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Mianus River Preservation Comm. v. Administrator

Citation: 6 ELR 20597
No. No. 75-4253, 541 F.2d 899/9 ERC 1174/(2d Cir., 06/25/1976)

The court dismisses for lack of jurisdiction a petition for review of a National Pollutant Discharge Elimination System (NPDES) permit modification issued by the Commissioner of the Connecticut Department of Environmental Protection pursuant to § 402 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1342 (Supp. IV), ELR 41123. The modification extended the permit's compliance date and eliminated provisions for the construction of treatment facilities in favor of requiring the source to connect its discharges to the town sanitary sewer. Section 509(b)(1)(F) of the FWPCA, under which petitioners bring this suit, provides for review in the appropriate court of appeals only of the "Administrator's action . . . in issuing or denying any permit under section 402" (emphasis the court's). An examination of the legislative history of § 402 clearly shows that Congress intended that the states have a great deal of autonomy in administering their own permit programs. The court therefore sees no reason to extend this explicit jurisdictional grant to "action" of anyone other than the Administrator. The state of Connecticut assumed NPDES permit-issuing authority pursuant to § 402 in 1973, and the permit in this case was undeniably issued and modified by a state agency under its own authority. Petitioners are mistaken in contending that the state, in acting upon NPDES permits, serves as the EPA Administrator's agent, thereby rendering the state's action an action of the Administrator through a delegation of authority. The legislative history demonstrates that petitioners also err in arguing that since the Administrator retains the power to reject any particular NPDES permit application made to a state permitting agency, his failure to veto an application is "action" sufficient for the jurisdiction purposes of § 509.

The full text of this opinion is available from ELR (22 pp. $2.75, ELR Order No. C-1062).

Counsel for Petitioners
Haynes N. Johnson
Parmalee, Johnson & Bollinger
460 Summer St.
Stamford CT 06901
(203) 327-2650

Counsel for Federal Respondent
Paul N. Kaplow
Alfred T. Ghiorzi
Department of Justice
Washington DC 20530
(202) 739-2831

Counsel for State Respondent
Richard F. Webb Asst. Attorney General
State Office Bldg.
Hartford CT 06115
(203) 566-2026

Meskill, J., for himself, Smith & Hays, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]