E. I. du Pont de Nemours & Company v. Train – Oral Argument – December 08, 1976

Media for E. I. du Pont de Nemours & Company v. Train

Audio Transcription for Opinion Announcement – February 23, 1977 in E. I. du Pont de Nemours & Company v. Train

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Warren E. Burger:

We’ll hear arguments next in 75-978, Du Pont v. Train and the related cases.

Mr. Barnard, you may proceed whenever you are ready.

Robert C. Barnard:

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

These three consolidated cases present basic statutory issues as to the form and content of regulations under the Federal Water Pollution Control Act of 1972 for existing sources, that is, existing plants, and for new sources, that is, new plant.

The regulations under which these issues arise concern the inorganic chemical-manufacturing industry.

Petitions in No. 978 and 1483 present the issue whether the regulations by EPA for existing plants shall be guidelines for effluent limitations as Section 304(b) expressly commands or whether EPA, relying on authority said to be derived by implication from Section 301, can override the provisions of Section 304 and issue effluent limitations, which shall be mechanically cranked into every permit, regardless of the circumstances or the conditions of the plant in the category.

The resolution of these statutory issues provides the basis for the determination of a jurisdictional issue which is also present in these cases.

The question presented on the cross-petition in No. 1705 relates to the issue whether EPA’s regulations should, as the court below held, provide a safety-valve procedure, in the court’s words, enabling an individual plant to show that it is entitled to a variance from a single-number standard because of the special circumstances of that particular plant.

There is no jurisdictional issue on 1705.

The statute expressly provides for review in the Court of Appeals of new source standards.

The Federal Water Pollution Control Act of 1972 made radical changes in the manner in which both municipal and private plant effluents are controlled.

The court in the last term in the California case had occasion to consider this Act in detail; I shall therefore merely thumbnail-sketch the statutory plan.

Section 301 of the Act prohibits all discharges by plants except as the discharge is authorized and covered by a permit.

Section 301 states, quote, “To carry out the objectives of the Act, there shall be achieved, by 1977, effluent limitations for point sources requiring the installation of best practicable control technology currently available.

For 1983, effluent limitations requiring application of best available technology economically achievable.

Section 301 expressly provides that these requirements are to be defined and determined pursuant to regulations under Section 304(b) of the Act.

The primary means of achieving and enforcing the effluent limitation is a permit procedure under Section 402, where the regulations are applied to individual plants.

The regulatory scheme for new sources is similar, but has important differences.

Section 306 of the Act directs EPA to establish standards of performance, not guidelines, for new sources which meet the statutory technological requirement of best available demonstrated control technology.

These standards are also applied to individual plants in the course of a permit process.

I will address first these issues as concerned regulations for existing plants and the jurisdictional issue that is related, I will then turn to the issues as they relate to new sources on the cross-petition.

Before discussing these matters, perhaps I should explain what appears to be the procedural complexity that is apparent in these cases.

The complexity arises, because in February 1974, about a year-and-a-half after the statute was passed, EPA first announced its position that it had implied authority to issue regulations under Section 301 establishing limitations.

The regulations in the form of single-number limitations would be issued, EPA said, under both Sections 301 and 304(b).

At the same time, EPA announced that since these regulations were to be issued under 301, the exclusive review provisions of Section 509(b) would be applicable and the 90-day period within which petitions must be filed would be equally applicable.

Petitioners disagree with EPA’s view that it has implied authority to issue limitations which override or disregard the express commands in Section 304(b) of the Act.

We likewise disagree with EPA on exclusive jurisdiction to review under Section 509; however, because of EPA’s announced position, petitioners filed protective petitions for review in the Court of Appeals at the same time as the petitions for review of the new-source standards for file.

Petitioners also filed a complaint in the Western District of Virginia, challenging certainty of the inorganic regulations that are here before the Court.

The appeal from the District Court was consolidated with the petitions for review in the court below.

The two proceedings on alternate jurisdictional bases, the complaint in the District Court and the petitions for review in the Court of Appeals, are both before this Court.

Robert C. Barnard:

Consequently, there is no jurisdiction or procedural issue which stands in the way of this Court’s resolving the statutory question and the related jurisdictional problem.

With the procedural complexity out of the way, I would like now to turn to the statutory issue.

In Du Pont II, the court below characterized the statute as, quote, “vague, uncertain and inconsistent” and described the court’s objective as somehow making EPA’s position workable; with the statute, the court was workable.

We suggest that if the court had focused more on the words of the statute and less on the quasi-legislative function of trying to make EPA’s position somehow workable with the statute, it would have found the statutory plan relatively straightforward and non-complex.

Well, do you suggest that workability is not a factor that a court takes into account when it examines a statute?

Robert C. Barnard:

I believe a court should consider workability obviously; but the court should look to the words of the statute, not to see whether it can accommodate something and make it workable in my suggestion.

And the words of the statute are not designed to make something workable; the words of the statute are the command which the court and EPA should follow.

And I will turn to the words of the statute, which I believe demonstrates that the court’s practical considerations disregard the words of the statute.

Would you carry that to the point where if pursuing that course would determine that the statute was unworkable?

Robert C. Barnard:

I suppose it could happen that the statute could be determined to be unworkable, I don’t think that is the situation here at all.

Section 301, as I have said earlier, Subsection (a) forbids all discharges unless they are permitted under the law.

Subsection (b) lays the foundations for the regulations for all existing sources.

To carry out the objectives of the Act, the subsection says, there shall be achieved by 1977 effluent limitations requiring 1977-level technology and, by 1983, effluent limitations requiring 1983-level technology.

It is significant that Section 301 is written in the passive voice, “objectives to be achieved”.

The only reference to regulations is the specific reference to regulations under Section 304(b).

The technological requirements are to be defined and determined, quote, “in accordance with regulations issued by the Administrator under Section 304(b)”.

304(b), to which 301 refers, contains the direct statutory command that within one year the Administrator shall publish regulations providing guidelines for effluent limitations; and Section 304(b) contains detailed instructions as to what is to go into the regulations.

It provides that the regulations shall do two things: first, Subsection 1a and 2a provide that the Administrator shall identify in specific terms the degree of reduction in pollution that can be achieved or is attainable by the application of 1977-level technology in one case and 1983 technology in the other.

This is to be accomplished for classes and categories of point sources.

Second, Subsections 1b and 2b direct how the regulations are to be applied to plants within the classes or categories.

The regulations shall specify the factors to be taken into account in determining control measures applicable to point sources within the classes or categories.

The statutory command is even more concrete, because it lists the factors which are to be specified in the regulations and to be taken into account in framing permits under Section 402.

EPA asserts that if permit officers are to apply the factors —

John Paul Stevens:

Mr. Barnard, the statute does not specifically refer to Section 402, what you just quoted, does it?

Robert C. Barnard:

No, it does not.

John Paul Stevens:

It just talks about effluent limitations.

Robert C. Barnard:

Yes, sir.

Section 402(d) refers to guidelines, but there is not a specific cross-reference, yes, Your Honor.

EPA says that if the permit officers are to apply the factors, this will lead to wholesale reconsideration of the factors in the permit process.

We believe EPA’s assertion confuses the role as to the factors and EPA’s role and the permit officers’ role.

Robert C. Barnard:

Obviously, EPA must consider the factors in specifying them in the regulations.

The permit officer uses EPA’s explication of the factors as the basis for applying, not reconsidering, the factors.

The Congressional intent that these factors to be specified by EPA would be used by a permit officer in the permit process is indicated by the fact, which the court below noted, that a number of the factors such as age of the plant are really relevant or applicable only to a particular plant.

One of the clearest confirmations of the Congressional intent that this was the pattern to be followed is found in the conference report.

The paragraph quoted in Page 55 of our brief and discussed at length in all of the briefs.

The report referring to Section 304(b) records the Congressional intent that the limitations within a category are to be precise in order that the limitations will be as uniform as possible.

EPA focused sharply on the word “uniform” and disregards the explanation in the report that uniformity does not mean identity.

To the contrary, the report explains what Congress meant.

Similar point sources, Congress said, with similar characteristics would be subject to similar limitations.

It is precisely this similar treatment which Section 304(b) is designed to accomplish.

When the factors are specified in the regulations, an officer will be able to select in the permit process limitations for plants which have similar characteristics with the result that they will be treated similarly.

This is true uniformity.

Section 301 of the Act says the objectives to be achieved are effluent limitations requiring 1977- or ’83-level technology.

The definition of “effluent limitations” is instructive.

Section 502-11 says that “effluent limitations” means “a restriction on discharges from point sources established by a State or EPA, including schedules of compliance”.

A State clearly cannot establish effluent limitations except in a permit, and a schedule of compliance obviously relates to an individual permit.

Indeed, it was EPA’s effort to change the definition in the regulations, Subsection 11(i) of the general provisions.

By deleting the references to restrictions established by a State and by deleting a reference to the schedules of compliance, which led the court below to set EPA’s definition aside.

The regulations before the Court are entitled, quote, “effluent limitations guidelines for the inorganic chemical-manufacturing industry”.

The term “effluent limitations guidelines” is not a statutory term; but it is defined in EPA’s general regulations, Subsection (j).

Subsection (j) provides, quote, “The term ‘effluent limitations guidelines’ means any effluent limitations guidelines issued by the Administrator pursuant to Section 304(b) of the Act”.

EPA’s brief does not refer to this definition, nor to the fact that the general provisions nowhere speak of regulations under Section 301 of the Act.

The definition in the general provisions is, in fact, a confirmation of the announcement that EPA made in 1983 in what it called a Notice of Proposed Rulemaking, and it referred there to effluent limitations guidelines, standards of performance pursuant to 304(b) of the Act and 306 of the Act.

The announced purpose of the notice was to facilitate comment on rules to be published under Section 304(b) and Section 306; no reference to regulations under Section 301.

When the proposed inorganic regulations were published in October 1973, the preamble expressly stated with respect to existing plans, quote, “The regulations propose herein set forth effluent limitations guidelines pursuant to Section 304(b) of the Act”; again, not a word about 301 regulations.

When the final inorganic regulations were published in March 1974, the preamble referred back to the proposed regulations for the statement of the legal bases.

EPA now asserts that in both the proposed and the final regulations, it gave notice that the regulations were issued under Section 301.

