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Tanners' Council of Am., Inc. v. Train

ELR Citation: 6 ELR 20379
Nos. Nos. 74-1740, -1753, 540 F.2d 1188/8 ERC 1881/(4th Cir., 03/10/1976)

The Fourth Circuit Court of Appeals leaves in force EPA's 1983 effluent limitations guidelines for the leather tanning and finishing industry, but remands for reconsideration the 1977 limitations and the new source standards of performance. EPA's determination to base the 1977 limitations on a transfer of technology from the meatpacking industry was proper, but the Agency provided no evidence in the record to substantiate its claim that point sources within the tanning industry can use this technology to achieve the required final effluent levels. In addition, the Agency's failure to make allowances for seasonal temperature differences must be reconsidered in light of the strong evidence in the record that reduced biological waste removal efficiency occurs during cold weather. The new source performance standards, which are identical to the 1977 limitations and have not been independently established, must also be set aside and remanded. In setting the 1983 effluent limtations guidelines, EPA could properly assess technologies that have not yet been applied in any plant as long as the record demonstrates that there is a reasonable basis to believe that the technology will be available by 1983. While the present 1983 limitations seen premature in this respect, they are left in force with the proviso that they will be set aside if, as 1983 approaches, EPA has neither revised them nor more adequately demonstrated that the designated technology is effective and capable of achieving the 1983 reduction levels. Further judicial review will be available at that time on the basis of new pollution and process technology data, since these are grounds arising more than 90 days after the limitations were established.

Counsel for Petitioner
Richard E. Schwartz
James F. Rill
Collier, Shannon, Rill & Edwards
1666 K Street, NW
Washington DC 20006
(202) 785-1777

Counsel for Respondent
Kathryn A. Oberly
Eva R. Datz
Department of Justice
Washington DC 20530
(202) 739-2756

Nancy L. Speck
G. William Frick, Assoc. General Counsel
Environmental Protection Agency
401 M Street, SW
Washington DC 20460
(202) 755-2500

Counsel for Amicus Curiae Natural Resources Defense Council
Edward L. Strohbehn Jr.
Angus C. Macbeth
Natural Resources Defense Council, Inc.
917 15th Street, NW
Washington DC 20005
(202) 737-5000

For himself, Widener & Breitenstein,* JJ.