Southern California Alliance of Publicly Owned Treatment Works v. EPA, No. 14-74047 (9th Cir. 2017)
Annotate this CaseSCAP petitioned for review of an objection letter sent by the EPA regarding draft permits for water reclamation plants in El Monte and Pomona, California. The court concluded that neither 33 U.S.C. 1369(b)(1)(E) or (F) provides the court subject matter jurisdiction to review the Objection Letter. The court explained that even when a state assumes primary responsibility for issuing National Pollutant Discharge Elimination System (NPDES) permits, EPA retains supervisory authority over state permitting programs under 33 U.S.C. 1342(d). In this case, the L.A. Board chose to revise the Draft Permits and retain control of the NPDES permitting process for the Plants, and the permits were issued through the State of California, not EPA. The court concluded that the appropriate avenue for SCAP to seek redress was through the State's review process. Accordingly, the court dismissed the petition for review.
Court Description: Environmental Law. The panel dismissed for lack of subject matter jurisdiction the petition for review brought by the Southern California Alliance of Publicly Owned Treatment Works, challenging an Objection Letter sent by the United States Environmental Protection Agency (EPA) regarding draft permits for water reclamation plants in El Monte and Pomona, California. The Clean Water Act prohibits the discharge of any pollutant into navigable waters from any point source without a permit, and permits are issued in accordance with the National Pollutant Discharge Elimination System (NPDES). When a state assumes primary responsibility for issuing NPDES permits, the EPA retains supervisory authority over state permitting programs under 33 U.S.C. § 1324(d). In 1973, the EPA granted California authority to administer its NPDES permits program. The Los Angeles Regional Office of the California State Water Resources Control Board prepared the draft NPDES permits for the water reclamation plants at issue. The EPA issued an Objection Letter to the draft permits raising concerns about the effluent toxicity. The Los Angeles Board revised the draft permits to meet the terms of the EPA’s Objection Letter, and issued the permits. SCAP V. EPA 3 Petitioners argued that the draft permits were consistent with the Clean Water Act and that the EPA exceeded its authority in requiring water quality-based effluent limitations for whole effluent toxicity and other limitations. The panel held that neither 33 U.S.C. § 1369(b)(1)(E) nor (F) of the Clean Water Act provided the court with subject matter jurisdiction to review the Objection Letter. The panel held that when a state assumes responsibility for administering the NPDES program, the state becomes the permit-issuing authority, and an EPA objection to a draft permit is merely an interim step in the state permitting process. The panel held that here, the Los Angeles Board chose to revise the draft permits and retain control of the NPDES permitting process for the plants, and the permits were issued through the State of California, not the EPA. The panel concluded that the appropriate avenue for petitioners to seek redress was through the State’s review process.
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