ELR Citation: ELR 20994
No(s). 85-3837 (11th Cir. Sep 15, 1986)

The court holds that the Environmental Protection Agency's (EPA's) determination that a proposed phosphate waste disposal area is not a new source under the Federal Water Pollution Control Act (FWPCA) was not arbitrary and capricious, and thus EPA's decision not to prepare an environmental impact statement (EIS) for its reissuance of a chemical plant's modified national pollutant discharge elimination system (NPDES) permit was reasonable. The court initially adopts the reasonableness standard of review for an agency's decision not to prepare an EIS. The court then notes that under FWPCA §511(c)(1) and EPA regulations, EPA is not required to prepare an EIS for the issuance of NPDES permits, except for new sources. The court first holds that EPA's determination that the proposed phosphate waste disposal area is not a new source under FWPCA §306(a)(2) was not arbitrary and capricious. The court rejects petitioner's argument that since the proposed disposal area will replace the existing disposal area in even years, it constitutes a new source under EPA regulations. First, the proposed disposal area cannot be viewed apart from the plant owner's proposal for capacity expansion, both of which were subject to EPA environmental review, since the disposal area will handle waste from both the original and expanded plant facilities. Second, the plant owner has completed construction of its expanded plant facilities in reliance on EPA's approval of the proposed disposal area. Third, the plant owner has planned no modifications to the proposed disposal area since EPA issued its original modified NPDES permit.

The court holds that EPA is not required to prepare an EIS on the basis of new information on radionuclide emissions. Although petitioner has properly challenged EPA's decision to reissue the modified NPDES permit, it has not challenged the adequacy of EPA's environmental review, the scope of the initial new source determination, or the decision to issue the modified NPDES permit. Therefore, petitioner may not challenge EPA's decision to reissue the permit to the extent that it is based on these environmental determinations. Moreover, the court finds no new information bearing on EPA's decision to issue the modified NPDES permit.

Counsel for Petitioner
Thomas W. Reese
123 Eighth St. North, St. Petersburg FL 33701
(813) 822-4084

Counsel for Respondents
David W. Zugschwerdt
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2686

Before JOHNSON and ANDERSON, Circuit Judges, and GARZA^*, Senior Circuit Judge.