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Keywords

jurisdictioncompliancejudicial reviewclean water act
jurisdictionwillclean water act

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Municipal Authority of Borough of St. Marys v. U.S. E.P.A., 945 F.2d 67, 33 ERC 1753, 60 USLW 2223, 22 Envtl. L. Rep. 20,246

Facts

St. Marys Publicly Owned Treatment Works (POTW) sought review of the EPA's approval of an individual control strategy issued by the Pennsylvania Department of Environmental Resources and the inclusion of Elk Creek on the list of polluted waters under the Clean Water Act. The EPA had previously approved lists submitted by the Pennsylvania DER but did not include St. Marys on the discharger list until after further investigation. St. Marys was concerned about the costs associated with compliance under the Clean Water Act's § 304(l) program.

On February 3, 1989 the Pennsylvania DER sent the EPA its lists of polluted waters and dischargers.

Issue

Did the EPA's decisions to approve the individual control strategy and include Elk Creek on the list of polluted navigable waters constitute promulgation of an individual control strategy under the Clean Water Act, allowing for judicial review?

The petition for review will be dismissed.

Rule

The Clean Water Act allocates responsibilities between states and the EPA, emphasizing that states should play the principal role in the abatement of water pollution. Judicial review of EPA actions is limited to situations where the EPA has actually promulgated an individual control strategy.

In order to ensure that states play the principal role in the abatement of water pollution in their own jurisdictions, the Clean Water Act allocates responsibilities between the states and the EPA.

Analysis

The court analyzed the definitions and roles established by the Clean Water Act, concluding that the EPA's actions in approving the individual control strategy and listing decisions were preliminary steps in the permitting process. The court referenced previous cases that established that only the actual promulgation of an individual control strategy by the EPA is subject to judicial review, and since the EPA had not issued an ICS, the court lacked jurisdiction to hear the case.

The court further observed that when EPA disapproves a state-developed ICS or conditionally approves a state's draft permit as an ICS, it may at any subsequent time submit a written notification to the state that it intends to issue the ICS and that permit issuing authority has, therefore, reverted to the EPA.

Conclusion

The court dismissed the petition for review, concluding that it did not have jurisdiction over the EPA's decisions as they did not constitute the promulgation of an individual control strategy.

Accordingly, we conclude that we are without jurisdiction to hear St. Marys petition for review.

Who won?

Environmental Protection Agency (EPA) prevailed because the court found that it lacked jurisdiction to review the EPA's decisions regarding the individual control strategy and the listing of Elk Creek.

The court dismissed the petition for review, concluding that it did not have jurisdiction over the EPA's decisions as they did not constitute the promulgation of an individual control strategy.

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