ELR Citation: ELR 20454
No(s). s. 91-70389, -70398 (9th Cir. Dec 8, 1992)

The court holds that it lacks original jurisdiction to review total maximum daily load (TMDL) limits set by the U.S. Environmental Protection Agency (EPA) under §303 of the Federal Water Pollution Control Act (FWPCA) for dioxin discharges into the Columbia River in Washington, Oregon, and Idaho. The court notes that its jurisdiction to review EPA's FWPCA determinations is established by FWPCA §509(b)(1), which does not list EPA actions under §303 among the statutorily authorized actions reviewable in federal circuit courts. The court further notes that, although EPA set the dioxin limits because the affected states requested EPA to disapprove state action, EPA's action took the form of a disapproval action under §303 and imposition of standards. The court also holds that the dioxin limits were not, in effect, promulgated under §301, which provides for the promulgation of effluent limitations, because a §303's TMDL determination is not the same thing as a §301(b)(1)(C) limitation. Further, the court holds that the specificity and precision of §509 suggest that it is designed to exclude review of §303 actions. Finally, the court notes that EPA conceded that the district court may review EPA's §303 actions under the Administrative Procedure Act.

Counsel for Petitioners
Beth S. Ginsberg, Karen M. McGaffey
Bogle & Gates
Two Union Sq., 601 Union St., Ste. 4700, Seattle WA 98101
(206) 682-5151

Victor M. Sher
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98101
(206) 343-7340

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