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Wisconsin v. Metropolitan Council

Citation: 12 ELR 20617
No. No. 4-81-716, (D. Minn., 04/23/1982)

The court dismisses a suit by Wisconsin against the Environmental Protection Agency (EPA) and Minnesota agencies pertaining to reissuance of a national pollutant discharge elimination system (NPDES) permit for a sewage treatment plant. Under Wisconsin law, the attorney general must have specific statutory authorization to bring an action or must act on request of the governor or one branch of the legislature. Mere acquiescence in the suit by the present governor, acting in the belief that a valid authorization had been given by the previous governor, does not constitute a proper request.On this ground the complaint must be dismissed. Even if other counsel have been given valid authority to represent the state, such authority was granted shortly before the suit was filed. Therefore, the case must be dismissed for failure to comply with the mandatory 60-day notice requirement of § 505(b)(1)(A) of the Federal Water Pollution Control Act (FWPCA). The court also holds that dismissal of the suit is warranted on grounds that primary jurisdiction over the matterlies with the Minnesota Pollution Control Agency, which is conducting an adjudicatory hearing to consider the proposed permit renewal. Moreover, there is no federal cause of action for persons seeking review of state decisions on NPDES permits, no opportunity for federal judicial review of EPA decisions not to veto a state permit, and no implied right of action against permitting agencies under the FWPCA.

[The pleadings in this case are summarized at ELR PEND. LIT. 65737 and 65746 — Ed.]

Counsel for Plaintiff
Raymond M. Roder, Carl A. Sinderbrand, Ass't Attorneys General
Department of Justice
P.O. Box 7857, Madison WI 52707
(608) 266-3936

Charles K. Dayton
Dayton, Herman, Graham & Getts
10 S. 5th St., Minneapolis MN 55401
(612) 339-7633

Counsel for Defendant Metropolitan Council
John T. Hoeft, Staff Attorney
Metropolitan Council
Metro Sq. Bldg., 121 7th St. E., St. Paul MN 55101
(612) 291-6359

Counsel for Defendant State of Minnesota
Marlene E. Senechal, Eldon G. Kaul, Ass't Attorneys General
102 State Capitol, St. Paul MN 55155
(612) 296-2591

Counsel for Defendant Metropolitan Waste Control Comm'n
Robert A. Hillstrom
Hillstrom, Bale & Nemo
750 Pillsbury Ctr., Minneapolis MN 55402
(612) 332-8063

Counsel for Federal Defendants
David T. Buente Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2807

Alan W. Eckert, Roger Grimes
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134