State of Wash. v. U.S. E.P.A.

• Decision Date: 06 March 1978
• Docket Number: Nos. 75-2479,75-2494 and 76-1305,s. 75-2479
• Parties: , 8 Envtl. L. Rep. 20,314 STATE OF WASHINGTON, and its Department of Ecology, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train, Administrator, and Clifford V. Smith, Jr., Regional Administrator, Region X, Respondents. SCOTT PAPER COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train, Administrator, and Clifford V. Smith, Jr., Regional Administrator, Region X, Respondents. SCOTT PAPER COMPANY, Plaintiff-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Russell E. Train, Administrator, and Clifford V. Smith, Jr., Regional Administrator, Region X, Defendants- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 583

573 F.2d 583

11 ERC 1339, 8 Envtl. L. Rep. 20,314

STATE OF WASHINGTON, and its Department of Ecology, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Russell E.

Train, Administrator, and Clifford V. Smith, Jr.,

Regional Administrator, Region X, Respondents.

SCOTT PAPER COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Russell E.

Train, Administrator, and Clifford V. Smith, Jr.,

Regional Administrator, Region X, Respondents.

SCOTT PAPER COMPANY, Plaintiff-Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Russell E.

Train, Administrator, and Clifford V. Smith, Jr.,

Regional Administrator, Region X,

Defendants- Appellees.

Nos. 75-2479, 75-2494 and 76-1305.

United States Court of Appeals Ninth Circuit.

March 6, 1978.

Rehearing Denied April 14, 1978.

Charles W. Lean, Asst. Atty. Gen., Olympia, Wash., for petitioners.

Michael D. Graves, Esq., Washington, D. C., for respondents.

On Petition for Review of an Order of the United States Environmental Protection Agency Nos. 75-2479 and 75-2494.

Appeal from the United States District Court for the Western District of Washington No. 76-1305.

Before KOELSCH, DUNIWAY and GOODWIN, Circuit Judges.

KOELSCH, Circuit Judge:

These three matters ¹ arise under the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, 86 Stat. 816, 33 U.S.C. § 1251 et seq. ²

They commonly concern objections of the Regional Administrator ³ of the United States Environmental Protection Agency (EPA) to a National Pollutant Discharge Elimination System (NPDES) permit issued by the State of Washington through its Department of Ecology (DOE) to Scott Paper Company (Scott) for the discharge of sulphite wastes from the latter's wood pulp and paper mill near Anacortes, Washington, into the waters of Puget Sound (the Anacortes permit). ⁴

Prior to issuing the permit, DOE transmitted a copy to the Administrator, who registered his formal objection to the permit as proposed by DOE. Notwithstanding the Administrator's purported veto under § 402(d) ⁵ of the Act, DOE issued the permit to Scott; the Administrator then proceeded to impose sanctions on Scott. ⁶ This precipitated these several proceedings.

The provision, relied upon by the district court as the ground for dismissal of Scott's suit for declaratory and injunctive relief, and likewise urged by petitioners here as the one vesting this court with original jurisdiction, appears in subsection (b)(1) of § 509.

The subsection itself is headed "Review of the Administrator's action" and is followed by a specification of six "actions" which a court of appeals is given jurisdiction to review at the behest of an interested person. The particular provision relied upon is 509(b)(1)(F). It reads thus:

"Review of the Administrator's action

"(F) in issuing or denying any permit under section 402, may be had by any interested person in the Circuit Court of Appeals of the United States . . . ."

In terms, at least, this provision does not extend to a state's grant or rejection of a permit; it is limited to the Administrator and to his own action in issuing or denying a permit, not to his objection to a state's action in doing so. Nor does the Act's legislative history reveal any statement or basis for the conclusion that the lawmakers intended to include state action within § 509. Neither does § 402 afford any basis for a different conclusion; in substance, that section contemplates that for a limited period of time following the effective date of the Act, the Administrator will issue or deny NPDES permits, but also makes provision for the states to take over that function upon compliance with certain conditions. See § 402(a), (b) and (c). Thus it would seem fair to conclude from a literal reading of the provisions of § 509(b)(1)(F) that when the Congress spoke of the Administrator's action in "issuing or denying" any permit, it had in mind this period during which the Administrator was to act in such matters and was mindful that the states would probably shortly take over the permitting authority. Nor does anything in § 402 or elsewhere in the Act suggest the existence of an agency relationship between the Administrator and a state so that the latter's action in issuing or denying a permit could be deemed action of the Administrator. To the contrary, § 402 makes clear that once the state has secured approval of its own permit program, its actions in permit matters are those of the state itself, subject to the Administrator's veto under § 402(d). See Shell Oil Co. v. Train, 415 F.Supp. 70, 77 (N.D.Cal.1976).

