ELR Citation: ELR 20246
No(s). 91-3009 (3d Cir. Sep 12, 1991)

The court holds that it does not have jurisdiction under §304(l) of the Federal Water Pollution Control Act (FWPCA) to review the U.S. Environmental Protection Agency's (EPA's) decision to list the creek into which a town's publicly owned treatment works (POTW) discharges pollutants and to approve an individual control strategy (ICS) for the POTW issued by the Pennsylvania Department of Environmental Resources as a draft national pollutant discharge elimination system (NPDES) permit. The court first holds that these decisions do not constitute promulgation of an ICS by EPA within the meaning of FWPCA §509(b)(1)(G). Two other federal courts of appeals have decided that EPA's conditional approval of a state-issued draft NPDES permit as an ICS and decision to list a discharger do not constitute promulgation of an ICS. Also, the existence of a permit modification process and the events that have taken place in this case demonstrate that EPA's involvement in the process is preliminary. Further, to provide judicial review at this stage would not only violate Congress' intent to provide review only where EPA has promulgated the ICS, but would also be inefficient and impractical, as the final decision on the parameters of the final NPDES permit has yet to be made by the state. Additionally, although the town is correct that it will not be able to obtain immediate review of EPA's decision to approve the listing of a particular facility within the §304(l) program if the court does not have jurisdiction, this does not cause any legal or practical hardship that cannot be addressed fairly and adequately at the permitting stage. Finally, the court holds that the U.S. Supreme Court's decision in Crown Simpson Pulp Co. v. Costle, 10 ELR 20230, is not controlling on the facts. The impetus for that decision—that one type of agency action was functionally similar to another kind explicitly provided for in the statute—does not apply.

Counsel for Petitioner
Alan S. Miller, Anthony P. Picadio
Picadio, McCall & Kane
600 Grant St., USX Tower, Ste. 3180, Pittsburgh PA 15219
(412) 288-4000

Counsel for Respondent
Jon M. Lipshultz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000