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Natural Resources Defense Council v. EPA

ELR Citation: 6 ELR 20461
Nos. No. 74-1258, 537 F.2d 642/8 ERC 1988/(2d Cir., 04/28/1976)

The court of appeals upholds the validity of the variance provision in EPA regulations setting effluent limitations for a number of industrial categories. The clause in question authorizes the grantor of a discharge permit under §402 of the Federal Water Pollution Control Act (FWPCA) Amendments of 1972 to exempt individual plants from the applicable effluent limitation upon a showing that factors relating to the equipment, facilities, manufacturing processes, and energy requirements and costs of that plant are "fundamentally different" from the factors considered by EPA in establishing the limitation for that industrial category. Reviewing the challenged provisions under §509 of the Act, the court agrees with EPA's contention that the variance clause is compatible with the congressionally mandated goal of national uniformity in water pollution control. Provisions for variances, modifications, and exceptions are particularly appropriate to the regulatory process in the context of the FWPCA Amendments. EPA's regulations, based on a representative sampling of plants, may prove ill-suited to some of the unsampled individual plants. The variance clause is the only effective and workable remedy for such a defect. This injection of flexibility into the regulatory system is not inconsistent with the initial establishment of classes and categories because by specifying a permit procedure, Congress implicitly conferred on the permit-grantor the power to construe the broader regulations in light of the specific type of plant applying for the permit.

Counsel for Petitioner
Angus MacBeth
Richard M. Hall
Natural Resources Defense Council, Inc.
15 West 44th St.
New York NY 10036
(212) 869-0150

Counsel for Respondent
Raymond W. Mushal
Jeff Zimmerman
Edmund B. Clark
Martin Green
Henry J. Bourguignon
Department of Justice
Washington DC 20530
(202) 739-2773

Counsel for Intervenors Celanese Corp., et al.
Robert C. Barnard
Douglas E. Kleiver
Charles F. Lettow
Cleary, Gottleib, Steen & Hamilton
1250 Connecticut Ave., NW
Washington DC 20036
(202) 223-2151

For himself, Bryan & Duffy,* JJ.