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Hanks v. Costle

Citation: 11 ELR 20729
No. No. CA 79-0412-R, 501 F. Supp. 195/15 ERC 1414/(E.D. Va., 10/31/1980)

The court upholds the Virginia State Water Control Board's granting of revisions to a sewage treatment plant's national pollutant discharge elimination system (NPDES) permit and to Virginia's York River Basin Water Quality Management Plan. The court rejects plaintiffs' challenges to the permitting procedures followed by the State Board and the Environmental Protection Agency (EPA). The State Board's submission of the NPDES permit to EPA for approval did not constitute a proposed new source performance standard and thus did not violate the notice and comment provisions of § 306(b) of the Federal Water Pollution Control Act (FWPCA). Further, EPA's regulations concerning public participation in state permitting programs are fully consistent with § 101 of the FWPCA. In addition, the court rules that although the State Board may have violated the regulations there is no implied cause of action under the FWPCA authorizing plaintiffs to challenge state actions. For this reason the court declines to consider plaintiffs' substantive challenge to the state's action. Similarly, EPA's regulations for public participation in reviewing state water quality plans fully satisfy the requirements of § 101. Applying an arbitrary and capricious standard of review, the court concludes that EPA acted properly in approving the state permit and the state's methods for enforcing its water quality standards.

Counsel for Plaintiffs
Patrick M. McSweeney
McSweeney, Stutts & Burtch
121 Shockoe Slip, Richmond VA 23219
(804) 643-5192

Counsel for Defendants
Frederick Fisher, Ass't Attorney General
11 S. 12th St., Suite 308, Richmond VA 23219
(804) 786-4075

Peter L. Trible, Hanover Cty. Attorney
Wickham Bldg., Hanover VA 23069
(804) 537-5311

Robert W. Jaspen, Ass't U.S. Attorney
P.O. Box 1257, Richmond VA 23210
(804) 771-2186