
consider this question on remand.
[
Footnote 2/4]
Under § 301(c):
"The Administrator may modify the requirements of subsection
(b)(2)(A) . . . with respect to any point source for which a permit
application is filed after July 1, 1977, upon a showing by the
owner or operator of such point source satisfactory to the
Administrator that such modified requirements (1) will represent
the maximum use of technology within the economic capability of the
owner or operator; and (2) will result in reasonable further
progress toward the elimination of the discharge of
pollutants."
86 Stat. 845, 33 U.S.C. § 1311(c).
[
Footnote 2/5]
Section 301(g) provides, in pertinent part:
"(1) The Administrator, with the concurrence of the State, shall
modify the requirements of subsection (b)(2)(A) of this section
with respect to the discharge of any pollutant (other than
pollutants identified pursuant to section 304(a)(4) of this Act,
toxic pollutants subject to section 307(a) of this Act, and the
thermal component of discharges) from any point source upon a
showing by the owner or operator of such a point source
satisfactory to the administrator that -- "
"
* * * *"
"(C) such modification will not interfere with the attainment or
maintenance of that water quality which shall assure protection of
public water supplies, and the protection and propagation of a
balanced population of shellfish, fish, and wildlife, and allow
recreational activities, in and on the water and such modification
will not result in the discharge of pollutants in quantities which
may reasonably be anticipated to pose an unacceptable risk to human
health or the environment. . . ."
91 Stat. 1583, 33 U.S.C. § 1311(g).
[
Footnote 2/6]
Citations to the 1977 legislative history are to Senate
Committee on Environment and Public Works, A Legislative History of
the Clean Water Act of 1977, prepared by the Environmental Policy
Division of the Congressional Research Service of the Library of
Congress (Comm. Print 1978).
[
Footnote 2/7]
EPA argues that §§ 301(c) and (g) modifications are available
only for BAT standards for direct dischargers. Brief for EPA 32, n.
23; Reply Brief for EPA 2-3, and n. 1. In contrast, NRDC argues
that such modifications are available for pretreatment standards as
well.
See Brief for NRDC 29, and n. 41. That dispute is
not central to these cases.
[
Footnote 2/8]
The argument that the Conference Committee was unaware of the
effect of its changes is particularly unpersuasive in this context,
because many of the conferees were familiar with the intricacies of
the Clean Water Act. Indeed, 7 of the 26 conferees had been members
of the Conference Committee at the time of the 1972 amendments to
the Clean Water Act; another 7 conferees had served on the
Committees that considered the 1972 amendments.
[
Footnote 2/9]
In fact, EPA does not appear to argue that
Du Pont
requires FDF variances in the case of BAT standards for direct
dischargers. Instead, it seems to say merely that
Du Pont
sanctioned such variances.
See Brief for Petitioners in
No. 83-1373, pp. 20-21. To the extent that the sentence in question
is relevant to the BAT context, it would seem to support a
requirement for FDF variance, rather than the more modest claim
made by EPA. Such a requirement, however, is inconsistent with the
result reached in
Du Pont. See 470
U.S. 116fn2/10|>n. 10,
infra.
[
Footnote 2/10]
Compare 40 CFR §§ 415.12, 415.22, 415.32, 415.42,
415.52, 415.62, 415.92, 415.112, 415.122, 415.132, 415.142,
415.162, 415.172, 415.202 (1977) (providing for FDF variances from
BPT standards),
with 40 CFR §§ 415.13, 415.23, 415.33,
415.43, 415.53, 415.113, 415.123, 415.133, 415.143, 415.163,
415.203 (1977) (not providing for FDF variances from BAT
standards).
[
Footnote 2/11]
In fact,
Du Pont dealt with one situation in which
effluent standards were to be set for categories of dischargers:
the new source standards of § 306. There, the Court held not only
that variances were not mandated, but that they would be
impermissible.
Du Pont, 430 U.S. at
430 U. S. 138;
see infra at
470 U. S.
160-161.
[
Footnote 2/12]
Also, the FDF variance provisions were probably not noteworthy
enough to attract congressional attention. At the time
Du
Pont was decided, EPA had provided for FDF variances only in
the case of BPT standards for direct dischargers, and only two out
of the thousands of sources covered by BPT standards had actually
received such a variance.
See Hearings on Possible
Amendments to the Federal Water Pollution Control Act before the
Subcommittee on Water Resources of the House Committee on Public
Works and Transportation, 98th Cong., 1st Sess., 2741 (1983) (EPA
Administrator Ruckelshaus).
