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American Paper Inst. v. EPA

Citation: 19 ELR 21377
No. No. 89-1751, 882 F.2d 287/30 ERC 1177/(7th Cir., 08/18/1989)

The court holds that an Environmental Protection Agency (EPA) policy statement concerning dioxin tolerances in national pollutant discharge elimination system permits for paper mills using chlorine bleaching is not subject to judicial review under § 509 of the Federal Water Pollution Control Act (FWPCA). The policy statement is not reviewable under FWPCA § 509(b)(1)(E), which authorizes review of the EPA Administrator's approval or promulgation of effluent limitations. The policy statement was issued by an EPA region, not the Administrator; the statement does not "promulgate" anything, since the document has no legal effect; and the document is not an effluent limitation. The court notes that paper mills will be entitled to judicial review if the policy statement ever leads to the denial or modification of a permit. The policy does not require any mill to change its conduct now and is thus not a final agency action.

Counsel for Petitioner
Russell Frye, Chris Montgomery
Chadbourne & Parke
1101 Vermont Ave. NW, Washington DC 20005
(202) 289-3000

Counsel for Respondent
Diane Regas
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7706

Before WOOD, JR., FLAUM, and EASTERBROOK, Circuit Judges.