UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, PETITIONER V. NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. No. 83-1373 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States Environmental Protection Agency, petitions for a writ of certiorari to review the decision of the United States Court of Appeals for the Third Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit PARTIES In addition to those named in the caption, the parties are: American Cyanamid Company, Chemical Manufacturers Association, FMC Corporation, and Union Carbide Corporation. TABLE OF CONTENTS Opinion below Jurisdiction Statute and regulations involved Statement Reasons for Granting the Petition Conclusion OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A96) /1/ is reported at 719 F.2d 624. JURISDICTION The judgment of the court of appeals was entered on September 20, 1983. On December 12, 1983, Justice Brennan extended the time to petition for a writ of certiorari until February 17, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE AND REGULATIONS INVOLVED Pertinent provisions of the Clean Water Act, 33 U.S.C. (& Supp. V) 1251 et seq., are reproduced at Pet. App. A116-A121. The "fundamentally different factors" (FDF) variance provision, 40 C.F.R. 403.13, is reproduced at Pet. App. A122-A127. QUESTION PRESENTED Whether Section 301(l) of the Clean Water Act, 33 U.S.C. (Supp. V) 1311(l), bars the Environmental Protection Agency from granting variances from national pretreatment standards for toxic pollutants to plants having fundamentally different factors from those considered by EPA in establishing the national standards. STATEMENT 1. The Clean Water Act, 33 U.S.C. (& Supp. V) 1251 et seq., calls for the regulation of two types of industrial facilities -- (1) "direct" dischargers, i.e., facilities that discharge waste water directly into navigable waters; and (2) "indirect" dischargers, i.e., facilities that discharge waste water into publicly owned treatment works (POTWs), where their waste water is commingled with domestic and sanitary waste, municipal runoff, and other industrial waste water prior to discharge into navigable waters by the POTWs. Although the pretreatment program at issue here applies only to indirect dischargers, a brief review of the statutory scheme as it applies to both types of dischargers is necessary. 2. The Act requires direct dischargers to be regulated through phased implementation of technology-based requirements. By July 1, 1977, existing direct dischargers were required to meet effluent limitations based on the "best practicable control technology currently available" (BPT). 33 U.S.C. (Supp. V) 1311(b)(1)(A). By July 1, 1984, such dischargers must meet potentially more stringent effluent limitations for toxic pollutants based upon the "best available technology economically achievable" (BAT). 33 U.S.C. (& Supp. V) 1311(b)(2)(A) and (C). The Act specifies the factors that EPA must consider in establishing BPT and BAT requirements. 33 U.S.C. 1314(b)(1)(B) and (2)(B). /2/ Indirect discharges are subject to pretreatment standards applicable to pollutants that are not susceptible to treatment by or would interfere with the operation of POTWs. 33 U.S.C. 1317(b). Like the BPT and BAT standards, these standards are established by notice-and-comment rulemaking for categories of dischargers. 33 U.S.C. 1317(b)(3). /3/ EPA decided at an early stage to use the technology-based criteria specified by statute for direct dischargers. /4/ 3. The development of national technology-based requirements for direct and indirect dischargers has proven to be an enormous and complex undertaking. For each industrial category, the Agency and its contractors typically seek to obtain as much information as possible regarding the relevant factors, including the types of industrial processes involved, water use practices, the nature and amounts of pollutants in raw waste water, and the costs and effectiveness of various waste water treatment technologies. Questionnaires requesting information on these factors, as well as cost and financial data, are typically sent to at least a cross section of affected plants. Representative facilities are then selected for visits and on-site sampling in order to gain more detailed information. Data are collected on the treatment efficiency of technologies already being used, and tests are often conducted to determine the feasibility and effectiveness of other potential technologies. In addition, the Agency's contractors attempt to determine model costs (both capital and annualized) for various treatment technologies and, using available financial data, they assess the potential economic impacts on the industry, including estimated plant closures and the effect on employment and prices. The treatment efficiency of each technology is determined on a national basis through the combined use of statistical analyses and engineering judgments. /5/ In most instances, EPA has found that application of one or more of the statutory factors warranted different requirements for separate subcategories within the national category. /6/ 4. During the rulemaking process, the