Costle v. Pacific Legal Foundation

• Citation: 63 L.Ed.2d 329,445 U.S. 198,100 S.Ct. 1095
• Decision Date: 18 March 1980
• Docket Number: No. 78-1472,78-1472
• Parties: Douglas M. COSTLE, Administrator, Environmental Protection Agency, Petitioner, v. PACIFIC LEGAL FOUNDATION et al
• Court: United States Supreme Court

445 U.S. 198

100 S.Ct. 1095

63 L.Ed.2d 329

Douglas M. COSTLE, Administrator, Environmental Protection Agency, Petitioner,

v PACIFIC LEGAL FOUNDATION et al.

No. 78-1472.

Argued Dec. 5, 1979.

Decided March 18, 1980.

Rehearing Denied May 12, 1980.

See 446 U.S. 947, 100 S.Ct. 2177.

Syllabus

Section 402(a)(1) of the Federal Water Pollution Control Act (FWPCA) authorizes the Administrator of the Environmental Protection Agency (EPA), "after opportunity for public hearing," to issue a permit for the discharge of any pollutant upon condition that such discharge will meet all applicable requirements of the FWPCA or such conditions as the Administrator determines are necessary to carry out the Act's goals and objectives. Implementing regulations provide for public notice of the proposed issuance, denial, or modification of a permit; direct the EPA Regional Administrator to hold a public hearing on the proposed action if he finds a significant degree of public interest; and permit any interested person to request an "adjudicatory hearing" after the EPA's determination to take the proposed action. Such a request will be granted if it "[s]ets forth material issues of fact relevant to the questions of whether a permit should be issued, denied or modified." Respondent city of Los Angeles (city) owns a sewage treatment plant that is operated under permits issued by the EPA pursuant to the National Pollutant Discharge Elimination System (NPDES), established by the FWPCA. The city's current permit, as issued in 1975, conditioned continued discharges from the sewage treatment plant into the Pacific Ocean on the city's compliance with a schedule for achieving full secondary treatment of wastewater by October 1, 1979. In April 1977, the EPA advised the city that it proposed to extend the expiration date of the 1975 permit for a second time, to December 17, 1979, with all other terms and conditions of the permit to remain unchanged. Notice of the proposed action was published in the Los Angeles Times, but neither the city nor any other party, including respondent Pacific Legal Foundation, requested a hearing or filed comments on the proposed extension, and the EPA Regional Administrator determined that public interest in the modification proposal was insufficient to warrant a public hearing. After respondent Kilroy's postdetermination request for an adjudicatory hearing was denied on the ground that it did not set forth material issues of fact relevant to the question whether the permit should be extended, respondents filed petitions with the Court of Appeals seeking review of the Regional Administrator's action. The Court of Appeals held that the EPA had failed to provide the "opportunity for public hearing" required by § 402(a)(1) when it extended the federal permit, and remanded for a "proper hearing." In so holding, the court concluded that the EPA is required to justify every failure to hold a hearing on a permit action by proof that the material facts supporting the action "are not subject to dispute."

Held:

1. The Court of Appeals erred in concluding that the EPA is required to hold a public hearing on every NPDES permit action it takes unless it can show that the material facts supporting its action "are not subject to dispute." Rather, the implementing regulations in question are fully consistent with the FWPCA's purpose to provide the public with an "opportunity" for a hearing concerning agency actions respecting water pollution control, and are valid. Pp. 213-216.

2. Respondents have failed to demonstrate that the regulations in question were not applied properly in the context of this case. Pp. 216-220.

(a) Under the circumstances presented here, it was reasonable for the Regional Administrator to extend the permit's expiration date without further public hearing, on the grounds that the public had not exhibited a significant degree of interest in the proposed action, and that information pertinent to such a decision would not have been adduced if a hearing had been held. Pp. 216-218.

(b) The form of notice by newspaper publication was adequate. The city's argument that the notice was inadequate because its understanding of the compliance schedules was contrary to the EPA's was not pertinent to the agency's decision to extend the permit's expiration date. Pp. 218-219.

(c) The EPA did not err in failing to hold an adjudicatory hearing on the issues raised in respondent Kilroy's request because that request did not set forth material issues of fact pertinent to the question whether the permit's expiration date should be extended. Pp. 219-220.

586 F.2d 650, reversed.

William H. Alsup, Washington, D. C., for petitioner.

