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Hooker Chems. & Plastics Corp. v. Train

Citation: 6 ELR 20467
No. No. 74-1687, 537 F.2d 620/8 ERC 1961/(2d Cir., 01/08/1976)

The Second Circuit Court of Appeals rules that the courts of appeals have exclusive jurisdiction under § 509 of the Federal Water Pollution Control Act Amendments of 1972 to review the EPA Administrator's action in promulgating regulations establishing "effluent limitations guidelines," and remands portions of the regulations setting standards for the phosphate manufacturing industry for further consideration. After surveying the admittedly ambiguous statutory language and legislative history and the conflicting decisions of other circuits in this area, the court concludes that the Administrator properly issued the regulations pursuant to §§ 301 and 304 of the statute rather than § 304 alone, as petitioner contended. In the court's view, Congress intended the promulgation of effluent limitations to take place apart from the § 402 permitgranting process. Section 304 establishes the procedure and criteria whereby the Administrator sets effluent limitations for industrial categories of existing discharges pursuant to the mandate of § 301. In this case, the court holds, EPA complied with the requirements of the Administrative Procedure Act in issuing the challenged regulations, adequately specified the factors it took into account in determining the control measures and practices to be applied to point sources, and, since Congress intended that the regulations should establish a single discharge level for a given subcategory, permissibly promulgated the effluent limitations as single number maximum discharge levels. EPA properly relied on performance levels achieved by exemplary existing plants in determining the "best practical technology applicable" in the 1977 limitations for phosphorous manufacturers, but this portion of the regulations is nonetheless vacated and remanded because it makes no provision for increased pollutant discharges caused by excess rainfall. The 1983 phosphorous manufacturer limitations must likewise be set aside because they are defective on this point, and because EPA failed to consider adequately the availability and cost of waste water recycling technology for plants located in cold climates. In addition, the 1977 and 1983 limitations for phosphorous pentasulfide are remanded for further consideration, the former because Congress did not intend "in process" technological changes to be considered by EPA in formulating the 1977 standard, and the latter because the administrative record is devoid of any explanation of how inert or vacuum casting could be applied to the pentasulfide industry. Finally, the definition of "process waste water" is set aside and remanded as overly broad.

Counsel for Petitioners
Robert C. Barnard
Douglas E. Kleiver
Cleary, Gottleib, Steen & Hamilton
1250 Connecticut Ave., NW
Washington DC 20036
(202) 223-2151

Counsel for Respondents
Jeff Zimmerman
Pamela Quinn
Edmund B. Clark
Department of Justice
Washington DC 20530
(202) 739-4519

For himself, Bryan & Duffy,* JJ.