ELR Citation: ELR 20294
No(s). 93-2146 (4th Cir. Aug 23, 1994)

The court holds that it lacks jurisdiction to review an internal memorandum of the U.S. Environmental Protection Agency (EPA) advising that national pollutant discharge elimination system (NPDES) permits are required for stormwater discharges from construction activities involving oil and gas facilities. Oil and gas trade associations applied for judicial review of the internal memorandum, which represented the NPDES Program Chief's response to an inquiry from an EPA regional stormwater coordinator. The court first holds that, on its face, the memorandum neither involves nor relates to a future, present, or past decision to issue or deny a permit. Moreover, on its face, the memorandum does not purport to issue a new rule. The memorandum only provides the NPDES Program Chief's interpretation of existing stormwater regulations. The court also holds that while the memorandum may signal EPA's future position, EPA has not taken any final agency action triggering the court's power of judicial review.

Counsel for Petitioners
David M. Flannery
Robinson & McElwee
600 United Ctr.
500 Virginia St. E., P.O. Box 1791, Charleston WV 25326
(304) 344-5800

Counsel for Respondent
Karen L. Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before ERVIN, Chief Judge, NIEMEYER, Circuit Judge, and RESTANI, Judge, United States Court of International Trade, sitting by designation.