## Facts

- EPA issued its first national effluent limitation regulations restricting manufacturing-plant discharges of two toxic pesticides, toxaphene and endrin, under the Clean Water Act.
- Velsicol Chemical Corporation, the sole domestic manufacturer of endrin, challenged limits affecting discharges from its Memphis facility that ultimately reached the Mississippi River and the Gulf of Mexico.
- Hercules Incorporated, a manufacturer using toxaphene, challenged limits affecting toxaphene discharges.
- The rulemaking record was extensive, consisting of thousands of pages of technical studies, testimony, and related materials concerning toxicity, environmental persistence, and available pollution-control technology.
- Clean Water Act timing provisions required the presiding officer to complete recommendations and final regulations within a short period after the record closed.
- EPA amended its internal rulemaking procedures to allow the presiding officer to consult with other EPA staff while preparing the final decision.
- Petitioners argued these intra-agency consultations were impermissible ex parte communications under the Administrative Procedure Act and that the resulting regulations were substantively unsupported.

## Issues

1. Whether the presiding officer’s consultations with other EPA staff during rulemaking constituted prohibited ex parte communications under the APA.
2. Whether EPA’s effluent limitation regulations for toxaphene and endrin were supported by the administrative record and consistent with Clean Water Act requirements.

## Decision

- The court denied the petitions for review and upheld EPA’s toxaphene and endrin effluent limitation regulations.
- The court held that consultations between the presiding officer and other EPA staff in this rulemaking did not violate APA ex parte communication limits.
- The court concluded the effluent limits were reasonable, adequately explained, and supported by the record under the applicable standard of review for technical and scientific determinations.

## Legal Principles

- In rulemaking, the APA’s ex parte restrictions do not generally bar intra-agency communications among agency staff participating in the formulation of the rule.
- Internal staff consultations are treated as part of agency deliberation in a quasi-legislative process, distinct from improper, undisclosed outside-party contacts that circumvent the public record.
- Judicial review of technical, science-driven Clean Water Act standards is deferential; a court asks whether the agency’s choices are reasonable, explained, and supported by the rulemaking record rather than reweighing competing evidence.
- Clean Water Act effluent limits for toxic pollutants may be sustained when grounded in a developed record addressing pollutant harms and the feasibility of available control technology, including relevant cost and practicability considerations.

## Conclusion

The D.C. Circuit sustained EPA’s technology-based effluent limits for toxaphene and endrin and rejected claims that intra-agency staff consultations tainted the proceeding, holding that internal deliberation in rulemaking is permissible so long as the final rule rests on the public record rather than undisclosed external inputs.


Hercules, Inc. v. EPA, 598 F.2d 91 (D.C. Cir. 1978)