Crown Simpson Pulp Co. v. Costle, LOUISIANA-PACIFIC

Decision Date29 June 1979
Docket NumberNos. 76-3161,76-3287 and 77-3322,LOUISIANA-PACIFIC,s. 76-3161
Citation599 F.2d 897
Parties, 9 Envtl. L. Rep. 20,603 CROWN SIMPSON PULP COMPANY, Petitioner, v. Douglas M. COSTLE (formerly Russell E. Train), As Administrator, Environmental Protection Agency, Respondent.CORPORATION, Petitioner, v. Douglas M. COSTLE (formerly Russell E. Train), As Administrator, Environmental Protection Agency, Respondent. CROWN SIMPSON PULP COMPANY and Louisiana-Pacific Corporation, Petitioners, v. Douglas M. COSTLE, As Administrator, Environmental Protection Agency, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

W. Reece Bader (argued) of Orrick, Herrington, Rowley & Sutcliffe, Joseph A. Darrell, Paul R. Haerle of Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for petitioners.

James W. Moorman, Asst. Atty. Gen., Pollution Control Sec., Dept. of Justice, James A. Rogers (argued), Environmental Protection Agency, Washington, D. C., for respondent.

Kenneth S. Kamlet, National Wildlife Federation, Washington, D. C., on brief for amicus curiae.

Petitions to Review Decisions of the Environmental Protection Agency.

Before DUNIWAY and CHOY, Circuit Judges, and RENFREW, * District Judge.

DUNIWAY, Circuit Judge:

Petitioners Crown Simpson Pulp Company and Louisiana-Pacific Corporation petition for review of respondent Administrator's action in vetoing pollutant discharge permits that the California State Water Resources Control Board proposed to issue to petitioners pursuant to § 402(b) of the Federal Water Pollution Control Act Amendments of 1972 ("the Act"), 33 U.S.C. § 1342(b). (Unless otherwise indicated, all citations to statutory sections are to sections of the Act as they appear in 33 U.S.C.) We dismiss the petitions for lack of jurisdiction.

I. Background.

Petitioners operate two bleached kraft pulp mills located on the Pacific coast near Eureka, California, and those mills discharge pollutants into the Pacific Ocean.

Acting pursuant to § 1311, the Administrator of the United States Environmental Protection Agency ("the EPA") has promulgated revised nationally applicable regulations limiting the amounts of pollutants that different types of bleached kraft pulp, paper, and paperboard mills may discharge into navigable waters. See 40 C.F.R. part. 430, subparts F-I. His authority to issue such regulations was upheld by the Supreme Court in E. I. du Pont de Nemours & Co. v. Train, 1977, 430 U.S. 112, 136, 97 S.Ct. 965, 51 L.Ed.2d 204. See also Weyerhaeuser Co. v. Costle, 1978, 191 U.S.App.D.C. 309, 590 F.2d 1011. The regulations provide that a discharger may obtain a variance from these effluent limitations if it can show that

factors relating to the equipment or facilities involved, the process applied, or other such factors related to such discharger are fundamentally different from the factors considered in the establishment of the guidelines.

See, e. g., 40 C.F.R. §§ 430.62, 430.72, 430.82, 430.92.

The EPA uses a permit system to enforce the effluent limitations. An industrial discharger must obtain a National Pollutant Discharge Elimination System permit if it wishes to continue releasing pollutants into navigable waters. See § 1342; Shell Oil Co. v. Train, 9 Cir., 1978, 585 F.2d 408, 410. It can obtain a permit only if it either can comply with the national effluent limitations or get a variance.

In some states, the EPA itself approves all permit applications. See § 1342(a). In other states, such as California, the EPA shares its permit granting authority with state officials pursuant to § 1342(b). In such states, state officials initially review a discharger's permit application. If they believe that an applicant qualifies, they notify the Administrator of the EPA that they propose to issue a permit. See § 1342(d)(1). The state officials may then issue the permit unless the Administrator objects in writing within ninety days on the ground that the permit falls "outside the guidelines and requirements of . . . Chapter (26)," the "Water Pollution Prevention and Control" portion of the Act. See § 1342(d)(2). This power to object in writing gives the EPA Administrator a power to veto permits that state officials propose to issue. See E. I. du Pont de Nemours & Co. v. Train, supra, 430 U.S. at 119, n. 7, 97 S.Ct. 965; State of Washington v. United States Environmental Protection Agency, (Scott Paper), 9 Cir., 1978, 573 F.2d 583, 586; Shell Oil Co. v. Train, supra, 585 F.2d at 410. If a state does not resubmit an objected to permit, "revised to meet such objection", within certain time limits, the Administrator may himself issue a permit under § 1342(a), as if the applicant operated in a state which had not been authorized to issue permits. See § 1342(d)(4).

