ELR Citation: ELR 20007
No(s). s. 89-70428 et al (9th Cir. Aug 23, 1991)

The court holds that it lacks jurisdiction over the U.S. Environmental Protection Agency's (EPA's) approval of the California and Oregon individual control strategies adopted under §304(l) of the Federal Water Pollution Control Act (FWPCA) to address toxic pollutant discharges in water segments in those states. A citizens group challenged EPA's approval of California's stormdrain individual control strategies, issued to municipalities in the San Francisco Bay area in a final national pollutant discharge elimination system (NPDES) permit, for failing to include numerical effluent limitations for stormdrain discharge. Similarly, a coalition of industry and citizens challenged EPA's conditional approval in the form of preliminary draft permit modifications of Oregon's individual control strategies for three paper mills. The court holds that federal appellate review of EPA's decision to approve the challenged state individual control strategies is not available under the FWPCA. Applying traditional canons of statutory interpretation, the court concludes that FWPCA §509(b)(1) provides for federal appeals court jurisdiction only when EPA promulgates FWPCA §304(l) individual control strategies, not when EPA approves them. The court holds that for purposes of exercising its authority under FWPCA §509(b)(1)(G) to review individual control strategies, promulgation is not the same as approval. The court reasons that the use of different words in §509(b)(1)(G), which provides for review of EPA decisions "promulgating" individual control strategies, and §509(b)(1)(E), which provides for review of EPA decisions "approving or promulgating" effluent limitations, signals that Congress intended to distinguish between them. Failing to distinguish between "promulgation" and "approval" would either result in a conflict between subsections (E) and (G) or would make superfluous the use of "approval" in subsection (E). In support, the court cites the Seventh Circuit's decision in Roll Coater, Inc. v. Reilly, 21 ELR 21116, and concludes that Congress did not consider EPA approval of individual control strategies to be "promulgation" for purposes of judicial review under FWPCA §509(b)(1)(G). The court rejects the petitioners' contention that once the states fail to submit timely individual control strategies, EPA's duty is transformed from oversight to intervention and that any resulting individual control strategy is therefore promulgated by EPA. Rather, the court observes that even where EPA is required to implement individual control strategies, the state retains the authority to issue them in most circumstances. The mere fact that EPA cooperates with a state in developing an individual control strategy does not make the individual control strategy an EPA promulgation. The court concludes that federal court review of EPA-developedindividual control strategies and state court review of those that are state developed is consistent with the FW-PCA's goal of maximizing state control over implementation and enforcement of pollution controls. The court rejects the petitioners' argument, which assumes jurisdiction in the federal district court under the Administrative Procedure Act, that the unavailability of federal appellate review produces an irrational bifurcation of review between federal courts of appeals and district courts. Bifurcation of review in the federal courts might occur if a state does not have any procedure for reviewing individual control strategy decisions. However, the court observes in a footnote that even states not authorized to issue NPDES permits must develop and submit individual control strategies themselves, even though they are to be developed in the form of NPDES permits. The court further states in dictum that federal district court review under the Administrative Procedure Act may be foreclosed by the existence of adequate state forums for review of state actions in creating and granting NPDES permits. That EPA has the final decisionmaking authority in the issuance of an individual control strategy does not mean that state judicial and administrative proceedings are inadequate for reviewing state-created individual control strategies.

Counsel for Petitioners
Nora Chorover
Citizens for a Better Environment
501 2nd St., Ste. 305, San Francisco CA 94107
(415) 788-0690
Richard H. Williams
Lane, Powell, Spears, Lubersky
520 SW Yamhill St., Ste. 800, Portland OR 97204
(503) 226-6151

Counsel for Respondent
Marilyn Jacobsen, Martin F. McDermott
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Breezer, J. (before Wright and Wiggins, JJ.)