Agency attempts, generally with the cooperation of the affected industry, to obtain all pertinent information. Occasionally, however, the Agency may overlook a relevant factor that applies to a few plants and would dictate a change in the requirements applicable to those facilities. In addition, a particular plant may be so different from all the other plants considered by the Agency that the factors generally deemed relevant to the treatment capabilities of the other plants are inapplicable to the circumstances of that particular plant. Accordingly, EPA has sought to provide flexibility in implementing the national standards by allowing variances for existing sources that can demonstrate that their situation is characterized by factors "fundamentally different" from those considered by EPA in developing the national rule for their category. In the direct discharger context, EPA routinely included a fundamentally different factors (FDF) variance clause in each of the first-round, categorical BPT regulations. /7/ An FDF variance provision was ultimately included in the generic permit regulations governing all direct dischargers. /8/ For indirect dischargers, an FDF variance provision was included in the general Pretreatment Regulations, 40 C.F.R. 403.13. That provision allows EPA to establish a more or less stringent standard if the requester shows (1) that the facility is fundamentally different from other plants in the category with respect to one or more of the statutory factors and (2) that compliance with the national standard would result either in a pollutant removal cost wholly out of proportion to the costs considered by EPA in setting the national standard or a non-water-quality environmental impact fundamentally more adverse than those considered in developing the standard. 40 C.F.R. 403.13(c)(2)(iv) and (3)(ii). In effect, the FDF variance creates a new subcategory for the discharger in question based on factors that would have justified -- and required -- the creation of that subcategory had EPA been aware of those factors or taken them into account during the national rulemaking process. 5. Numerous parties, including respondent Natural Resources Defense Council, Inc. (NRDC), petitioned the United States Court of Appeals for the Third Circuit for review of various aspects of EPA's General Pretreatment Regulations. /9/ Only NRDC's challenge to the FDF variance provision is involved in this petition and the petition filed by the Chemical Manufacturers Association, et al. (No. 83-1013). No party has sought review of any other aspect of the court of appeals' decision. In the court of appeals, NRDC challenged the FDF variance provision on two grounds (see Pet. App. A38-A40). First, NRDC argued that because the Clean Water Act does not specifically authorize FDF variances, EPA lacks the authority to grant them (id. at A38-A39). Second, NRDC contended (id. at A40) that Section 301(l) of the Act, 33 U.S.C. (Supp. V) 1311(l), which was added to the statute in 1977, specifically prohibits such variances insofar as they apply to toxic pollutants. Section 301(l) provides that the "Administrator may not modify any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list." In response to NRDC's first argument, EPA contended (Pet. App. A39) that the statute accords the Administrator the inherent flexibility to adjust national standards for particular plants. EPA relied on E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112 (1977), in which this Court held (see id. at 128) that EPA may establish nationally binding BPT effluent limitations provided that variances are available for individual plants. With respect to NRDC's second argument, EPA contended (Pet. App. A41) that Section 301(l) was not intended to bar the Agency's longstanding practice of granting FDF variances but was instead meant only to prohibit those modifications authorized by Section 301(c) and (g) of the Act, 33 U.S.C. (Supp. V) 1311 (c) and (g). Section 301(c) authorizes modifications from BAT requirements based on economic affordability. Section 301(g) authorizes BAT modifications based on water quality considerations. 6. The Third Circuit held that Section 301(l) prohibits the granting of FDF variances for toxic pollutants (Pet. App. A36-A43). The court rejected EPA's contention that FDF variances are not the type of "modifications" that Section 301(l) was intended to prohibit (Pet. App. A42-A43). The court found it "difficult to imagine" why Congress would have intended to prohibit Section 301(c) economic affordability modifications but not purportedly "similar" FDF variances (Pet. App. A43). The court recognized (ibid.) that its reading of Section 301(l) directly conflicts with Appalachian Power Co. v. Train, 620 F.2d 1040 (4th Cir. 1980), which rejected NRDC's argument that Section 301(l) prohibits FDF variances from BPT effluent limitations for direct dischargers. The Third Circuit also rejected (see Pet. App. A39) EPA's contention that this Court's decision in duPont supported EPA's authority to grant FDF variances from pretreatment standards. REASONS FOR GRANTING THE PETITION The decision of the court of appeals creates a clear conflict between circuits with respect to the construction of Section 301(l) of the Clean Water Act; it is inconsistent with this Court's prior interpretation of the Act; it threatens significant interference with EPA's longstanding plan for implementation of the Act; and it wrongly upsets EPA's reasonable and correct interpretation of Section 301(l). Review by this Court is therefore warranted. 