In these cases, the California Regional Water Resources Board, North Coast Region, first proposed to issue permits to petitioners on August 26, 1976. The permit did not follow the EPA's national effluent limitations. On September 3, 1976, the Director of EPA's Region IX Enforcement Division 1 vetoed the permits because they did not require petitioners to achieve "effluent limitations based upon (the) best practicable control technology currently available" as required by § 1311(b)(1)(A). Petitioners then sought direct review of the Director's veto in this court in Nos. 76-3161 and 76-3287.

On March 17, 1977, the California State Water Resources Control Board ("the Board") granted the requested variances subject to the approval of the Administrator, and proposed to issue permits based upon those variances. The proposed permits would have allowed the companies to discharge wastes far in excess of the national effluent limitations. On September 15, 1977, the EPA Administrator vetoed the permits because they excused the companies from using the "best practicable control technology currently available" as required by the Act. In the EPA's view, this deficiency placed the permits "outside the guidelines and requirements of (the Act)" within the meaning of § 1342(d)(2). The Administrator's decision is reported as In re Louisiana-Pacific, 1977, 10 E.R.C. 1841. Crown Simpson and Louisiana-Pacific then petitioned this court in No. 77-3322 to overturn the Administrator's refusal to approve the state proposed variances.

II. Jurisdiction.

Petitioners argue that we have jurisdiction under either subsection (E) or subsection (F) of § 1369(b)(1). The EPA does not argue for jurisdiction under subsection (F), but joins Petitioners in urging us to find jurisdiction under subsection (E). We conclude that we cannot exercise jurisdiction under either subsection (E) or subsection (F), and we dismiss the petitions for lack of jurisdiction.

Section 1369(b)(1) specifies the six circumstances under which "Review of the Administrator's action . . . may be had . . . in the Circuit Court of Appeals. . . ." Two of them are

action . . .

(E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316 of this title, and (F) in issuing or denying any permit under section 1342 of this title . . . .

As we noted in Pacific Legal Foundation v. Costle, 9 Cir., 1978, 586 F.2d 650, 654, the courts of appeals have "strictly construed" these direct review provisions.

A. Subsection (E).

Subsection (E) applies to an "(action) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, or 1316." These requirements are not satisfied here.

The Administrator did not "approve" or "promulgate" anything. Instead, he Rejected a permit proposed by the California Board. And his action was with respect to a permit based upon a questionable variance, not an approval or promulgation of an effluent limitation or other limitation.

Petitioners advance two basic arguments. First, they say that the two vetoes are the functional equivalent of a newly promulgated, generalized regulation governing the granting of variances, and that if the Administrator had formally promulgated such a generalized variance regulation, it would have been directly reviewable by the court of appeals as an "effluent limitation or other limitation" under subsection (E). We can agree that a generalized variance regulation would be an "effluent limitation or other limitation" within the meaning of subsection (E) and thus be directly reviewable in the court of appeals. 2 See Natural Resources Defense Council, Inc. v. E.P.A., 2 Cir., 1976, 537 F.2d 642, 644-45. We cannot, however, accept the premise that the Administrator's vetoing of the two permits was tantamount to the promulgation of a new variance regulation.

We have before us not the establishment of new regulations through an irregular procedure, but simply two individualized adjudications to determine the proper application of already promulgated effluent limitation regulations covering the entire industry. As such, the individualized adjudications are directly reviewable, if at all, only under subsection (F) which provides for direct review of Administrator action granting or denying individual permits.

Recent cases involving EPA Water Pollution Control Act regulations illustrate this dichotomy. Where polluters have challenged the validity of regulations, the Supreme Court and the courts of appeals have based jurisdiction upon subsection (E). See, e. g., E. I. du Pont de Nemours v. Train, supra, 430 U.S. at 115, 124-25, 136, 97 S.Ct. 965; Virginia Electric & Power Co. v. Costle, 4 Cir., 1977, 566 F.2d 446, 447, 449-50; American Paper Inst. v. Train, 1976, 177 U.S.App.D.C. 181, 189-90, 543 F.2d 328, 336-37; American Petroleum Inst. v. E.P.A., 10 Cir., 1976, 540 F.2d 1023, 1026; Natural Resources Defense Council, Inc. v. E.P.A., supra, 537 F.2d at 645; Hooker Chemicals & Plastics Corp. v. Train, 2 Cir., 1976, 537 F.2d 620, 622, 624, 628; American Meat Institute v. E.P.A., 7 Cir., 1975, 526 F.2d 442, 444, 452; American Petroleum Inst. v. Train, 10 Cir., 1975, 526 F.2d...

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