Section 301 was paraphrased in both the notice in 1973 and in the preamble to the proposed regulations.

The preamble to the final regulations contains the statement that the regulations were issued pursuant to Sections 301, 304, 306 and 307.

But at the same time, it refers back to the proposed regulations for the statement of legal bases for the regulations, which was Section 304(b).

Robert C. Barnard:

The final regulations also incorporate the general provisions, which define effluent limitations guidelines to be 304(b) regulations.

The assertions in EPA’s brief that 301 was cited as the authority, I think will not withstand examination of the record.

At most, it is an acknowledgment by EPA that 301 and 304 are related, because 301 directs that regulations shall be issued under 304, and 304 directs that effluent guideline limitations shall be issued.

We suggest that the specific words “effluent limitations guidelines” as they are defined in the general provisions and the words in the preamble to both the proposed and final inorganic regulations confirm EPA’s contemporaneous interpretation at this Act that its job was to issue regulations in conformity with Section 304(b)’s commands and that that is what it said it intended to issue.

EPA has now virtually abandoned its February 1974 contention that the regulations are issued under both 301 and 304.

EPA now says that regulations should be issued under Section 304(b).

It acknowledges that no such regulations have been issued, and I believe the word it used is “formally”.

It now asserts that it has complied with the substance of Section 304(b) by issuing a voluminous development document and economic report, and I would like to talk about that in just a moment.

EPA now argues that it has authority to issue single-number limitations by regulations to be cranked into a permit by rote and that this authority is derived by implication from Section 301.

It asserts an administrative convenience as the basis for this decision and a fear of laxity by the States.

We suggest that EPA is wrong both on policy and on legal grounds in this position.

On policy grounds, Congress specifically decided that the major responsibility for controlling pollution within a State shall fall upon the State.

This policy is confirmed expressly in Section 101 of the Act.

Section 402, which sets up the permit system, provides for transfer of the administration of the permits to the States as soon as they satisfy certain conditions of the statute, and 26 States I believe have now satisfied those conditions.

EPA’s decision to issue single-number limitations because of some fear of State laxity reduces the States to the role of a scrivener.

Whatever EPA’s fears amount to, and we submit that they are baseless because of the statutory provisions for review, this reduction of the role of the State is in contravention of Congress’s intention that the State shall have a major role in control and administration of pollution regulations within their States.

To understand how EPA’s power-by-implication position does violence to the statute, it is necessary to go back a little bit and look at the statutory plan again.

Section 304, as I said, mandates that EPA shall issue regulations for effluent guidelines, which shall identify by categories the degree of reduction attainable by application of 1977 or 1983 technology and shall specify the factors applicable in determining control measures for particular point sources within the classes and categories.

The statute lists the factors to be specified; these include age of facilities, process employed, engineering aspects of the application of the control technology, non-water-quality considerations, specifically energy requirements, and cost benefit for 1977 and process changes for 1983.

The legislative history of the Act, and particularly the Senate report, made clear that what Congress was thinking about was the enormous variety of existing plants and that they wanted guideline regulations that would contain ranges of numbers for each category and a specification to guide the permit authorities in selecting the appropriate number in the range.

In our brief, we have used the word “flexibility” in describing regulations which comply with the command of Section 304(b).

“Flexibility” in this context means only that the permit will be tailored to the particular situation of that particular plant in light of the factors.

It does not mean that either the regulations or the permit officer can deviate from the technological requirement in Section 301, application of best practical control technology for 1977 and best available for 1983.

“Flexibility” means that the permit officer will be guided by the regulations in selecting the control technology or control measures for a particular plant which meets the respective 1977 and 1983 requirement rather than force-fit a single-number limitation on a plant regardless of its special circumstances.

This we think is exactly what the Congress meant when it said in the conference report similar plants with similar characteristics shall be subject to similar limitations.

John Paul Stevens:

Mr. Barnard, could I interrupt with just one question?

As I understand your basic theory, it is that 304 authorizes guidelines; pursuant to the guidelines, permits will be issued under Section 402.

Robert C. Barnard:

That is correct, sir.

John Paul Stevens:

And that there is no authority in the EPA to issue limitations pursuant to 301.

Robert C. Barnard:

That is correct.

John Paul Stevens:

Well, what do you do with the language of 509(e), which specifically says there is a Court of Appeals review in agency action approving or promulgating any effluent limitation or other limitation under Section 301.

Robert C. Barnard:

I think those words are reasonably clear, Your Honor.

Number 1, so far as approving is concerned, that word stems from the fact that the statute that as originally passed required EPA to approve each State-issued permit before it became valid.

The approving language enabled that action by the Administrator to be reviewed in the Federal Courts.

The limitations language in there clearly refers in our view to Section 301(c), which authorizes the Administrator to deviate from the requirements of 1983 upon a specific point as set forth in Section 301(c).

In order to have that reviewed, the language had to be in the statute dealing with limitations under Section 301.

EPA assigns no meaning to the word “approving” as it appears in that section, and indeed if EPA’s construction is correct it refers to limitations under Section 306, then the limitations words in Subsection (f) are actually a duplication or render Subsection (a), which deals with new-source matters, without purpose or without effect.

It seems to us clear that that provides no authority for the kind of general limitations that EPA has issued which override the commands the Section 304(b).

John Paul Stevens:

Well, you have addressed yourself to the word “approving”, but not to the word “promulgating”.

Robert C. Barnard:

Promulgating effluent limitation under Section 301(c), Your Honor.

301 (c) provides that the Administrator may vary the requirements of the 1983 level, and the requirements of the 1983 level are set out in Subsection (b), which directs that it shall be determined pursuant to regulations under Section 304(b).

In order to review those limitations, the statute had to provide for this kind of a review.

John Paul Stevens:

Do you read 301(c) as providing for general deviations or specific with regard to specific permits?

Robert C. Barnard:

The statute requires a finding, which would make it difficult except to make a finding in terms of a relatively specific plant; but it is conceivable that a finding could be made for more than one.

John Paul Stevens:

But the language says the Administrator may modify the requirements of Subsection (b)(2)(A) of this section with respect to any point source for which a permanent application is filed, I thought it kind of dealt with the specific rather than the general.

Robert C. Barnard:

Well, it talks about any plant and it requires a specific showing with respect to that plant, both technological and economic.

John Paul Stevens:

But in any event, it is 301(c) that you say is all that is really referred to in the words “approving or promulgating any effluent limitation or other limitation under Section 301”.

Robert C. Barnard:

We say that with respect to the word “promulgating”; with respect to the word “approving”, I suggested that it has a broader purpose of providing for review in the Federal courts of actions by the Administrator in approving permits that are issued by the States.

EPA’s position in reality using its implied authority is an attempt to amend the statute and change the statutory plan.

Section 304(b) says that the factors to be specified are to be taken into account in determining the control measures applicable to point sources within the classes.

EPA now says under its implied authority, it may issue single-number limitations to be mechanically put into permit for the plant and that it can disregard the statutory command in Section 304(b) to specify the factors which will guide the permit officers.

In effect, this is a repeal pro tanto of Section 304(b) by a power said to be implied in Section 301.

EPA places great reliance on Section 301(c), which was just referred to, Section 301(c) authorizes the Administrator to modify the requirements of Subsection (b)(2)(A), which is the 1983 step, on a factual and economic showing.

But the section speaks of requirements; it is does not speak of limitations to be issued under the Section 301.

The requirements specified here are that the effluent limitations which require the application of the technology as determined by regulations under Section 304.

That is what the section is speaking of.

The section was designed to permit the Administrator not to provide variances, but actually to provide a deviation from the 1983 technological standard.

Without that authority, he could not have provided a deviation based on the findings that the statute speaks of.

Section 301(d), which EPA does not mention in its brief, like Section 301(c), also contains a specific cross-reference to the procedure standard to be explicated by regulations under Section 304(b).

Section 301(d) provides for review every five years of any limitation required under Paragraph (b)(2); that is the 1983 step.

Robert C. Barnard:

The procedure for the review of the limitations is carefully identified.

The revision is to be pursuant to the procedure set out in Paragraph (b)(2).

This cross-reference is to the procedure set out in Paragraph (b)(2), which is regulations under Section 304(b).

The legislative history confirms that this section was designed to deal with the period after 1983.

The permits normally lasts five years; they need to be renewed.

The statute provides for 1977 and 1983 technological requirements.

Beyond that, we’re to move toward no discharge.

This section contemplates that as the permits come up for renewal on a five-year term, they will be renewed subject to the regulations under 304(b) which are then in effect.

In short, the most up-to-date regulations will be applicable to those permits as they are reviewed.

EPA now acknowledges that there should be regulations under Section 304(b).

It asserts that the lengthy development document and economic report comply in substance with the mandate of Section 304(b).

There are two basic objections to this.

304(b) directs that regulations providing guidelines for effluent limitations shall be issued, not discursive documents that have no legal effect.

Secondly, these documents perform none of the functions of guideline regulations, because they provide no guidance to permit officers.

EPA says it has issued limitations which must be cranked into the permit, there is no guidance to the officer except to crank them into the permit.

EPA makes four additional, and I suggest non-consistent, arguments on the matter of the form and content of the regulations.

In the preamble, EPA says that Section 304(b) provides for guidelines to implement the standards of Section 301, all by itself an interesting term.

Congress thus recognized, EPA says, that “some flexibility” was necessary to take into account the complexity of the industrial world.

To achieve that flexibility, EPA put into the regulations for each subcategory a standard clause authorizing the Administrator to grant a modification of the single-number limitation upon a showing that the factors applicable to a particular plant are fundamentally different from those considered by the Administrator.

This provision, EPA says, provides the flexibility which the statute contemplated.

Three Courts have disagreed: the court below, the Third Circuit and the District Court in the grant-processing case.

The Second Circuit held that without some variance provision, the scheme of limitations could well founder on the rock of illegality; but it postponed the decision as to the validity of the particular variance clause to the facts of a particular case.

We suggest that this narrow variance clause should not be debated for the reason that it is surplusage.

Moreover, in August 1974, EPA announced that it was rethinking the variance clause and asked for public comment on the variance clause.

EPA has not revealed the result of that re-examination.

EPA is correct in our view that the Congress did intend some flexibility; indeed it went further: it specifically provided for the flexibility.

