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Lake Carriers' Ass'n v. Environmental Protection Agency

Citation: 41 ELR 20250
No. No. 09-1001, (D.C. Cir., 07/22/2011)

The D.C. Circuit denied trade associations' petition for review of a nationwide permit issued by EPA for the discharge of pollutants incidental to the normal operation of vessels. The associations, which represent commercial ship owners and operators, raised a number of procedural challenges, all related to EPA's decision to incorporate into the permit over 100 conditions that states submitted to protect their own water quality. Their primary contention was that EPA failed to provide notice and an opportunity for comment before promulgating the final permit. Although the associations were given the opportunity to review the draft permit, the draft permit contained none of the more than 100 state certification conditions that were appended to the final permit. They therefore alleged that they were deprived of the opportunity to comment regarding the potential conflicts and burdens created by the cumulative effects of the state conditions. EPA, however, does not have the ability to amend or reject conditions in a state's CWA §401 certification. Under those circumstances, providing notice and an opportunity for comment on the state certifications would have served no purpose.