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Umatilla Waterquality Protective Ass'n v. Smith Frozen Foods, Inc.

ELR Citation: 28 ELR 20272
Nos. 96-657-JO, 962 F. Supp. 1312/(D. Or., 09/23/1997) Denying plaintiff's motion to reconsider and granting defendant's motion to vacate stay

A district court denies an environmental group's motion to reconsider its previous holding that a corporation's national pollution discharge elimination system (NPDES) permit does not apply to any discharges to groundwater. The court first holds that the U.S. Environmental Protection Agency's (EPA's) recent interpretations of the Federal Water Pollution Control Act (FWPCA) do not indicate that the NPDES permit requirement applies to discharges to groundwater that is hydrologically connected to surface water. EPA has never offered a definitive or formal interpretation on this matter that warrants the court's deference. Although EPA has asserted that in limited cases the NPDES program may apply to hydrologically connected groundwater, EPA has not actively attempted to make this interpretation comprehensive. In addition, the legislative history of the FWPCA, its language, and the 24-year history of state regulation indicate that the NPDES permit requirement does not apply to any discharges to groundwater. Such discharges are, in commonsense terms, discharges to groundwater, not discharges to navigable waters subject to the NPDES permit requirement. The court then vacates the stay on the case, because the Ninth Circuit denied the interlocutory appeal regarding the issue of discharges to groundwater.

[A prior decision in this litigation is published at 27 ELR 21411.]

Counsel for Plaintiff
Bill Kloos
Johnson, Kloos & Sherton
767 Willamette St., Ste. 203, Eugene OR 97401
(541) 687-1004

Counsel for Defendant
Jerry B. Hodson
Miller, Nash, Wiener, Hager & Carlsen
111 SW 5th Ave., Ste. 3500, Portland OR 97204
(503) 224-5858