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Sun Enters., Ltd. v. Train

Citation: 6 ELR 20331
No. No. 75-6068, 532 F.2d 280/8 ERC 1891/(2d Cir., 03/12/1976)

The court of appeals affirms a lower court's dismissal on jurisdictional grounds of a citizen suit challenge to the EPA Administrator's issuance of a National Pollutant Discharge Elimination System (NPDES) permit, and in addition denies as untimely a petition for direct review of the Administrator's action under § 509 of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA). The district court dismissal was correct since neither the Administrative Procedure Act, § 505 of the FWPCA and its savings clause, nor general federal question or mandamus jurisdiction provide a basis for the suit. A petition for direct court of appeals review under § 509 is the exclusive method of contesting any facet of the Administrator's issuance of an NPDES permit, including the claim that EPA illegally failed to consult the Interior Department as required by the Fish and Wildlife Coordination Act. Appellants' subsequently-filed § 509(b)(1) petition is barred, however, because it was not filed within the statutory 90-day limitation period and is not based solely on grounds arising after that deadline. The court notes that the apparent harshness of this result is mitigated by petitioners' substantial participation in the permit process and their continuing right to bring suit against the Administrator or the discharger should the terms of the permit be violated. The court also emphasizes that it cannot condone any blanket Interior Department policy of waiving or failing to comment under the Coordination Act, since such inaction would amount to administrative repeal of the statute.

Counsel for Appellants-Petitioners
Nicholas A. Robinson
Marshall, Bratter, Greene, Allison & Tucker
430 Park Avenue
New York NY 10022
(212) 421-7200

Counsel for Appellees-Respondents
William R. Bronner
Steven J. Glassman Asst. U.S. Attorneys
1 St. Andrews Plaza
New York NY 10007
(212) 791-1963

Richard G. Tisch
EPA Region II
26 Federal Plaza
New York NY 10007
(212) 264-9885

Counsel for Appellees-Intervenors Heritage Hills of Westchester
Arthur S. Olick
Anderson, Russell, Kill & Olick
630 Fifth Avenue
New York NY 10020
(212) 397-9700

Counsel for Amicus Curiae Natural Resources Defense Council
Laurance Rockefeller
Ross Sandler
Natural Resources Defense Council
15 West 44th Street
New York NY 10036
(212) 869-0150

For himself, Smith & Mansfield, JJ.