EPA may not consider quality of receiving water in granting a variance from effluent limitations

Every industrial discharger is required to obtain a National Pollutant Discharge Elimination Permit. In order to receive a permit, a discharger must either comply with the effluent limitations or receive a variance. The EPA may grant a variance to an industrial plant upon a showing that factors relating to the equipment or facilities involved, the process applied or other related factors are fundamentally different from the factors considered in the establishment of the guidelines for the industry as a whole. The Ninth Circuit Court of Appeals looked to EPA's statutory interpretation and legislative history in determining that the quality of receiving water cannot be a major factor in the granting of a variance. When Congress set BPT best practicable control technology standards, it intended effluent limitations to be based on technology available for reducing discharge of pollutants into navigable streams and not on the quality of the receiving water.