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Montgomery Envtl. Coalition v. Costle

ELR Citation: 11 ELR 20211
Nos. Nos. 79-1183, -1576, 646 F.2d 568/15 ERC 1118/(D.C. Cir., 10/08/1980)

The D.C. Circuit Court of Appeals dismisses a challenge to a national pollutant discharge elimination system (NPDES) permit for a sewage treatment plant on mootness grounds and remands the permit for another plant for further proceedings. The court first rules that petitioners have standing to challenge the Environmental Protection Agency's (EPA's) issuance of NPDES permits to the Seneca and Blue Plains treatment plants, both of which discharge effluents into the Potomac River near Washington, D.C. The challenge to the Seneca permit, however, is dismissed for mootness since the permit has expired and EPA has transferred permit issuing authority to the state of Maryland. Even though the Blue Plains permit has also expired, the court finds that this aspect of the case is not moot because the replacement permit for the plant is subject to similar disputes between the parties. As to the merits of petitioners' claims, the court determines that the EPA General Counsel erroneously interpreted the Federal Water Pollution Control Act to forbid the Agency from issuing such a permit subject to the conditions that (1) further sewer hookups be forbidden and (2) means of treating sewage overflow by land disposal be developed. EPA has broad authority to attach conditions to permits for treatment plants and therefore improperly prevented petitioners from introducing evidence at the administrative level regarding the merits of these proposed permit conditions. The court agrees with EPA, however, that a series of 58 sewage overflow points in the sewer network feeding the plant are properly viewed as point sources subject to best practicable treatment standards rather than components of the plant itself and thus subject to secondary treatment standards. Finally, the court rules that EPA is not bound by a group of planning documents and memoranda to require that the Blue Plains plant install denitrification equipment.

Counsel for Petitioners
Richard A. Flye, Herbert L. Fenster, Joe G. Hollingsworth
McKenna, Conner & Cuneo
1575 I St. NW, Washington DC 20005
(202) 789-7500

William H. Rodgers Jr.
Condon Hall, University of Washington School of Law, Seattle WA 98195
(206) 543-4550

Counsel for Respondents
Nancy J. Marvel, Donald W. Stever Jr.; Angus Macbeth, Acting Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3140

Diane L. Olsson, John E. Varnum
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Intervenor Wash. Suburban Sanitary Comm'n
Henderson J. Brown, J. Eugene Cleary
4017 Hamilton St., Hyattsville MD 20781
(301) 699-4729

Counsel for Intervenor District of Columbia
Judith W. Rogers, Corp. Counsel; John C. Salyer, Ass't Corp. Counsel
1350 E St. NW, Washington DC 20004
(202) 727-6248

Counsel for Intervenor Prince George's County
Richard S. Alper, Associate Cty. Attorney
14741 Governor Oden Bowie Dr., Rm. 5104, Cty. Administration Bldg., Upper Marlboro MD 20870
(301) 952-4228

Counsel for State of Maryland
Richard E. Rice, Thomas A. Deming, Ass't Attorneys General
Dept's of Law, One S. Calvert St., Baltimore MD 21202
(301) 383-3737

Before: MacKINNON, WALD, and MIKVA, Circuit Judges.