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EPA v. National Crushed Stone Ass'n

ELR Citation: 10 ELR 20924
Nos. No. 79-770, 449 U.S. 64/15 ERC 1209/(U.S., 12/02/1980) Rev'd

The United States Supreme Court reverses rulings by the Fourth Circuit Court of Appeals in National Crushed Stone Ass'n v. EPA, 9 ELR 20535, and Consolidation Coal Co. v.Costle, 9 ELR 20511, and upholds the variance clause contained in effluent limitations promulgated by the Environmental Protection Agency (EPA) pursuant to §301 of the Federal Water Pollution Control Act. Although the Court ruled in E.I. DuPont de Nemours & Co. v. Train, 7 ELR 20191, that limitations requiring the application of best practicable technology (BPT) pursuant to §301(b)(1)(A) of the Act must contain a variance provision, it declined to define the nature of such a provision and did not imply that it must resemble the provision required by §301(c) of the Act, which applies to limitations requiring application of best available technology (BAT) under §301(b)(2)(A). The Court now specifically rejects respondents' contention that because §301(c) authorizes variance from BAT limitations to relieve a source owner from economic hardship, variances from the BPT limitations must be available on the same grounds. Not only is §301(c) inapplicable to BPT limitations on its face, the criteria it identifies for issuing variances are clearly matched only to the BAT limitations. Moreover, to allow a variance where the source owner cannot afford to comply with the BPT limitations would undercut the intent of the regulatory scheme. Congress intended sources not in compliance with the BPT limitations to improve their performance or shut down. In this sense the BAT limitations are more flexible in that they require application of the best technology within the economic capability of the source owner. The Court therefore concludes that EPA's current variance provision, which allows a variance where a given plant is fundamentally different from other plants in the industry in terms of its age, physical layout, or similar factors, properly implements Congress' intent.

Counsel for Petitioner
Andrew J. Levander; Wade H. McCree Jr., Solicitor General
Department of Justice, Washington DC 20530
(202) 633-4063

Counsel for Respondents
George Freeman Jr.
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 393-7400

Theodore L. Garrett
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

JUSTICE POWELL took no part in the consideration or decision of this case.