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American Iron & Steel Inst. v. EPA

Citation: 7 ELR 20624
No. No. 74-1640, 560 F.2d 589/10 ERC 1549/(3d Cir., 08/10/1977) Judgment amended, mandate recalled

The court recalls its mandate and amends its earlier judgment, 6 ELR 20068, thereby releasing the Environmental Protection Agency from the duty to establish "ranges" of effluent limitations other than those established by subcategorizing sources, to specify in more detail factors to guide National Pollutant Discharge Elimination System (NPDES) permit issuers in selecting limitations, and to reconsider the effluent limitations already promulgated for iron and steel manufacturing plants in light of the "base level" and "ceiling" concepts. The court rules that it has the power to recall a mandate and modify a judgment after the time for rehearing has expired in certain limited situations. Such a recall and modification is warranted in this case because the court's earlier ruling on the points at issue was inconsistent in certain respects with the Supreme Court's recent decision in DuPont v. Train, 7 ELR 20191, and was contrary to the position adopted by every other court of appeals that has considered these questions. The court points to the disruptive effect that its earlier ruling would have on the national program of water pollution control envisioned by the Federal Water Pollution Control Act Amendments of 1972 and the relatively small part of the original judgment that the Environmental Protection Agency seeks to amend as additional factors that justify its action in amending the judgment.

Counsel for Petitioners
David McNeil Olds, Blair S. McMillin, Thomas C. Wettach, Thomas J. Duman
Reed, Smith, Shaw & McClay
P.O. Box 2009, Pittsburgh PA 15230
(412) 288-3131

David S. Watson, Peter G. Veeder, Frank J. Clements
Thorp, Reed & Armstrong
2900 Grant Bldg., Pittsburgh PA 15219
(412) 288-7711

Max N. Edwards, Richard E. Schwartz
Collier, Shannon, Rill & Edwards
Suite 701, 1666 K St. NW, Washington DC 20006
(202) 785-1777

Counsel for Respondent
Raymond W. Mushal, Alfred T. Ghiorzi
Department of Justice, Washington DC 20530
(202) 737-8200

Before: ADAMS, HUNTER and GARTH, Circuit Judges.