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National Crushed Stone Ass'n v. EPA

ELR Citation: 9 ELR 20535
Nos. No. 76-1914, 601 F.2d 111/13 ERC 1277/(4th Cir., 06/18/1979)

The Fourth Circuit remands to the Environmental Protection Agency (EPA) effluent limitations promulgated under the Federal Water Pollution Control Act regarding total suspended solids, recycling provisions, other discharge limitations, and variance procedures for crushed stone, construction sand, and gravel processing facilities. Total suspended solids limits for mine dewatering discharges were improperly promulgated, the court rules, because EPA relied on data known only to the Agency, denied industry and the public an opportunity to comment on the data until after the final Agency decision, and failed to explain fully its reasons for rejecting potentially significant studies submitted during the rulemaking process. Recycling provisions are remanded because the court finds insufficient technical data in the record, significant changes between the interim final and final regulations, no reasonable description of the costs and benefits expected from the proposed technological standard, and no adequate period for public comment on test data. Because certain "no discharge" requirements are conditional upon the implementation of the invalid recycling requirements, they are also remanded. Finally, certain variance provisions are rejected by the court pursuant to its finding that EPA failed to allow consideration of economic factors affecting compliance ability.

Counsel for Petitioners
Theodore L. Garrett
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Counsel for Respondent
James A. Rogers, Assoc. General Counsel; Bruce M. Diamond; Joan Z. Bernstein, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Barbara Brandon; James W. Moorman, Ass't Attorney General; Angus MacBeth
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2808

Joined by Haynsworth and Russell, JJ.