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Alton Box Bd. Co. v. EPA

Citation: 9 ELR 20265
No. No. 78-1011, 592 F.2d 395/12 ERC 1753/(7th Cir., 02/14/1979)

The court reverses the Environmental Protection Agency's (EPA's) denial of petitioner's request for an adjudicatory hearing regarding the Agency's refusal to renew petitioner's national pollutant discharge elimination system permit. In requesting the hearing, petitioner claimed that its facility was fundamentally different from other facilities in the industry and that it was therefore entitled to a variance from the Federal Water Pollution Control Act's requirement for application of the best practicable control technology currently available. EPA denied the request, claiming that petitioner had waived its privilege to request a variance by failing to make such a request at the time the permit application was filed, that no issue of material fact had been raised concerning petitioner's entitlement to a variance, and that in any event EPA was powerless to issue the requested variance because the plant had been denied certification by the state. The court rejects EPA's contention that petitioner waived its argument for a variance; although it may have been appropriate to make the argument earlier, its delay was excusable under the circumstances. The hearing is also justified because petitioner had alleged the existence of fundamentally different factors, i.e., the necessity for a process change in the particular mill, so that it was entitled to a permit based on the capability of that mill. Finally, the court rejects EPA's argument that it could not issue a permit because petitioner had not received state certification and was not in compliance with the state standards, ruling that if petitioner were found to be entitled to a variance from federal standards, this would change petitioner's posture in seeking a state variance. The court concludes that petitioner is entitled to an adjudicatory hearing.

Counsel for Petitioner
Richard J. Kissel, Jeffrey C. Fort
Martin, Craig, Chester & Sonnenschein
115 S. La Salle St., Chicago IL 60603
(312) 368-9700

Counsel for Respondent
Erica L. Dolgin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4496

Before CASTLE, Senior Circuit Judge, CUMMINGS and PELL, Circuit Judges.