1. In holding that Section 301(l) of the Act forbids FDF variances for toxic pollutants, the Third Circuit acknowledged that its decision conflicts with the Fourth Circuit's construction of the same provision in Appalachian Power Co. v. Train, 620 F.2d 1040 (1980). There, the Fourth Circuit rejected NRDC's argument that Section 301(l) prohibits FDF variances for toxic pollutants with respect to BPT effluent limitations for direct dischargers. Stating that EPA's construction of the statute was entitled to deference, the court held that Section 301(l) prohibits only those modifications issued under Section 301(c) and (g). 620 F.2d at 1048. By contrast, the court below, reviewing the identical provision of the Act and virtually identical arguments by the same parties, expressly rejected the Fourth Circuit's holding and found that Section 301(l) prohibits FDF variances for toxic pollutants with respect to pretreatment standards for indirect dischargers. These two decisions are squarely in conflict. It is of no consequence that Appalachian Power Co. involved requirements for direct dischargers, while this case involves those for indirect dischargers. Section 301(l) applies equally to all "requirements" of Section 301, 33 U.S.C. 1317, and Section 307 pretreatment standards, no less than BPT effluent limitations, are "requirements" of Section 301. See 33 U.S.C. 1311(b)(1)(A)(ii). Thus, the two decisions clearly entail conflicting interpretations of the scope of Section 301(l). Absent a resolution by this Court, substantial uncertainty and confusion are likely to interfere with EPA's development and implementation of national categorical standards for direct and indirect dischargers. 2. The Third Circuit's decision also appears inconsistent with this Court's interpretation of the Clean Water Act in E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112 (1977), and EPA v. National Crushed Stone Ass'n, 449 U.S. 53 (1981). In duPont, the Court held that EPA could issue binding effluent limitations for classes of plants rather than merely issuing non-binding guidelines under Section 304, 33 U.S.C. 1314. The Court wrote (449 U.S. at 128 (footnote omitted; emphasis added)): "We conclude that the statute authorizes the (BPT) as well as the (BAT) limitations to be set by regulation, so long as some allowance is made for variations in individual plants, as EPA has done by including a variance clause in its (BPT) limitations." /10/ In National Crushed Stone Ass'n, the Court reiterated (449 U.S. at 72 (emphasis added)): No * * * explicit variance provision (like Section 301(c)) exists with respect to BPT standards, but in E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112 (1977), we indicated that a variance provision was a necessary aspect of BPT limitations applicable by regulations to classes and categories of point sources. Id., at 128. The variance provisions to which the Court referred in both cases were those allowing FDF variances from BPT standards, but as previously noted, there is no reason to believe that Section 301(l) applies any differently to such variances than it does to variances from pretreatment standards for indirect dischargers. Thus, the Third Circuit's decision in this case seems contrary to this Court's prior construction of the Act. The court of appeals attempted to distinguish this Court's decisions on the following ground (Pet. App. A39): The Court (in du Pont) found that section 301(b)(1) required that "some allowance (be) made for variations in individual plants" under categorical BPT effluent limitations because that section spoke of "effluent limitations for point sources," 33 U.S.C. Section 1311(b)(1)(A) (1976), rather than "effluent limitations for categories and classes of point sources," id. Section 1311(b)(2)(A) (1976 & Supp. I 1977). 430 U.S. at 128. As section 307(b) states that pretreatment standards apply to "categories of sources," id. Section 1317(b)(3) (1976), the Administrator is not required under du Pont to make any provision for variances from pretreatment standards. This analysis is plainly flawed. There is nothing in du Pont to suggest that the Court's reference to the appropriateness of FDF variances was based upon the statutory requirement that BPT limitations be issued for "point sources." On the contrary, du Pont referred to the appropriateness of variances from BAT, as well as BPT, requirements (see 430 U.S. at 128). And BAT requirements are promulgated for "categories and classes" of sources (33 U.S.C. (Supp. V) 1311(b)(2)(A)), much like the pretreatment standards for indirect discharges at issue here, which must be issued for "categories of sources" (see 33 U.S.C. 1317(b)(3)). /11/ 3. The Third Circuit's decision presents an issue of fundamental importance to the administration of the Clean Water Act. At least 60,000 existing industrial users of POTWs are potentially subject to national categorical pretreatment standards. It is therefore obvious that the pretreatment program is a critical part of the Act's scheme for restoring and maintaining the quality of the nation's waters. 