If EPA had complied with Section 304(b) by specifying the factors to be taken into account in determining the limitations of the permit, there would be no need to device a narrow variance clause.

The stature itself determines specific terms, the flexibility which Congress said was permissible in that Section 304(b).

Secondly, EPA said it considered the factors in setting up the subcategories in these regulations and that the factors justified no further sub-categorization.

The issue is not further sub-categorization, but whether EPA can ride roughshod over the command in Section 304(b) that it specify the factors to be taken into account in determining the control measures for plants within a category or class.

Robert C. Barnard:

Third, EPA says that its regulations provided ranges, because different limitations have been fixed for different subcategories.

But the fact that there are different numbers for different categories does not create a range as Congress contemplated, as the Third Circuit correctly pointed out.

A range made up of different numbers in different subcategories is no guidance to a permit officer in determining control measures for a plant within a single category.

A limitation applicable to a plant manufacturing sodium silicate in the sodium-silicate subcategory is not relevant in any way in determining the limitation for a plant manufacturing titanium dioxide in the titanium-dioxide subcategory.

Fourth, EPA also takes the position that there is an implicit range in each subcategory from the specific limitation number down to zero.

But this range is, as the Third Circuit again we think correctly held, is an illusion.

No factors are specified to enable a permit officer to select the number within this, “range”.

More basically, the record does not provide any support for a number down to zero when the number EPA selected based on the record is a number above zero.

Finally, EPA says that there is great administrative convenience in having single-number limitations, it is easier to administer, and it refers to the use of the word “uniform” in the conference report.

Whatever the administrative convenience is concerned, it cannot override the commands of Section 304, as explained in the conference report that similar plants with similar characteristics shall be subject to similar limitations.

This emphasis by Congress on the similarity of treatment is easily understood.

When Congress was developing the 1972 Act, EPA was well along in developing the so-called permit program under the Refuse Act.

Congress was well-aware of the fact that EPA had prepared what are called guidance documents.

These guidance documents recognize the range of plants in the industry and establish ranges of parameters by subcategories.

Some of the guidance documents actually refer to the factors; others, the inorganic’s guidance document, says that EPA will provide a technical briefing so that the permit officers will understand how the factors are to be applied in the course of issuing permits.

And it is this same regulatory pattern which we believe the Congress had in its mind when it adopted Section 304(b) providing for guidelines.

Indeed, the regulatory pattern continued after the Act was passed.

To assist the permit officers in the interval before new regulations were issued, EPA in May 1973 directed that the guidance documents would be used by the officers in permits, “until effluent guidelines are promulgated under Section 304”.

This reference to effluent guidelines under 304 and the character of the guidance documents themselves are further confirmation of the contemporaneous construction EPA gave to this statute.

Now, this pattern was abruptly changed in February 1974, when Assistant Administrator Kirk’s memorandum was made public, the memorandum that announced the new theory that the regulations would provide limitations in reliance on implied authority under Section 301.

This about-face by the Administration in the midst of the regulatory process demonstrates that there has been no consistent administrative interpretation to which this Court should defer.

To the contrary, such about-face means, we suggest, the current administrative position provides very little guidance to what the statute means and how it should be interpreted.

There are other provisions in the Act which confirm that EPA’s current position is wrong and that Congress intended the regulatory structure to be based on guidelines under Section 304(b).

Section 515 of the Act creates a distinguished scientific review committee.

EPA was directed to send proposed regulations to this committee for review in advance of publication.

Section 515 refers specifically to regulations under Section 304(b); it does not refer to regulations under Section 301.

It is difficult to believe that if Congress had intended regulations to be issued under Section 301 which override the provisions of Section 304(b), it would not have provided for their review by the advisory committee.

All of the other measure regulations — pretreatment standards, new-source standards — are mentioned along with Section 304(b); but there is no reference to Section 301 regulations in Section 515.

EPA not only fails to mention 515 in its brief, but also fails to discuss the advisory committee’s review of inorganic regulations, characterizing them as, “unscientific”.

The committee said, among other things, the regulations fail to take into consideration great differences in individual facilities; also that the EPA disregarded the instructions in Section 304 as to the cost of application of practicable and available technology, especially for small plants in the industry.

John Paul Stevens:

Mr. Barnard, under the 515 argument, as I understand it, you do not challenge the EPA’s authority to issue general limitations for new sources.

Robert C. Barnard:

No, sir, the statute commands it.

John Paul Stevens:

Does the advisory committee have authority to review the regulations relating to new sources?

Robert C. Barnard:

The statute says they shall be submitted to the committee.

John Paul Stevens:

I see, the new source ones and the guidelines, but not the existing source ones.

Robert C. Barnard:

That is correct.

The court below came a long way toward recognizing the statutory plan based on guidelines issued under Section 304(b).

Guidelines to be applied in the permit process; however, its concern with what it called practical considerations and its desire to find what it thought was a workable interpretation of the statute led to a compromise, which we believe does comport with the words of the statute.

EPA, the Court held, can combine regulations under Section 301 and 304 and issue limitations by regulation, the Court said; but the Court was not willing, as EPA would like, to read Section 304 out of Act.

The limitations, the court concluded, are presumptively applicable; that is, the regulations are to be applicable unless the presumption is rebutted.

The reference, the Court said, to Section 304(b) in Section 301 means that the Congress intended that the factors set out in Section 304(b) were to be applied by the permit officer in determining whether the presumptively valid regulations shall be applied to a particular plant.

The court stopped short of requiring, as the Third Circuit did, that the factors be set out in the regulations, and we believe this is what Section 304(b) commands.

The compromise by the court below on what it called practical grounds moves a long way from EPA’s rigid interpretation of limitations to be cranked in by rote to permits, but it falls short of compliance with Section 304(b), and in our view EPA should be directed to comply with Section 304(b).

This brings me to the jurisdictional issue, which has already been discussed, at least in response to questions from Justice Stevens.

EPA places great emphasis on Subsection (e), which Justice Stevens referred to that refers to review of the Administrator’s action in approving or promulgating effluent limitation under Sections 301, 302 or 306.

I have indicated that I think the approving language was in there to provide for review in Federal courts of action by the Administrator in reviewing State-issued permits, and the promulgating language was there to deal with the situation of Section 301(c), where the Administrator is authorized to grant deviations from the 1983 requirement on a specific finding.

We believe it is clear that under the normal course, the regulations under 304(b) would be reviewable in the District Court.

The statute contemplates that they be issued at different times than the new-source standards.

There is no question that the review of new-source standards is in the Court of Appeals’ Section; Subsection (a) of 509 (b)(1) specifically so provides.

However, we believe that is an appropriate case for this Court to conclude the Court of Appeals had pendent jurisdiction to review the guideline regulations at the same time as it reviewed the new-source standards.

As it turned out, they were issued on same record at the same time, and the issues that arise, the technical issues, are substantially the same.

It is therefore in our view an appropriate case for this Court to conclude that court below has pendent jurisdiction — this is different from exclusive jurisdiction — and would not invoke the 90-day clause as a penalty on those who in reliance on the statute did not file within the 90 days.

I now turn to the cross-petition in 1705, in which the Government seeks review of the holding by the court below that EPA should insert in the new-source standards what the court called an escape valve, which would enable permit officers to make adjustments in the requirements of the single-number standards to take into account the special circumstances of a particular new plant.

John Paul Stevens:

Mr. Barnard, may I ask you one further question on the first part of the argument, just to be sure I have it in mind?

Your view, you stressed the passive language in 301(b) that there shall be achieved effluent limitations by such-and-such a date; but your interpretation of the words “effluent limitations” in 301(b)(1)(A) is that that’s the aggregate of all the individual permits that shall be issued, is that correct?

Robert C. Barnard:

Yes, sir.

John Paul Stevens:

I just wanted to be sure.

Robert C. Barnard:

Yes sir, and I think if you look at the second class or the second clause, which refers to effluent limitations for municipal plants, which are required to implement new-source standards, you can’t very well have regulations for limitations that implement new-source standards.

John Paul Stevens:

Sorry, I didn’t follow.

What did you just refer?

Robert C. Barnard:

The second clause, which deals with municipal plants, directs that effluent limitations are to be achieved for municipal plants, which require compliance with applicable pretreatment requirements.

Since pretreatment requirements are to be standards issued under another section of the statute, it makes no sense to speak of effluent limitations by regulations to require application of pretreatment standards, which are also to be set out pursuant to another section of the statute.

John Paul Stevens:

Well, unless it was intended to be a flexible term, incorporating both the general requirement and an aggregate of specific requirements.

I mean, one could read it that way.

Robert C. Barnard:

Well, since it is in the passive and you can find, it seems to me, the Congress using both words together to refer to the program to be implemented under Section 304(b) so far as existing plants are concerned and under 306 or 307 so far as new-source standards or pretreatment standards are concerned.

John Paul Stevens:

The heart of your argument as I understand it is that there is express authority in 304, there is an absence of express authority in 301, and we should not imply authority from the somewhat ambiguous language in 301.

Robert C. Barnard:

And as a policy matter, it should not be implied, because the Congress looked at the variety of existing plants and set up a structure that was designed to deal with that variety and do what I repeated three times to see that similar plants with similar characteristics get similar limitations.

John Paul Stevens:

I think we understand that.

Robert C. Barnard:

And to have single-number limitations that override that plan, we think, is not in conformity to what the Congress had in mind.

Now, the escape valve which the court had in mind below is not like Section 301(c), which authorizes a deviation from the 1983 technological requirement.

The standard for new sources is best available demonstrated control technology.

The escape valve envisaged by the court below would merely authorize the permit officer to deviate from the single-number limitations that are in the standards so long as he selects a limitation which requires application of best available technology for that particular source.

Without such authority, new sources, many new plants will not be built.

We suggest, as the court below is correct, that EPA cannot foresee in a single-number standard all of the circumstance for all new plants and provide for them in a single number.

The escape valve is necessary to make new plants built.

John Paul Stevens:

Mr. Barnard, let me just ask just one more, because I’d rather catch while you are here before I lose all this.

The review provisions authorize the Court of Appeals to review the new-source standards.

Robert C. Barnard:

At Subsection (a).

John Paul Stevens:

Subsection (a) under the — anything — action under 307.

Robert C. Barnard:

306.

John Paul Stevens:

306, right, and also 307.

Robert C. Barnard:

I forget 307 for briefing.

