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American Iron & Steel Inst. v. EPA

ELR Citation: 6 ELR 20068
Nos. No. 74-1640, 526 F.2d 1027/8 ERC 1321/(3d Cir., 11/07/1975)

The Administrator of the Environmental Protection Agency has the authority to promulgate single number effluent limitations for existing point sources under §301 of the Federal Water Pollution Control Act Amendments of 1972. In inferring the existence of such authority from the statutory structure, the language of §§301, 302, 304, 316, 401, 505, and 509, and the legislative history, the Third Circuit Court of Appeals reaches a conclusion contrary to the Eighth Circuit's ruling in CPC International v. Train, 5 ELR 20392. Unlike the court in CPC, the Third Circuit reads the whole of §402 as requiring compliance by NPDES permit-issuing authorities both with §301 effluent limitations and with any guidelines promulgated by the Administrator under §304. The Administrator's interpretation of his power to promulgate limitations under §301 is more reasonable than petitioners' view, and should be given appropriate deference. In addition, the Administrator has a statutory obligation to promulgate effluent guidelines under §304 to provide guidance to the permit granting authorities who will determine the precise degree of effluent control required of any individual point source. According to Judge Hunter, the Administrator's functions under §§301 and 304 correlate in the following manner: the §301(b) single number effluent limitations prescribe the minimum amount of discharge control (base level), or conversely, the maximum amount of effluent discharge (ceiling) that is permissible for a particular point source category nationwide; the §304 guidelines provide precise guidance to permit-issuing authorities for establishing a permissible level of discharge within a given range that is more stringent than the outer limits set by the §301 limitations. The Administrator's regulations relating to the Iron and Steel Manufacturing Point Source Category fail to constitute valid guidelines under §304 since they specify neither the factors to be taken into account in determining the control measures to be applied to individual point sources nor permissible ranges of limitation below the ceiling. The regulations are thus remanded for both promulgation of guidelines and reconsideration of the effluent limitations in light of the court's delineation of the base level and ceiling concepts. As additional grounds for remanding, the court finds that the Administrator did not adequately consider either the problem of plant age as it pertained to the cost and feasibility of retrofitting existing plants, or the costs of effluent control in the secondary phase (1983 and beyond) of cleanup under the FWPCA. On remand, the Administrator is also directed to revise the regulations so as to allow a credit for pollutants already present in a plant's intake water. The court rules that the Administrator did not err in equating the "best available demonstrated control technology" levels for new sources with the "best available technology economically achievable" levels for existing sources, but finds that the new source flow rate standards for the categories of byproduct coke, sintering and basic oxygen furnace must be reconsidered since it is questionable whether the technology required to meet them has been demonstrated.

In a concurring opinion, Judge Adams contends that the Administrator's failure to consider thoroughly the costs of pollution abatement for the 1977 "best practicable control technology" guidelines for existing point sources presents an additional ground for remand.

Counsel for Petitioners
David McNeil Olds
Blair S. McMillin
Thomas C. Wettach
Robert M. Walter
Thomas J. Duman
Reed, Smith, Shaw & McClay
747 Union Trust Building
P.O. Box 2009
Pittsburgh, Pa. 15230

David S. Watson
Peter G. Veeder
Frank J. Clements
Thorp, Reed & Armstrong
2900 Grant Building
Pittsburgh, Pa. 15219

K. Robert Conrad
Charles J. Bloom
Pepper, Hamilton & Scheetz
20th Floor, Fidelity Building
Philadelphia, Pa. 19109

Richard E. Nolan
Henry H. Korn
Davis, Polk & Wardwell
One Chase Manhattan Plaza
New York, N.Y. 10005

H. Stephen Madsen
Baker, Hofstetler & Patterson
1956 Union Commerce Building
Cleveland, Ohio 44115

Max N. Edwards
Richard E. Schwartz
Collier, Shannon, Rill & Edwards
Suite 701, 1666 K Street, NW
Washington, D.C. 20006

Counsel for Respondent
Martin Green
Edmund B. Clark
Bradford F. Whitman
Department of Justice
Washington, D.C. 20530

Robert Zener
Nancy Spect
Environmental Protection Agency
Washington, D.C. 20460

For himself and Garth, J.; Adams, J. concurs in separate opinion