Champion Intern. Corp. v. USEPA, Civ. No. A-C-86-26.
| Decision Date | 03 February 1987 |
| Docket Number | Civ. No. A-C-86-26. |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | CHAMPION INTERNATIONAL CORPORATION, Plaintiff, and State of North Carolina, ex rel. Department of Natural Resources and Community Development, Intervenor-Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Lee M. Thomas, Administrator, U.S. Environmental Protection Agency; and Jack E. Ravan, Regional Administrator, Region IV, U.S. Environmental Protection Agency, Defendants, and State of Tennessee, on Behalf of the Tennessee Department of Health and Environment and the Tennessee Wildlife Resources Agency, Intervenor-Defendant, and Pigeon River Action Group; and the Legal Environmental Assistance Foundation, Intervenor-Defendants. |
Porter, Wright, Morris & Arthur, Columbus, Ohio by J. Jeffrey McNealey, Michael K. Glenn, Washington, D.C., Redmond, Stevens, Loftin & Currie, Asheville, N.C. by John S. Stevens and Gwynn G. Radeker, for plaintiff.
Alan S. Hirsch & Daniel C. Oakley, Asst. Attys. Gen., N.C. Dept. of Justice, Raleigh, N.C., for plaintiff-intervenor State of N.C.
U.S. Atty. Charles R. Brewer; Asst. U.S. Atty. Clifford Marshall, Asheville, N.C., F. Henry Habicht, II, Asst. Atty. Gen., Land and Natural Resources Div.; Susan L. Smith, Atty., U.S. Dept. of Justice, Land and Natural Resources Div., Environmental Defense Section, Washington, D.C., Jan Taradash, Office of Gen. Counsel, U.S. Environmental Protection Agency, Washington, D.C., Thomas M. DeRose, Office of Regional Counsel, Region IV, U.S. Environmental Protection Agency, Atlanta, Ga., for defendants.
Gary A. Davis, Knoxville, Tenn., Sean Devereux, Asheville, N.C., for defendants-intervenors Pigeon River Action Group and Legal Environmental Assistance Foundation.
State of Tennessee, Office of the Atty. Gen., Nashville, Tenn. by W.J. Michael Cody, Frank J. Scanlon & Michael D. Perigen, Robert W. Spearman, Raleigh, N.C., for defendant-intervenor State of TN.
THIS MATTER is before the court on cross-motions for summary judgment. For the following reasons, it appears to the court that the defendants' motions are well taken.
Plaintiff Champion owns a pulp and paper mill located in Haywood County, North Carolina, on the Pigeon River, approximately 26 miles upstream from the North Carolina/Tennessee border. The Pigeon River is a small river with a relatively low annual average stream flow of 48 million gallons per day (MGD). The North Carolina segment of the river is classified as suitable for trout fishing from the source to the Canton water supply intake for the Champion Mill. From the Canton water supply intake to the state line, the river is classified as Class C (secondary recreation and fish propagation). The river below the mill is characterized as a fishery, supporting species that are less sensitive to pollution than trout, such as carp and goldfish.
The intake for the Champion Mill diverts 46.4 million gallons a day and returns approximately 45 million gallons a day. During low flow conditions, the mill diverts virtually all the flow of the Pigeon River.
On June 30, 1981, Champion's state-issued National Pollutant Discharge Elimination System (NPDES) permit for the mill at Canton expired. That permit did not contain any color limitations.
North Carolina took no action on the renewal of Champion's permit until Tennessee and a local citizens' group, Pigeon River Action Group (PRAG), began to lobby North Carolina for action to abate the pollution of the river. In January 1983, Tennessee provided North Carolina with information indicating that discharges from the Champion Mill were violating Tennessee's water quality standards for each designated use. Tennessee requested reissuance or modification of Champion's 1981 permit to address its water quality concerns, noting that the 1981 permit was issued without prior notification of Tennessee pursuant to Section 402(b)(3) of the Clean Water Act.
In February 1983, Tennessee and North Carolina met to discuss appropriate terms for the renewal permit. Subsequent to that meeting, Tennessee developed a model permit for the Champion Mill reflecting the conditions that Tennessee would impose if it were the permitting authority. That permit proposed a limit on increase of apparent in-stream color of 40 color units at the state line. The 40 color unit limit on increased apparent color was ostensibly based on observations of laboratory samples and normal ranges of color in area streams. Tennessee's color standard is in narrative form and contains no numerical limits.