[
Footnote 2/13]
The Court also finds it noteworthy that, under the provisions of
a consent decree, EPA is currently promulgating BPT-level standards
that apply to toxics. The Court suggests that prohibiting FDF
variances for those standards would be inconsistent with
Du
Pont. See ante at
470 U. S.
128-129, n. 18. What is relevant for the purposes of
Du Pont, however, is not whether the standards in question
are set by reference to BPT or BAT levels, but whether the statute
calls for individualized or categorical standards. The pretreatment
standards -- for both toxics and nontoxics -- are in the latter
category, § 307(b), and the
Du Pont variance requirement
is therefore of no relevance to such standards.
Along similar lines, EPA points out that, prior to the 1977
amendments to the Act, it had granted an FDF variance for a toxic
pollutant. At the time the variance was granted, however, that
pollutant had not yet been designated as toxic.
See Brief
for EPA 12; Reply Brief for EPA 13.
[
Footnote 2/14]
The case explicitly acknowledged the continued validity of our
long line of precedents holding that administrative constructions
inconsistent with congressional intent cannot stand. 467 U.S. at
467 U. S. 843,
n. 9.
[
Footnote 2/15]
Citations to the 1972 legislative history are to Senate
Committee on Public Works, A Legislative History of the Water
Pollution Control Act Amendments of 1972, prepared by the
Environmental Policy Division of the Congressional Research Service
of the Library of Congress (Comm. Print 1973).
[
Footnote 2/16]
The same principle holds true -- albeit to a lesser degree --
for pretreatment standards set by reference to BPT levels.
[
Footnote 2/17]
Also, EPA's argument on this score has no logical bounds. If FDF
variances are a permissible alternative to the notice-and-comment
procedure for "revisions" envisioned by § 307(b)(2), it must also
be acceptable to set the standards in the first place through
case-by-case determinations.
See § 307(b)(2) (same
procedures to be used in setting and revising standards). And, of
course, there would be no reason for this theory to be confined
solely to pretreatment standards. The argument that Congress was
willing to tolerate case-by-case determinations of all of the water
standards is so ludicrous as to hardly merit a reply.
See
supra at
470 U. S.
154-155.
[
Footnote 2/18]
In fact, following the decision of the Court of Appeals for the
Third Circuit in this case, EPA indicated that it would entertain
petitions for amended rulemaking by certain indirect dischargers
who were previously eligible for FDF variances. The aim of such
rulemaking would be to identify a new subcategory of dischargers
and to set an appropriate standard for that subcategory. 48
Fed.Reg. 52396 (1983). By proceeding in this manner -- consistent
with the requirements of § 307(b)(2) -- EPA promotes the
environmental protection and technology-forcing goals that Congress
found so important.
[
Footnote 2/19]
Environmental problems often present thresholds. For example, if
the level of biochemical oxygen demand (BOD) in a river exceeds a
certain level, fish life will become impossible. A slightly lower
BOD level, however, would prevent this result. Thus, the cost of a
relatively small mistake is very high.
See B. Ackerman, S.
Rose-Ackerman, J. Sawyer, & D. Henderson, The Uncertain Search
for Environmental Quality 265-266 (1974). General rules, adopted
after consideration of the comments of all interested parties, in a
process fully open to public scrutiny, provide the best guarantee
that such mistakes will not occur.
See generally K. Davis,
Discretionary Justice 65-66 (1969).
[
Footnote 2/20]
The fact that Congress amended the Endangered Species Act
following the Court's decision in
TVA v. Hill is, of
course, of no consequence to the analysis here. In these cases,
however, Congress was asked to modify the decision of the Court of
Appeals for the Third Circuit by authorizing FDF variances from
toxic standards, but declined to do so.
See H.R. 3282,
98th Cong., 2d Sess. (1984); Hearings on Possible Amendments to the
Federal Water Pollution Control Act before the Subcommittee on
Water Resources of the House Committee on Public Works and
Transportation, 98th Cong., 1st Sess., 2705-2706, 2724-2726,
2740-2741, 2747-2748 (1983).
[
Footnote 2/21]
Commentators have identified two categories of exceptions that
are relevant in these cases: hardship exceptions and fairness
exceptions.
