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American Iron & Steel Inst. v. EPA

Citation: 6 ELR 20779
No. No. 75-2124, 543 F.2d 521/9 ERC 1321/(3d Cir., 10/05/1976)

Section 509 of the Federal Water Pollution Control Act Amendments of 1972 does not provide the court of appeals with jurisdiction to review EPA regulations allowing adjustments in effluent limitations where significant amounts of pollutants are present in a plant's intake water in the absence of action by the Administrator issuing or denying a discharge permit. The adjustment regulations are not themselves effluent limitations because they do no more than prescribe the policy and procedures to be followed in connection with applications for discharge permits. Moreover, reviewing the adjustment regulations without the effluent limitations to which they refer being before the court would be fruitless, as would a review in the absence of the full and comprehensive record that would be developed in a permit proceeding. Nor can the regulations be regarded as effluent limitations guidelines, since they contain none of the characteristics essential to guidelines under § 304(b). There is thus no basis for reviewing the regulations at this time under § 509(b)(1)(E). Their application to any discharge permit applicant may be reviewed in the court of appeals under § 509(b)(1)(F), however, at an appropriate time and on an appropriate record.

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
1666 K St., NW
Washington DC 20006
(202) 785-1777

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

Ridgeway M. Hall, Jr.
Special Asst. to the General Counsel
Environmental Protection Agency
Washington DC 20460
(202) 755-2500

Counsel for Amici Curiae Diamond Shamrock Corp., et al.
Robert C. Barnard
Charles F. Lettow
Edward G. Modell
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave., NW
Washington DC 20036
(202) 223-2151

Garth, J. joined by Adams and Rosen, JJ.