Natural Resources Defense Council v. U.S. E.P.A., No. 00-70890.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Thomas
• Citation: 279 F.3d 1180
• Parties: NATURAL RESOURCES DEFENSE COUNCIL; Southeast Alaska Conservation Council; Sierra Club; Organized Village of Kake; Hoonah Indian Association; Alaska Wilderness Recreation and Tourism Association; Tongass Conservation Society; Sitka Conservation Society; Alaska Center for the Environment; Alaska Wilderness League, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Christine Todd Whitman,<SMALL><SUP>*</SUP></SMALL> Administrator, U.S. Environmental Protection Agency; and L. John Iani,<SMALL><SUP>**</SUP></SMALL> Regional Administrator, Region 10 U.S. Environmental Protection Agency, Respondents, Alaska Forest Association, Inc.; Sealaska Corporation; Sealaska Timber Corporation, Intervenors.
• Docket Number: No. 00-70890.
• Decision Date: 13 February 2002

279 F.3d 1180 NATURAL RESOURCES DEFENSE COUNCIL; Southeast Alaska Conservation Council; Sierra Club; Organized Village of Kake; Hoonah Indian Association; Alaska Wilderness Recreation and Tourism Association; Tongass Conservation Society; Sitka Conservation Society; Alaska Center for the Environment; Alaska Wilderness League, Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Christine Todd Whitman,^* Administrator, U.S. Environmental Protection Agency; and L. John Iani,^** Regional Administrator, Region 10 U.S. Environmental Protection Agency, Respondents,
Alaska Forest Association, Inc.; Sealaska Corporation; Sealaska Timber Corporation, Intervenors. No. 00-70890. United States Court of Appeals, Ninth Circuit. Argued and Submitted January 9, 2002. Filed February 13, 2002.

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Sharon Buccino, Natural Resources Defense Council, Washington, D.C.; Robert E. Lindekugel, Southeast Alaska Conservation Council, Juneau, AK, for the petitioners.

Alan D. Greenberg, United States Department of Justice, Environment & Natural Resources Division, Denver, CO, for the respondents.

Jonathan K. Tillinghast, Simpson, Tillinghast, Sorensen, Lorensen & Longenbaugh, Juneau, Alaska; J.W. Peterson, Ziegler Law Firm, Ketchikan, AK, for the intervenors.

On Petition for Review of an Order of the Environmental Protection Agency. EPA NPDES Permit Nos. AK-G70-0000, AK-G70-1000.

Before: THOMAS, GRABER, and GOULD, Circuit Judges.

THOMAS, Circuit Judge.

Petitioners seek review of permits issued by the United States Environmental Protection Agency ("EPA") authorizing the operators of log transfer facilities in Alaska to release bark and woody debris into marine waters. We conclude that the EPA failed to provide adequate notice and opportunity for comment prior to issuing the final general permits, and we grant the petition for review in part.

I

To achieve the goal of reducing and eventually eliminating pollution, Congress prohibited the "discharge of any pollutant" from a "point source" into the waters of the United States, unless that discharge complies with the Clean Water Act ("CWA") of 1971,33 U.S.C. §§ 1251-1387. 33 U.S.C. §§ 1311(a), 1342. The National Pollutant Discharge Elimination System ("NPDES") is one of the primary means of

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controlling water pollution under the CWA. See CWA § 402, 33 U.S.C. § 1342. Under the NPDES, a pollutant cannot be discharged from a point source unless the discharge is authorized by an NPDES permit. See id.; see also CWA § 301, 33 U.S.C. § 1311. A state may create its own program for issuing NPDES permits. See CWA § 402(a)-(c), 33 U.S.C. § 1342(a)-(c). Alaska has not chosen to do so, and thus the EPA issues NPDES permits for discharges of pollutants within Alaska.

NPDES permits come in two varieties: individual and general. An individual permit authorizes a specific entity to discharge a pollutant in a specific place and is issued after an informal agency adjudication process. See 40 C.F.R. §§ 122.21, 124.1-124.21, 124.51-124.66. General permits, on the other hand, are issued for an entire class of hypothetical dischargers in a given geographical region and are issued pursuant to administrative rulemaking procedures. See id. §§ 122.28, 124.19(a). General permits may appropriately be issued when the dischargers in the geographical area to be covered by the permit are relatively homogenous. See id. § 122.28(a)(2). After a general permit has been issued, an entity that believes it is covered by the general permit submits a "notice of intent" to discharge pursuant to the general permit. Id. § 122.28(b)(2). A general permit can allow discharging to commence upon receipt of the notice of intent, after a waiting period, or after the permit issuer sends out a response agreeing that the discharger is covered by the general permit. Id. § 122.28(b)(2)(iv). Whichever of these three authorization methods is used in the general permit, the permit issuer can require a particular discharger to undergo the individual permit application process. Id. § 122.28(b)(3).

