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Appalachian Power Co. v. Train

Citation: 8 ELR 20050
No. No. 76-1474, 566 F.2d 451/10 ERC 1965/(4th Cir., 11/11/1977)

The court holds unenforceable, for want of proper publication, cooling water intake structure regulations issued by the Environmental Protection Agency (EPA) to implement §316(b) of the Federal Water Pollution Control Act. The regulations at issue are "substantive rules of general applicability" which the Administrative Procedure Act requires to be published in the Federal Register. The regulations themselves, however, simply provide that the Administration shall consider the information contained in the development document in determining the best available technology for cooling water intake structures. This document was neither published in the Federal Register nor properly incorporated by reference into the regulations. Moreover, even though the development document itself was reasonably available to petitioners, EPA failed to show that petitioners had actual notice of those sections of the document upon which the agency intended to rely in making best available technology determinations. The court rejects as contrary to the statutory language and without support in the legislative history the contention of petitioner U.S. Steel Corporation that the regulations apply only to steam-electric generating plants but not to steel mills. The court retains jurisdiction over these cases to hear any objections on the merits should the regulations be properly issued.

Counsel are listed at 8 ELR 20049.

Joined by Haynesworth, C.J. and Hall, J.