Robert K. Best, Sacramento, Cal., for respondents.

Mr. Justice BLACKMUN delivered the opinion of the Court.

This case, in a sense, is a tale of a great city's—and the Nation's—basic problems in disposing of human waste. "How" and "where" are the ultimate questions, and they are intertwined. The issues presently before the Court, however, center in the administrative processes by which the city and the Nation seek to resolve those basic problems.

I

Respondent city of Los Angeles owns and operates the Hyperion Wastewater Treatment Plant located in Playa Del Rey, Cal. Since 1960, the Hyperion plant has processed most of the city's sewage, and has discharged the wastes through three "outfalls" extending into the Pacific Ocean. The shortest outfall terminates about one mile from the coastline in 50 feet of water. It is operative only during emergencies caused by increased sewage flow during wet weather or by power failures at the pumping plant. The second outfall terminates about five miles out. Approximately 340 million gallons of treated wastewater are discharged every day into the ocean, at a depth of 187 feet, through that outfall. This wastewater receives at least "primary treatment," ¹ but about one-third of the flow also receives "secondary treatment" ² by an activated sludge process. The third outfall terminates about seven miles from the coast. It is through this third outfall that the solids that have been removed during treatment are discharged into the ocean, at a depth of 300 feet. Prior to discharge the solid materials, commonly referred to as sludge have been digested, screened, and diluted with secondary effluent. App. 3-4.

The Hyperion plant is operated under permits issued by the Environmental Protection Agency (EPA) and the California Regional Water Quality Control Board (CRWQCB). Such permits are issued pursuant to the National Pollutant Discharge Elimination System (NPDES), established by § 402 of the Federal Water Pollution Control Act (FWPCA), as added by the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 880, and as amended, 33 U.S.C. § 1342 (1976 ed. and Supp. II).³ The FWPCA was enacted with a stated and obviously worthy objective, that is, "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 101(a), 86 Stat. 816, 33 U.S.C. § 1251(a). In order to achieve that objective, Congress declared that "it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." § 101(a)(1).

As one means of reaching that goal, Congress in § 301(a) of the FWPCA provided: "Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act [33 U.S.C. §§ 1312, 1316, 1317, 1328, 1342, and 1344], the discharge of any pollutant by any person shall be unlawful." 86 Stat. 844, 33 U.S.C. § 1311(a). Section 402(a)(1) authorizes the Administrator of the EPA, "after opportunity for public hearing," to issue a permit for the discharge of any pollutant, notwithstanding § 301(a), upon condition that such discharge will meet all applicable requirements established in other sections of the Act, or such conditions as the Administrator determines are necessary to carry out the Act's goals and objectives. 86 Stat. 880, 33 U.S.C. § 1342(a)(1). One of the requirements applicable to an NPDES permit for a publicly owned treatment works, such as the Hyperion plant, is specified in § 301(b)(1)(B). That provision requires such works in existence on July 1, 1977, to achieve "effluent limitations based upon secondary treatment as defined by the Administrator." ⁴ 86 Stat. 845, 33 U.S.C. § 1311(b)(1)(B).

II

The EPA has promulgated regulations providing for notice and public participation in any permit proceeding under the NPDES. Those regulations, implementing the statutory requirement that any NPDES permit be issued "after opportunity for public hearing," are the focus of this case. The regulations state: "Public notice of the proposed issuance, denial or modification of every permit or denial shall be circulated in a manner designed to inform interested and potentially interested persons of the discharge and of the proposed determination to issue, deny, or modify a permit for the discharge." 40 CFR § 125.32(a) (1978).⁵ That public notice "shall include at least": (1) circulation of the notice within the affected geographical area by posting in the post office and "public places" nearest the applicant's premises, or posting "near the entrance to the applicant's premises and in nearby places," or publication in local newspapers; (2) the mailing of notice to the permit applicant and "appropriate" federal and state authorities; and (3) the mailing of notice to any person or group who has requested placement on the NPDES permit mailing list for actions affecting the geographical area. Ibid.

Following the issuance of public notice the EPA Regional Administrator is directed to provide at least a 30-day period during which interested persons may submit written views concerning the proposed action or may request that a hearing be held. § 125.32(b)(1). If the Regional Administrator "finds a significant degree of public interest in a proposed permit," he is directed to hold a public...