Georgia-Pacific Corp. v. U.S. E.P.A.

• Decision Date: 18 March 1982
• Docket Number: GEORGIA-PACIFIC,No. 80-7665,80-7665
• Citation: 671 F.2d 1235
• Parties: , 67 A.L.R.Fed. 350, 12 Envtl. L. Rep. 20,415 CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1235

671 F.2d 1235

17 ERC 1393, 67 A.L.R.Fed. 350, 12

Envtl. L. Rep. 20,415

GEORGIA-PACIFIC CORPORATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 80-7665.

United States Court of Appeals Ninth Circuit.

Argued Jan. 7, 1982.

Submitted Jan. 21, 1982.

Decided March 18, 1982.

Robert R. Davis, Jr., Seattle, Wash., argued, for petitioner; G. Keith Grim, Lane, Powell, Moss & Miller, Seattle, Wash., on brief.

Peter D. Holmes, Atty., EPA, Rosanne Mayer, Pollution Control Sec., Washington, D. C., for respondent.

Petition for review of action of the United States Environmental Protection Agency.

Before ANDERSON and ALARCON, Circuit Judges, and COUGHENOUR, ^* District Judge.

COUGHENOUR, District Judge:

Petitioner Georgia-Pacific Corporation operates a paper, pulp and chemical facility at Bellingham, Washington. In 1978 Georgia-Pacific sought a variance from certain effluent guidelines promulgated pursuant to the Federal Water Pollution Control Act Amendments. ¹ The Environmental Protection Agency ("EPA") denied the request. Petitioner urges that the EPA determination was defective, both in procedure and result. We disagree.

A. Regulatory Scheme

Under the Federal Water Pollution Control Act, as amended in 1972 (hereinafter "the Control Act"), ² it is unlawful to discharge any pollutant into a navigable water ³ without first obtaining a permit under Section 402 of the Control Act. 33 U.S.C.A. § 1342(a)(1) (1977 Supp.). Section 402(a) of the Control Act ⁴ authorizes the Administrator of the EPA to issue a permit if he determines, inter alia, that the discharge would meet the requirements of Section 301 of the Control Act. ⁵ Section 301(b)(1)(A) ⁶ in turn requires, prior to July 1, 1983, the application of the "best practicable control technology currently available" ("BPT"), as defined in Section 304(b)(1) of the Control Act. ⁷ Although these standards are commonly known as "guidelines," it is clear that the prescriptions therein are mandatory; absent a variance they must be incorporated into the National Pollution Discharge Elimination System ("NPDES") permits issued by the EPA or the state to individual point source dischargers. ⁸ Georgia-Pacific's Bellingham complex is such a point source.

On January 6, 1977, the EPA promulgated BPT effluent limitation guidelines ⁹ for that segment of the pulp and paper industry of which Georgia-Pacific's Bellingham facility is a member. ¹⁰ In so doing the EPA examined the pollution-control practices of over 300 mills in the "bleached" segment of the industry, including the Georgia-Pacific Bellingham plant. The regulations divide that segment of the industry into sixteen categories and establish different effluent limitations, based on the average practices of the most exemplary mills, for each subcategory. These limitations were established for three separate pollutants: biochemical oxygent demand ("BOD"), total suspended solids ("TSS"), and pH. It is the BOD and TSS limitations from which Georgia-Pacific seeks a variance for its Bellingham facility.

The guidelines provide for variances from these limitations, in special circumstances, when the guidelines are applied to individual plants through inclusion in NPDES permits. Specifically, they provide for variances based on a finding of "fundamentally different factors." ¹¹ Petitioner Georgia-Pacific contends that such factors exist at its Bellingham facility. It is on this basis that it seeks the variance which is the subject of this appeal.

B. Facts

The relevant facts are largely undisputed and bear only brief recital here. Petitioner initially received an NPDES permit from the State of Washington's Department of Ecology ("DOE")-which is charged with administering the NPDES permit program in Washington State-for the discharge of pollutants from its Bellingham facility. The limitations set forth in the permit were based on industry-wide BPT effluent guidelines promulgated by the EPA. On August 15, 1978 Georgia-Pacific requested an FDF variance from DOE to establish more lenient effluent limitations for BOD and TSS in the discharge from its Bellingham facility. Petitioner based this request on the existence and operation of an alcohol and by-products facility at the Bellingham complex. The alcohol and by-products plant functions as an independent component in an integrated whole. Sulfite waste liquor from the pulping process is pumped to the alcohol plant where it is converted into alcohol, and, with the addition of other chemicals, a variety of other products. The alcohol plant also produces a raw waste load which must ultimately be treated, along with that of the pulp mill, at a wastewater treatment plant. Petitioner argues that it is this added waste load which warrants an additional discharge allowance in the Bellingham facility's NPDES permit.

