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In re Mesabi Nugget Delaware, LLC Hoyt Lakes, Minnesota

03/19/2013

Case Number:NPDES Appeal Nos. 13-01, 13-02, 13-03
ELR Citation:43 ELR 41367

In this appeal, petitioners – WaterLegacy, the Minnesota Center for Environmental Advocacy, the Fond Du Lac Band of Lake Superior Chippewa and the Grand Portage Band of Lake Superior Chippewa – challenged the U.S. Environmental Protection Agency Region 5’s approval of a water quality standards variance issued by the Minnesota Pollution Control Agency to Mesabi Nugget Delaware, LLC. Both the Region and Mesabi Nugget filed motions to dismiss these petitions on jurisdictional grounds, contending that the Board does not have the authority to review an Agency approval of a water quality standards variance issued under Clean Water Act section 303(c), 33 U.S.C. 1313(c), and 40 C.F.R. part 131. Petitioners subsequently agreed and did not object to dismissal of their petitions.

Held: The provisions of 40 C.F.R. part 124 do not expressly authorize the Board’s review of a water quality standards variance issued under CWA section 303(c). Moreover, the Board previously has determined that it lacks jurisdiction to review Agency decisions regarding water quality standards under CWA section 303(c). Thus, the Board concludes that it also lacks jurisdiction to review an agency decision to approve a variance to water quality standards that was issued pursuant to that same section. The Board dismisses these petitions with prejudice for lack of jurisdiction.