33 U.S.C. 1251(a). Within the past two years, EPA has promulgated BAT-level requirements for 20 industrial categories, and it is now moving rapidly toward completion of BPT-level requirements for an additional nine categories within the next year. In addition, EPA has promulgated BDT-level pretreatment standards for eight major industrial categories. All of these regulations were developed under the very rationale that this Court found persuasive in du Pont, i.e., that the statute and sound administrative practice envisioned promulgation of categorical regulations with an FDF variance available as a safety valve. If, contrary to the Agency's expectation, FDF variances for toxic pollutants may not be granted, the existing regulations may be more vulnerable to challenge by plants affected by fundamentally different factors. /12/ The court of appeals' interpretation may also delay promulgation of new pretreatment standards. If EPA may not grant FDF variances, it will have to consider every unique feature of every plant within an industrial category in establishing the national rule. Given the stringent deadlines that have been imposed on the Agency -- largely as the result of litigation brought by NRDC /13/ -- EPA has found it more appropriate to base its national rulemakings on the more typical plants and to focus on unique situations in the permit process through the FDF variance mechanism. /14/ The FDF variance procedure has thus allowed the Agency to implement a national, categorical regulatory scheme without undue delay, while also ensuring that individual plants with fundamentally different factors are not treated unfairly and cannot attempt to bring down the entire national standard due to EPA's failure to consider factors unique to their particular situations. The court of appeals' decision, which restricts EPA ability to grant such variances, threatens to undermine the Agency's past efforts, and to impede its future efforts, in implementing the Clean Water Act. 4. Finally, EPA's construction of Section 301(l) should have been accepted by the court of appeals. "(T)he interpretation of an agency charged with the administration of a statute is entitled to substantial deference." Blum v. Bacon, 457 U.S. 132, 141 (1982). See also, e.g., Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 (1980); Zenith Radio Corp. v. United States, 437 U.S. 443, 450-451 (1978). Here, neither the language, the legislative history, nor the policy of Section 301(l) provides grounds for overturning the Agency's construction. a. The statutory language is not clear with respect to the point at issue, and the court of appeals found it necessary to look beyond the language of Section 301(l) to support its result (see Pet. App. A41-A43). As previously noted, Section 301(l) provides that EPA "may not modify any requirement of (Section 301) as it applies to" a toxic pollutant. Since the term "modification" is used in Section 301(c) and (g), the latter of which was enacted together with Section 301(l) in 1977, this terminology supports EPA's argument that Section 1311(l) was intended to apply to modifications made under Section 301(c) and (g) and not to FDF variances. Furthermore, it is doubtful whether FDF variances may properly be termed modifications of requirements of Section 301. We readily acknowledge that pretreatment standards issued after consideration of all relevant factors are requirements of Section 301. But when an FDF variance is granted, the Agency does not really "modify" the proper standards. Instead it recognizes that the standard should have been framed differently in the first place. As this Court has written (EPA v. National Crushed Stone Ass'n, 449 U.S. at 77-78), an FDF variance "is an acknowledgement that the uniform * * * limitation was set without reference to the full range of (factors), to which the Administrator was to refer. Insofar as a (categorical) limitation was determined without consideration of a (factor) fundamentally different from those that were considered by the Administrator, that limitation is incomplete." Thus, an FDF variance merely clarifies what Section 301 requires. An FDF variance does not "modify" a requirement of Section 301 any more than a judicial decision correcting an erroneous interpretation of a statute "modifies" what the statute requires. b. The court of appeals based its interpretation largely upon the legislative history of Section 301(l) (see Pet. App. A42), but the court acknowledged (ibid.) that "(t)he legislative history * * * does indicate that Congress was primarily concerned with prohibiting modifications under section 301(c) and (g)." The court relied (Pet. App. A42) on the fact that certain supporters of the 1977 amendments do not appear to have used the word "modification" as a term of art but instead employed