Hanks v. Costle, Civ. A. No. 79-0412-R.

• Decision Date: 31 October 1980
• Docket Number: Civ. A. No. 79-0412-R.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Lou L. HANKS et al., Plaintiffs, v. Douglas M. COSTLE, Administrator et al., Defendants.

501 F. Supp. 195

Lou L. HANKS et al., Plaintiffs, v. Douglas M. COSTLE, Administrator et al., Defendants.

Civ. A. No. 79-0412-R.

United States District Court, E. D. Virginia, Richmond Division.

October 31, 1980.

Patrick M. McSweeney, James F. Stutts, Richmond, Va., for plaintiffs.

Gerald L. Baliles and John A. Gibney, Jr., Bell, Ellyson, Lacy & Baliles, James L. Sanderlin, Wellford L. Sanders, Jr., and Jack M. Ross, Jr., McGuire, Woods & Battle, John W. Burke, III, Richmond, Va., for intervening defendant.

Frederick S. Fisher, Asst. Atty. Gen., Richmond, Va., Peter L. Tribe, County Atty., County of Hanover, James T. Moore, III, Asst. County Atty., County of Hanover, Hanover Va., Robert W. Jaspen, Raymond A. Carpenter, Asst. U. S. Attys., Richmond, Va., Elizabeth Stein, Dept. of Justice, Washington, D. C., Michael Murchison, Environmental Protection Agency, Washington, D. C., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Plaintiffs, a group of environmentally-concerned citizens, seek declaratory and injunctive relief against the Administrator of the United States Environmental Protection Agency (EPA), the Virginia State Water Control Board (State Board), and the County of Hanover, Virginia to prevent planned discharges of pollutants by the Bear Island Paper Company from a mill the company is constructing in Hanover County. In 1977, Bear Island announced its plans to construct the mill in Hanover County, and it appears uncontested that county officials have expended considerable effort to facilitate the opening of a new industrial facility in the county. In part as a result of these efforts, the new Bear Island mill is not scheduled to discharge pollutants directly into the North Anna River, on which it is located. Instead, the Bear Island discharge will be piped to Hanover County's Doswell treatment plant, from whence it will be discharged into the river.¹ In order to accommodate the Bear Island discharge, Hanover County applied for a revision to its Doswell plant's National Pollutant Discharge Elimination System (NPDES) permit. The county's application for a new permit in turn made necessary consideration of a revision in the discharges allowed by Virginia's York River Basin Water Quality Management Plan, adopted in accordance with § 208 and § 303 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1288, 1313. In mid-1978, following a public hearing, the State Board revised the Doswell permit, and simultaneously made revisions in the water quality plan.²

For reasons hereinafter referred to, plaintiffs object both to the substance of the revised permit and plan, and the procedures employed by the State Board and EPA in making the revisions. Plaintiffs' complaint originally contained ten separate claims, but plaintiffs have not contested defendants' motions for summary judgment on five of those claims. Plaintiffs' remaining claims (Claims I, V, VI, VII, and VIII) are now before the Court on motions of the respective parties for summary judgment. Both sides have fully briefed the issues raised by the motions, and the matter is ripe for disposition.

A. Public Participation

In Claim I, plaintiffs maintain that the permitting procedure followed by the State Board and EPA violated the public's right to participate in implementation of the FWPCA under 33 U.S.C. § 1251(e).³ Plaintiffs object both to the manner in which the new Bear Island permit was issued, and the manner in which the state water quality plan was revised. Jurisdiction for Claim I is based on 33 U.S.C. § 1365(a)(2), which provides a cause of action to any citizen who alleges a failure of the Administrator of EPA to perform a duty that is nondiscretionary under the FWPCA. It is apparent, however, that plaintiffs here complain not only of duties that the Administrator allegedly failed to perform, but also of alleged failures of State Board members to comply with the Act. It is apparently plaintiffs' theory, both as to the permit and the plan, that 33 U.S.C. § 1251(e) not only requires that EPA provide for public participation in accordance with the statute in its own decision-making processes, but also mandates that EPA reject any permit or plan issued by a state that does not adequately provide for public participation. Finally, plaintiffs maintain that the issuance of the permit here amounted to the establishment of a new source performance standard (NSPS) by the State Board. Relying on this characterization of the Board's action, plaintiffs allege a violation of the notice and comment requirements of 33 U.S.C. § 1316(b)(1)(B), on the ground that neither the Board nor EPA solicited public comment on the new "NSPS".

