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Armco, Inc. v. EPA

Citation: 19 ELR 20769
No. No. 88-3070, 869 F.2d 975/29 ERC 1250/(6th Cir., 03/15/1989)

The court holds that it lacks jurisdiction to review the Environmental Protection Agency's (EPA's) objection to Ohio's approval of removal credits for the benefit of an Ohio city and an industry discharger. Ohio had determined that removal credit applications could be approved up to a certain date despite the Third Circuit's 1986 decision in Natural Resources Defense Council v. United States Environmental Protection Agency, 16 ELR 20693, which held that removal credits could not be issued prior to promulgation of the sludge removal regulations required by Federal Water Pollution Control Act (FWPCA) §405(d). EPA disagreed, and objected to the state agency's approval of the removal credits. The court holds that the issuance of the sludge removal regulations is a nondiscretionary duty, and thus jurisdiction lies in the district court under FWPCA §505. The 1987 amendments to the FWPCA set out specific deadlines for promulgation of the regulations, and EPA acknowledges its responsibility on this matter. The court of appeals has no jurisdiction under FWPCA §509(b)(1), since EPA has not promulgated any effluent or pretreatment standards under §307. The industry discharger's challenge to EPA's 1987 general pretreatment regulations is an attempt to bypass original district court jurisdiction, since EPA noted in the preamble that sludge regulations are a precondition for granting removal credits.

Even if it did have original jurisdiction, the court holds, issuance of removal credits is improper. Although the 1987 FWPCA amendments provided for a stay of the Third Circuit decision for pending removal credit applications, the stay provision assumed that EPA would be issuing new sludge removal regulations. EPA's interpretation that Congress only stayed the ban temporarily until the Agency promulgated the sludge regulations is a permissible interpretation of the 1987 amendments. The court holds that the industry discharger does not have a vested and equitable right to the removal credit. Even if the discharger did in fact receive a removal credit from Ohio prior to the date established by the 1987 stay provision, and even if EPA failed to note its objection in a timely manner as alleged, the Third Circuit decision and the statute invalidated all removal credits. Ohio was fully aware of EPA's position that no effective credits could be granted after the deadline without new sludge regulations. Although the discharger advances substantial equitable claims, delay in the promulgation of regulations alone is not a basis on which the court may ignore the case law and the statute.

Counsel for Petitioner
Christopher Schraff
Porter, Wright, Morris & Arthur
41 S. High St., Columbus OH 43215
(614) 227-2000

Counsel for Respondent
David J. Kaplan
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Before: ENGEL, Chief Judge, and WELLFORD, Circuit Judge; and THOMAS*, Senior District Judge.