ELR Citation: ELR 20558
No(s). 90-3837 (6th Cir. Jan 27, 1992)

The court holds that the Environmental Protection Agency's (EPA's) decision to approve a state-issued individual control strategy (ICS) does not constitute an EPA "promulgation" of the ICS within the meaning of §509(b)(1)(G) of the Federal Water Pollution Control Act (FWPCA), and thus the court lacks jurisdiction to review EPA's approval. Pursuant to §304(l), Kentucky submitted a proposal ICS in the form of a draft state pollutant discharge elimination system permit for a publicly owned wastewater treatment works (POTW). The ICS provided for the elimination of the POTW's discharge of copper into a creek with impaired waters by upgrading the POTW, prohibiting industries that discharge into the POTW from discharging pollutants, and relocating the POTW discharge point from the creek to a submerged point in the main body of Lake Cumberland. After EPA gave final approval of ICSs for Kentucky, including the POTW, several recreation and sportsmen's organization sought judicial review to overturn EPA's approval. The court holds that EPA's approval of Kentucky's ICS for the POTW falls outside the provisions set out in FWPCA §509(b)(1) for reviewing EPA actions. Only EPA-issued ICSs are reviewable under that section, not EPA approvals of state-issued ICSs. The FWPCA explicitly seeks to recognize, preserve, and protect the primary responsibilities and rights of states in restoring and maintaining their waters and in applying the Act. Thus, the FWPCA provides no jurisdiction in federal appeals courts for the review of EPA approvals of state-issued ICSs. In so deciding, the Sixth Circuit joins the Third, Fourth, Seventh, and Ninth Circuits.

Counsel for Petitioners
Robert Reeves
167 W. Main St., Ste. 300, Lexington KY 40507
(606) 252-8539

Counsel for Respondent
Jacqueline Colson
U.S. Environmental Protection Agency Region IV
345 Cortland St., Atlanta GA 30365
(404) 347-2335

Before: JONES, Circuit Judge; and ROSEN, District Judge.^*