Boise Cascade Corp. v. U.S. E.P.A.

Decision Date07 October 1991
Docket Number90-70496,90-70494,90-70262,Nos. 89-70428,90-70497,89-70429,89-70430,91-70056 and 91-70426,s. 89-70428
Citation942 F.2d 1427
CourtU.S. Court of Appeals — Ninth Circuit

Nora Chorover, Citizens for a Better Environment, San Francisco, Cal., Richard H. Williams, Lane, Powell, Spears, Lubersky, Jay T. Waldron and David F. Bartz, Jr., Schwabe, Williamson, Wyatt, Portland, Oregon; Victor Sher, Sierra Club Legal Defense Fund, Seattle, Wash. and John E. Bonine, Eugene, Or., for petitioners.

Marilyn Jacobsen and Martin F. McDermott, U.S. Dept. of Justice, and Diane Regas, E.P.A., Washington, D.C., for respondent.

Robert L. Falk, Morrison & Foerster, San Francisco, Cal., for intervenor.

Petition for Review of a Decision of the Environmental Protection Agency.

Before WRIGHT, BEEZER and WIGGINS, Circuit Judges.

BEEZER, Circuit Judge:

This is a consolidated disposition concerning two related petitions brought pursuant to the Clean Water Act (Act). California and Oregon each submitted to the United States Environmental Protection Agency (EPA) an individual control strategy (ICS) intended to address the discharge of toxic pollutants into water segments within its respective state. The EPA approved the ICSs and these petitions followed.

Citizens for a Better Environment (Citizens) petitions for review of the California ICS. The Santa Clara Valley Nonpoint Source Dischargers (Municipalities), a consortium of municipalities whose stormdrains were the identified cause of the discharge petitioned to intervene. 1 The Oregon ICS is being challenged by three pulp and paper mills affected by that ICS, 2 and by the Northwest Coalition for Alternatives to Pesticides (the Coalition). 3 We dismiss both petitions for lack of jurisdiction.


The Clean Water Act, 33 U.S.C. § 1251 et seq., is intended "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. One of the policies of the Act is to "recognize, preserve, and protect the primary responsibilities and rights of States" in the restoration and maintenance of their waters and in the application of the Act. See 33 U.S.C. § 1251(b). 4 This policy is evident in the requirement, added by the Water Quality Act of 1987, that states identify navigable waters affected by toxic pollutants and develop strategies for cleaning them.

Section 304(l ) of the Act requires each state to list all navigable waters for which the state does not expect to be able to achieve applicable water quality standards (the "A list"). § 304(l )(1)(A), 33 U.S.C. § 1314(l )(1)(A). States are to submit another list (the "B list") of waters for which the anticipated failure to achieve the relevant standard is due to the discharge of certain toxic pollutants identified in section 1317(a). See id. § 1314(l )(1)(B). States must also identify the point sources responsible for the problem (the "C list"). Id. § 1314(l )(1)(C). 5 For each point source listed, the state must devise an "individual control strategy" (ICS) calculated to bring about compliance with the water quality standards within three years of the adoption of the ICS. Id. § 1314(l )(1)(D).

The EPA must approve or disapprove a state's ICS within a specified period of time. See 33 U.S.C. § 1314(l )(2). If a state fails to submit lists or ICSs, or if EPA disapproves an ICS, the EPA "in cooperation with such State ... shall implement the requirements of paragraph (1) in such States." Id. § 1314(l )(3). See generally Westvaco Corp. v. EPA, 899 F.2d 1383, 1385 (4th Cir.1990).

EPA regulations state that an ICS is to be submitted in the form of a final National Pollutant Discharge Elimination System (NPDES) permit. 40 C.F.R. § 123.46(c). 6 Unlike an ICS, which is a plan to limit discharge of toxic pollutants, an NPDES permit allows what would otherwise be an illegal discharge of pollutants from a point source or point sources 7 into navigable waters and ensures that such discharge will comply with the requirements of the Act. See 33 U.S.C. §§ 1311(a), 1342(a). The permits are issued pursuant to a system established in section 402 of the Act, 33 U.S.C. § 1342. Because of the relationship between ICSs and NPDES permits, analysis of ICSs requires references to NPDES permits and must rely in part on interpretation of NPDES statutes and regulations.

