ELR Citation: ELR 20750
No(s). s. 85-3397 et al (3d Cir. May 27, 1986)

The court holds that the court of appeals has jurisdiction to directly review the Environmental Protection Agency's (EPA's) applications of categorical pretreatment standards under the Federal Water Pollution Control Act (FWPCA) and that EPA did not err in applying its regulations to petitioner's brass-cleaning operations. The court first holds that it has jurisdiction under FWPCA §509(b)(1) to review directly EPA's interpretation of pretreatment standards. The ruling by the agency on the applicability of the standards to petitioner's brass-cleaning operations, considered "bright-dipping" by EPA, is equivalent to promulgation of the standards themselves, which is subject to direct review by the court of appeals under §509(b)(1)(C). The legislative history is silent on this issue, and absent congressional intent to the contrary, jurisdictional questions should be construed broadly. The administrative record is complete and there are no factual disputes between the parties; initial judicial review in the district court would be redundant. Lastly, a ruling that the district court has jurisdiction would lead to an arbitrary distinction as to whether the challenge to EPA's application of the standards was raised immediately upon promulgation or shortly thereafter in an individual request for interpretation pursuant to EPA regulations.

On the merits, the court holds that EPA's application of the categorical pretreatment standards for electroplating and metal finishing to petitioner's operations is not prohibited by the list of categories excluded from regulation in Appendix D to the general pretreatment regulations. Although Appendix D lists bright-dipping as having been excluded from regulation pursuant to the consent decree in Natural Resources Defense Council v. Costle, EPA's assertion that Appendix D was intended to apply only to plants that emit waste streams containing two or more regulated pollutants is entitled to deference. Moreover, neither the electroplating nor metal finishing regulations make reference to Appendix D, yet EPA clearly intended to include bright-dipping within those rules. In closing, the court notes that the appropriateness of assessing civil or criminal penalties against petitioner on the basis of these ambiguous regulations is not before it.

Counsel for Petitioner
Joseph S. Wright, Richard J. Kissel, M. Therese Yasdick, Daniel F. O'Connell
Martin, Craig, Chester & Sonnenschein
115 S. La Salle St., Chicago IL 60603
(312) 368-9700

Counsel for Respondents
Lee C. Schroer
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20024
(202) 475-8040

F. Henry Habicht II, Ass't Attorney General; Margaret N. Strand, Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2219