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Porter County Chapter of the Izaak Walton League of Am. v. Costle

Citation: 8 ELR 20216
No. Nos. 76-2098, 77-1262, 571 F.2d 359/11 ERC 1263/(7th Cir., 01/30/1978)

The court affirms the decision of the Administrator of the Environmental Protection Agency (EPA) that a 1965 statute directing maximum feasible pollution control measures for Burns Waterway Harbor on Lake Michigan has no effect on the issuance of a national pollutant discharge elimination system permit under § 402 of the Federal Water Pollution Control Act (FWPCA) to a coal-fired generating plant which discharges effluents into the harbor. As a preliminary matter, the court rules that petitioners have properly exhausted their remedies. Moving to the merits, the court determines, after a study of the legislative history, that Pub. L. 89-298, which directs the Secretary of the Army to be satisfied that pollution sources discharging into Burns Harbor will be controlled "to the maximum extent feasible," does not mandate the Secretary to set a precise discharge standard for each source.The Secretary of the Army has received the required assurances from the state, and the law therefore has no further application to EPA or to permits issued under the FWPCA. The court rules that Pub. L. 89-298 does not warrant application of a higher standard than the "best practicable control technology currently available" requirement applied to the generating plant by EPA under the FWPCA.

A partial dissent would remand the matter for determination whether the permit limitations fulfill the language of Pub. L. 89-298 and, if not, for imposition of limitations which would.

Counsel for Petitioners
Marvin Benn
Suite 2222, 134 N. LaSalle St., Chicago IL 60602
(312) 372-2926

Edward Osann
Leydig, Voit, Osann, Mayer & Holt, Ltd.
Suite 4600, One IBM Plaza, Chicago IL 60611
(312) 822-9666

Counsel for Respondent
Alfred Ghiorzi, Lloyd Guerci
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2709

Counsel for Intervenor Northern Indiana Public Service Co.
William H. Eichhorn
Schroer, Eichhorn & Morrow
5243 Hohman Ave., Hammond IN 46320
(219) 931-0560

Before FAIRCHILD, Chief Judge, COWEN,* Senior Judge, and CUMMINGS, Circuit Judge.