John Paul Stevens:

Those are both general in nature in this review in the Court of Appeals.

You say there is comparable importance to the general guidelines authorized by 304.

There is no direct review in the Court of Appeals of action taken under 304.

Robert C. Barnard:

That’s correct.

John Paul Stevens:

How do you explain when you attach similar importance to 304 as you do to 306, how do you explain that disparity in the review provisions, if this thing fits together so well?

Robert C. Barnard:

Your Honor, it may well be that if I had my own druthers or my own preferences, I would have elected that the review be in the Court of Appeals; but my druthers are not very important, and the Congress did not make that election.

John Paul Stevens:

Do you think it was a mistake by the Congress or part of the comprehensive integrated plan?

Robert C. Barnard:

Well, as it turns out, it became part of a plan.

Robert C. Barnard:

They contemplated that those regulations would be issued at a different time than new-source standards and under different circumstances.

They gave them a different time sequence to do it, and it seems to me that the second thing that should be borne in mind is that the new-source standards are made independently enforceable; the guidelines regulations are not.

It is not suitable that regulations that contain ranges and factors should be independently enforceable.

It is the permit that contains the effluent limitations that is enforceable.

John Paul Stevens:

No, but you stressed the importance of the guidelines in letting the permit-issuing officer know what to do.

Robert C. Barnard:

That’s correct.

John Paul Stevens:

They are of some significant under your theory of the case.

Robert C. Barnard:

There is no doubt and I agree completely with the Eighth Circuit that these regulations should have clout and they do have clout.

EPA can review; it not only controls its own permit officers, but it can review State-issued permits to be sure they are within the guidelines, as the statute contemplates.

To return to the escape valve, Section 402(k) of the Act, we believe, contemplates that such adjustments will be made, because it says that compliance with the permit shall be compliance with the requirements of Section 306.

The logic of that subsection is that escape-valve adjustments were in contemplation by the Congress.

But even if Section 402(k) were not in the law, the cases established the principle that an Agency may establish general principles for general standards, but it has an obligation to look to the facts in a particular case in light of the statutory standard and objective.

This is really almost an element of due process.

General provisions can be fatally arbitrary without some kind of, “escape valve”.

The Water Act did not leave this to interpretation.

It specifically provided in Section 402(k) for such an escape valve.

These cases present a rather unusual situation for the Court.

It is unusual that an issue of statutory construction is being presented to this Court at a time when EPA has just launched a major review, looking to re-issuance of 1983-step regulations and new-source standards, pretreatment standards, for 21 major industry categories, including inorganic chemicals.

The 1977-step permit process is virtually finished, permits were issued.

The question now turns on the renewal under the 1983-step regulations.

As the Court’s decision will come at a time when the regulations are in their inception rather than at the conclusion of an ongoing process that is now underway for review and re-issuance of all of these regulations.

EPA’s review was undertaken pursuant to an agreement signed in June of this year with the Natural Resources Defense Council and others to settle four lawsuits filed in the District Court against EPA.

The Federal Register for November 24th, 1976 contains a reference to this review.

It contains an invitation for the public to participate in what EPA calls the development of major EPA environmental regulations and lists on several pages the regulations under consideration.

On Page 51865, it lists the 24 industry categories under the following heading: Proposed effluent guidelines are now being revised for review of best available technology — that is 1983 — in the following source categories; then it lists the 21.

It is perhaps a little more than interesting that out of the litigation context, they call them guidelines.

This same notice refers to the review that I mentioned earlier undertaken in August 1974 of the variance clause, and it says: Proposed variance regulations: regulations establishing procedures for obtaining variances from best practical-treatment requirements and adopted effluent guidelines.

Again, it is interesting that they call them guidelines.

We suggest that the Court should reverse the decision below and direct EPA to follow the requirements of Section 304.

We suggest also that this is an appropriate case for the Court to conclude that the court below had pendent jurisdiction to review the regulations, since they were issued on the same record at the same time as the new-source standards which were before the court.

Robert C. Barnard:

We think it is appropriate in this case because of the special circumstances of the case.

In the cross-petition dealing with the new-source standards, we urge the Court to affirm the decision below.

Thank you, Your Honor.

Mr. Barnard, I’ve forgotten.

Did you argue the Eighth Circuit case?

Robert C. Barnard:

Yes, sir.

And you were disappointed when the other circuits went the other way, aren’t you?

Am I correct, was the Eighth Circuit the first one to come down?

Robert C. Barnard:

Yes, sir.

There are other cases argued at about the same time, but the Eighth Circuit was the first one announced, yes, sir.

Were you in the Third Circuit, too, personally at all?

Robert C. Barnard:

No, sir.

Warren E. Burger:

Thank you, Mr. Barnard.

Mr. Friedman?

Daniel M. Friedman:

Mr. Chief Justice, may it please the Court.

As this Court pointed out last term in the California case, in the 1972 amendments, Congress made a rather sharp change in the methods for dealing with the serious problems this country faces in connection with water pollution.

Previously, the method for dealing with this had been focused on achieving certain qualities of the water, that is, looking to the end product, the water, and trying to reduce the level of pollutants in it.

In 1972 amendments, Congress shifted from that primary emphasis to an emphasis on achieving strict effluent limitations, restrictions on the amount of pollution discharged into the water.

It further imposed very strict time schedules: 1977 for the first level, 1983 for the second level, with the hope, the ultimate objective set forth in the declaration of goals, that by 1985 pollution of this country’s water would be terminated.

Now, the legislative history of these amendments shows a clear Congressional intent that this required the establishment of uniform effluent limitations on a national basis.

The theory that petitioners urge before this Court that all the Administrator is to do is to promulgate general guidelines which will specify ranges of permissible pollution that will detail particular factors that the issuance of permits are to consider in issuing permits, we think would seriously jeopardize and fraud the entire Congressional plan.

Instead of there being uniform effluent limitations on a national basis, what you would have would be the establishment of effluent limitations in each of approximately 40,000 to 50,000 proceedings looking to the issuance of particular permits.

As I will explain later, we do not suggest that these effluent limitations of the Administrator are to be mechanically cranked into the permits.

The permit issuers are not to be mere scriveners, as petitioners described, and I will explain the States will have a very major role in issuing permits under the Administrator’s theory.

But if the petitioners are correct, if that is all the Administrator can do, it seems to us it will fraud the basic Congressional objectives of achieving these pollution limitations and hopefully termination of pollution by the stated dates, which can only be achieved through uniform national standards.

It is going to be very difficult, almost impossible, to have uniform national standards if each of the dozens of permit issuers has a wide variety in passing on the application of these rather generalized guidelines to particular permits.

We think the Administrator’s interpretation that he does have authority under Section 301 to promulgate binding effluent limitations, an interpretation which I point out has been adopted by six of the seven Courts of Appeals that have considered the problem, does effectuate the Congressional purpose to achieve these effluent limitations speedily.

We think this is precisely what Congress intended.

We shall argue that this is confirmed by the language of the statute, by the scheme of the statute and by the legislative history, and it represents the administrative interpretation of the statute by, in the language in Udall v. Tolman of the officials charged with setting the machinery in motion, of making the parts work effectively and smoothly while they are yet untried and new, and that kind of an interpretation is one to which the courts traditionally give great deference.

In last term in the California case, the court recognized the appropriateness of such deference in interpreting this highly complex and technical statute.

Daniel M. Friedman:

And I will shortly in my argument come and answer the contention that the Administrator’s interpretation first appeared shortly before the regulations were issued.

It is our submission that he has taken this position that he is going to act under both 301 and 304 from the outset of the effectiveness of this statute.

Now, we have set out in our brief a number of the statutory provisions which we think show that Congress intended the Administrator to have this authority.

Many of them are very technical and not particularly suitable for oral presentation, they involve cross-references back and forth; but there are three or four that I’d like to refer to, which we think clearly recognize the authority of the Administrator to promulgate these binding effluent limitations.

The source for this is the Administrator’s general authority under Section 501(a) to prescribe such regulations as are necessary to carry out the Administrator’s functions under this Act.

Now, the first provision to which we refer is Section 301(e), and we have filed with the Court the paper edition of the statute.

It is unfortunately terribly long and terribly complicated, but I will refer to the particular pages of this pocket pamphlet in dealing with them.

This is at Page 30 of statute, Section 301(e).

Now, what it states is, effluent limitations established pursuant to this section or Section 302, which deals with water-quality control, shall be applied to all point sources of discharge of pollutants in accordance with the provisions of this Act.

Now, it speaks of effluent limitations established pursuant to this section, but the permits are not issued pursuant to this section; the permits are issued pursuant to Section 402, and it seems to us this recognizes that something other than an effluent limitation —

You’ve lost me.

Page 30, where on Page 30?

Daniel M. Friedman:

Page 30 at the bottom of the page, Subsection (e), the last subparagraph.

Thank you very much.

Daniel M. Friedman:

This, it seems to us, indicates that what is being spoken about here in effluent limitations established pursuant to this section is something other than effluent limitations established in permits.

The same thing is true, we think, with respect to Subsection (c), which is two paragraphs above Subsection (e), which authorizes the Administrator to modify the requirements of Subsection (b), which deals with the effluent limitations, in the case of any application for a permit filed after July 1, 1977.

Well, if the only way that the effluent limitations are to be established is through the permits, there was obviously no need to give the Administrator the authority to waive any limitation.

This again, it seems to us, clearly contemplates that there will be established effluent limitations separate and apart from the permits.

Now, Mr. Barnard has suggested in dealing with the provision in Section 501(b)(1), which is set out at Page 77 of the statute, that when the statute says there may be review had of the action of the Administrator (e) in approving or promulgating any effluent limitation or other limitation under Section 301, 302, etcetera, all that refers to is his action in granting an exemption under 301(c).

Well, first of all, it seems to us the language is much broader than that, and there is nothing in anything of the history of this suggesting such a limitation.

But that argument ignores the very next subsection of this paragraph, which also provides for review of the Administrator’s action in issuing or denying any permit under Section 402, and it seems to us that if the only way that effluent limitations were to be established was through permits, there would be no need for these two paragraphs, because if they are only to be established through permits, if the Administrator approves a modification or variance from an effluent limitation or particular permit, that would be reviewable, we think, under Section 402.

