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FMC Corp. v. Train

Citation: 6 ELR 20382
No. No. 74-1386, 539 F.2d 973/8 ERC 1731/(4th Cir., 03/12/1976)

Regulations establishing effluent limitations guidelines for existing sources and standards of performance for new sources in the plastics and synthetics industry are remanded to EPA for reconsideration. The court reiterates its holdings in the companion case of DuPont v. Train, 6 ELR 20371, that the Administrator has authority to issue effluent limitations under § 301 of the Federal Water Pollution Control Act Amendments of 1972, that such limitations may consist of single numbers rather than ranges, and that they may be based on subcategorization of point sources rather than tailored for each individual plant. EPA adequately considered the cost of compliance with the regulations by petitioners, and the concomitant non-water environmental impacts and energy requirements. In testing the validity of specific regulations, however, the court finds inadequate support in the record for the wastewater flows chosen by the agency as the basis for setting 1977 and 1983 discharge limitations for particular point source subcategories. The new source standards of performance must also be remanded because the record does not identify the particular plants used as indicators of "demonstrated" flow levels, nor does it disclose their operating or technological characteristics. The agency thus failed to provide the type of technological guidance required of it under § 304(c). The court upholds EPA's designation of chemical oxygen demand (COD) as a control parameter, but sets aside the 1977 and new source COD limits because the agency's technological model does not include treatment for that pollutant. The 1983 COD limits are left in place with the proviso that future judicial review will be available should EPA fail to establish the achievability of these limits within a reasonable time prior to the time set for their implementation. Furthermore, EPA failed to establish that the technology necessitated by the total suspended solids limits for new sources is presently available; the limits are thus remanded for further documentation on the transferability of the designated technology. The court also rules that EPA did not act arbitrarily or unreasonably in establishing daily and monthly variability factors.

Counsel for Petitioners
Robert C. Barnard
Daniel B. Silver
Eric Schwartz
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave., NW
Washington, DC 20036
(202) 223-2151

Counsel for Respondent
Bruce M. Diamond
Environmental Protection Agency
401 M Street, SW
Washington DC 20460
(202) 755-2500

Raymond N. Zagone
Glen R. Goodsell
Department of Justice
Washington DC 20530
(202) 739-2749

Counsel for Amicus Curiae Natural Resources Defense Council
Edward L. Strohbehn
Angus Macbeth
Natural Resources Defense Council
917 15th Street, NW
Washington DC 20005
(202) 737-5000

For himself, Widener & Breitenstein,* JJ.