ELR Citation: ELR 20354
No(s). 77-1648 (7th Cir. Mar 3, 1978)

The court upholds an Environmental Protection Agency regulation requiring its regional administrators to include in national pollutant discharge elimination system (NPDES) permits issued under §402 of the Federal Water Pollution Control Act (FWPCA) a condition providing that more stringent toxic pollutant standards subsequently promulgated under §307(a) will be incorporated into the permit. The court rejects petitioner's argument that §402(k) makes a permit's terms irrevocable during its life except for standards imposed for toxic pollutants injurious to human health. In the court's view, both the language and legislative history of §402(k) show that the provision deals with enforcement proceedings rather than permit modification. Other sectionns of the Act confirm this conclusion; there is nothing in §307 to indicate that permit holders are excused form full compliance with its requirements, and when Congress wished to limit the Administrator's authority to modify permits, as in §306, it did so with explicit language. The court also rules that neither §402(b)(1)(C) nor the language in a footnote to the Supreme Court's opinion in DuPont v. Train, 7 ELR 20191, when properly construed, supports petitioner's contentions. The court notes in addition that the Administrator is given broad discretionary power under §501(a) to issue necessary regulations and under §§301(a)(1) and 402(a)(1) to impose conditions.

Counsel for Petitioner
James W. Gladden
Mayer, Brown & Platt
231 S. LaSalle St., Chicago IL 60604
(312) 782-0600

Counsel for Respondent
Pamela P. Quinn, Alan Eckert, Office of General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Thomas P. Sullivan, U.S. Attorney
219 S. Dearborn St., Chicago IL 60604
(312) 353-5333

James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2701

Before SWYGERT and TONE, Circuit Judges, and SHARP, District Judge.^*