Now, there is one other provision which Mr. Barnard has not referred to, which is Section 505 at Page 73 of the statute and it goes over to 74.

That provision permits citizen suits against any person alleged to be in violation of an effluent standard or limitation under this Act and under that provision, there is a separate section.

Subsection (f) on Page 74, which defines for purposes of citizen suits what these terms mean; and it defines effluent limitation to include, under Subparagraph 2, an effluent limitation or other limitation under Section 301 or 302, and then under Subsection 6, a permit or condition thereof issued under Section 402.

So once again, a clear recognition that there are two different animals we are talking about: one is an effluent limitation established under 301 or 302, the other is a permit which by definition also will contain an effluent limitation, since it specifies the precise limits of discharge.

Mr. Friedman, wouldn’t Mr. Barnard say that the reference to Section 301 in Subsection (f) refers to 301(c) and the modification which is in the specific case, or would not that fit?

Daniel M. Friedman:

I don’t know.

It seems to me what he tries to do is to take these very general phrases and very broad terms in the Act and attempt to cut them down and try to give them a very limited reading; but we think fairly read, the whole statutory scheme is a recognition — these various provisions and there are others which we have cited in our brief — a recognition that, in fact, Congress intended the Administrator to be able to prescribe effluent limitations that are binding.

If you look at the statute broadly and if you’re right that there can be a general regulation or general effluent limitation for existing sources, what is there in the statute that requires a permit for existing sources?

Daniel M. Friedman:

I would say, well, what requires a permit, we start with 301(a), which says except in compliance with this section and Sections 302 and 402 of this Act, the discharge of any pollutant by any person shall be unlawful.

Daniel M. Friedman:

It requires —

I would assume that there is a general limitation and that the discharge is not violating the general limitation.

If you’re right, say 301 has specified a general standard, I am a plant, an existing plant.

I discharge in accordance with the general limitation without a permit.

What makes what I am doing unlawful?

Daniel M. Friedman:

Without a permit?

Yes.

Daniel M. Friedman:

402 requires that you have a permit.

There is nothing in 402 that requires a permit; 402 merely is permission to grant permits.

Daniel M. Friedman:

Well, let me step back a minute, if I may.

301(a) requires among other things compliance with 402.

It states that you have to comply with a group of sections including 402, and 402 provides for permits.

It authorizes permits.

But why would you need a permit if you are complying with the general standard?

That is my question.

Daniel M. Friedman:

Oh, because the general standard does not specify and apply the precise amount of discharge that a particular plant can make in terms of the general limitations.

Let me, if I may, give a specific example of this.

For example, in the chlorine subcategory, there are specific limitations; you can discharge a certain amount of a particular pollutant for each thousand pounds that you produce.

Now, that’s the effluent limitation is formulated.

Sometimes it is in terms so much a day, so much a month and so on.

The job of the permit issuer and the reason for the permit is to specify exactly how much this particular plant can discharge, and that is something more than just a mechanical job.

It is not just cranking them in.

It requires a number of calculations.

For example, frequently it is unclear precisely which subcategory a plant fits into.

A plant may have very complicated processes, and it is necessary for the permit issuer to study the thing and find out where it is.

Sometimes, for example, you may have a situation where one of the standards depends upon the process employed at the plant.

You may have a plant that says, well, our process seems to be this; but it is really something different.

That is another thing that has to be done.

Just as important is, the permit is the place where the schedules of compliance are set forth; that is, a permit not only tells them how much they can discharge, but sets forth specific dates by which they are to achieve and be along the way to accomplishing the limitations of 1977 and 1983.

That is, it will say by such-and-such a date in 1979, you have to have completed this step.

Daniel M. Friedman:

It takes it all, it takes them right along the way, it tells them what they have to do in order to achieve the effluent limitations by the stated dates.

Another thing, the permit will provide various things with respect to reports that have to be made and studies that have to be made by the plant.

Are all these variables in the permits determined by reference to the guidelines promulgated pursuant to Section 304, or do they come out of thin air?

Daniel M. Friedman:

They don’t come out of thin air, because the Administrator himself has promulgated a set of rather detailed guidelines that have to be followed by every State that is authorized to have its own permit programs.

So a number of these things, such as the monitoring and the reporting requirements, are set forth in his own guidelines for the permit program.

In addition, some of them do come out of the guidelines.

For example, in the hypothetical case I suggested to you in which the question is which particular process is employed and therefore into which subcategory the plant fits, one way for determining that would be to look at these lengthy guidelines, this huge, thick document which is filled with a mass of technical detail, and see on the basis of that what were the factors that led the Administrator to conclude that there was this category and there was that category, and on the basis of those factors, the permit issuer would seek to fit it into the category that the permit issuer thinks most closely approximates that guidelines.

I want to stress again, because of what Mr. Barnard has said, that the States have a major role to play in the administration of this permit program.

They are not just sitting there and saying, okay, here is this permit; let’s add it up and put it in the computer and comes out with numbers and write it down.

It is a very complicated process to issue these permits to decide precisely what the limitations are, to set the schedules of compliance, to determine exactly what can be done and to determine, among other things, whether the plan that this particular company has proposed, the treatment processes it intends to use, will satisfy the requirements of the guidelines and of the standards.

Will this really hold out promise of accomplishing what the company is required to do?

Now, a point has been made that Section 301 is written in the passive tense rather than in the active tense, and from that one should imply that no effluent limitations are required to be promulgated.

I think it was employed in the passive tense, because that section is setting out the standards to be achieved.

It has formulated the effluent limitations that are to be achieved by certain dates, and it just seems as a matter of grammatical construction that is an effective way to put it; it was announcing the Congressional policy: these limitations are to be achieved by this date.

But that does not indicate that Congress did not intend to give the Administrator the authority to take whatever steps he felt were necessary to accomplish that objective.

Now, there is another thing about this statute.

There are number of provisions dealing with various types of enforcement.

Permitting citizen suits, permitting the Administrator to go into the District Court, they all speak of enforcement of the various statutory provisions dealing with effluent limitations.

You enforce 301, 302, 307, 306 and 402.

At no point is there any reference to enforcement of the guidelines.

The guidelines under their own analysis are not enforceable, and it seems to us totally inconsistent with the whole statutory scheme to say that Congress intended to enable the enforcement of the limitations in all of these other sections; but when you came to the most vital thing of all, the large number of existing sources that were polluting, nothing could be done with respect to those particular sources unless and until the general guidelines had been made effective as to each source through a permit.

Indeed, there’s no question has been raised here and it is conceded that the Administrator may adopt binding effluent limitations for these other categories — for new sources, for toxic pollutants, for water-quality standards — and it just seems so unlikely that Congress would have intended to give him that authority, at the same time denying him the authority to promulgate the effective type of effluent limitations where it was most needed in dealing with the new sources.

Mr. Friedman, doesn’t Mr. Barnard’s argument on Section 515, the water quality or information advisory committee, just kind of counterbalances what you said.

Daniel M. Friedman:

No, I don’t think so, Mr. Justice.

Let me explain why.

That Section 515 is set out at Page 79 of the statute, and all of that 515 requires is that the Administrator more than 180 days before publishing a proposed rule is to give the committee notice that he is proposing to do so.

He is not to submit to the committee the draft of the regulation; all it says is to give notice.

In this case they did in fact, they went beyond that and gave the committee the draft of the regulation; but all the committee is supposed to do is to get notice and then within 120 days, that is, 90 days before the regulations are to be published, the committee is to report and give the Administrator its views on how to deal with this problem.

Now, the guidelines basically will set forth the technology, the methods of dealing with the problem, the impact of the various proposed methods of reducing effluent pollution upon the industry, and at that point it seems to us is the place where the expert advice of the committee comes into play.

The committee gives the Administrator the benefits of its expert judgment on how best to deal with this problem.

Daniel M. Friedman:

Well, that is the point at which the expert advice is needed.

Once that has been done, there would be no occasion for the Administrator once again to come back to the committee and say, okay, these are the guidelines we are proposing; now, we’d like to get your expert views on whether or not under these standards the effluent limitation for this particular thing should be 1 pound of pollution per thousand pounds or 1½ pounds.

It seems to us the critical thing and the reason for this is to give this expert committee the input at the time the Administrator was studying the problems posed by the technology, the chemical, the engineering technology, all of which is reflected in this vast document.

This thing is just a mass of technicalities.

I frankly read it, skimmed it is more accurate; I could not understand it.

But someone in the chemical industry, I’m sure, knows exactly what this means, and this is the type of material we think that Congress intended that the Administrator to have in which he should have the benefits of the views of the expert groups.

Now, let me just —

Mr. Friedman, you argue as though this statute were just as lucid as any piece of legislation could be and that you can all fit it together if you really just study it.

Daniel M. Friedman:

I wish it were that lucid, Mr. Justice.

Don’t you think there are some inconsistencies?

Daniel M. Friedman:

I admit, of course, this statute is not as clear as it could be.

I take you don’t believe, though, that we just haven’t an open choice as to which way to go.

Daniel M. Friedman:

No, we think the clear intendment of this statute and the purpose of this statute require the conclusion that the Administrator does have this authority.

You mean just on the plain language of the statute, or do we have to look to some purpose or other?

Daniel M. Friedman:

I think you have to consider all of it, I mean, I think the language support this, the legislative history supports this, the administrative construction supports this, the consequences of their interpretation as against the effect of our interpretation on the basic policies that Congress sought to achieve by this statute.

I mean, I wish the statute was so clear that there was no room for disagreement.

But I suppose you must agree that under your construction of the statute, permit issuers are going to have a much narrower range of this question.

Daniel M. Friedman:

Of course, I agree.

And much less room to tailor permits to the needs or necessities of individual plants.

Daniel M. Friedman:

Well, I think the statutory scheme is that —

Well, your answer is, yes, it is.

Daniel M. Friedman:

Yes.

Good deal.

Daniel M. Friedman:

They would have less authority certainly than under the other.

Furthermore, you say yet that is not only true, but Congress intended it.

Daniel M. Friedman:

That is precisely it, Mr. Justice.

Warren E. Burger:

Well, beyond that, I take it this is your position that it would be impossible to administer it.

Daniel M. Friedman:

Well, it would be impossible to administer in the sense of accomplishing the objectives, that is our position.

