ELR Citation: ELR 21021
No(s). 98-1027 (D.C. Cir. Mar 23, 1999)

The court denies a company's petition to review the U.S. Environmental Protection Agency's (EPA's) determination that the company may not collaterally attack the validity of its state-issued national pollutant discharge elimination system permit during the course of an EPA enforcement action. The court first rejects the company's claim that the Environmental Appeals Board (EAB) erred in looking to federal law to determine whether the company could raise a collateral attack on the validity of its permit in an administrative penalty proceeding brought pursuant to Federal Water Pollution Control Act (FWPCA) §309(g). Next, the court holds that Congress has not resolved the question of whether a state permittee may collaterally challenge the validity of a state-issued permit in the course of a federal enforcement proceeding. The court then holds that EPA reasonably interpreted the FWPCA to prevent the company from doing in a federal proceeding what the company declined to do in a state proceeding. Precluding collateral attacks ensures that the states have the opportunity as a threshold matter to address objections to the permits they issue. Relatedly, precluding collateral attacks is consistent with Congress' desire to limit the scope of enforcement proceedings as evidenced by legislative history. Furthermore, congressional silence on federal court review of state permits is consistent with the view that challenges to those permits should be relegated to state-law remedies in state courts. Last, the court holds that substantial evidence supports EPA's finding that the company violated its permit. The court need not resolve whether substantial evidence supports EPA's finding that the company violated the terms of its permit after October 1, 1990. The administrative law judge (ALJ) held that the appropriate penalty would be the same regardless of whether the company was responsible for discharges after that date, and the company did not challenge the ALJ's penalty calculations before the EAB or this court. In addition, the company's claim that it was denied due process because it lacked notice that metals present in rainfall or leached from rooves and gutters would be considered pollutants that were the responsibility of the company rings hollow. The company itself, in its correspondence informing the state agency of its permit violations, counted the ambient and leached metals as contributing to those violations.

Counsel for Petitioner
Michael F. McBride
LeBoeuf, Lamb, Greene & MacRae
1875 Connecticut Ave. NW, Washington DC 20009
(202) 986-8000

Counsel for Respondents
Christopher S. Vaden
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Williams and Rogers, JJ.