Chemical Manufacturers Association v. Natural Resources Defense Council, Inc.

PETITIONER: Chemical Manufacturers Association
RESPONDENT: Natural Resources Defense Council, Inc.
LOCATION: Public Schools

DOCKET NO.: 83-1013
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 470 US 116 (1985)
ARGUED: Nov 06, 1984
DECIDED: Feb 27, 1985

ADVOCATES:
Samuel A. Alito, Jr. - on behalf of the respondent
Frances Dubrowski - on behalf of Respondents

Facts of the case

Question

Media for Chemical Manufacturers Association v. Natural Resources Defense Council, Inc.

Audio Transcription for Oral Argument - November 06, 1984 in Chemical Manufacturers Association v. Natural Resources Defense Council, Inc.

Warren E. Burger:

Mr. Alito, I think you may proceed whenever you're ready.

Samuel A. Alito, Jr.:

Mr. Chief Justice, and may it please the Court.

This is a case under the Clean Water Act, and it concerns the Environmental Protection Agency's authority to issue what are known as fundamentally different factors or FDF variances from its effluent limitations and standards for toxic pollutants.

Let me begin by briefly describing how these effluent limitations are set and the important role that FDF variances play in the process.

An effluent limitation is simply a figure that tells a facility how much of a particular pollutant it is permitted to discharge.

These are usually expressed in pounds or kilos of pollutants per 1,000 pounds of product.

For example, one pound of pollutant per 1,000 pounds of steel, plastic, or whatever.

There are separate sets of effluent limitations for what are known as direct dischargers, facilities that discharge their wastes directly into the navigable waters, and indirect dischargers, facilities that discharge into public treatment works.

This case concerns indirect dischargers, but the basic arguments are the same in both the direct and indirect discharger contexts.

Direct dischargers were required to meet two sets of effluent limitations.

By 1977, they were required to meet the effluent limitations associated with what is known as BPT, the best practicable control technology currently available, and between 1984 and 1987, depending on the type of pollutant, they are required to satisfy the stricter standards of what is known as the AT, the best available technology economically achievable.

Indirect dischargers have similar requirements called pre-treatment standards.

Effluent limitations are set on what is known as a categorical basis, that is by industrial category and subcategory.

EPA has identified those categories of industry where pollution control is most urgently needed, and it has taken the larger categories and further sliced them into numerous subcategories, some fairly broad and some quite narrow.

In fact, some of these subcategories have included as few as one or two facilities.

The Clean Water Act itself does not set any of these effluent limitations or standards.

That is EPA's job using factors that are generally set out in the Act.

For example, some of the factors that are used for BAT and for pre-treatment include the age of facilities and equipment involved, the energy requirements of different types of pollution control technology, the different manufacturing processes that may be used, and the cost of achieving effluent reduction.

Let me give an example using the factor of cost to which I may return later in the argument.

EPA may determine that for a particular subcategory there is a new advanced form of pollution control technology that will cost between, let's say, between three-quarters of a million and one million dollars per facility to install, and EPA may find that a cost of one million dollars per plant is economically achievable, so EPA may conclude that for this subcategory, this technology represents BAT.

It is the best available technology economically achievable.

Gathering information on all of the relevant factors in making these determinations for all of these categories and all of these subcategories is an enormous task.

Just in the indirect discharger category there are more than 30... there are more than 60,000 facilities in the 34 primary industrial categories, and EPA was supposed to go about this work at a really breathtaking pace.

Under the Act, EPA was given 180 days to proposed the pre-treatment standards for all of American industry.

EPA has not been able to meet these impossible deadlines and as a result Respondent has had law suits pending against the Agency for the past decade, seeking to compel the Agency to move more quickly.

EPA's only hope of issuing effluent limitations on a reasonably expeditious basis has been to concentrate on the typical plants during the rulemaking phase, and not on the atypical ones, and consequently one of EPA's problems has been these unusual plants.

These may be older.

They may use different manufacturing processes.

Their energy costs may be different because of location, or some other factor.

Let me return to my example where BAT was calculated to cost between three-quarter of a million and a million dollars for a facility.