Save the Bay v. Administrator, Environmental Protection Agency

Under the Federal Water Pollution Control Act Amendments of 1972 (amendments), the system of control of discharges of pollutants into waterways changed from a system that specified acceptable levels of pollutants in waterways to a permit system limiting the amounts of effluents from point sources. The amendments created the National Pollution Discharge Elimination System (NPDES), which required any individual discharger of pollutants to obtain a permit. The amendments also set up a system of cooperation between federal and state governments by allowing states to apply to the Environmental Protection Agency (EPA) (defendant) to be granted the authority to issue and administer their own point-of-discharge permits. The Mississippi Air and Water Pollution Control Commission (commission) was granted such authority. The EPA retained oversight authority allowing it to veto permits issued under approved state programs and, if appropriate, withdraw its approval of a state program altogether upon a determination that the program was not being administered in compliance with the requirements of the amendments. In 1975, the commission granted to E.I. DuPont de Nemours & Company (DuPont) a permit to operate a titanium dioxide plant that discharged effluents into the St. Louis Bay. The commission gave notice to the EPA of the issuance of the permit, and the EPA suggested changes, which the commission incorporated into its final draft permit. Save the Bay, Inc. (plaintiff) filed a petition claiming that the commission’s handling of DuPont’s permit application was so wrongful as to justify the EPA’s revocation of the commission’s authority to grant such permits. In the alternative, Save the Bay requested that the court review the EPA’s failure to veto this specific permit. The EPA argued that the court did not have jurisdiction to consider Save the Bay’s arguments.