1. Promulgation of New Source Performance Standards. Plaintiffs' argument that the State Board, on June 19, 1978, submitted its "proposed NSPS" for pulp and paper mills to EPA and thereby violated the provisions of 33 U.S.C. § 1316 borders on the frivolous. A state has no authority to promulgate a NSPS under 33 U.S.C. § 1316, as is plain from even a cursory reading of the statute. Plaintiffs cannot seriously hope to characterize the submission of an NPDES permit to EPA, and EPA's subsequent decision not to object to that permit as the promulgation of an NSPS. Plaintiffs are demonstrably aware of the provisions of 33 U.S.C. § 1316. Their Claim IX, which they chose to abandon, complained that EPA had failed in its statutory duty to promulgate needed NSPSs. Regardless of the reasons for that choice, it is clear that plaintiffs' instant allegation that the State Board or EPA had violated any part of 33 U.S.C. § 1316 cannot be sustained, and that summary judgment is warranted. If plaintiffs wish to complain about EPA's failure to promulgate an NSPS for pulp and paper mills, they need only make, and pursue, the proper allegations; they need not come before the Court relying upon, as the record reflects, an obvious mischaracterization of the facts.

2. NPDES Permit. EPA regulations require that a state permitting program provide the general public with notice of, and an opportunity for a hearing dedicated to discussion of any application for an NPDES permit. See 40 C.F.R. § 124.31-37 (1978).⁴ EPA maintains that these regulations provide for adequate public participation in the issuance of permits, and clearly fulfill the requirements of 33 U.S.C. § 1251(e). Plaintiffs in response claim that meaningful public participation cannot be provided for solely by blanket regulations, and that the statute requires a sensitive, ad hoc treatment of individual permit decisions in order to truly "provide for, encourage, and assist" the public. Necessarily, plaintiffs contend that such treatment was absent here. In particular, plaintiffs claim that EPA should have responded more promptly and fully to a letter it received from an interested citizen,⁵ and should have provided citizens with an explanation of the technical issues that arose during its review of the Bear Island permit.⁶ As support for their claims against EPA, plaintiffs point to regulations and sections of the FWPCA which appear to apply in similar or analogous situations,⁷ and to related background documents published by the Agency.⁸ Additionally, plaintiffs complain that EPA's alleged effort to cooperate with Hanover County in expediting issuance of the Bear Island permit and the subsequent state plan revision further disadvantaged participation by the average citizen vis-a-vis Bear Island and the county, due to the latter parties' greater technical resources.

Whatever force plaintiffs' argument originally had, its strength has clearly been attenuated by the Supreme Court's recent ruling in Costle v. Pacific Legal Foundation, 445 U.S. 198, 100 S.Ct. 1095, 63 L.Ed.2d 329 (1980). In that case the Supreme Court held that EPA's promulgated regulations for public participation in the issuance of permits by EPA were "fully consistent" with 33 U.S.C. § 1251(e) and other sections of the Act. 48 U.S.L.W. at 4248. The regulations considered by the Supreme Court in Pacific Legal Foundation, are in substance virtually identical to the regulations in question in the instant case. Compare 40 C.F.R. § 124.31-37 (1978) (EPA requirements for public participation in issuance of NPDES permits by states) with 40 C.F.R. § 125.31-37 (1978) (requirements for public participation in issuance of NPDES permits by EPA.)⁹ In light of the Supreme Court's pronouncements in that case, and of the regulations' apparent reasonableness here, the Court holds, without further unnecessary and burdensome discussion, that the regulations promulgated by the EPA in 40 C.F.R. § 124 (1978) on their face satisfy the Agency's obligation under § 1251(e) to assist the public and provide for public participation in pollution control.¹⁰

Even granting the facial validity of EPA's regulations,¹¹ however, it remains open to question whether the State Board has properly followed those regulations. Plaintiffs have alleged facts which if true would raise questions as to whether the State Board is complying with the public participation requirements of the Act. In particular, plaintiffs allege that Bear Island's ex parte contacts with the State Board were so extensive that they rendered the traditional notice and comment provisions of the regulations meaningless. Nevertheless, in the instant case it is unlikely that plaintiffs could establish a direct cause of action against the state's issuance of the Bear Island permit. See Chesapeake Bay Foundation, Inc. v. Virginia State Water Pollution Control Board, 501 F.Supp. 821 (E.D.Va.1980) (no cause of action against state officials exists under 42 U.S.C. § 1983); Chesapeake Bay Foundation, Inc. v. Virginia State Water Pollution Control Board, 495 F.Supp. 1229 (E.D.Va.1980) (no implicit cause of action created by the FWPCA against state officials); Chesapeake Bay Foundation, Inc. v. United States, 445 F.Supp. 1349, 1353-54 (E.D.Va.1978) and cases cited therein (with...