ELR Citation: ELR 20233
No(s). 92-35582 (9th Cir. Dec 21, 1993)

The court holds that the U.S. Environmental Protection Agency's (EPA's or the Agency's) listing decisions under §304(l) of the Federal Water Pollution Control Act do not constitute "final agency action" necessary to state a cause of action under §704 of the Administrative Procedure Act. In order to attain state water quality standards for toxic pollutants, §304(l) requires states to submit to EPA lists of: (1) navigable waters that will not meet water quality standards after technology-based controls are applied (the "B list"); and (2) point sources whose discharges of toxic pollutants will impede B-listed waters from attaining water quality standards (the "C list"). A mining company challenged EPA's decision to amend Idaho's B and C list submissions to include the South Fork of the Coeur D'Alene River and the company's mine, which discharges toxic pollutants into the river. The court holds that EPA's §304(l) listing decisions are not final agency actions, because they do not directly and immediately affect the company's day-to-day business, do not have the status of law, and do not require the company's compliance. EPA's listing decisions are only preliminary steps in the §304(l) process. The Agency's issuance of a final national pollutant discharge elimination system permit to the company will constitute challengeable, final agency action, because it will provide a definitive statement of EPA's position and establish rules that require immediate compliance.

Counsel for Plaintiff
Fred M. Gibler
Evans, Keane, Koontz & Gibler
111 Main St., P.O. Box 659, Kellogg ID 83837
(208) 784-1105

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

Ferguson, J. (before Goodwin and Hug, JJ.)