If you couldn’t accomplish the objectives of getting on with this and really stopping this pollution of the nation’s waters, if it was left to all of the permit issuers just to apply this. And

I might add, Mr. Chief Justice, that in any case where an application for a permit is sought, a hearing can be requested.

Daniel M. Friedman:

There haven’t been that many hearings yet, probably because of the view that the permit issuer had limited authority.

But if the permit issuers have considerable free range to decide within ranges and to decide how they are going to apply the particular factors to the particular plant, it seems to me there are just going to be more and more hearings.

There are going to be —

But if everybody asks for a hearing, I suppose the capacity of EPA is more of the States’ is finite in this respect.

Daniel M. Friedman:

I would assume it would be a very serious problem if everyone requested that.

In that connection, Mr. Friedman, are you going to comment on Mr. Barnard’s observation about what is presently going on in the revision of guidelines?

Daniel M. Friedman:

Well, that is contemplated by the statute.

Suppose the rules had already been adopted.

Suppose that process had been through by the time this case reached here.

What would it affect this case at all?

Daniel M. Friedman:

I don’t think it would affect this case and of course, one of the reasons.

Why not?

Daniel M. Friedman:

Well, because you are dealing with the existing regulations at this point and let me just mention this.

One of the —

Would the new regulations govern permits that will be issued now?

Daniel M. Friedman:

No, they will govern permits when they come up for renewal.

Most permits are five years, and the —

That’s what I said, that the Government permits that are being issued now.

Daniel M. Friedman:

Being issued now, yes, coming up now.

But most of them have been issued now, most of them now have been issued.

There is close to 50,000 permits that have been issued, and most of them will start coming up in two or three years; and of course when the new permits come up for issuance —

What is the posture of the industries here?

Daniel M. Friedman:

I’m sorry, I don’t understand.

With respect to the new regulation?

Those industries before us.

Daniel M. Friedman:

Oh, well, the Administrator is considering those regulations; and if and when whatever changes he may make —

Well, how about the industries?

What about Du Pont that is litigating here?

Daniel M. Friedman:

There is revision under this industry, which is the inorganic chemicals-manufacturing industry.

But if and when there are substantial changes in those regulations, that of course is something that can be challenged at that point.

Daniel M. Friedman:

We don’t know what is going to come out of this procedure.

We have no way of crossing that.

But I just want to add that part of the statutory plan is that the Administrator will be constantly re-examining these matters to take advantage of new technology.

And the way under the statute once you get a permit, the permit is deemed compliance with the statutory requirements for the period of the permit, so that during the normal five-year period of the permit you are not in violation of the statute, even though the standards have been significantly changed.

But as technology evolves, as knowledge becomes greater, as new processes are developed, the Administrator will be able to change the regulations to require that as the permits come up for renewal, the plants will be compelled and forced to adopt the more advanced technologies.

Now, I would like to come to something on which Mr. Barnard has repeatedly been pressing, which is that this position that the Administrator has taken now that he has authority under Section 301 is a brand-new notion, that this only came into being a couple of months before the regulations were adopted; that, in fact, at the earlier stage the Administrator never dreamt that he was going to act under 301.

In the reply brief at Page 5 — that’s the sort of pinkish document — there is a quotation of two paragraphs.

What page?

Daniel M. Friedman:

Page 5.

Quotation of two paragraphs from something that the Administrator issued at the end of October 1972.

This was two weeks after the statute was enacted and this was a directive request put out to various industrial and consulting firms, saying the Administrator would like them to submit proposals as to what kind of studies they could make to help him determine these guidelines and limitations.

And Mr. Barnard quotes and italicizes two sections of this statute, and it’s set forth at Page 6026 of something called the Administrative Record, which is a vast mass of material that is on file with the Court, but is not included in the various appendices.

I’m not sure if I could carry it out physically.

I know there is more than can be handled here.

Are there more than 6,026 pages?

Daniel M. Friedman:

Yes, I am afraid so, Mr. Justice.

Now, he doesn’t italicize the first sentence of that material, and it is quite understandable because what the first sentence says is the Federal Water Pollution Control Act Amendments requires the Environmental Protection Agency to establish effluent limitations, which must be achieved by point sources of discharges.

And then it goes on in the next sentence and specifies the source of that requirement, Section 301 of the Act.

Now, after the two paragraphs that Mr. Barnard quotes, there’s some more paragraphs to this, and I’d like to read two more sentences to the Court which Mr. Barnard has not quoted.

Are they in this book?

Daniel M. Friedman:

No, I am afraid, Mr. Justice, they are at Page 6,026.

It is the same page as quoted here; but it is not included in the brief, and if the Court wishes, I will be happy to make available this particular page.

But that so-called administrative record has been lodged for the four years.

Daniel M. Friedman:

Yes.

What it says in the third paragraph of this is, in addition to his responsibilities under Section 301 and 304 of the Act, the Administrator is required by Section 306 to announce standards for new sources.

So again, a recognition early on that he had responsibilities under 301 and 304.

And then it goes on in the next paragraph, the third sentence of the next paragraph states, effluent limitations guidelines under Section 301 and 304 of the Act, and new standards of performance under 306, will be developed for 27 industrial categories.

So two weeks after the statute was enacted, the Administrator had already taken the position that he was going to act under Section 301 and 304.

Mr. Friedman, that is hardly an unambiguous statement by the Administrator that he was going to issue self-enforcing regulations under 301, is it?

Do you really think it’s that clear?

Daniel M. Friedman:

No, but I think it does show.

It does use the term “effluent limitations guidelines”, which is…

Daniel M. Friedman:

But it does show, I think, Mr. Justice, that at that early stage, he recognized that he was going to do something under 301.

Now, their argument is, he can’t do anything under 301; all he can do is issue the guidelines under 304, and then it is up to the permit issuers to issue it.

Mr. Friedman, what was going on here two weeks after the enactment of the Act that resulted in the compilation of a 6,000-or-so page administrative record?

Daniel M. Friedman:

I’m sorry, Mr. Justice.

In the 6,000 pages didn’t come in two weeks after the Act.

That 6,000 pages are the record in this proceeding.

This is the order in which it was set up in the record by two weeks after the Act, we didn’t already have 6,000 pages of records.

I thought maybe the Administrator had taken his cue from Congress.

Daniel M. Friedman:

No, no, no, no.

Now, there was a reference to the notice of proposed rulemaking in October 1973, and it was stated that all that was done in that document was merely to summarize the statutory provisions.

But if one looks at this document, there are specific references that the Administrator was proposing to adopt rules pursuant to Section 301, 304 and the rest of them.

I’d like to specifically refer the Court to pages of the Appendix — that’s the brown, thick document in this case — at Page 61 of the Appendix, it says notice is hereby given that effluent limitations guidelines will be promulgated for, and then it lists all of the subcategories in the inorganic and chemicals-manufacturing industry, and it says pursuant to Sections 301, 304, 307, etcetera.

Then, similar reflections contained at Page 84, where there is a reference to technology at the bottom of the page, last paragraph, technology-based standards as detailed in Section 301, 304(b) and 306; and finally, the proposed rulemaking in October 1973, approximately six or seven months before the regulations finally became effective and approximately one year after the statute became effective, set out specific numerical effluent limitations for these industries.

I’d just like to invite the Court’s attention to Page 110 of the Appendix, where specific numerical amounts are given in connection with the chlorine subcategory of the chemicals industry.

So it’s not just that at an early stage the Administrator indicated he was proposing to act under 301, but that he actually that early, a year after the Act was passed, proposed specific limitations and gave everybody in the industry the opportunity to comment on them.

The record contains a number of objections by industry, including the chemical industry, to these proposals, including the complaint that they shouldn’t specify precise numerical limitations; that it should be put in terms of range; that they should promulgate guidelines; and various factors.

And we think that this does reflect a consistent administrative interpretation, that here is a case and a complicated statute where the Administrator was charged with setting the thing in motion, early on concluded that he should deal with this problem of Section 301 and 304.

Under the statute, the Administrator was directed to promulgate the guidelines within one year.

Now, this proved to be an impossible task.

Just the sheer magnitude of it, the studies that had to be made of all of these industries, he could not do it.

And what he did rather than promulgate first guidelines and then effluent limitations was, he combined the two steps into a single proceeding, and at the end of this proceeding he issued virtually simultaneously the guidelines, the actual limitations for existing sources and for new sources, and this seemed to us a preeminently practical method of handling it.

There has been no unfairness to the petitioners, they were on full notice early on what was going to happen.

There’s no indication that if he had followed separate procedures, anything would have been different.

They knew exactly what he was proposing to do.

They had full opportunity to comment on it twice, because the Administrator here followed a rather unusual procedure: he first published a proposed notice of proposed rulemaking and let them comment on that, and after they had gotten comments on that then he put out a notice of proposed rulemaking, then he got comments on that, and finally he adopted the rules.

I mean, it is really giving them more procedural protection than they required.

The argument is made that these regulations are defective because they do not provide ranges and they do not specify the various factors that the permit issuer is to take into account really in applying the ranges to the particular plant.

That, of course, is just another way of arguing, I think, that the Administrator can’t promulgate binding effluent limitations.

Daniel M. Friedman:

I add that there is nothing in the statute that speaks about ranges at all.

The two references in the committee report to ranges, we think that the ranges, to the extent they are acquired, are provided by the act of dividing the industries into subcategories on the basis of particular processes, particular plants, particular types of equipment used.

And for example, Mr. Barnard was complaining that one of the factors to be taken into account is age, and he said that age of a plant cannot be put into the formulation of the regulations.

Well, in at least one industry, they have broken down on the basis of age; in the electric-power industry, one subcategory is new plants, and another subcategory is old plants, a recognition that there are different problems in controlling pollution in different types of plants.

Now, the specification of factors, we think that that requires is that the Administrator’s guidelines specify the factors that are to be applied under the effluent limitations — that is, on what basis is the Administrator going to set the precise numbers — and that we think is precisely what he has done here.

Mr. Friedman, can I ask a fairly basic question that’s running through my mind?

Assume for a moment that the other side is right and that the action taken under 301 is a complete nullity, there are no legally enforceable regulations under 301; that the action taken under 304 is not self-enforcing, it was just some kind of a general guide and you’ve done that.

Does it really make any difference if everybody already has a permit pursuant to 402?

