Mahelona v. Hawaiian Elec. Co., Inc. (1976)

But see Mahelona v. Hawaii Electric Power Co., 418 F.Supp. 1328, 1332-34, n.6 (D.Hawaii 1976).

Except for ... the issuance of a permit under section 1342 of this title for the discharge of any pollutant by a new source as defined in section 1316 of this title, no action of the Administrator taken pursuant to this chapter shall be deemed a major federal action significantly affecting the quality of the human environment within the meaning of [NEPA]....” 33 U.S.C. § 1371 (c)(1) (emphasis added). 40 C.F.R. § 124.9 (b)(6) provides that “NPDES permits, other than permits t…

Sec. 124.9(b)(6) provides that "NPDES permits, other than permits to new sources ... are not subject to the [EIS] provisions of ... [NEPA]." Cf., Mahelona v. Hawaiian Electric Co., Inc., 418 F.Supp. 1328, 1334 (D.Haw.1976) ("There is no dispute that EPA was required to prepare an EIS only if the discharge facility is a 'new source' "); See generally, Save the Bay, Inc. v. United States Corps of Engineers, 610 F.2d 322, 326 (5th Cir.1980); Simons v. Gorsuch, 715 F.2d 1248, 12…

Co., 418 F. Supp. 1328, 1335 (D.

Co., 418 F.Supp. 1328, 1335 (D.Haw.1976) (stating electric generating plant was source of pollution under CWA, 16 but discharge facility was proposed method of control and therefore could not also be source).

In that case, the Court, after stating that the question of whether the issuance of an NPDES permit would constitute a major federal action was not present in that case, stated in a footnote, “in view of the significant role played by EPA in the state’s administration of its own NPDES program it appears likely that an EIS would be required of at least one responsible agency even when the state issues an NPDES permit in the first instance.” Id. at 1328-33, fn. 6 .

Compare Mahelona v. Hawaiian Electric Power Company, 418 F.Supp. 1328 , 1332 note 6 (D.Haw.1976) with Molokai Homesteaders Coop.