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Washington v. EPA

Citation: 8 ELR 20314
No. No. 75-2479, 573 F.2d 583/11 ERC 1339/(9th Cir., 03/06/1978)

The Ninth Circuit reverses a lower court's dismissal of an action seeking declaratory and injunctive relief against the Environmental Protection Agency (EPA) Regional Administrator's veto of a state-issued national pollutant discharge elimination system permit for a paper mill but dismisses two petitions for direct review of the EPA action. The district court mistakenly concluded that the suit was barred by § 509(b)(1)(F) of the Federal Water Pollution Control Act, which vests the courts of appeals with exclusive original jurisdiction to review EPA's action in issuing or denying a permit under § 402. An examination of the statutory language, the legislative history, and analogous case law indicates that the Administrator's veto under § 402(d) does not constitute "action" denying the permit for the purposes of § 509. The court of appeals therefore lacks subject matter jurisdiction over the petitions under § 509, and the agency's objection to the state-issued permit is subject to normal judicial review in the district court under § 10 of the Administrative Procedure Act (APA). The court concludes, however, as a matter of statutory interpretation, that the Administrator's exercise of the veto power conferred by § 402(d) is contingent upon the antecedent formulation of effluent limitations under § 304(b). The EPA veto in this case was based not on duly established § 304 guidelines prescribing the best practicable control technology for all classes of the pulp and paper industry but on interim criteria which had not been promulgated in conformity with the rule-making provisions of the APA.The court rules that the Regional Administrator therefore lacked authority to veto the state-issued permit.

Counsel for Petitioner State of Washington
Slade Gorton, Attorney General; Charles B. Roe, Jr., Charles W. Lean, Ass't Attorneys General
Temple of Justice, Olympia WA 98504
(206) 753-2550

Counsel for Petitioner Scott Paper Co.
Roberts B. Owen, Theodore L. Garrett
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6147

Counsel for Respondents
Michael D. Graves, Earl Salo
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-4496

Before KOELSCH, DUNIWAY and GOODWIN, Circuit Judges.