Daniel M. Friedman:

Yes, it makes a great deal of difference, Mr. Justice, because these permits are only for five years, and when the permits start expiring in the next two or three years and when the question then comes how should they be changed to reflect the improvements in technology, it seems to me you’ve got to open a hornets’ nest there.

The difference would be, I take it, that when the renewal time comes up, instead of renewing the basic set of rules in one single proceeding, you’d have to review a multitude of permit applications.

Daniel M. Friedman:

That’s right.

That’s the basic thing we are fighting about, right?

Daniel M. Friedman:

That is the basic, that under our —

The other side of the coin, if you’re right and they’re wrong, how are they hurt right as of now?

It does not really make any difference today; it just makes a difference on renewals.

Daniel M. Friedman:

Well, I suppose they may not be heard now except to the extent — I don’t know, I haven’t thought about this — that whether the invalidation of effluent limitations would do something to the permits that have been issued.

It may be that if the permits were —

Why, if they’re in accordance with the guidelines and they’ve been issued by the man who has the authority to sign the permit, what difference does it make?

I don’t see how the validity of any already-issued permit can possibly be affected by this proceeding.

Now, maybe I missed something very obvious; but I just don’t quite see it.

Daniel M. Friedman:

I suspect not; but I’m sure an attack would be mounted on the permits, and there are also —

Well, Mr. Friedman, I suppose there could be a range of permits that could be issued and each one of them consistent with the guideline.

Daniel M. Friedman:

If it is only the guidelines — well, that again would depend if the —

And if a specific factor that the Administrator has prescribed, he has no power to prescribe; and if a State might have issued a permit, a completely different permit that’s still consistent with the guideline.

I would suppose that there would be an industry that would rather have the State issue a new permit than to keep the old one.

Daniel M. Friedman:

If that is open to them.

That, it seems to me, would be productive of some rather extensive and difficult litigation if that happened, because I’m sure they would contend that somehow the permits, even though in compliance with the guidelines, if they were issued not in compliance with the guidelines, but in compliance with the effluent limitations, and if the effluent limitations are invalid.

I think they would then argue that…

Well, but, see, this document is a hybrid; it is a 301/304 kind of document.

Daniel M. Friedman:

Yes.

And if they’re right in saying 301 is a nullity, it has nothing to do with it, it really doesn’t cause a repeal.

It doesn’t nullify the document to the extent that has authority under 304, and they have no power in this proceeding to get review of 304.

Daniel M. Friedman:

No, they have no power to get well —

Insofar as it is sustained under 304; but then they would have had to go back to the District Court and start all over, I suppose.

Daniel M. Friedman:

I suppose so, well, they make the argument that if they prevail that you should not send it back to the District Court, that you should allow to stand the portions of the Court of Appeals’ decision that have invalidated some of the regulations.

The Court of Appeals in this case in addition to —

So it had jurisdiction pursuant to the new-source aspect of it, and then they argue as pendent jurisdiction, as the existing —

Daniel M. Friedman:

They argue pendent jurisdiction, which we say that in the particular circumstances of this case if that should be the outcome, it would be sort of futile to send it back to the District Court, which would undoubtedly follow the views of the Court of Appeals.

But in the meantime, of the 22 regulations that are involved in this case, 11 of them have been reversed on various grounds and sent back to EPA for further study, and those are at the present time in the course of study.

But apart from —

If we did not accept their pendent jurisdiction action, that would not have been done, then that is why they need the pendent jurisdiction, in order to preserve their victory —

Daniel M. Friedman:

That is right, because there is no pendent jurisdiction, then the entire judgment of the Court of Appeals has to be wiped out; and then it goes back to the District Court, but the District Court, undoubtedly seeing what the Court of Appeals had done to this case, would probably, I suspect, follow the dictates of the Court of Appeals.

It would just be a kind of a futile thing to go back and forth.

Now, the legislative history —

The 11 that were sent back, any question about them before us now?

Daniel M. Friedman:

No, no.

The only issues before this Court are the authority of the Administrator to establish these binding effluent limitations and the validity, which I’ll come to in a moment, the subject to our cross-petition of the holding of the Court of Appeals that there has to be a variance procedure for new sources.

That’s the only thing we have challenged.

There is no question before this Court of any of the modifications or revisions requested in the substantive terms of the regulations themselves; it is just the question of the authority and power of the Administrator.

But in view of the very disparate views of the various Courts of Appeal, surely this issue does have continuing practical importance, does it not?

Daniel M. Friedman:

It is of great practical importance, because —

And continuing and for current and continuing practice to get it resolved.

Daniel M. Friedman:

Yes, we are not suggesting that this case is moot or inappropriate for us.

(Inaudible)

Daniel M. Friedman:

Oh, no.

But it’s become important just by reason of the issuance of —

Daniel M. Friedman:

No, no, it is of terrible importance, because apart from the question of what is happening to the existing permits is the fact that you are going to have all these renewals.

It is critical when these renewals come up to know whether the Administrator can establish binding limitations or whether on each renewal the whole thing is to be opened up.

Most permits are five-year permits?

Daniel M. Friedman:

Most of them are, and a number of them were issued.

Daniel M. Friedman:

Originally a fair number were issued by the Administrator prior to the time that State-permit programs were approved.

Now, only 27 States now have approved permit programs.

So for the other States, the regional administrators have been delegated by the Administrator the authority to issue permits.

Mr. Friedman, one other rather general question, am I correct in my recollection that with respect to some industries, some industries take the position that the Government takes in terms of which court should review these?

Daniel M. Friedman:

Yes.

And the industry is divided, but the Government position has been rather consistent.

Daniel M. Friedman:

It is.

Indeed, it is rather interesting, we have a large stock of amicus-curiae briefs in this case.

The American Iron and Steel —

On top of those things, as well?

Daniel M. Friedman:

On top, yes.

This is just a massive amount of stuff here.

The American Iron and Steel Institute has a lengthy argument as to why the Court of Appeals has jurisdiction.

The America Paper Institute says the District Court has jurisdiction.

The American Petroleum Institute says it accepts the jurisdiction of the Court of Appeals.

And the one amicus brief supporting us, the Natural Resources Defense Council, says the jurisdiction is in the Court of Appeals.

So there is a division even within the industry itself as to jurisdiction and of course, except for the Eighth Circuit, every other Court of Appeals has held that it and not the District Courts have jurisdiction.

We have quoted in our brief a number of excerpts from the legislative history, which we think confirm that Congress intended to permit the Administrator to adopt these regulations.

I am not going to go through them at any length.

Let me just quote one or two.

The conference report and the differences between the House and the Senate Bill, which we have quoted at Page 60 of our brief, said that the conferees intend that the Administrator or the State, as the case may be, will 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.

Clearly, we think, contemplating an effluent limitation to be established for a class or category of source.

And then in the House Bill, quoted at the top of Page 63, the House Report says that all permits issued under this program shall be consistent with the specific requirements of the Bill, including effluent limitations or other limitations.

Once again, a clear reorganization that effluent limitations are something other than and separate from the provisions in the permits.

Now, let me turn to the question presented in our cross-petition, which is the requirement of the Court of Appeals that for new sources, there has to be a variance procedure.

The statute in Section 306(b) directs the Administrator to establish by regulations federal standards of performance for new sources within each industrial category, and the standard of that is the best available demonstrated technology.

And it said, including where practicable a standard permitting no discharge of pollutants; that is, Congress hoped that when you dealt with new sources as distinguishably from existent sources, the Administrator would be able to find that was sufficient available technology to permit no discharge at all.

It is illegal after these standards of performance have been promulgated for any new source to operate in violation of the standards.

Mr. Friedman, let me ask you a question about the cross-petition.

Is it possibly premature, in other words, you criticize a part of the Court of Appeals’ opinion.

But is there anything in its Order that really will be affected by our take-down processes?

Daniel M. Friedman:

Oh, yes, yes.

It is remanded to and the Administrator is directed at Pages 262 and 263 of the record to come forward with some limited escape mechanism for new sources.

It is not just the general statement that there should be; it said there should be and, the Administrator, you are directed to provide it.

It told the Administrator to work out some scheme whereby new sources can have an escape mechanism.

If this decision stands on the remand, he has got to come with some variance procedure for new sources.

Now, the Court of Appeals recognized, both under the statute 301(c) for the 1983 sources and under the Administrator’s regulations for the 1977 sources, there is a variance provision.

The Court recognized also that there was no comparable thing for new sources; but nevertheless, it concluded that a variance procedure should also be presumptively applicable — I’m sorry, that the new-source standards, like the existing-source standards, would be presumptively applicable and that there should be some various variance provision.

This rather significantly is something the Court of Appeals did on its own.

The petitioners did not ask the Court of Appeals to do this; the Court did it itself.

And we challenge that, because we do not think that Congress ever intended there to be a variance provision for new sources.

We think the reason is, there is a basic difference between getting existing sources into compliance and new sources.

When you deal with an existing source, turning and improving it, bringing it up to standards, can be a very complicated, time-consuming and expensive procedure.

There are all sorts of a host of problems.

The Administrator, when he dealt with the existing sources, promulgated the limitations on a basis of a particular subcategory, and inevitably in that process he could not take account of particular problems that were unique to a particular plant, and therefore it would be fundamentally unfair to require a particular plant with unique problems to observe the general effluent standards and limitations that are applied to all members of this sub-industrial category; and for that reason the Administrator concluded that there should be a variance.

This is also reflected in the statutory provision for a variance on the 1983 sources.

But when you are dealing with a new plant, it seems to us you have a very different situation facing you.

To begin with, by definition, there is no requirement of a plant making any changes.

Secondly, the new plant when it is being built has much greater freedom to adopt new technologies.

It does not having to take its existing operation and change it; it is starting fresh, and it is not only more feasible and not only better able to do this, but usually likely to be a lot cheaper.

The standard that Congress directed to be set for new standards, new sources, is the best available demonstrated control technology.

There is no reason why if a plant is being constructed from scratch it can’t comply with that.

This is the best way to control pollution.

You’ve got a tremendous problem in getting existing sources to comply and to cut down on their discharges to accomplish the achievement of these objectives; but when you are dealing with a plant that has not been constructed with a new source, the best way to avoid any growth of pollution is to make sure that the new source complies with these strict standards.

Indeed, the hope was in Congress that in the case of new sources the standard would be no discharge at all.

