ELR Citation: ELR 21372
No(s). 87-3529 (4th Cir. Jun 24, 1988)

The court holds that the district court properly determined that the Environmental Protection Agency (EPA) had authority under the Federal Water Pollution Control Act (FWPCA) to object to a state-issued national pollutant discharge elimination system (NPDES) permit and assume permitting authority over the discharger, but the lower court did not have jurisdiction to consider the merits of EPA's objections. The court first holds that the district court had jurisdiction to inquire whether EPA had exceeded its delegated authority under the FWPCA when it objected to North Carolina's issuance of an NPDES permit for, and assumed permitting authority over, a pulp and paper mill whose discharges flowed into Tennessee waters and violated that state's color standards. The FWPCA allows EPA to assume issuing jurisdiction where an impasse has been reached between EPA and the state authority, and the legislative history indicates that Congress intended for EPA to do precisely what it has done in this instance. Moreover, the Supreme Court has recently stated that where a downstream state is adversely affected by out-of-state discharges upstream, EPA may in its discretion disapprove the discharge permit if it concludes that the permit will have an undue impact on interstate waters. The court then holds that the FWPCA does not provide for judicial review of the merits of EPA's objections prior to the agency's final action. EPA has not yet made any final decision whether to issue or to deny a permit, and in any case review of such final action would be in the appropriate court of appeals pursuant to FWPCA §509(b). Although EPA's objection would have been itself a final agency action prior to the 1977 FWPCA amendments, those amendments gave EPA the authority to issue its own permit where the state did not satisfy the objections. The court rejects plaintiff's argument that EPA objections can only be made when the state permit is clearly in violation of the FWPCA, since such an interpretation would limit EPA's discretion beyond the clear intent of the 1977 Amendments.

[The district court's decisions are published at 17 ELR 20486 and 20705. A related decision from the Tennessee Supreme Court is published at 16 ELR 20729.]

Counsel for Plaintiff-Appellant
John Jeffrey McNealey
Porter, Wright, Morris & Arthur
41 S. High St., Columbus OH 43215
(614) 227-2000

Counsel for Defendants-Appellees
Blake Andrew Watson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2772

Before WIDENER and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.