ELR Citation: ELR 20855
No(s). 74-57 (W.D. Va. Sep 27, 1974)

The court rejects plaintiffs' contention that waste water effluent limitations under the Federal Water Pollution Control Act Amendments of 1972 can only be set pursuant to a §402 permit proceeding, and grants defendants' motion to dismiss this industry challenge to EPA's regulations setting limitations for discharges from sulphuric acid plants. The court holds that the regulations are "guidelines" issued pursuant to §304(b) in that they subdivide the inorganic chemical manufacturing group into 22 subcategories, but rules that they are also effluent limitations established pursuant to §301 in that they impose specific numerical restrictions on discharges. Taken as a whole, the various sections of the Act and the legislative history support the conclusion that the EPA Administrator has the power to promulgate such limitations for classes and categories as regulations under §301(b) pursuant to his authority under §304(b). The court also finds that the regulations meet the requirements of §304 by taking certain technical and economic factors such as plant age into consideration. Review of both the substance of such limitations and the procedures utilized in establishing them lies exclusively in the circuit court of appeals pursuant to §509(b)(1)(E), and the suit is accordingly dismissed for lack of subject matter jurisdiction.

Counsel for Plaintiffs
Charles F. Lettow
Douglas E. Cleaver
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Avenue, NW
Washington, DC 20036

Counsel for Defendants
Bruce J. Chasan
Department of Justice
Washington, DC 20530

Paul Thomson Asst. U.S. Attorney
U.S. Courthouse
Roanoke, VA 24001

Ray McDevitt Office of General Counsel
Environmental Protection Agency
Washington, DC 20460