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Sierra Club v. Train

ELR Citation: 7 ELR 20120
Nos. No. 76-1026, 9 ERC 1549/(D.D.C., 12/15/1976)

The court dismisses for lack of jurisdiction a citizen suit challenging the Environmental Protection Agency (EPA) Administrator's exemption of facilities located in the Mahoning River Valley from the effluent limitations for Phase II of the Iron and Steel Manufacturing Point Source category. The Administrator's action in granting the Mahoning Valley exemption is so interwoven with the Phase II regulations that it constitutes action "approving or promulgating . . . effluent limitation[s] . . . under section 301" and is thus subject to review in the appropriate court of appeals under §509 of the Federal Water Pollution Control Act (FWPCA) Amendments of 1972. Although it cannot reasonably be contended that the exemption may also be characterized under §505 as a failure by the Administrator to perform a non-discretionary duty, the court concludes that it need not resolve the issue. The relevant case law emphasizes that bifurcated judicial review under the FWPCA is strongly disfavored, and indicates that the presence of jurisdiction in the court of appeals under §509 necessarily precludes §505 jurisdiction in the district court.

Counsel for Plaintiff
Ronald J. Wilson
810 18th St., NW
Washington DC 20006
(202) 628-3160

Jerome S. Kalur
Weston, Hurd, Fallon, Sullivan & Paisley
2500 Terminal Tower
Cleveland OH 44113
(216) 241-6602

John D. Hoffman
Sierra Club Legal Defense Fund
311 California St.
San Francisco CA 94104
(415) 398-1411

Counsel for Defendant
Raymond W. Mushal
Pollution Control Section
Department of Justice
Washington DC 20530
(202) 737-8200

Barry L. Malter
Office of the General Counsel
Environmental Protection Agency
Washington DC 20460
(202) 755-2500