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Appalachian Power Co. v. EPA

Citation: 12 ELR 20278
No. No. 80-1663, 671 F.2d 801/17 ERC 1105/(4th Cir., 02/08/1982)

The court rules that the variance clause in Environmental Protection Agency (EPA) regulations setting out the "best practicable control technology currently available" (BPT) for the steam electric power industry pursuant to the Federal Water Pollution Control Act (FWPCA) correctly bars consideration of a discharger's impact on receiving water quality. The governing case law, in contrast with earlier decisions of this court, now limits the factors to be taken into account in issuing BPT variances to those which §304(b)(1)(B) directs EPA to consider in setting the BPT standards, and receiving water quality is not among them. The legislative history of the 1972 amendments to the FWPCA also shows that the intent of Congress was to change from regulation based on water quality to regulation based on control technology availability and cost. Thus, the petition for review is denied.

Counsel for Petitioners
George C. Freeman Jr., Turner T. Smith Jr., William B. Ellis
Hunton & Williams
P.O. Box 1535, Richmond VA 23212
(804) 788-8200

Counsel for Respondents
Donald W. Stever Jr., Anthony C. Liotta
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Michele B. Corash, General Counsel; Richard G. Stoll Jr.
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Phillips, J. joined by Breitenstein, J.*