1994-05-19_GENERAL DOCUMENTS - M1977378

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)rsuch National Wildlife Federation v. Gorsuch IS ERC 11°5 cs the c the reconsidered and modified the general dismiss Congress' understanding that the zero i requirement that effluent limits must be zero-discharge goal was "not enforcea- also based on "best available technology" ble," not based on refined cost estimates, xpert (BAT) for all pollutant discharges. It and quite possibly beyond the ability of y the 1 recognized that BAT was often not cost- the American people to absorb the cost." men: justified for non-toxic pollutants such as Moreover, deference to the agency oxygen-demanding organic waste. The should play a substantial role in our 'ving Senate bill authorized EPA to waive BAT luent analysis of the subtle and difficult ques- )83 „ for such pollutants so long as the result- Lion of how much weight to accord S.C. ing water quality would still allow "prop- Congress' declared "goals" in inferring agation of a balanced, indigenous popu- its "intent" on a matter that it appears lation of shellfish, fish, and wildlife, and never co have considered. The question is Grob- allow [ ] recreational activities." S. 1952, one of the level of generality at which to rig a 95th Cong., 2d Sess. sec. 26(a), attribute legislative intent. More specifi- little §301(d)(5) (1977), 1977 Leg. Hilt. 555, tally, if someone had told Congress that rhich 583. The Senate Report explains that dams cause pollution of reservoirs and it on "treatment for the sake of treatment" that polluted water is released down- that should not be required: stream through the dams, would 315 Manv industrial dischargers have tes- Congress have honored the general anti- fects tified that the best practicable technol- pollution mandate of the Act and said "of the ogy effluent limitations required in course we meant to reduce dam:caused E the 1977 have provided a high degree of pollution as much as possible by requir- ition � water quality improvement with the ing NPDES permits"? Or was its "intent" of a result that BAT requires treatment of more narrowly focused on specific prob- i conventional pollutants not deemed lem areas, such as industrial and munici- necessary to meet the 1983 water quali- discharges, so that it would have said i to ty goals of the act. The intent of this Pwait a minute, we were not thinking real- section is to allow modification of BAT about dams, we have to consider sepa- for requirements in cases where this may rarely how best to regulate them"? be true. In this way, treatment for the sake of treatment would be prevented. There is no sure answer to this ques- 977 1977 S. Rep. at 43-44, 1977 Leg. Hut. Lion. How broadly we construe the Con- n in 676-77; see also 1977 Senate Hearings, supra gressional "purpose" will inevitably turn 1(a) note 33, at 662, 1977 Leg. Hut. 1136 in part on the practical or ' policy" conse- cific (statement of Sen. Muskie ("the [dis- quences of the choice.72 There is special ress solved oxygen] problem doesn't justify reason to defer to the agency's policy BAT"). As enacted, the 1977 amend- choices. Contemporaneous construction 'logy ments go even further than the Senate by the agency should also receive sub- id proposal, replacing BAT altogether for stantial weight because the agency was in it of a better position in 1973 to decide how • not conventional nontoxic pollutants with e broadly to characte the weaker requirement of "best conven- rz_ Congress' intent the tional pollutant control technology," and than we are almost a decade later. In this at permitting waiver of BAT for "noncon- case, EPA's views on dam-induced pollu- Rep. ventional" nontoxic pollutants. Clean tion merit deference as both contempora- 1010- Water Act of 1917, §§42-43, 33 U.S.C. nevus and infused with its expert evalu- irge' § 1311(b)(2)(E), (g); see also Natural Re- ation of the seriousness of the problem, Wit/4 sources Defense Council, Inc. v. United States the cost of cure, and the effectiveness of race- Envtl. Protection Agency, 656 F.2d 768, 772- state regulation..We t! ink, therefore, that Uor = 74 (D.C. Cir. 1981) (discussing the provi- the district court erred in relying on the LO sions in the 197? amendments for waiver legislative goals expressed in § 101(a) to riot invalidate EPA's otherwise reasonable s to of the secondary treatment requirement king for some municipal discharges). construction of the NPDES permit pro- king [3] The legislative history, then, indi- gram as excluding dam-caused pollution. V to cates that Congress' avowed purpose to 71 See Brest, The Fundamental Rights Controver- 972 Pollution was not near minimize_ ol ton) - "� p Y so sy: The Essential Contradictions of Normative Const:- unequivocal as to make unreasonable tutional Scholarship, 90 Yale LJ. 1063, 1092 sva J EPA's interpretation of the specific provi- 0 98 1) ("choices among the levels of generali- ic: r sions of the Act relating to dams. A ty on which to articulate principles ... are 4 ['nnrro", rnnrincinn wnttlfj fOn 11R'11t1V inherently non-neutral").