Upon consideration of the appellee's petition for rehearing, 712 F.2d 91, the appellant's responses, and other related submissions, the court observes that by their several submissions, including a motion by appellant to supplement the record, the parties have sought to raise matters for first instance consideration by this court that have not been presented to the district court, were not presented in the briefs of the parties in their original briefs on this appeal, and that may, if relevant, be presented to the district court on the remand previously ordered by this court. In particular the court observes that the appellee has sought to have this court consider the effect of 40 C.F.R. Sec. 122.5, Virginia regulation No. 6, Sec. 6.20, and 5 U.S.C. Sec. 558(c) upon the continuation in effect of the NPDES permit centrally in issue in this case.

The court expressly declines to address these matters, noting that this is without prejudice to their consideration upon remand, to the extent they may then be shown to have relevance to the issues remanded for further consideration.

It is therefore ADJUDGED and ORDERED that the appellee's petition for rehearing is DENIED; the appellant's motion to supplement the record is DENIED; and the appellant's motion for an award of costs and attorneys' fees incurred in responding to appellee's petition for rehearing is DENIED, but without prejudice to its reconsideration upon final determination of this action.

Entered at the direction of Circuit Judge PHILLIPS with the concurrence of Circuit Judge HALL and Senior Circuit Judge BUTZNER.