Arguing For An Interpretation Of The Clean Water Act That Allows A Company To Continue Operating While Its Renewal Application For A Discharge Permit Is Pending
The issue in this case was whether a company that has filed a timely application for renewal of a now-expired National Pollution Discharge Elimination System (“NPDES”) permit, may continue to operate and discharge pollutants under the expired permit’s terms until the relevant government agency, which was the Environmental Protection Agency (“EPA”) before 2001 and the Maine Department of Environmental Protection (“DEP”) thereafter, has issued a new permit. For over twenty years International Paper (“IP”) operated its paper mill in Jay, Maine, under a 1985 NPDES permit while waiting for the EPA and more recently the Maine DEP to issue a new permit. (As contemplated by the Clean Water Act (“CWA”), the EPA has delegated its NPDES permitting authority to the DEP.) It has done this pursuant to an EPA regulation and a specific provision of the federal Administrative Procedures Act which provide that, where a legally sufficient application for the renewal of a permit has been made to the responsible agency, the permittee may continue operating under the terms of its existing permit until the agency issues a new permit. Nevertheless, the plaintiffs brought this action against IP in the Maine federal District Court. The plaintiffs claimed both that the delegation by the EPA to the Maine DEP cancelled IP’s right to operate under its expired 1985 permit and that the continuation regulations should not be interpreted to mean that a permittee can continue to operate for over twenty years under an expired permit. Plaintiffs asked the District Court to order that IP immediately cease operations pending the issuance of a new permit and pay penalties for its operation after its permit allegedly expired due to delegation. IP moved to dismiss plaintiffs’ complaint on the ground that there is no language limiting the continuation regulations in the manner plaintiffs alleged and that the act of delegation had no impact on those regulations. IP also pointed out that the Maine DEP has issued a proposed permit for IP on which the public comment period had recently ended, and that it was likely that a final permit would issue in the near future thus rendering the matter moot.
NELF filed an amicus memorandum in support of IP in the District Court. In its memorandum, NELF supported IP’s argument that delegation of permitting authority to Maine did not invalidate IP’s ability to operate under its 1985 permit. NELF also argued that a contrary interpretation would expose any business that operates under NPDES permits, no matter how important its operation may be to the local and/or regional economy, to the risk that it may have to close down if a federal or state agency doesn’t renew its permit in time. Given the backlog at the EPA, which makes timely renewal of NPDES permits unlikely, this does not make sense from the policy perspective. Finally, NELF pointed out that the plaintiffs’ real complaint is with the regulations that permit continuation (which were held to be valid in Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, et al., 859 F.2d 156 (D.C. Cir. 1988)) and that they have no valid cause of action against IP.
On March 28, 2006, the District Court granted IP’s motion and dismissed the complaint.