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Diamond Shamrock Corp. v. Costle

Citation: 8 ELR 20488
No. No. 77-1111, 580 F.2d 670/11 ERC 1749/(D.C. Cir., 05/30/1978)

The court of appeals affirms a district court order dismissing a suit by several chemical manufacturers for review of the Environmental Protection Agency's (EPA's) Net-Gross Adjustment regulations on the ground that the controversy was not ripe. The regulations provide, with two exceptions, that a discharger holding a national pollutant discharge elimination system permit issued by EPA under § 402 of the Federal Water Pollution Control Act after the regulations become effective are to be given no credit for pollutant already present in their intake waters. The effluent limitations in such permits are thus to be set in "gross" rather than "net" terms. An examination of whether the ripeness doctrine bars this suit must focus on two factors: the fitness of the issues for judicial resolution and the hardship to the parties of withholding court consideration. The regulations have not yet been applied to plaintiffs in a permit proceeding. Their assertion of hardship is simply that once gross effluent permits are issued to them they will have to make substantial treatment system modifications. The court finds that plaintiffs have failed to demonstrate any present damaging effect from the regulations and that judicial review should be withheld until the regulations are implemented and their consequences have become apparent.

Counsel for Plaintiffs
Charles F. Lettow, Robert C. Barnard, Edward G. Modell
Cleary, Gottleib, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 223-2151

Counsel for Defendants
Glen R. Goodsell, Raymond N. Zagone, Jacques B. Gelin, Donald W. Fowler, Edmund B. Clark
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-5034

Ridgeway M. Hall, Jr., Assoc. General Counsel; Bruce M. Diamond
Office of General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before: ROBINSON, ROBB and WILKEY, Circuit Judges.