ELR Citation: ELR 21116
No(s). s. 90-2152, -3856 (7th Cir. May 16, 1991)

The court holds that it lacks jurisdiction to review the Environmental Protection Agency's (EPA's) approval of a state listing decision and individual control strategy under §304(l) of the Federal Water Pollution Control Act (FWPCA). A company in the business of painting and coating steel coils challenged EPA's approval of a decision by Indiana to include the company on a list of point sources discharging toxic pollutants that prevent attainment of applicable state water quality standards. The company also challenged EPA's approval of the state's inclusion of waters near the company's facility on a list of waters not anticipated to attain such standards and the state's individual control strategy for the company. The court first holds that FWPCA §509(b)(1)(G) does not authorize circuit courts to review EPA's approval of state lists under §304(l) or EPA's creation of its own lists, because §509(b)(1)(G) allows review of EPA's orders promulgating individual control strategies. The court further holds that, as used in FWPCA § 509(b)(1), the term "promulgates" does not include EPA's approval of actions taken by others. The actions that are reviewable under §509(b)(1)(A) and (C) are things the Administrator does on his own, and §509(b)(1)(B) and (D) imply that EPA does not promulgate everything it issues or approves. Finally, the court refuses to transfer the case to the district court. The 1987 amendments to the FWPCA divided review between the courts of appeals and state courts, not between the courts of appeals and the district courts.

Counsel for Petitioner
Renee R. McDermott, John M. Kyle III, Anthony C. Sullivan
Barnes & Thornburg
1313 Merchants Bank Bldg., 11 S. Meridian St.
Indianapolis IN 46204
(317) 638-1313

Counsel for Respondent
David Dain
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.