ELR Citation: ELR 20482
No(s). s. 88-1395, -1396 (7th Cir. Aug 1, 1989)

The court holds that it lacks subject matter jurisdiction to hear an attack by the pulp and paper mill industry on the Environmental Protection Agency's (EPA's) authority to object to proposed state-issued National Pollution Discharge Elimination System (NPDES) permits and to promulgate antidegradation regulations under the Federal Water Pollution Control Act (FWPCA). EPA objected under the FWPCA that the permits fail to properly monitor and limit the discharge of toxic pollutants and violate federal and state antidegradation policies. The court initially holds that the FWPCA does not contemplate federal court review of state-issued NPDES permits. The FWPCA evinces a strong congressional intent to make the states the primary regulators of the NPDES system and take the leading role in implementing the NPDES system. The court notes that to find jurisdiction to review the state permits in this case would mean that Congress intended a most improbable and awkward division of the review of state-issued permits between state and federal tribunals. The court further notes that prior to the 1977 FWPCA amendments, the Supreme Court had held that an EPA objection to a proposed state permit constituted a denial for purposes of FWPCA §509(b)(1)(F), giving the federal courts of appeals jurisdiction to review EPA objections. However, since the 1977 amendments, EPA is allowed to issue a permit if the state refuses to modify its proposed permit that EPA objected to, thus eliminating the need for a bifurcated system of review. The court holds that FWPCA §509(b)(1)(F) does not give federal appellate courts the power to review EPA's objections to state-issued NPDES permits. The FWPCA demonstrates an intent for EPA and the states to work through differences in permitting decisions, and the federal courts should leave EPA with its discretion to review state-issued permits.

The court next holds that the antidegradation regulation and regional office's interpretation letter, which require the state to maintain a water quality standard once that standard has been reached, may not be reviewed as effluent limitations or guidelines for implementing effluent limitations under FWPCA §509(b)(1)(E). Unlike an effluent limitation, the antidegradation regulation and regional office letter do not limit the permissible amount of discharge but establish criteriafor increasing the amount that a point source may emit.

[This decision replaces the decision at 19 ELR 21361.]

Counsel for Petitioners
Russell S. Frye
Chadbourne & Park
1101 Vermont Ave. NW, Washington DC 20005
(202) 289-3000

Counsel for Respondent
Steven Neugeboren
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7703

Before WOOD, Jr., and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.