In the variance request submitted to the DOE, Georgia-Pacific directed the Department's attention to a Weyerhaeuser pulp mill in Wisconsin which sells its sulfite waste liquor to a neighboring by-products facility owned by the American Can Company. The State of Wisconsin, which administers the NPDES program there, apparently established separate effluent limitations for the American Can by-products facility and the Weyerhaeuser pulp plant. In its request to the DOE Georgia-Pacific argued that an additional waste liquor allowance was no less appropriate when the same facility produced both pulp and alcohol by-products.

The DOE agreed. It granted petitioner's request for an FDF variance, although in so doing it reduced the requested allowance. Because all FDF variances must be approved by the EPA, ¹² the DOE, on January 24, 1979, requested EPA approval of the variance. After at least two informal meetings between Georgia-Pacific and EPA representatives the EPA, on January 17, 1980, issued its "Recommended Determination" to deny the variance. Both petitioner and the DOE submitted comments on the Recommended Determination to the EPA. Sometime in August of 1980 the Acting Administrator of the EPA issued a Final Determination, denying the variance. The EPA found that although Georgia-Pacific's method of spent sulfite recovery and its by-product processes were unique, the total raw waste load from the entire pulping operation was less than that used for setting the effluent guidelines. The EPA further concluded that the additional production facilities did not have a significant impact on the total raw waste level and they did not create a fundamentally different factor sufficient to justify a variance. Georgia-Pacific petitions for review of that decision.

C. Jurisdiction

At the outset we consider the threshold question of whether the Court has jurisdiction to hear the appeal. The issue before us is a seemingly simple one: Was petitioner timely in filing its petition for review?

Section 509(b)(1)(F) of the Clean Water Act, ¹³ which provides the basis for this Court's jurisdiction here, requires that any petition for review of the Administrator's action in "issuing or denying" an NPDES permit be filed within ninety days from the date of issuance or denial, unless the petition is based solely on grounds that arose after the ninetieth day. ¹⁴ The Supreme Court has approved the application of this section in the context of a variance denial under a state-administered NPDES program. Crown Simpson Pulp Company v. Costle, 445 U.S. 193, 100 S.Ct. 1093, 63 L.Ed.2d 312 (1980). We find it applicable here.

The facts bearing on the timeliness of the appeal can be briefly summarized. The EPA's Final Decision denying the requested variance is dated August 21, 1980. For reasons on which the record provides little illumination, petitioner was sent no notice of the denial until August 28, 1980, on which date a letter to that effect was sent to Georgia-Pacific. The record is silent as to the date on which petitioner received the letter. We will assume that the letter was three days in the mails and was received on or about August 31st. Georgia-Pacific's Petition for Review was dated November 19, 1980, mailed to the Court on November 20th, and received by the Clerk on November 24, 1980. The applicable section of the Clean Water Act is unequivocal in its requirement that application for review shall be made within ninety days of "issuance or denial." The ninetieth day from August 21, the date which appears on the EPA denial, is November 19th. The ninetieth day after August 31, the date on which we assume petitioner received notice of the denial, is November 29th. Thus, the petition was timely if the ninety days began to run on the day the petitioner received notice of the denial, and delinquent if dating the decision was sufficient to trigger the limitations period.

The limited task before us, then, is one of construing "issuance or denial" as those terms are used in Section 509(b)(1)(F) of the Clean Water Act. It is urged that a variance can be neither "issued" or "denied" until such time as the applicant receives notice of that action. In the absence of expressly applicable regulatory construction of those terms we reach the same conclusion, although not without reservation.

We turn first to an examination of EPA-promulgated regulations in effect at the time the variance denial was issued in the instant matter. ¹⁵ We begin by noting that the regulations are silent as to the construction of the terms at issue, at least in the context of variance requests. However, there were in effect at the time regulations which addressed the definition of "issuance" as the term applies to EPA-issued permits. With no more expressly applicable authority before us we believe that we can reason by analogy from these agency-promulgated definitions. At the time petitioner took its appeal the applicable regulations were codified at 40 C.F.R. § 125.35 (1975). ¹⁶ In essence, the language of the relevant subsection provides that the "date of issuance of a permit" shall be the...