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Natural Resources Defense Council v. Outboard Marine Corp.

Citation: 19 ELR 20731
No. No. 87C 4648, 702 F. Supp. 690/28 ERC 1867/(N.D. Ill., 12/28/1988) Summary judgment on PCB violations

The court holds that where a national pollutant discharge elimination system (NPDES) permit issued under the Federal Water Pollution Control Act (FWPCA) requires the use of a particular testing method, the permittee cannot raise the inadequacy of the testing method as a defense in a citizen suit brought to enforce the permit's effluent limitations. The court rejects the permittee's attempt to draw a distinction between a challenge to the test procedure itself and the results obtained through use of the procedure, since the purpose of requiring a particular testing method is to use the results of the method to determine liability. The court holds that because the permittee has never before objected to the test method requirement, it has not exhausted its remedies as required by FWPCA § 509 and therefore cannot challenge the requirement in an enforcement suit. The court also holds that § 509(b) does not permit federal court review of NPDES permits issued by a state and not contested by the Environmental Protection Agency.

[An earlier decision in this case is published at 19 ELR 20279.]

Counsel for Plaintiff
James F. Simon, Nancy S. Marks
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049

Counsel for Defendant
Richard J. Kissel, Erica L. Dolgin
Gardner, Carton & Douglas
Quaker Tower, Ste. 3400, 321 N. Clark St., Chicago IL 60610-4795
(312) 644-3000