Under the CWA, each state sets its own water quality standards, subject to review and approval by the EPA. See CWA § 303, 33 U.S.C. § 1313; 40 C.F.R. §§ 131.4, 131.10-131.12. Before approving a state's proposed standards, the EPA must be satisfied that the standards comply with the requirements of the CWA. CWA § 303(a), 33 U.S.C. § 1313(a). Alaska has enacted water quality standards that have been approved by the EPA. See Alaska Admin. Code tit. 18, ch. 70.

Before the EPA can issue either an individual or a general NPDES permit, the state in which the discharge will occur must certify, or waive its right to certify, that the discharge authorized by the permit will comply with the state's water quality standards. CWA § 401(a), 33 U.S.C. § 1341(a); 40 C.F.R. §§ 122.4(b), 124.53.

II

Because of Alaska's unique and rugged terrain, most logs cut in Alaska are transported to market through marine waters. For transport, the logs are tied together into bundles that form log rafts. The bundles are placed into the water at log transfer facilities ("LTFs"). See 33 U.S.C. § 1342 note. From these points, the bundles are towed to destinations such as sawmills and shipping ports.

During this process, particularly at the point where the logs are placed into the water, the logs rub against each other and sometimes against the bottom of the body of water. This friction, as well as the contact of the logs with the water itself, causes bark and woody debris to be rubbed or broken off and released into the water. Different methods of placing the logs into the water result in different amounts of bark and woody debris being released. Bark and woody debris remain in the water and do not decay for many years. In areas where the water lacks strong currents or where high amounts of bark and woody debris enter the water, the bark and woody debris can accumulate

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into significant concentrations. These accumulations of bark and woody debris create problems for marine life and worsen the quality of the water.

The EPA identified bark and woody debris as a pollutant in the early 1980s. Consequently, the EPA required new LTFs to obtain individual permits before discharging bark and woody debris. See Water Quality Act of 1987, Pub.L. No. 100-4, § 407(a), 101 Stat. 7, 74 (1987); see also CWA § 402, 33 U.S.C. § 1342 & note.

Most LTFs in existence before October 22, 1985, however, have not been required to obtain new permits. Congress enacted a special statutory provision allowing them to continue discharging under the authority of permits issued pursuant to prior statutory authority. See Water Quality Act § 407(b); see also 33 U.S.C. § 1342 note. However, if the EPA determines, after the opportunity for a hearing, that an LTF's existing pre-1985 permit does not comply with current substantive standards, the EPA can modify the permit to incorporate additional requirements in order to ensure compliance with current substantive standards. See id.

In the mid-1990s, the EPA came to the conclusion that the pre-1985 permits did not comply with the CWA. According to the EPA, the pre-1985 permits did not: (1) "include a zone of deposit for underwater accumulations of bark and woody debris at the LTF"; (2) "include uniform monitoring and reporting requirements"; or (3) "provide uniform application of best management practices and specific effluent limitations."

Accordingly, the EPA proposed to modify all pre-1985 permits for LTFs in Alaska. The EPA issued for comment a draft general permit that would apply to nearly all LTFs in Alaska, including new LTFs and existing LTFs functioning under individual, post 1985 NPDES permits as well as LTFs functioning under pre-1985 permits. The proposed permit included changes in monitoring and reporting requirements, management practices, and effluent limitations. It also noted that Alaska proposed to allow a one-acre zone of deposit for bark and woody debris, defined by accumulations of 100 percent cover that exceed four inches' depth at any point, and to allow patchy distribution of bark beyond the one-acre zone of deposit.

A "zone of deposit," a creature of Alaska state law, is an area in which Alaska's water quality standards can be violated. See Alaska Admin. Code tit. 18, § 70.210(a). Alaska's water quality standards consist of maximum levels for the amount of pollutants that can be in waters of different classifications. See id. § 70.020(b). Bark and woody debris fall into the category "residues." The maximum amount of residue that can be in the highest class of water is defined as the amount that does not "make the water unfit or unsafe for use, ... or cause a sludge, solid, or emulsion to be deposited beneath or upon the surface of the water, within the water column, on the bottom, or upon adjoining shorelines." Id. § 70.020(b) at 634, 641. The parties interpret this provision as meaning that, in general, any bark or woody debris released into the water would violate this standard. Because a zone of deposit is an area in which the standards can be violated, however, bark or woody debris can be released into an approved zone of deposit without violating Alaska's water quality standards.

The one-acre size for the zones had been prior practice for at least some pre-1985 permits and some post-1985 individual NPDES permits. As noted by the EPA in the draft general permit, the one-acre size for the zones stemmed from interim guidelines promulgated by the Alaska Timber Task Force ("ATTF") in 1985.

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