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Alabama ex rel. Baxley v. EPA

ELR Citation: 7 ELR 20690
Nos. No. 75-4435, 557 F.2d 1101/10 ERC 1481/(5th Cir., 08/18/1977)

The court upholds a national pollution discharge elimination system permit issued by the Environmental Protection Agency (EPA) insofar as it requires best practicable technology (BPT) effluent limitations, as taken from an earlier consent decree in a Refuse Act enforcement suit, but vacates the additional requirement for more stringent limitations necessary to achieve a fish and wildlife water quality standard in Five Mile Creek by July 1, 1979. The agency was correct in concluding that the appropriate BPT limitations to be applied in a discharge permit are those in effect at the time of initial issuance of the final permit. The permit in this case was also issued in full compliance with the public participation requirement of §402(a)(1) of the Federal Water Pollution Control Act Amendments of 1972. That requirement does not guarantee that a particular result will flow from the administrative process, and EPA was within its discretionary authority in deciding, over petitioners' objections, that the effluent limitations in the consent decree were also appropriate for the permit. Because EPA's attempt to supersede the state's "fish and wildlife as a goal" water quality standard for Five Mile Creek with a stricter "fish and wildlife" standard was judicially invalidated in an earlier lawsuit, the state standard is the only one applicable to the creek and EPA's imposition of a requirement for achievement of effluent limitations more stringent than BPT to implement the fish and wildlife standard must be vacated.

Counsel for Petitioner State of Alabama
William J. Baxley, Attorney General, Henry H. Caddell, Ass't Attorney General
250 State Administration Bldg., Montgomery AL 36104
(205) 834-5150

Counsel for Petitioners Alabama Conservancy et al.
Don B. Long, Jr.
Johnston, Barton, Proctor, Swedlaw & Naff
1212 Savings Bldg., Birmingham AL 35203
(205) 322-0616

Counsel for Respondents
Patrick A. Mulloy
Pollution Control Section
Department of Justice, Washington DC 20530
(202) 737-8200

Before MORGAN and HILL, Circuit Judges, and NOEL,* District Judge.