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I8 ERC 1118 Vatzonal Wildlife Federation v. Gorsuch
<br /> conference. Both the Senate and the Again, I do not get into the business of
<br /> `i House had used inclusive phrasing — defining or applying these definitions
<br /> "[t]he term `pollutant' means, but is not to particular kinds of pollutants. That is
<br /> t limited to, dredged spoil, ... , and industri- an administrative decision to be made
<br /> ;I al, municipal, agricultural, and other waste by the Administrator. Sometimes a
<br /> discharged into water."53 The conference particular kind of matter is a pollutant
<br /> committee deleted the inclusive phrases in one circumstance, and not in anoth-
<br /> s "but is not limited to" and "other waste," er.
<br /> 1 albeit without explanation. S. Rep. No. 117 Cong. Rec. 38,838 (1971), 1972 Leg.
<br /> 1236 (Con£ Rep.),. 92d Cong., 2d Sess. Hist. 1347.55
<br /> 143-44 (1972), 1972 Leg. Hist. 281, 326- Given this focused legislative intent
<br /> 27• concerning deference to EPA's interpre-
<br /> And, while Congress did not intend the tation of these definitional provisions, we
<br /> term "pollutant" to be all-inclusive, we must accept that interpretation unless it is
<br /> find, at the same time, strong signals in manifestly unreasonable. See Lead Indus-
<br /> the legislative history that it also entrust- tries .4ssociahon v. EP.4, 647 F.2d 1130,
<br /> ed EPA with at least some discretion over 1147 [14 ERC 19061 (D.C. Cir.), cent.
<br /> which "pollutants" and sources of pollu- died, 449 U.S. 1042 [15 ERC 20971
<br /> cants were to be regulated under the (1980) (where a statute vests an agency
<br /> NPDES program. Of course, Congress with "a considerable amount of discre-
<br /> generally intended that EPA would exer- tion," its interpretation must be upheld
<br /> ? interpreting unless "plainly unreasonable"). In facf,
<br /> N i cise substantial discretion in inte retin
<br /> the Act. As the Conference Report states: EPA has given the statute a natural read-
<br /> In the administration of the Act, EPA ing, both on its face and in light of the
<br /> ( will be required to establish numerous legislative history. We will consider in the
<br /> guidelines, standards and limitations next section whether, as the district court
<br /> .... [T]he Act provides Congressional found, EPA's reading is inconsistent with
<br /> I guidance to the Administrator in as general congressional purposes; how-
<br /> much detail as could be contrived. ever, after the foregoing analysis, it will
<br /> Virtually every action required of the take powerful evidence to convince us
<br /> Administrator by the Act, however, that EPA's conclusion that low dissolved
<br /> involves some degree of agency discre- oxygen, cold, and supersaturation are not
<br /> Lion, judgments involving a complex pollutants is unreasonable.36
<br /> balancing of factors that include tech-
<br /> nological considerations, economic 55 See also 117 Cong. Rec. 38,817 (1971),
<br /> considerations, and others. 1972 Leg. Hut. 1301 (question by Sen. Buckley,
<br /> . Id. at 149, 19i2 Leg. Hut. 332. I[ also response by Sen. Eagleson) (EPA to publish ;
<br /> "criteria which will define natural chemical,
<br /> specifically expected EPA to have some physical,and biological integrity" of water).
<br /> power to determine both what is a "point se We do not decide in this case whether the s
<br /> source" and what is a "pollutant." Sena- statutory list necessarily excludes low dis-
<br /> for Muskie, the principal sponsor of the solved oxygen, cold, and supersaturation, only =
<br /> Act, stated: whether EPA can reasonably so interpret it.
<br /> Guidance with respect to the identifica- Several factors suggest that the list does not
<br /> tion of"point sources" and "nonpoint necessarily exclude unlisted water conditions.
<br /> The list includes one condition — heat. Also,
<br /> sources," especially as related to agri-
<br /> one court has found that a substance —
<br /> culture, will be provided in regulations gasoline — is a pollutant even though it was
<br /> and guidelines of the Administrator. not dearly listed. United States v. Hamel, 551
<br /> 117 Cong. Rec. 38,816 (1971), 1972 Leg. F.2d 107, I10-11 (6th Cir. 1977). And EPA
<br /> Hut. 1299.54 Similarly, with regard to admits that "sediment" is a pollutant, al-
<br /> "pollutant," Senator ivluskie stated: though not clearly listed. Moreover, the hap-
<br /> II hazard nature of the listed pollutants, as
<br /> j 53 H.R. 11,896, 92d Cong., 2d Sess. §502(6) specific as "cellar dirt" (but not "dirt" as such)
<br /> (1972), 1972 Leg. Hut. 893, 1068 (emphasis and as general as "industrial, municipal, and
<br /> added); see S. 2770, 92d Cong., 1st Sess. agricultural wastes," together with places in c
<br /> §502(f) (1971), 1972 Leg. Hut. 1534, 1697. the statute where Congress did not pay careful
<br /> S4 This court has stated that "the power to attention to its own definition, makes us
<br /> define point and nonpoint sources is vested in reluctant to conclude that Congress intended
<br /> EPA." Natural Resources Defense Council, to preclude EPA from adding unlisted items to
<br /> Inc. v. Costle, 568 F.2d 1369, 1382 (D.C. Cir. the definition. See 33 U.S.C. § 1314(a)(4) (in-
<br /> structing the Administrator to identify "pollu-
<br />
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