Longview Fibre Co. v. Rasmussen

• Decision Date: 08 December 1992
• Docket Number: 91-70398,Nos. 91-70389,s. 91-70389
• Citation: 980 F.2d 1307
• Parties: 23 Envtl. L. Rep. 20,454 LONGVIEW FIBRE COMPANY, James River II, Inc., Boise Cascade Corporation, and Weyerhaeuser Company, Petitioners, and Columbia River United and Dioxin/Organochlorine Center, Petitioner-Intervenor, v. Dana A. RASMUSSEN, Regional Administrator, and the United States Environmental Protection Agency, Respondents. COLUMBIA RIVER UNITED AND DIOXIN/ORGANOCHLORINE CENTER, Petitioner, v. Dana A. RASMUSSEN, Regional Administrator, and the United States Environmental Protection Agency, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1307

980 F.2d 1307

23 Envtl. L. Rep. 20,454

LONGVIEW FIBRE COMPANY, James River II, Inc., Boise Cascade

Corporation, and Weyerhaeuser Company, Petitioners, and Columbia River United and Dioxin/Organochlorine Center, Petitioner-Intervenor, v. Dana A. RASMUSSEN, Regional Administrator, and the United

States Environmental Protection Agency, Respondents.

COLUMBIA RIVER UNITED AND DIOXIN/ORGANOCHLORINE CENTER, Petitioner, v. Dana A. RASMUSSEN, Regional Administrator, and the United

States Environmental Protection Agency, Respondents.

Nos. 91-70389, 91-70398.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 1992.

Decided Dec. 8, 1992.

Beth S. Ginsberg and Karen M. McGaffey, Bogle & Gates, Seattle, Wash., for petitioners.

Victor M. Sher, Sierra Club Legal Defense Fund, Seattle, Wash., for petitioner-intervenor and petitioner.

Christopher S. Vaden and Diane M. Connolly, Barry M. Hartman, Acting Asst. Atty. Gen., U.S. Dept. of Justice, Roland Dubois, E.P.A., Washington, D.C., and Adrianne Allen, E.P.A., Seattle, Wash., for respondents.

Petition for Review of a Decision of the Environmental Protection Agency.

Before PREGERSON, TROTT and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

Several pulp mills and environmental advocacy organizations petition for review of a Clean Water Act determination by the Environmental Protection Agency. The EPA issued limits on dioxins discharged into the Columbia River, which the pulp mills claim are too stringent and the advocacy groups claim are too liberal. The limits are called total maximum daily loads. ¹ We conclude that we lack jurisdiction, so we do not reach the merits of the challenge. Accordingly, we grant the EPA's motion to dismiss.

I. THE EPA DECISION.

The EPA established a total maximum daily load limit on discharges of dioxin into the Columbia River Basin. The decision document explains that "concentrations of dioxin in the Columbia River ... are below levels which can be measured," but fish accumulate dioxin, and it "has been found at detectable levels in the tissue of fish taken from the Columbia River Basin."

Before the EPA adopted its limit, the affected states, Washington, Oregon, and Idaho, adopted water quality standards. The most stringent of these, adopted by Oregon, allowed for 0.013 parts of dioxin per quadrillion, a figure selected on the basis of an estimated projection of one excess cancer case per million people assuming lifetime exposure to drinking the water and eating the fish. The three states asked the EPA to adopt a total maximum daily load as a federal action, and it did so, using the Oregon water quality standard.

Dioxin enters the river from numerous sources, including pulp and paper mills, other industrial sites, municipal wastewater treatment plants, runoff in agricultural areas, runoff in urban areas, and release from sediments on the bottoms of the rivers. Because dioxin is immeasurably diluted at a concentration of 0.013 parts per quadrillion, the total maximum daily load is a regulatory device applied to control how much dioxin the pulp mills discharge into the water, rather than what can be measured in the water after the discharges. The mills claim that their waste load allocations based on the total maximum daily load are also too small to measure, so that they are exposed to $25,000 a day penalties but are unable to determine whether they are in compliance. The EPA decision document explains that the load figure is more stringent than that which would allow .013 parts per quadrillion, in order to afford a "margin of safety" taking into account "lack of knowledge," as required by the controlling statute. The decision document explains that data on dioxin discharges from wood treatment facilities, municipal wastewater treatment plants, agricultural sites, urban areas, and release from bottom sediments, "are minimal or nonexistent."