In May 1983, Tennessee requested that North Carolina adopt the model permit. Tennessee renewed this request in June 1983, and in July, requested that the Environmental Protection Agency (EPA) investigate and assist in solving the Champion problem. Also in July, PRAG requested that EPA exercise careful oversight of the renewal of the Champion permit.
At the prompting of Tennessee, representatives of North Carolina, Tennessee and EPA met at EPA regional headquarters during July of 1983. At that meeting, the parties agreed to: (1) develop permit limitations for the mill that would meet the existing water quality standards of the Pigeon River; (2) consult with the company in assessing the technical achievability of the limits; and (3) develop a technically acceptable solution.
To aid in developing the permit limitations, EPA reviewed the general water quality criteria contained in the 1968 water quality criteria book and the 1976 water quality criteria book, as well as specific studies on Pigeon River pollution, to determine what permit conditions would satisfy the color standards of the two states. On the basis of the information available concerning effects of color on fish and aquatic life, and aesthetic quality in the Pigeon River, EPA concluded that an in-stream 50 color unit limit should be reflected in the permit.1
North Carolina and the EPA both conducted modeling analyses to determine the actual color removal necessary to meet a 50 color unit in-stream limit at the state line. These modeling analyses ultimately resulted in substantially different color removal figures.2
On October 26, 1984, North Carolina gave public notice of a draft permit. Tennessee requested a public hearing on the draft permit to air its objections. The public hearing was held on January 29, 1985. The draft permit conditions on color provided:
At the hearing, Tennessee presented two major objections to the draft permit. First, it contended that Champion must be required to meet a 75% removal requirement by October 11, 1987. Tennessee argued that North Carolina should not qualify Champion's obligation by requiring 75% removal only if technically and economically feasible through ultrafiltration. Instead, the permit must impose an absolute requirement, requiring Champion to apply for a variance if it determined ultrafiltration was not feasible. Tennessee believed that the variance process would then allow the state to require alternative control techniques.
Second, Tennessee argued that the permit should limit influent color level during low flow. While stating general agreement with the 75% removal target contained in the permit, Tennessee explained that, when the influent contains higher color loadings than usual, 75% might not achieve a 50 color unit level at the state border during low flow conditions. Tennessee recommended specific language defining the flow conditions during which a limit on influent level would apply. In addition to appearing at the public hearing, Tennessee presented detailed recommendations in writing to North Carolina.
In February, EPA submitted adverse comments on the permit. Like Tennessee, EPA was concerned that 75% removal would not achieve a 50 color unit level at the state line unless influent levels remained at 700 to 800 color units.3 Additionally, EPA requested a permit provision requiring that, if ultrafiltration was not feasible, other color removal techniques be tested until one is found that will meet the 75% removal requirement.
In the interim, North Carolina's water standard was changed to include an aesthetic criterion for the first time. The EPA requested that North Carolina submit a permit provision to meet the amended North Carolina color standard. North Carolina failed to do so; instead, it issued a final permit one month later.
The color limitations in the final permit were identical to those in the draft permit with the exception of the following new paragraph at the end:
If the Commission determines that the demonstration facility has not been reasonably successful in achieving targeted color reductions, it may order Champion to undertake such additional action as it deems necessary to achieve appropriate color removal within a permit as determined by the Commission. Appropriate color...
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...exclusive permit issuance authority passes to USEPA. 33 U.S.C. § 1342(d)(4); 40 C.F.R. § 123.12(g) (1979); Champion Internat'l Corp. v. USEPA, 648 F.Supp. 1390, 1399 (W.D.N.C. 1986), vacated on other grounds, 850 F.2d 182 (4th If a state or USEPA properly issues an NPDES permit, the permit ......
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...in the action, substantially adopting the position of Champion. 9 The district court granted summary judgment in favor of EPA. 648 F.Supp. 1390. Champion brought this appeal. The State of North Carolina has not appealed and apparently has acquiesced in the EPA's assumption of permit grantin......
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Champion Intern. Corp. v. USEPA, Civ. No. A-C-86-26.
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Table of authorities
....................................................................................................... 199 Champion Int’l Corp. v. EPA, 648 F. Supp. 1390, 17 ELR 20486 (W.D.N.C. 1986), vacated on other grounds, 850 F.2d 182, 18 ELR 21372 (4th Cir. 1988)..............................................
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