Homestake Mining Co. v. Environmental Protection Agency

No. 78-1454 (8th Cir. October 10, 1978)

The court dismisses for lack of jurisdiction a petition to review the Environmental Protection Agency's denial of a request for modification of a national pollutant discharge elimination system permit which specifies effluent limitations for waste water discharged from petitioner's gold mine. The court finds it unnecessary to decide whether the petition is invalid because it was filed more than 90 days after issuance ofthe permit, ruling that the petition must be dismissed in any case because it was filed more than 90 days after the denial of the requested modification and was not based solely on grounds arising after the 90th day.

Counsel for Petitioner
A.P. Fuller
Kellar, Kellar, Fuller, Amundson & Furze
215 W. Main St., Lead SD 57754
(605) 584-2440

Counsel for Respondent
Mark R. Sussman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2752

Nancy Othmer
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-0835

Lay, Bright, and Ross, JJ.

[8 ELR 20745]

Per curiam:

Homestake Mining Company owns and operates a large gold mining and milling facility in the City of Lead, South Dakota. Its waste water is discharged into Gold Run Creek, a tributary of Whitewood Creek, which has been classified as a cold water marginal fishery by the State of South Dakota.

On September 3, 1976, the Environmental Protection Agency issued Homestake a final national pollutant discharge elimination system (NDES) permit, which set specific effluent limitations requiring treatment to control pollutants in Homestake's waste-water discharge. See 33 U.S.C. §§ 1311(a), 1342. On February 7, 1978, Homestake requested a modification of its permit. The EPA Regional Administrator denied Homestake's request on March 20, 1978, stating that EPA found no basis in fact or law for Homestake's arguments and that Homestake had not presented any new evidence or factors which would support a request for modification.Homestake then filed a petition for review of the Administrator's decision in this court pursuant to 33 U.S.C. § 1369(b).

EPA has moved to dismiss the appeal for lack of jurisdiction due to untimely filing of the petition for review.¹ The applicable time limit is found in 33 U.S.C. § 1369(b), which provides:

Any such application shall be made within ninety days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such ninetieth day.

EPA points out that Homestake's NPDES permit was issued in September of 1976, and the 90-day period has long since expired. EPA also argues that the exception to the time period, for an application based solely upon grounds which arose after the ninetieth day, does not apply. In response to Homestake's contention that it does not rely on the exception, but petitions for review of the February 1978 denial of its request for modification, EPA argues that Homestake did not present new issues and circumstances in its request for modification, and should not be allowed to litigate issues which were ripe for review during the 90-day period following issuance of the original permit. We do not address that argument, since we find that even if Homestake may petition for review of the denial of permit modification, its petition was not timely filed.

The request for modification was denied by EPA on March 10, 1978. As the petition was received by the clerk of this court on June 12, 1978, it was filed four days after the statutory period expired. Homestake admits it received notice of the decision on March 15, 1978 well within the 90-day period. Homestake does not allege new grounds for modification which arose after the ninetieth day so as to bring its petition within the statutory exception. The petition for review must therefore be dismissed for lack of jurisdiction. American Ass'n of Meat Processors v. Costle, 556 F.2d 875 [7 ELR 20517] (8th Cir. 1977); Sun Enterprises, Ltd. v. Train, 532 F.2d 280 [6 ELR 20331] (2d Cir. 1976).

IT IS SO ORDERED.

1. EPA also argues that a mere exchange of letters does not provide this court with a reviewable record, see Union Electric Co. v. EPA, 515 F.2d 206, 219 [6 ELR 20259] (8th Cir. 1975), aff'd 427 U.S. 246 [6 ELR 20570] (1976), and that even if the petition is timely filed, Homestake really requests review of the state water quality standards and basin plan, which are not among the items subject to judicial review under the terms of 33 U.S.C. § 1369(b).