United States v. Cutter Laboratories, Inc.

No. CIV-1-76-11 (413 F. Supp. 1295, 9 ERC 1209) (E.D. Tenn. May 25, 1976)

ELR Digest

Although EPA had not yet established effluent limitations or effluent limitation guidelines for defendant's industry pursuant to §§ 301(b) and 304(b) of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1311(b) and 1314(b), ELR 41112-14, EPA issued defendent a National Pollutant Discharge Elimination System (NPDES) permit, with particular effluent limitations based on EPA's "best engineering judgment" applicable to defendant's discharge of pollutants, pursuant to § 402(a) of the FWPCA, 33 U.S.C. § 1342(a), ELR 41123. Plaintiff brought this action for a civil penalty pursuant to § 309(d) of the Act, 33 U.S.C. § 1319(d), ELR 41123, for defendant's failure to achieve the permit-prescribed effluent limitations. Defendant moved to dismiss the action, or in the alternative for summary judgment, claiming that the court lacked jurisdiction and that § 309 does not allow such an action without establishment of the §§ 301(b) and 304(b) effluent limitations and effluent limitation guidelines.

In denying defendant's motion, the court notes that although NPDES permits incorporate the effluent limitation requirements established pursuant to the Act, § 402(a)(i) authorizes EPA to issue permits with such conditions as it deems necessary to carry out the purposeof the Act prior to taking all necessary implementing actions under the FWPCA. The enforcement section, § 309(a)(3), says that civil actions may be brought against violators of permit conditions, but it is unclear whether this is limited to permits conditioned on the industry-wide limitations and guidelines. The court concludes, therefore, that because permits are authorized to be issued prior to establishment of the industry-wide regulations, Congress intended that the conditions and limitations in such permits be enforceable under § 304. Otherwise, it would be a futile gesture for EPA to issue such a permit.

The full text of this opinion is available from ELR (5 pp. $0.75, ELR Order No. C-1083).

Counsel for Plaintiff
John L. Bowers, Jr., U.S. Attorney
201 U.S. Post Office & Court House
Knoxville TN 37902
(615) 637-9300

Ray H. Ledford, Asst. U.S. Attorney
359 U.S. Post Office & Court House
Chattanooga TN 37402
(615) 756-4250

Counsel for Defendant
R. Allan Edgar
Miller, Martin, Hitching, Tipton, Lenihan & Waterhouse
Volunteer State Life Bldg.
Chattanooga TN 37402
(615) 267-0931

Wilson, C.J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]