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RITE--Research Improves the Env't v. Costle

Citation: 11 ELR 20825
No. No. 78-2278, 650 F.2d 1312/16 ERC 1001/(5th Cir., 05/26/1981) Rev'd

The Fifth Circuit Court of Appeals reverses the district court and holds that appellant, a nonprofit corporation, has standing to sue the Environmental Protection Agency (EPA) for wrongfully denying the City of Miami Beach, Florida permission to install a research project to demonstrate "deep current assimilation" sewage disposal, a sewage treatment method that would be less expensive than secondary treatment. The court finds that appellant has satisfied the "injury in fact" requirement of Article III of the U.S. Constitution by alleging that its members will be adversely affected by water pollution caused by the chemically treated secondary treatment effluent. In addition, appellant has standing to sue pursuant to § 505 of the Federal Water Pollution Control Act, the citizen suit provision. The court rejects EPA's argument that § 505 cannot be invoked when the alleged misconduct involves a discretionary duty. While the court cannot direct EPA to grant a sewage disposal permit, it can direct EPA to consider fully an application on its merits. Finally, the court provides guidance to the district court on the question of whether subsequent actions by the city render the lawsuit moot.

Counsel for Appellant
Joseph Z. Fleming
Fleming & Neuman
620 Ingraham Bldg., 25 SE 2d Ave., Miami FL 33131
(305) 373-0791

Counsel for Federal Appellees
Michael McCord, Maria A. Iizuka
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Joan Z. Bernstein, General Counsel; Terry Cole
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Appellee Dade Cty.
Peter S. Tell, County Attorney
1626 Dade Cty. Cthse., Miami FL 33130
(305) 579-5151

Counsel for Appellee City of Miami Beach
Joseph A. Wanick, Ass't City Attorney
1700 Convention Center Dr., Miami Beach FL 33139
(305) 673-7470

Before GOLDBERG, CHARLES CLARK and THOMAS A. CLARK, Circuit Judges.