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Texas Mun. Power Agency v. Administrator

ELR Citation: 16 ELR 20939
Nos. No. 85-4513, 799 F.2d 173/25 ERC 1062/(5th Cir., 09/05/1986)

The court holds that it lacks jurisdiction to review the Environmental Protection Agency's (EPA's) establishment of national pollutant discharge elimination system (NPDES) permit conditions on an outfall at petitioner Texas Municipal Power Agency's (TMPA's) steam generating plant because petitioner did not file its application for review within the 90-day period required under Federal Water Pollution Control Act (FWPCA) §509(b)(1). EPA reissued TMPA an NPDES permit authorizing discharges at seven wastewater outfalls at a steam generating plant in early 1984 and modified NPDES permit limitations at Outfalls 201 and 401 in May of 1985. Over one year after EPA reissued the permit, but less than three months after EPA issued permit modifications for the steam plant's other outfalls, TMPA brought this challenge to its NPDES permit restrictions on Outfall 301. The court holds that it is without jurisdiction to hear this challenge because petitioner did not file its application for review within the 90-day period required by FWPCA §509(b)(1) and, in a note, holds that none of the limited exceptions from the statutory time limit apply. The court rejects TMPA's claim that the 90-day period should run from the date EPA issued the modified permit, noting that TMPA's NPDES permit modifications only concern Outfalls 201 and 401 and that neither TMPA nor EPA considered any action concerning Outfall 301 in the modification proceedings. Case law and EPA's regulations limit the effect of a permit modification—unlike a permit extension—to the specific provisions modified. Thus, the court holds that the statutory time limit should run from the date EPA reissued TMPA's NPDES permit and not the date EPA issued the permit modification.

Counsel for Petitioner
Paul Gerard Gosselink
Lloyd, Gosselink, Ryan & Fowler
Suite 1100, 815 Brazos, P.O. Box 1725, Austin TX 78767
(512) 472-4551

Counsel for Respondents
Stephen L. Samuels, Erik D. Olson
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Before Hill and Will,* JJ.