The EPA generated a figure of 2.38 milligrams per day of allowable dioxin discharge for all of the chlorine-bleaching pulp mills, to be divided up among them in their permits. The EPA rejected the zero discharge proposal of the advocacy organizations, on the ground that it was "not necessary to achieve water quality standards and would not be enforceable" because discharges must reach a certain level before they can be measured. The EPA rejected the pulp mills' proposal that their permissible discharges be calculated on the basis of dividing up the amount of discharges which would be within the water quality limit, 5.96 milligrams per day for all the mills, because of "lack of information" on other sources and concern over release and buildup in fish and other organisms in the river. The 2.38 milligrams per day figure was based on allowing the mills, including a Canadian mill not subject to EPA regulation, to discharge 40% of the assumed capacity for dioxins of the Columbia River Basin.

II. JURISDICTION TO REVIEW.

Both the mills and the advocacy organizations timely petitioned for review to this court from the EPA total maximum daily load determination. Our jurisdiction is limited to what the political branches have assigned to us by statute. Russell v. Law Enforcement Assistance Administration, 637 F.2d 1255, 1257 (9th Cir.1980). The Clean Water Act review procedure is gnarled and hazardous. There are four possibilities: (1) review by the court of appeals of EPA action; (2) review by the district court with appeal to the court of appeals; (3) review by the states which set the water quality standards giving rise to the total maximum daily load limitations; (4) no review. A special hazard arises when review is available directly to the court of appeals, because availability of direct review forecloses review in certain enforcement proceedings. We conclude that the second alternative is the best reading of the statutes. The EPA conceded at oral argument that if its motion to dismiss the appeal for lack of jurisdiction were granted, as it is by our decision, then review of EPA's action would be available in the district court. We determine de novo our jurisdiction to review. Reebok Int'l, Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552, 554 (9th Cir.1992); Love v. Thomas, 858 F.2d 1347, 1352 n. 9 (9th Cir.1988).

Our jurisdiction to review EPA Clean Water Act determinations is established by 33 U.S.C. § 1369(b)(1):

Review of the Administrator's action (A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying any permit under section 1342 of this title, and (G) in promulgating any individual control strategy under section 1314(1) of this title, may be had by any interested person in the Circuit Court of Appeals of the United States.

The petitioners argue that review is available most plainly under under subsection (E), and also under subsections (C) and (D).

The problem with petitioners' position is that the EPA issued the total maximum daily load limits under 33 U.S.C. § 1313. Every subsection of the review statute lists a particular statutory section or group of sections by number for which review is available under that subsection. Section 1313 is not listed. Petitioners argue that exclusion of section 1313 makes no sense, because the purposes served are similar to those of the listed sections. Although we see the practicality of the petitioners' argument, we cannot bring ourselves to conclude that Congress would have listed so precisely the sections for which review obtains in the courts of appeals, yet meant to include an unlisted section by implication.

A. Section 1313.

The section pursuant to which the EPA issued the limits requires states to establish water quality standards subject to EPA approval, and requires periodic review of the water quality standards by state governors and state water pollution control agencies. 33 U.S.C. § 1313(a), (c). The states must also identify waters for which effluent standards under §§ 1311(b)(1)(A) and (b)(1)(B) are not stringent enough to implement the water quality standards, and establish total maximum daily loads, subject to EPA approval, for certain pollutants. 33 U.S.C. § 1313(d)(1)(C). See Natural Resources Defense Council v. U.S.E.P.A., 915 F.2d 1314 (9th Cir.1990). In the case at bar, all three states declined to adopt total maximum daily loads, and asked that EPA do so as a federal action. The EPA action is in the form of a disapproval of action by the states and imposition of standards by the EPA, under 33 U.S.C. § 1313, although the states requested the disapproval.

B. Subsection (E).

The petitioners' strongest argument relies on subsection (E) of the review provision. Subsection (E) assigns to this court review of the Administrator's action "in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title." 33 U.S.C. § 1369(b)(1)(E).

The parties agree that a total maximum daily load is an "effluent limitation." An "effluent limitation" is a "restriction ... on quantities, rates, and concentrations ... discharged from point sources." 33 U.S.C. § 1362(11). The EPA cites its own regulations, which define a total maximum daily load as the sum of individual waste load allocations, which are "a type of water quality-based effluent limitation." 40 C.F.R. 130.2(h), (i) (1990). The petitioners do not dispute this part of the argument, so we have no occasion to rule upon it.

Although the EPA concedes that the total maximum daily load is an effluent limitation, it...