the terms "waiver" and "modification" interchangeably. However, none of the references upon which the court relied concerned Section 301(l), and they therefore shed little light on the meaning of that provision. Just because a Member of Congress during floor debate referred to Section 301(c) as a "variance" provision, it cannot be inferred, as the court of appeals apparently did (Pet. App. A42), that a majority of both Houses concluded that Section 301(l) applies not only to Section 301(c) modifications but also to nonstatutory FDF variances. Such use of legislative history ignores the realities of the legislative process. The most telling feature of the legislative history is the absence of any indication that Congress intended to alter EPA's well-established and well-known practice of granting FDF variances. EPA had included FDF variance provisions in numerous BPT rulemakings prior to the 1977 statutory amendments, /15/ yet the legislative history is devoid of any reference to or criticism of this consistent agency practice. Similarly, in du Pont, which was handed down while the 1977 amendments were under consideration, this Court stated that variances from BPT and BAT requirements are appropriate (430 U.S. at 128), and the legislative history contains no indication that Congress intended to overrule or modify that decision. The court of appeals should not have attributed to Congress an intention to overrule preexisting law in the absence of an express indication of such an intent. See, e.g., Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 266-267 (1979). c. The only other basis for the court of appeals' interpretation was its erroneous belief that Section 301(c) modifications "serve the same function" as FDF variances (Pet. App. A42). /16/ Based upon this mistaken understanding, the court concluded (id. at A43) that "(i)f Congress was willing to prohibit section 301(c) modifications where toxic pollutants are concerned, it is difficult to imagine why Congress would have permitted similar FDF variances for those same pollutants." The court of appeals' analysis betrays a fundamental misunderstanding of the nature of both FDF variances and Section 301(c) modifications. As previously noted, an FDF variance effectively creates an appropriate subcategory for the facility in question based on factors that would have justified, if not required, the creation of that subcategory during the rulemaking had EPA been aware of and taken those factors into account. See National Crushed Stone, 449 U.S. at 77-78. The economic capabilities of the particular plant would not have dictated alteration of the national standard and may not be taken into account in granting an FDF variance. EPA v. National Crushed Stone Ass'n, supra; 40 C.F.R. 403.13(e)(3). /17/ By contrast, a Section 301(c) modification may properly be granted even though EPA correctly categorized the plant in question and fully considered all the relevant factors in developing the national rule. A Section 301(c) modification may be granted if the economic capabilities of the particular plant so warrant and the plant continues to make "reasonable further progress toward the elimination of discharge of pollutants." 33 U.S.C. 1311(c). In light of these basic differences, there is no reason to assume that Congress intended to treat Section 301(c) modifications and FDF variances in the same way. By prohibiting Section 301(c) modifications for toxic pollutants, Congress determined that elimination of such pollutants must take precedence over the plight of economically weak plants. Prohibiting FDF variances for toxic pollutants, on the other hand, would have an entirely different effect. Such a prohibition would not affect the burden on economically weak firms; nor is it at all clear that it would decrease the level of toxic substances in the nation's waters. Instead, such a prohibition would fundamentally alter the way in which EPA has sought to discharge its dual responsibility to promulgate all applicable effluent limitations and national pretreatment standards on an expeditious basis while at the same time taking into account all relevant factors affecting individual plants. CONCLUSION The petition for a writ of certiorari should be granted. REX E. LEE Solicitor General F. HENRY HABICHT, II Assistant Attorney General LOUIS F. CLAIBORNE Deputy Solicitor General SAMUEL A. ALITO, JR. Assistant to the Solicitor General JOSE R. ALLEN BARRY S. NEUMAN Attorneys A. JAMES BARNES General Counsel SUSAN LEPOW Assistant General Counsel Environmental Protection Agency FEBRUARY 1984 /1/ "Pet. App." refers to the appendix to the petition in No. 83-1013, in which intervenors below, the Chemical Manufacturers Association et al., have sought review of the same portion of the judgment below. All the materials we would have included in the appendix to this petition are contained in the appendix to that petition. /2/ "New source" direct dischargers must meet new source performance standards based on the "best available demonstrated technology" (BADT). 33 U.S.C. 1316. /3/ Indirect dischargers that would be considered new sources under 33 U.S.C. 1316 if they were direct dischargers are also subject to new source pretreatment standards. 