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Ford Motor Co. v. EPA

Citation: 8 ELR 20082
No. No. 76-1463, 567 F.2d 661/11 ERC 1018/(6th Cir., 12/06/1977)

The court sets aside the Environmental Protection Agency's (EPA's) veto of state-proposed modifications in petitioner's national pollutant discharge elimination system (NPDES) permit that would allow low-flow augmentation to meet water quality standards. The court rejects defendant's contention that the case has been mooted by the scheduling of an adjudicatory hearing to reconsider the need for permit modifications, holding that the requested permit modification was clearly denied and that EPA's action is thus properly before the court for review. The court finds that EPA, at the time it vetoed the proposed permit modifications, had no well-established or publicized policy prohibiting the use of low-flow augmentation. Moreover, the Federal Water Pollution Control Act itself is silent on the legality of this method of meeting water quality standards. The agency's action, therefore, was not based on any published regulation guideline, or express statutory provision as required by § 402(d)(2)(B) of the Act and was arbitrary and capricious. The agency cannot veto permit modifications on the basis of ad hoc policy judgments developed through internal agency memoranda without public notice or the opportunity for a hearing.

A dissent contends that low-flow augmentation is implicitly forbidden by the Act. The dissent also argues that the practical effect of the majority opinion is to allow a pollutant discharge not expressly prohibited by the Act, EPA regulations, or state water quality standards while the thrust of the statute itself is to prohibit discharge practices unless they are expressly authorized.

Counsel for Petitioner
H. Edward Dunkelberger, Jr.
Convington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Counsel for Respondent
Patrick A. Mulloy
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2752

Before: WEICK and ENGEL, Circuit Judges, and WEINMAN, Senior District Judge.*