And we think that what Congress contemplated in Section 306 was that for a new source, unless it could comply with these strict effluent limitations, it should not be built at all; that is, Congress adopted a different approach when it was dealing with correcting existing sources and permitting new sources.

Now, 306, with its very explicit thing that no new source shall operate except in compliance with these standards is in sharp contrast with some other provisions of the statute, which do explicitly permit, but not require, the Administrator to grant waivers.

Reference has already been made to Section 301(c) with the waiver of the permit requirements.

Section 316(a) permits the Administrator to waive the requirements of both Section 301 and 306 for a particular plant for a single aspect of pollution, so-called thermal pollution, the discharge of heat into the waters, if he finds that compliance with the thermal-pollution standard is unnecessary to protect wildlife.

And finally, we refer to Section 313 of the Act.

Daniel M. Friedman:

That is the provision requiring Federal facilities to comply with all of the standards, and that section permits the President to grant a one-year waiver from any of the requirements of State and Federal pollution standards if he determines that it is in the paramount interest of the United States for any Federal facility to have such a waiver except that he cannot even do that with respect to either new-source standards under 306 or toxic pollutants under 307, and it seems to us that if the Congress did not even permit the President to waive compliance with the new-source standards for Federal facilities when he was able to conclude it was in the paramount interest of the United States to do so, it certainly did not intend to permit the Administrator to do this in the case of new sources merely because they said they could not really comply or it would be very laborious and very difficult for them to comply with the existing standards.

The legislative history confirms this interpretation, we think, in the committee report of the House, which we have cited at Page 15 of our brief.

The committee list is one of the two most significant factors in the attainment of clean water, and I quote, “The need to preclude the construction of new sources which use less than the best available control technology for the reduction or elimination of the discharge of pollutants”, and the words “to preclude the construction of new sources with less than the best available control technology” is the precise standard written into Section 306 for new sources.

Now, let me just briefly refer to the jurisdictional issue.

Mr. Friedman, could I just ask you a question, then?

In the Eighth Circuit where you had an unfavorable decision?

Daniel M. Friedman:

Yes.

Who was proscribing the specific effluent standards in those States in the Eighth Circuit?

Daniel M. Friedman:

Well, the specific standards were written by the Administrator.

Well, I know; but didn’t the Eighth Circuit decide that he had no authority under 301 to write this position?

Daniel M. Friedman:

Under 301, that is right.

Well, how about permits in that Circuit?

Is that decision been stayed or what, or have the permits been issued by State authorities specifying their own effluent standards consistent with the guidelines?

Daniel M. Friedman:

I cannot answer that question, Mr. Justice; but I will be happy to get the answer and furnish it to you all.

Because I suppose if you win, those permits, there is some cloud on them, isn’t there?

Daniel M. Friedman:

I do not know, I will have to get that information, Mr. Justice, and forward it to you.

Now, on the jurisdictional question, as I understand now, there is no disagreement between us and the petitioners that if the Administrator has the authority which we say he has and which he’s consistently said he has under 301, they concede as they have to, first, that the Court of Appeals has jurisdiction to review the effluent limitations and, second, they also apparently now agree that as an incident to review of the effluent limitations, the guidelines also may be reviewed, that there was some uncertainty at an earlier stage of litigation precisely what their argument is.

Now as I understand, their argument is only that if it be held that the Administrator does not have authority under Section 301, then the guidelines standing alone are to be reviewed in the District Courts, and they take the further position that if the Administrator does not have the authority under Section 301, but if a suit has been brought in the Court of Appeals challenging the existing new-source standards, which by definition are reviewable only in the Court of Appeals, then the guidelines somehow can come in under pendant jurisdiction.

It is a very involved question.

We hope the Court does not have to face it, of course, if the Court agrees that they do not.

If the Court should reject our submission on this, we would suggest to the Court along the lines of the Court of Appeals in this case that even if it were to hold that the Administrator has no authority under 301, nevertheless, the close relationship between the 301 standards and the 304 guidelines would make it appropriate that the Court of Appeals nonetheless should have jurisdiction to review the guidelines.

Warren E. Burger:

Thank you, Mr. Friedman.

Mr. Barnard?

Robert C. Barnard:

Your Honor, I realize it’s late; may I take just a minute or so?

Warren E. Burger:

You have six minutes of your time, and we will hear you out.

Robert C. Barnard:

I hope I don’t need to take it.

Mr. Friedman referred to a quotation from a request for an application by a contractor that was quoted in part in our brief.

I will confess to the Court that the paragraphs that he quoted, we eliminated on the grounds of brevity; but we ask the Court to look at them, and we suggest the Court also look at the contract as it was finally issued.

There is a notice which the contract required the contractor to put into his report.

Here it is on Page 6424 of the record.

Robert C. Barnard:

Happily, it is reprinted in the final document in the form of a notice called an abstract that appears in the front of the development document, which is the form of the notice, and it says that the regulations that this document is designed to assist in developing effluent-limitation guidelines for existing point sources and standards of performance and pretreatment standards for new sources to implement Sections 304, 306, and 307 of the Act.

There is no reference to Section 301.

But, Mr. Barnard, you don’t want us to read that whole 6,000 pages, do you?

Robert C. Barnard:

No, sir.

I do not think you need to.

Thank you.

Mr. Barnard, just supposing you summarize your opponent’s argument this way: that even if you’re right about what Congress expected, the way the Congress expected the Act to work, and they thought there would be the guidelines first and then so forth and so on.

Nevertheless, they did put in this escape hatch that EPA can issue general regulations as it sees fit.

And after it had some experience with the statute, it found that the individual permit procedures was going to be just too darn cumbersome and we needed some general regulations and that kind of was something an Administrator could do.

If we don’t follow that approach, we are going to have an awful lot of review proceedings on individual permits.

Robert C. Barnard:

I suggest you won’t, Your Honor.

Most of the permits that have been issued were issued before regulations were issued.

They were issued under the guidance documents, which had the same sort of general form as the 304(b) regulations.

The hearings are provided in the statute.

Nothing has been cluttered up.

The permits have been got out in due course, and there is no reason to believe they won’t be going on, and exactly the same procedure has happened in the past.

Well, if that’s true, then is it not also true that the documents you challenge are really valid as 304 promulgations, and all the permits are perfectly all right?

Robert C. Barnard:

I do not think that at this stage of the game we are dealing with a challenge to existing permits.

What we are dealing with is —

Well, we’re dealing with a problem that may cause there to be a large number of challenges to existing permits and future permits; that is, I suppose, what I am saying.

Robert C. Barnard:

It is conceivable, although since the permit system was administered under a program that resembles 304(b), I see no reason you should anticipate something is coming that did not come in the past.

May I address again, I believe it was you, Mr. Justice, who said that the remark in the request for a proposal from a contractor was not a very direct statement of authority under 301.

I referred to the notice, which they had directed be attached.

Mr. Friedman also referred to the notice published of proposed rulemaking published in 1973, and he read from Page 61 in this book.

If you move to Page 62, what EPA said is, the regulations proposed herein set forth effluent limitations guidelines pursuant to Section 304(b) for, and then it lists all the categories; not a word about Section 301.

I don’t want you to look at 6,000 pages, Your Honor.

But we urge that these statements be examined, because we think the contention that somehow or other the Administrator before February 1974 claimed this power by implication will not stand an examination of the record.

Now, Mr. Friedman referred to Section 301(e), which provides that effluent limitations established pursuant to this section, Section 302, shall be applied to all point sources pursuant to the provisions of this Act.

If you look at 301(c) and (d), which have the cross-references to the procedures in that Act, this section seems to us when they are talking about pursuant to the section, the section itself sets up the procedure, which is regulations to be issued under 304 to carry out the requirements of technology as they are set out in Section 301 of the Act.

It is not limited to just 301(c), as was suggested in our view.

Robert C. Barnard:

This is the procedure which was in contemplation.

This is not an authorization section.

This is a procedure which is in contemplation.

I will not discuss the legislative history.

It’s discussed perhaps too much in the briefs.

What we suggest to the Court is that neither the legislative history nor these considerations of practicality of administration, whatever they are, can overcome the clear command of Section 304(b).

What has happened in the States, Mr. Barnard, where they are governed by the Eighth Circuit judgment?

Have States been issuing the permits with their own specific standards?

Robert C. Barnard:

My understanding is that the permit proceeding has gone forward, yes, sir.

And has there been a great rash of litigation in those?

Robert C. Barnard:

I know of one hearing that is pending on a permit, but that is all I know of.

Well, I suppose the States do not want to face a lot of problems to do that, I suppose they must have some sort of standards of their own within the guidelines.

Robert C. Barnard:

Yes, indeed, they do.

So that they treat one permit like another one.

I assume they do, they have some writing and some regulations setting out in the Eighth Circuit area the equivalent of what the Administrator has himself published?

Robert C. Barnard:

Well, I’m not that is within the Eighth Circuit area; but I think that States do have regulations which they apply, and the statute specifically contemplates that they may impose restrictions that are more severe.

Well, I take there are some States in the Eighth Circuit that are following the Eighth Circuit opinion, then.

Robert C. Barnard:

Well, the Eighth Circuit opinion does not prevent the permit officers from going forward and issuing permits.

Well, of course it doesn’t; but it does say that the specifics of the permits don’t need to be those that the Administrator prescribed.

Robert C. Barnard:

No, I don’t think that’s what the — well, the Eighth Circuit has not yet addressed the validity of the regulations for the existing plants in the wet corn-milling industry.

The Judge Stewart in the Grand Processing case did address the validity of those regulations and didn’t conclude that those regulations were not supported by the record and did not comply with the statute.

So far as we are aware, that is now on appeal.

So far as we are aware, the process of permit issuance has gone forward despite this, with the permit officers working out within the context of what they understand to be the technology and the statutory standard what are the required limitations to be put into a permit.

I’m sorry, Your Honor.

Well, but let me just make one little point, Mr. Barnard.

Is it not true that the effect to the Eighth Circuit holding was to invalidate the EPA’s action insofar as it relied on Section 301.

Robert C. Barnard:

That’s correct.

But not to touch it insofar as it relied in 304, which provided the guidelines which would justify further issuance of permits.

Robert C. Barnard:

That is correct, Your Honor.

Warren E. Burger:

And that will be all that disparity?

Robert C. Barnard:

Thank you, Your Honor.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.