33 U.S.C. 1317(c). /4/ This procedure was incorporated into a consent decree entered into with respondent Natural Resources Defense Council, Inc. and approved by the district court in 1976. NRDC v. Train, 8 Env't Rep. Cas. (BNA) 2120 (D.D.C. 1976), modified sub nom. NRDC v. Costle, 12 Env't Rep. Cas. (BNA) 1833 (D.D.C. 1979), modified sub nom. NRDC v. Gorsuch, Nos. 2153-73, et al. (D.D.C. Oct. 26, 1982), modified sub nom. NRDC v. Ruckelshaus, Nos. 2153-73, et al. (D.D.C. Aug. 2, 1983, and Jan. 6, 1984). In the 1977 amendments to the Act, Congress sanctioned the Agency's approach to establishing pretreatment standards. See EPA v. Costle, 636 F.2d 1229, 1244 (D.C. Cir. 1980). /5/ The scope of the task of formulating national categorical standards is exemplified by the procedures followed by EPA in developing the BPT-level electroplating pretreatment standards that were unsuccessfully challenged in the proceedings below. EPA initially sent questionnaires to over 500 plants that it had identified as possibly falling within the category. Of these plants, approximately 200 provided at least some of the requested information. On the basis of the responses, EPA conducted on-site visits of 82 plants to take samples of raw and treated waste water over several days, inspect in-place treatment technology, and collect other first-hand information. These visits enabled EPA to determine that approximately 25 of the plants were representative in terms of treatment technology, character of raw waste water, and other factors. The data from these plants were then used to derive achievable effluent limitations, using a combination of statistical methodologies and engineering judgments. /6/ For example, in the BPT electroplating pretreatment rulmaking, the electroplating category was subdivided into seven subcategories. 40 C.F.R. Pt. 413. /7/ See, e.g., 40 C.F.R. 415.62 (1976); NRDC, Inc. v. EPA, 537 F.2d 642 (2d Cir. 1976) (rejecting NRDC's challenge to FDF variance clause). /8/ 40 C.F.R. 125.30-32. NRDC has also challenged that regulation in the District of Columbia Circuit. That case has not yet been briefed. /9/ 43 Fed. Reg. 27736 (1978), as amended, 46 Fed. Reg. 9404 (1981). Challenges to provisions of EPA's categorical pretreatment standards for existing electroplating sources (44 Fed. Reg. 52590 (1979), as amended, 46 Fed. Reg. 9642 (1981)) were considered at the same time. /10/ However, duPont held (430 U.S. at 138) that variances are not appropriate for new source direct dischargers under Section 306 of the Act, 33 U.S.C. 1316. Accordingly, EPA has not allowed FDF variances from pretreatment standards for new source indirect dischargers. /11/ Moreover, EPA -- at NRDC's urging -- has consistently promulgated BPT-level requirements for industrial categories, just as it does for BAT-level requirements and pretreatment standards. See NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1975). Consequently, the distinction relied on by the court of appeals between "point sources" and "categories" of sources was never of practical importance for EPA or NRDC. /12/ See, e.g., Kennecott Copper Corp. v. EPA, 612 F.2d 1232, 1244 (10th Cir. 1979) (rejecting challenge to BPT effluent limitations guidelines for ore mining direct dischargers because FDF variance procedure was available to address unique plant); Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1040-1041 (D.C. Cir. 1978) (finding existence of FDF variance "crucial" to affirmance of BPT standards); American Iron & Steel Institute v. EPA, 526 F.2d 1027, 1061 (3d Cir. 1975), modified, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914 (1978). /13/ See, e.g., NRDC Consent Decree, note 4, supra; NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1974) (establishing deadlines for promulgating first-round BPT effluent limitations guidelines). /14/ Accord, Kennecott Copper Corp. v. EPA, supra. /15/ See, e.g., 40 C.F.R. 415.62 (1976). /16/ In concluding (Pet. App. A42) that Section 301(c) modifications and FDF variances "serve the same function," the court of appeals relied on the following statement in National Crushed Stone, 449 U.S. at 74: A Section 301(c) variance * * * creates for a particular point source a BAT standard that represents for it the same sort of economic and technological commitment as the general BAT standard creates for the class. This statement, however, makes no reference whatsoever to FDF variances from either BPT or BAT standards. The Court was merely pointing out that a Section 301(c) modification results in a standard that is within the economic capability of the discharger. It does not follow, however, as the court of appeals concluded (Pet. App. A42), that this Court viewed Section 301(c) modifications and FDF variances as "serv(ing) the same function." On the contrary, later in National Crushed Stone (449 U.S. at 77-78), this Court took pains to point out the significant differences between these two measures. /17/ Similarly, FDF variances, unlike Section 301(g) modifications, are not available based upon water quality considerations. 40 C.F.R. 403.13(e)(4).