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American Paper Inst. v. EPA

Citation: 19 ELR 21361
No. Nos. 88-1395, -1396, 890 F.2d 869/(7th Cir., 08/01/1989) challenge not ripe for review

The court holds that an attack by the pulp and paper mill industry on the authority of the Environmental Protection Agency (EPA) under the Federal Water Pollution Control Act (FWPCA) to object to proposed state-issued National Pollution Discharge Elimination System (NPDES) permits is not ripe for review, and the court does not have subject matter jurisdiction over a challenge to EPA's antidegradation regulation. EPA objected under the FWPCA that the permits fail to properly monitor and limit the discharge of toxic pollutants and violate federal and state antidegradation policies. The court initially holds that the industry's claims are not moot even though the state has agreed to modify the permits to meet EPA's objections. The court holds that it has subject matter jurisdiction under FWPCA § 509(b)(1)(F) to review EPA's objections to the proposed NPDES permits. The court holds, however, that the industry's challenge is not ripe for review. First, EPA's objection is an intermediate step in the process of issuing a permit and does not constitute final agency action warranting judicial review. Premature judicial intervention each time EPA objects to a proposed permit would disrupt the relationship between the states and EPA, impair the effectiveness of the FWPCA, and slow the permitting process. Second, denial of review at this stage poses no hardship to industry requiring a change of practices or an expenditure of funds to comply with new rules. The objections are not directed at the point source and are not final. Although industry anticipates that EPA's objections may affect future increases in production, present practices continue under its prior permits. Moreover, it is not inconsistent with Congress' intent to restrict petitioners in states with permit-issuing programs to state court review. Because the issues raised regarding individual point sources tend to be specific to that point source, it is not necessary for the federal courts to decide all issues regarding point sources. Congress' emphasis on state involvement in water quality control, and the specificity of the issues raised, indicate that the state tribunals can adequately address challenges to permits issued by that state. Finally, the court holds that EPA's antidegradation regulation, requiring the state to maintain existing water quality once a desired water quality standard is reached, is outside its subject matter jurisdiction. The court lacks jurisdiction under § 509(b)(1)(E) since EPA's antidegradation regulation is a written policy indicating agency water quality goals, not an administrative rule setting forth effluent limitations or implementation guidelines.

A concurring judge would hold that the matter is ripe for judicial review, and that only the state court, not the federal court, has jurisdiction to review state agency permitting decisions.

Counsel for Petitioner
Russel S. Frye
Chadbourne & Park
Ste. 900, 1101 Vermont Ave. NW, Washington DC 20005
(202) 289-3000

Counsel for Respondent
Steven Neugeboren
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7703

Before WOOD, JR., FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.