National Crushed Stone Association, Inc. et al., Petitioners, v. Environmental Protection Agency et al., Respondents.nos. 76-1914, et al, 643 F.2d 163 (4th Cir. 1981)

Pursuant to our opinion in this case at 601 F.2d 111 (4th Cir. 1979), we remanded to the Agency for reconsideration 40 C.F.R. §§ 436.22 and 436.32, which were the variance clauses in the Crushed Stone and Construction Sand and Gravel subcategories of the Mineral Mining and Processing point source category, 40 C.F.R. Part 436, as well as three other regulations in each subcategory dealing with various TSS limits and no discharge provisions, as set forth with particularity in our said opinion at page 125 thereof.

To this order EPA sought certiorari as to our holding as to §§ 436.22 and 436.32, the variance clauses. Our holding with respect to the other regulations we remanded was not before the Court. E. P. A. v. National Crushed Stone Association, infra, n. 4.

In its opinion and mandate in E. P. A. v. National Crushed Stone Association, --- U.S. ----, 101 S. Ct. 295, 66 L. Ed. 2d 268 (1980), the Supreme Court reversed our decision with respect to the variance clauses and remanded the case to us for further proceedings in conformity with its opinion.

In obedience to the mandate of the Supreme Court, it is accordingly ADJUDGED and ORDERED that our judgment in this case shall be, and the same hereby is, modified, so that 40 C.F.R. § 436.22 and 40 C.F.R. § 436.32 shall not be remanded to the Agency as we had previously ordered. The remainder of our decision remains unchanged.

With the concurrences of HAYNSWORTH and DONALD RUSSELL, JJ.