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

ELR Citation: 6 ELR 20117
Nos. No. 74-2237, 528 F.2d 1136/8 ERC 1506/(4th Cir., 12/30/1975) Aff'd

The district court properly dismissed, for lack of subject matter jurisdiction, this suit by eight chemical manufacturers seeking review of EPA's regulations, promulgated under the Federal Water Pollution Control Act Amendments of 1972, which established effluent limitations for inorganic chemical plants. Without ruling on EPA's interpretation of its authority to issue such limitations under §301 of the Act or passing on the regulations themselves, the court concludes that review lies exclusively in the court of appeals under §509. To hold otherwise would mean that limitations for new sources would be reviewed by the courts of appeals while those for existing sources would be examined in the first instances by the district courts. An examination of the legislative history discloses that Congress did not intend review to be bifurcated in this manner. In addition, the court points out that even on appellants' reading of the statute, "guidelines for effluent limitations" promulgated under §304(b) are necessarily aimed at achieving technological objectives set forth in §301. As regulations which can thus properly be considered to be pursuant to §301, they are reviewable by the court of appeals under §509.

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

Counsel for Defendants-Appellees
Kathryn A. Oberly
Edmund B. Clark
Bruce J. Chasan
Lands & Natural Resources Division
Department of Justice
Washington, DC 20530
(202) 739-2756

Alan G. Kirk, II Asst. Administrator for Enforcement & General Counsel
Ray E. McDevitt
Environmental Protection Agency
Washington, DC 20460
(202) 755-2511

Paul R. Thomson, Jr., U.S. Attorney
U.S. Courthouse
Roanoke, VA 24001
(703) 982-6000

For himself, Rives, and Breitenstein, JJ.