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E. I. DuPont de Nemours & Co. v. Train

Citation: 6 ELR 20371
No. No. 74-1261, 541 F.2d 1018/8 ERC 1718/(4th Cir., 03/10/1976)

Agreeing with the Third and Seventh Circuits, the Fourth Circuit Court of Appeals rules that the EPA Administrator has authority under §301 of the Federal Water Pollution Control Act Amendments of 1972 to promulgate regulations establishing single-number effluent limitations for existing point sources. Noting that the ambiguity of the statute on this point must be translated into a workable regulatory structure if the statutory goal of eliminating the discharge of pollutants is to be achieved, the court finds that the Administrator's action in issuing effluent limitations guidelines under §§301 and 304 was "sufficiently reasonable" to withstand judicial scrutiny. The court holds, however, that the single-number effluent limitations established by the regulations are not be mechanically cranked into permits issued to dischargers under §402, but are instead only "presumptively applicable" to individual permits. The limitations set by the regulations are controlling in any particular case unless this presumption is rebutted. This system assures all possible national uniformity while allowing for limited specific exceptions where necessary. Standards of performance for new sources set by other portions of the regulations pursuant to §306 of the statute are likewise only presumptively applicable to individual future permits. The court accedes to EPA's decision to impose the §301 limitations on the basis of pollutant subcategories rather than a range of numbers for the limitations, even though the Third Circuit has considered such single-number standards invalid. In determining whether the presumptively valid effluent limitations should apply to a particular point source, the permit issuer must consider the economic and technological factors listed in §304(b)(1)(B) and (2)(B) along with EPA's overall cost/benefit analysis for that subcategory. The court then reviews the particular regulations at issue in this case. EPA's definition of "process waste water" is remanded, as are a number of provisions relating to catastrophic rainfall. Regulations setting standards for discharges from plants in a number of subcategories of the inorganic chemical point source category are also remanded because, among other things, the record does not disclose a reasonable basis for believing that the necessary technology will be available.

Counsel for Petitioners
Robert C. Barnard
Douglas E. Kliever
Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave., NW
Washington DC 20036
(202) 223-2151

Counsel for Respondent
Kathryn A. Oberly
Edmund B. Clark
Department of Justice
Washington DC 20530
(202) 739-2756

Alan G. Kirk, II Asst. Administrator for Enforcement and General Counsel
Ray E. McDevitt
Environmental Protection Agency
401 M Street, SW
Washington DC 20460
(202) 755-2500

Counsel for Amicus Curiae Natural Resources Defense Council
Angus Macbeth
Edward L. Strohbehn
Natural Resources Defense Council
917 15th Street, NW
Washington DC 20005
(202) 737-5000

Counsel for Amicus Curiae American Petroleum Institute
Frederick M. Rowe
Edward W. Warren
Robert F. Van Voorhees
Kirkland, Ellis & Rowe
1776 K Street, NW
Washington DC 20006
(202) 833-8400

Counsel for Amicus Curiae Allegheny Power System
George C. Freeman, Jr.
Turner T. Smith, Jr.
William A. Anderson, II
Hunton, Williams, Gay & Gibson
700 E. Main Street
Richmond VA 23212
(804) 649-3661

Counsel for Amicu Curiae Chamber of Commerce of the United States
Milton A. Smith
Lawrence B. Kraus
James F. Rill
Max E. Edwards
Richard E. Schwartz
Collier, Shannon, Rill & Edwards
1666 K Street, NW
Washington DC 20006
(202) 785-1777

For himself, Rives* and Widener, JJ.