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Manufacturing Chemists Ass'n v. Costle

Citation: 8 ELR 20667
No. No. 78-0578, 455 F. Supp. 968/11 ERC 2014/(W.D. La., 08/04/1978) Summary judgment for plaintiffs

In a suit by chemical manufacturers challenging certain portions of the Environmental Protection Agency's (EPA's) regulations governing discharges of hazardous substances into navigable waters under § 311 of the Federal Water Pollution Control Act, the court grants summary judgment for plaintiffs after concluding that the regulations do not comply with the statutory requirements and are thus arbitrary and capricious. The court rules first that EPA's selection of a unit of one pound and multiples thereof and a five-category classification scheme for the purpose of determining "hazardous quantities" of particular substances does not comport with the statutory mandate to identify the "times, locations, circumstances, and conditions" under which specific discharges would be harmful. Although EPA's approach has the virtue of simplicity, it fails to recognize that harmfulness depends on the characteristics of the receiving waters as well as on the quantity discharged and thus has no sound technical basis.The court also holds invalid EPA's determination that 261 of the 271 listed hazardous substances are "non-removable" and thus subject to both cleanup cost assessments and special deterrence penalties. Removability was meant to include the possibility of mitigation of harm through neutralization of a discharged substance as well as actual physical removal, and the agency's decision to disregard mitigability was arbitrary and capricious. Finally, the court rules that while EPA has the power to require continuous dischargers operating under valid national pollutant discharge eliminations system permits issued pursuant to § 402 of the Act to apply for amended permits which include specific limitations on the discharge of hazardous substances, the agency erred in attempting to subject violators of such limitations to the penalty provisions of § 311 as well as those of § 402. The court therefore holds these portions of the regulations invalid, void, and unenforceable.

Counsel are listed at 8 ELR 20589.