ELR Citation: ELR 21347
No(s). 91-339-PA (D. Or. Dec 13, 1992)

The court holds that Portland, Oregon, did not violate the Federal Water Pollution Control Act (FWPCA) by discharging pollutants through combined sewer overflows (CSOs) into the Willamette River and the Columbia Slough, and that a reference to water quality standards in a 1984 national pollutant discharge elimination system (NPDES) permit issued to the city by the Oregon Department of Environmental Quality (DEQ) does not establish an enforceable control limit within the meaning of §505(a)(1). The court first holds that the discharges of CSOs into the rivers, resulting from the city treatment plant's inundation with storm runoff and sewage flows, are covered by the 1984 NPDES permit, because the permit and its 20-year course of corrective action have been approved by the DEQ and the U.S. Environmental Protection Agency. Moreover, though the 1984 permit never specifically referenced the CSO outfall numbers, when the permit's language is examined in light of older permits issued to the city, and submitted affidavits indicating that the permit covered the entire sewer system are considered, it is "obvious" that the 1984 permit covered the CSOs. Therefore, the court holds that plaintiff environmental group is not entitled to injunctive relief or civil penalties. The court next holds that the group is not entitled to relief on its claim that the city violated the FWPCA by violating state water quality standards in the receiving waters, because the city's permit does not require compliance with the Oregon water quality standards. Though FWPCA §505(a)(1) authorizes citizen suits for violations of effluent standards, violations of water quality standards may be actionable in a citizen suit only if they are incorporated into a NPDES permit through effluent limitations. The 1984 permit referred to state water quality standards, however, those standards were not incorporated in the permit through any effluent limitations on the CSOs. The mere reference to water quality standards in a NPDES permit does not make them effluent standards or limitations.

Counsel for Plaintiffs
Paul Fortino, Mary C. Wood
U.S. Bancorp Tower, 111 S.W.5th Ave., Ste. 2500
Portland OR 97204
(503) 295-4400
Patrick A. Parenteau
700 N.E. Multnomah St., Ste. 400, Portland OR 97232
(503) 295-4400

Counsel for Defendant
Jan L. Betz, Linda Meng, Terence L. Thatcher
315 City Hall, 1220 S.W. 5th Ave., Portland OR 97204
(503) 823-4000