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Chicago Ass'n of Commerce & Indus. v. EPA

Citation: 19 ELR 20765
No. Nos. 87-3057, -3074, 873 F.2d 1025/29 ERC 1629/(7th Cir., 04/28/1989)

The court holds that a district court properly dismissed a Federal Water Pollution Control Act (FWPCA) citizen suit challenge to the Environmental Protection Agency's (EPA's) denial of a publicly owned treatment works' (POTW's) application for authority to issue removal credits to indirect dischargers. The POTW had applied to EPA for authority to issue removal credits in 1985, before the Third Circuit's 1986 decision in Natural Resources Defense Council v. United States Environmental Protection Agency, 16 ELR 20693, which prohibited removal credits in the absence of sludge removal regulations. Congress subsequently provided a temporary stay of the Third Circuit's decision for pending removal credit applications. EPA denied this POTW's application after the stay had expired. The court first holds that plaintiffs complied with the 60-day notice requirement of FWPCA §505(b)(2) prior to filing suit. Although the original complaint was filed only 50 days after notice was given to EPA, the amended complaint comports with the notice requirement, and it is the dismissal of the amended compliant that the court is reviewing here. The court then holds that even if EPA had granted the POTW's application prior to the expiration of the stay, the removal credit authority would have been nullified when the stay terminated. Congress expressly conditioned the grant of any removal credit under FWPCA §307(b)(1) on compliance with sludge standards, and no POTW can comply with those standards until they have been promulgated. The court also holds that no action can be taken on the POTW's application until EPA has promulgated the sludge removal regulations. The regulations governing the application process do not permit consideration of an application until it satisfies certain requirements, one of which is that the application certify that the granting of removal credits will not cause a violation of the sludge requirements. With no sludge requirements in place, an application cannot satisfy this condition.

Counsel for Petitioners
John M. Cannon
Mid America Legal Foundation
20 N. Wacker Dr., Ste. 2263, Chicago IL 60606
(312) 263-5163

Robert Palmer
Connoly, Mustes & Palmer
208 La Salle, Chicago IL 60604
(312) 726-5575

James Harrington
Ross & Hardies
150 N. Michigan Ave., Ste. 2500, Chicago IL 60601
(312) 558-1000

Counsel for Respondents
Arthur Smith
Environmental Protection Agency
230 S. Dearborn, Chicago IL 60604
(312) 353-2000

Carl Strass, Michael McCord
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Before CUMMINGS, WOOD, JR., and CUDAHY, Circuit Judges.