See, e.g., Aman, Administrative Equity: An
Analysis of Exceptions to Administrative Rules, 1982 Duke L.J. 277,
293-294; Shapiro, Administrative Discretion: The Next Stage, 92
Yale L.J. 1487, 1504 (1983); Sehuek, When the Exception Becomes the
Rule: Regulatory Equity and the Formulation of Energy Policy
Through an Exceptions Process, 1984 Duke L.J. 163, 283-289. Under
this classification, a § 301(c) modification is a hardship
exception, and an FDF variance is a fairness exception. A § 301(g)
modification is a different type of fairness exception. It seeks to
ensure that a firm not be forced to comply with the categorical
standards when no environmental benefit would accrue from such
compliance.
See Aman,
supra, at 311-312.
This classification of exceptions is reflected in several
statutes. For example, the Department of Energy Organization Act,
42 U.S.C. § 7194(a); the Natural Gas Policy Act, 15 U.S.C. §
3412(c); and the Energy Policy and Conservation Act, 42 U.S.C. §
6393(a)(4), all provide for exceptions based on "special hardship,
inequity, or unfair distribution of burdens." Of course, a "special
hardship" exception is analogous to a § 301(c) modification; an
"inequity or unfair distribution of burdens" exception is analogous
to an FDF variance. Thus, the structure of these statutes supports
the proposition that an FDF variance is an exception to a general
rule.
Cf. Overstreet v. North Shore Corp., 318 U.
S. 125,
318 U. S. 128
(1943) (determining scope of phrase "engaged in interstate
commerce" under the Fair Labor Standards Act by reference to use of
that term in the Federal Employers' Liability Act).
[
Footnote 2/22]
It is also relevant that, in the legislative history of §
301(1), the terms "modification," "variance," and "waiver" are
often used interchangeably to describe exceptions to rules of
general applicability. For example, during its Senate testimony,
EPA used the term "variance" to describe statutory "modifications."
Hearings on Federal Water Pollution Control Act Amendments of 1977
before the Subcommittee on Environmental Pollution, 95th Cong., 1st
Sess. (1977);
see 1977 Leg.Hist. 1102, 1124, 1419.
Similarly, both Senator Muskie and Representative Roberts equated
the terms "modification" and "waiver." 123 Cong.Rec. 39183 (1977),
1977 Leg.Hist. 458 (Sen. Muskie); 123 Cong.Rec. 38952 (1977), 1977
Leg.Hist. 305 (Rep. Roberts);
see also S.Rep. No. 95-370,
p. 44, 1977 Leg.Hist. 677.
Moreover, prior to the enactment of § 301(1), EPA repeatedly
referred to the FDF variances as "modifications."
See 43
Fed.Reg. 27738 (1978) ("provision for case-by-case modifications of
the categorical pretreatment standards)"; Brief for EPA 40-41,
44-45, in
NRDC v. EPA, 537 F.2d 642 (CA2 1976) ("a
procedure for modification of the limits"; "a limited modification
of the regulations"; a "modification procedure").
In many other statutes, Congress has also used the terms
"exceptions," "variances," "modifications," "adjustments," or
"exemptions" interchangeably to refer to the identical concept:
individual departures from general rules.
See, e.g.,
Federal Trade Traffic Safety Act, 15 U.S.C. §§ 1410, 1417
(exemptions); Natural Gas Policy Act, 15 U.S.C. § 3412(c)
(adjustments); Federal Mine Safety and Health Act, 30 U.S.C. §
811(e) (modifications, exceptions); Safe Drinking Water Act, 42
U.S.C. § 300g-4 (variances); Clean Air Act, 42 U.S.C. § 7410(i)
(modifications); Department of Energy Organization Act, 42 U.S.C. §
7194(a) (modifications, exceptions, exemptions); Federal Aviation
Act, 49 U.S.C. §§ 1386(b)(1), 1421(c) (exemptions).
[
Footnote 2/23]
EPA argues that an FDF variance is equivalent to a subcategory
containing only one discharger, and that the Act does not proscribe
such subcategories. There is no merit to this argument. FDF
requirements are set individually not because the applicant is in a
unique position, but because the FDF procedures provide no
mechanism for EPA to ascertain whether there are other dischargers
in the same position as the applicant.
See supra at
470 U. S.
156-158.
JUSTICE O'CONNOR, dissenting.
I join Parts I, II, and III of JUSTICE MARSHALL's dissent. They
accurately demonstrate that the Court's interpretation of § 301(1)
of the Clean Water Act, 33 U.S.C. § 1311(1), is inconsistent with
the language of the statute and its legislative history. In my
opinion, this alone is sufficient grounds for affirming the
judgment of the Court of Appeals. I express no view as to Part IV
of the dissent, because I think it is not necessary to the
disposition of these cases.
