ELR Citation: ELR 20234
No(s). 93-7091 (2d Cir. Dec 14, 1993)

The court holds that the discharge of pollutants not listed in a valid national pollutant discharge elimination system (NPDES) permit is not unlawful under the Federal Water Pollution Control Act (FWPCA). The court finds that although the U.S. Environmental Protection Agency (EPA or the Agency) is aware that the possibility that an NPDES permittee may discharge a large amount of a pollutant not limited in its permit constitutes a regulatory gap, EPA did not intend to require water quality-based permit limitations for all pollutants contained in a discharge. Moreover, U.S. Supreme Court case law indicates that FWPCA §402(k), which defines compliance with FWPCA's discharge provisions as compliance with an NPDES permit, is meant to shield dischargers who comply with valid NPDES permits from having to litigate the sufficiency of their permit requirements. Finding EPA's interpretation of the Act reasonable, the court defers to the Agency. The court also holds that the FWPCA does not empower citizens to enforce state regulations for wastewater effluents that are stricter or more broad in scope than that mandated by the FWPCA. Therefore, the permit itself does not provide grounds for enforcement of New York State's regulations because New York's regulatory scheme is broader than the FWPCA.

[The district court's decision is published at 23 ELR 20775.]

Counsel for Plaintiff
Charles M. Tebbutt
Allen, Lippes & Shonn
1260 Delaware Ave., Buffalo NY 14209
(716) 884-4800

Counsel for Defendant
Philip H. Gitlen
Whiteman, Osterman & Hanna
One Commerce Plaza, Albany NY 12260
(518) 487-7600