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Cleveland Elec. Illuminating Co. v. EPA

Citation: 9 ELR 20636
No. Nos. 77-3085, -3160, 603 F.2d 1/13 ERC 1549/(6th Cir., 08/06/1979)

The Sixth Circuit Court of Appeals vacates and remands the Environmental Protection Agency's (EPA's) veto of proposed state issuance of a national pollutant discharge elimination system (NPDES) permit for a coal-fired power plant in Ohio. The state permit would allow waste water discharges that do not comply with certain effluent limitations applicable on July 1, 1977, which are based upon best practicable technology (BPT). The state's permit order was based on findings that compliance with the BPT limitations was impracticable because the small size of the plant site precluded settling basin enlargement. The state permitting agency also found, however, that the discharger, if awarded the permit, would be able to accelerate compliance with the best available technology (BAT) standards applicable on July 1, 1983, and actually achieve those limitations in 1980 by recycling waste water. EPA's rejection of the proposed permit was based on conclusions that the permit contravened the BPT limitations and that no variance had been or could be granted because small plant site size is not a "fundamentally different factor." The court notes that at the time EPA acted on the proposed permit the variance procedure for electric power plants, which required the presence of "fundamentally different factors," had been invalidated in Appalachian Power Co. v. Train, 6 ELR 20732, and no replacement had yet been adopted. Holding the proposed state permit order to be essentially the grant of a variance based on plantspecific factors, the court rules that EPA's rejection of the permit was arbitrary because the agency erroneously failed to consider the state permitting agency's findings, particularly its indication that the permit would result in accelerated achievement of the 1983 BAT standards. On remand, EPA is therefore directed to reconsider the proposed permit under its amended variance regulations and to determine whether the goal of eliminating pollutant discharges is better served by allowing acceleration of BAT compliance.

Counsel for Petitioner
Michael L. Hardy, William J. Kenner
Guren, Merritt, Sogg & Cohen
650 Terminal Tower, Cleveland OH 44113
(216) 696-8550

Counsel for Respondent
Alfred T. Ghiorzi, Michael P. Carlton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2738

Barry L. Malter
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before: LIVELY and KEITH, Circuit Judges; and PECK, Senior Circuit Judge.