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Save the Bay v. Administrator

Citation: 7 ELR 20674
No. No. 75-1633, 556 F.2d 1282/10 ERC 1437/(5th Cir., 08/05/1977)

The court dismisses a petition challenging the Environmental Protection Agency's (EPA) failure to veto state issuance of a National Pollutant Discharge Elimination System (NPDES) permit to an industrial discharger or to withdraw its approval of Mississippi's assumption of permit issuing authority. The court cannot review EPA's failure to revoke Mississippi's NPDES permit program until the administrative process has run its course, that is, until petitioner has formally requested the agency to revoke the state's authority and EPA has issued an administrative decision on the matter. The dismissal of this portion of the petition is therefore without prejudice to its refiling after such administrative disposition of the matter has occurred. The limited grant of original court of appeals jurisdiction in § 509 of the Federal Water Pollution Control Act Amendments does not encompass an EPA decision not to veto a permit issued under a state-administered NPDES permit program. Such a decision does not constitute "action in issuing" a permit within the jurisdictional grant of § 509(b)(1)(F). Taking into account considerations of judicial economy and fairness, the court goes farther and rules that review of the EPA decision not to veto is available in the district court under § 10 of the Administrative Procedure Act and the federal question statute only for the narrow claims that (1) the proposed permit contains a violation of the relevant statutory NPDES guidelines that the agency has failed to consider, or (2) consideration of unlawful factors (other than consistency with the guidelines) has tainted EPA's exercise of its discretion.

Counsel for Petitioner
Robert O. Holmes
3500 N. Causeway Blvd., Suite 116, Metarie LA 70002

Counsel for Respondent
Michael P. Carlton, Chief, Appellate Section
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 737-8200

Before GOLDBERG, SIMPSON and FAY, Circuit Judges.