It is vigorously contended that § 402(d)(2)(B) the provision under which the Administrator purported to veto the Anacortes permit brings the matter within the purview of § 509(b)(1)(F). That provision reads:

"(2) No permit shall issue

"(B) if the Administrator within ninety days of the date of transmittal of the proposed permit by the State objects in writing to the issuance of such permit as being outside the guidelines and requirements of this Act."

In substance, the argument is that the Administrator's objection to a state-issued NPDES permit constitutes "action" in denying a permit. But the predicate for this argument requires an exercise in verbal gymnastics which we find wholly unwarranted. As already pointed out, § 509 in clear and unmistakable language limits itself to the Administrator's own permit functions. Both the Second and Fifth Circuits in instances where an interested person initiated a proceeding in a Court of Appeals under the purported authority of § 509 to review the Administrator's refusal or failure to object to a state-issued permit have read and applied the provision literally, taking the view that the Administrator's failure or refusal to act is not tantamount to the kind of "action in issuing a permit" intended by § 509(b)(1)(F). Save the Bay, Inc. v. Administrator of E. P. A., 556 F.2d 1282 (5th Cir. 1977); Mianus River Reservation Committee v. Administrator, 541 F.2d 899 (2d Cir. 1976). True, those decisions dealt with the "issuing," not the "denying," clause of the provision, but we think the rationale of Save the Bay and Mianus River is applicable here. The common sense of the phrase "to the issuance" does not connote "fail to object." And if the text of § 509 will not support such a strained construction of "action in issuing," neither will it support a construction equating "action in denying" with "objecting." Not only is the language of § 509(b)(1)(F) clear and unequivocal, but neither the text nor the legislative history of the statute lends any support to a judicial construction which would fracture the provision in halves, equating "denying" with "objecting," but not equating "issuance" with "not objecting." We decline to place so radical a gloss upon the provision.

It follows that we are obliged to dismiss the two petitions.

We come now to the question whether the district court (in No. 76-1305) was correct in ruling that it lacked jurisdiction to entertain and decide Scott's suit for declaratory and injunctive relief. Our conclusion that we lack subject matter jurisdiction over petitioners' claims under § 509 does not necessarily mean that the Administrator's action in objecting to the Anacortes permit is not subject to judicial review at all. Generally, final administrative action is presumed to be subject to judicial review at the instance of an aggrieved party and "will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). See also Dunlop v. Bachowski, 421 U.S. 560, 567, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Rusk v. Cort, 369 U.S. 367, 379-380, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962); Bays v. Miller, 524 F.2d 631, 632 (9th Cir. 1975); Montana Chapter of Ass'n of Civilian Technicians, Inc. v. Young, 514 F.2d 1165, 1168 (9th Cir. 1975); Washington Utilities & Transp. Commission v. F.C.C., 513 F.2d 1142, 1145-46 (9th Cir. 1975), cert. denied,423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975).

The mere fact that Congress prescribed a specific mode of judicial review for those actions of the Administrator enumerated in § 509(b)(1) of the Act does not alone suffice to preclude an alternative form of judicial review of final administrative action not encompassed within the provision of § 509(b)(1): " 'The mere fact that some acts are made reviewable should not suffice to support an implication of exclusion as to others. The right to review is too important to be excluded on such slender and indeterminate evidence of legislative intent.' " Abbott Laboratories v. Gardner, supra, 387 U.S. at 141, 87 S.Ct. at 1511. "(O)nly upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Id. at 141, 87 S.Ct. at 1511. See also Dunlop v. Bachowski, supra, 421 U.S. at 567, 95 S.Ct. 1851; Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 410, 91 S.Ct. 814; Rusk v. Cort, supra, 369 U.S. at 379-380, 82 S.Ct. 787; Kitchens v. Department of Treasury, 535 F.2d 1197, 1199 (9th Cir. 1976); Rothman v. Hospital Service of Southern California, 510 F.2d 956, 958 (9th Cir. 1975).

Nothing in the structure of the statutory scheme, its legislative history, or the nature of the Administrator's action in objecting to a proposed state-issued NPDES permit suggests that Congress meant to preclude judicial review of the Administrator's exercise of the veto power conferred by § 402(d). Cf. Save the Bay, Inc. v. Administrator of E. P. A., supra; Mianus River Preservation Committee v. Administrator, supra. Indeed, the very breadth of those actions of the Administrator explicitly subjected to judicial review by the terms of § 509(b)(1) strongly...