ELR Citation: ELR 20816
No(s). s. 89-2180, -2181 (4th Cir. Feb 15, 1990)

The court holds that it lacks jurisdiction to review the Environmental Protection Agency's (EPA's) preliminary partial disapproval of Maryland's and Virginia's lists of toxic hot-spots under §304(l)of the Federal Water Pollution Control Act (FWPCA). The owner of several Kraft pulp and paper mills challenges EPA's decision that the two states should have listed the mills as point sources responsible for toxic pollutant discharges. First, the court holds that FWPCA §509(b)(1)(D), which confers jurisdiction to review EPA determinations as to a state national pollutant discharge elimination system (NPDES) permit program, does not allow review of any EPA decision that remotely relates to a state's administration of its permit program. FWPCA §509(b)(1) confers no jurisdiction to review EPA approvals and disapprovals of water quality standards, and EPA's preliminary disapproval of toxic hot-spot lists is not a determination as to an entire state NPDES program under FWPCA §402(b). The court also notes that FWPCA §302(a), which allows EPA to impose more stringent effluent limitations on states, does not allow review of EPA's preliminary decision that Maryland's and Virginia's toxic hot-spot lists were insufficient. Next, the court holds that under FWPCA §509(b)(1)(E), EPA's preliminary disapproval of toxic hot-spot lists is not tantamount to the promulgation of enforceable remedial measures against specific mills, and EPA's finding that a specific mill discharges into a nonattaining water body is not promulgation of an effluent standard. The court also notes that even if EPA had determined that the mills' permits required more stringent limitations to meet toxic pollution standards, that decision would not be reviewable until EPA objected to the issuance of a permit to that mill under FWPCA §402(d).

Counsel for Petitioner
Manning Gasch
Hunton & Williams
707 E. Main St., P.O. Box 1535, Richmond VA 23212
(804) 788-8200

Counsel for Respondents
Charles Meyer
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-1542