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Natural Resources Defense Council v. Train

Citation: 5 ELR 20578
No. No. 74-1538, 519 F.2d 287/8 ERC 1233/(D.C. Cir., 09/15/1975)

The district court erred in dismissing a suit challenging both the EPA Administrator's initial listing of only nine toxic pollutants pursuant to § 307 of the Federal Water Pollution Control Act Amendments of 1972 and the criteria he employed for the inclusion of pollutants on the list. The lower court had jurisdiction under the Administrative Procedure Act to review this administrative action "not expressly made unreviewable by law" in order to determine whether there had been an abuse of discretion. The dismissal on the merits must be reversed because the complete administrative record upon which the Administrator's decision was based was not placed before the district court. Rather than determine the validity of the Administrator's action itself on the basis of a supplemented record, the court of appeals remands so plaintiffs will have an opportunity, through limited discovery and a supplemental complaint, to determine whether any documents which are properly part of the administrative record have been withheld.

A dissent argues that the completeness of the administrative record is irrelevant since the lower court did not grant summary judgment for defendants, but dismissed the complaint for failure to state a claim; it also points out that the statute directs the Administrator to revise the list periodically, and goes on to contend that the district court ruling, if affirmed, would not have been res judicata against a new suit to obtain review of any final EPA decisions to exclude particular pollutants from the list.

Counsel for Plaintiffs
Ronald J. Wilson
810 18th St., N.W.
Washington, D.C. 20006

J. G. Speth
Edward L. Strohbehn
Natural Resources Defense Council, Inc.
917 15th St., N.W.
Washington, D.C. 20005

Counsel for Defendants
Wallace H. Johnson Asst. Attorney General
John J. Zimmerman
Edmund B. Clark
Department of Justice
Washington, D.C. 20530

Allen W. Eckert
Environmental Protection Agency
Washington, D.C. 20460