The federal-state relationship established by the Act is also illustrated in Congress' goal of encouraging states to "assume the major role in the operation of the NPDES program." Shell Oil Co. v. Train, 585 F.2d 408, 410 (9th Cir.1978); see also American Paper Institute, Inc. v. EPA, 890 F.2d 869, 873 & n. 6 (7th Cir.1989). The Administrator of the EPA is authorized to delegate to individual states the authority to issue NPDES permits themselves, subject to EPA objection. See 33 U.S.C. § 1342(b), (d).

When a state has been granted such authority, the EPA must suspend its own authority to issue permits until the Administrator determines that the state is no longer capable of issuing permits and notifies the state that the state's authority to do so is being withdrawn. Id. § 1342(c). The result is "a system for mandatory approval of a conforming State program [which] creates a separate and independent State authority to administer the NPDES pollution control." Shell Oil, 585 F.2d at 410 (quoting Mianus River Preservation Committee v. EPA, 541 F.2d 899, 905 (2d Cir.1976)).

California and Oregon are two of 39 states that have been granted authority to administer NPDES programs themselves. See 39 Fed.Reg. 26,061 (1973) (cited in Shell Oil, 585 F.2d at 410). The California State Water Resources Control Board (State Board) and its various Regional Water Quality Control Boards are responsible for the enforcement of the Act in California and for issuing NPDES permits. Jurisdiction to review decisions of the California State Board is conferred on California state courts. Cal. Water Code § 13330. The state agency that issues NPDES permits in Oregon is the Oregon Department of Environmental Quality. Jurisdiction to review decisions of the Oregon Department of Environmental Quality is conferred on Oregon state courts. Or.Rev.Stat. § 183.484 (1991).

A. California Factual Background

California submitted the section 1314(l ) lists to the EPA in February 1989. The South San Francisco Bay was included on the B-list of water segments impaired by the discharge of section 1317(a) toxic pollutants. Area storm drains were identified as point sources contributing to violations of water quality standards. EPA approved the listing decisions, but found that California had missed the February 1989 deadline for submitting an ICS for the storm drain discharges into the South San Francisco Bay. The EPA decision stated:

EPA is not able to approve the stormwater ICSs at this time because none have been submitted. However, EPA acknowledges that while the State is currently taking steps toward development of stormwater permits, it is not reasonable to expect a completed ICS at this time. Recent completion of field monitoring of the South Bay stormdrains and the scheduled completion of a report characterizing the storm discharges should enable the State to develop stormwater permits. If the State completes stormdrain ICSs by March 1990, EPA will consider those ICSs for approval as part of EPA's final 304(1) decisions. EPA is committed to working cooperatively with the State in developing the stormwater permits.

On June 20, 1990, the California Regional Water Quality Control Board, San Francisco Bay Region, issued a final NPDES permit to the Municipalities. The permit prohibited stormwater discharge that would "cause a violation of any applicable water quality objectives for receiving waters" and required the Municipalities to comply with a number of management practices designed to identify the sources of pollutants in stormwater discharge and to decrease their presence. California submitted the NPDES permit to the EPA as an ICS for the storm drains. On September 28, 1990, EPA's Region IX office approved the NPDES permit as an ICS.

Citizens objected to the permit on the ground that it did not contain numerical effluent limitations for stormdrain discharge. On July 23, 1990, Citizens filed an administrative petition for review with the California State Board challenging the NPDES permit on the ground that it lacked numerical water quality-based effluent limitations. On May 16, 1991, the State Board declined to require the NPDES permit to include numerical water quality-based effluent limits. On January 25, 1991, Citizens petitioned this court for review of the EPA's approval of California's ICS.

B. Oregon Factual Background

In February 1989, Oregon submitted its lists of navigable waters requiring ICSs. EPA responded by informing the Oregon Department of Environmental Quality that detectable levels of 2,3,7,8 tetrachlorodibenzo-p-dioxin had been connected to the presence of chlorine bleaching pulp and paper mills, and that the lists submitted by Oregon should be modified to include the mills petitioning for review in this case.

In June 1989, Oregon submitted amended lists and ICSs for the three mills in the form of preliminary draft permit modifications. EPA...

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