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Champion Int'l Corp. v. EPA

Citation: 17 ELR 20486
No. No. A-C-86-26, 648 F. Supp. 1390/25 ERC 1502/(W.D.N.C., 12/01/1986) State's motion for summary judgment granted

The court holds that the Federal Water Pollution Control Act (FWPCA) authorizes the Environmental Protection Agency (EPA) to object to a state-issued national pollutant discharge elimination system (NPDES) permit and to assume permitting authority for that discharger. The court first holds that EPA properly objected under §402(d)(2)(B) of the FWPCA to an NPDES permit issued by North Carolina that did not contain or refer to the state's color standard. Section 402(d)(2)(B) allows EPA to object to any permit proposed by a state that is outside the guidelines and requirements of the Act, and the regulations list a permit's failure to ensure compliance with an FWPCA requirement as appropriate grounds for objection. EPA reasonably concluded that with no method to measure compliance incorporated into the permit, there is no way to ensure compliance. The court holds that North Carolina did not file a timely response to EPA's objection. The state's letter was received after the 90-day period allowed for response. Even if the response was made within 90 days of the date of EPA's objection, the state did not ask for a public hearing or submit a revised permit as required by the regulations. The court holds that EPA did not act arbitrarily and capriciously in objecting to the permit based on the permit's failure to unequivocally require compliance with either North Carolina's or Tennessee's color standards. The language of the permit was clearly permissive, since it did not require further efforts to achieve color removal if the demonstration project to remove 75 percent of total mill effluent color was not deemed reasonably successful. Since Tennessee is an adjacent downstream state, its water quality standards are relevant to the permitting process, and EPA considered the color standards of both states in addition to the terms of the permit and the requirements imposed by the FWPCA.

The court holds that EPA did not act arbitrarily and capriciously in objecting to the permit on the grounds that it did not contain effluent limits necessary to comply with Tennessee's color standard. Although Tennessee's narrative standard contains no numerical requirements, EPA was entitled to insist that the permit assure compliancewith a specific numerical color unit level at the state line. The action is consistent with EPA policy to determine color standards on a case-by-case basis. A numerical limitation facilitates satisfactory compliance by the permittee, since it informs the permittee exactly what must be done to meet the narrative color standard. Lastly, the administrative record provides sufficient support for EPA's decision that the appropriate limit was 50 color units. The court rejects North Carolina's argument that Tennessee's selection of 50 units as the numerical interpretation of its narrative standard is invalid because Tennessee has not formally adopted the interpretation through rulemaking. EPA's policy is to consider color requirement on a case-by-case basis, and Tennessee law authorizes permit limitations that have not been promulgated. Moreover, Tennessee's comments filed during the North Carolina permitting process provided support for the 50-unit limit. The court holds that EPA was justified in objecting to the permit under §402(d)(2)(a) of the FWPCA, the Act's interstate dispute provision.

The court holds that EPA's jurisdiction, once it has validly assumed permitting authority, is not limited to the terms of the permit concerning color standards. The court notes that any specific objections that either the state or the permittee might have are not ripe for review and are only cognizable before the court of appeals under §509 of the FWPCA.

Counsel for Plaintiff
J. Jeffrey McNealey
Porter, Wright, Morris & Arthur
41 S. High St., Columbus OH 43215
(614) 227-2000

John S. Stevens, Gwynn G. Radeker
Roberts, Stevens & Cogburn
Northwestern Plaza, P.O. Box 7647, Asheville NC 28807
(704) 252-6600

Counsel for Defendants
Charles R. Brewer, U.S. Attorney; Clifford Marshall, Ass't U.S. Attorney
P.O. Box 132, Asheville NC 28802
(704) 259-0661

F. Henry Habicht II, Ass't Attorney General; Susan L. Smith
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701