# Appendix — Costle v. Pacific Legal Foundation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0087%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 445 U.S. 198 ## Text . Or Gupreine Court, . & arr /“~ ‘ j EILED | SEP 4 979 APPENDIX Iu the Supreme Court of the United States OCTOBER TERM, 1978 No. 78-1472 DOouGLAS M. COSTLE, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Petitioner —).— PACIFIC LEGAL FOUNDATION, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FILED: MARCH 23, 1979 PETITION GRANTED: JUNE 11, 1979 In the Supreme Court of the United States OCTOBER TERM, 1978 No. 78-1472 DOUGLAS M. COSTLE, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Petitioner — PACIFIC LEGAL FOUNDATION, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT INDEX Page es I II 1 5 cc escetenisannintcaneiobtedinebisinieninunsentihie 1 2. NPDES Discharge permit, No. CA0109991/Order No. 75-100, August 18, 1975 (A.R. Exh. 1)® ..............0......0..... 3 *“A.R.” refers to the administrative record certified by EPA to the court of appeals. “PLF Stay” re.ers to the “Joint Motion for Stay Pending Review and Affidavit of Robert K. Best” dated September 2, 1977, and PLF’s “Reply to Memorandum in Opposition to Motion For Stay Pending Review” dated November 3, 1977, both filed by all petitioners in No. 77-2909 below. “LA Stay” refers to “Memorandum of Amicus Curiae in Support of Joint Motion For Stay Pending Review” dated November 23, 1977, filed by Los Angeles in No. 77-2909. “EPA Stay Opp.” refers to EPA’s “Memo- randum In Opposition To Motion For Stay Pending Review” dated September 30, 1977, filed in No. 77-2909. “PLF Merits” refers to “Petitioners’ Opening Brief” dated January 13, 1978, filed by all petitioners in No. 77-2909. “PLF Reply” refers to “Petitioners’ Reply Brief” dated February 10, 1978, filed by all petitioners in No. 77-2909. “LA Merits” refers to the “Brief of the City of Los Angeles” in No. 77-3008. “EPA Brief” refers to “Brief for Re- spondents” dated February 1978 in Nos. 77-2909 and 77-3008. “EPA Pet. Reh.” refers to EPA’s “Petition for Rehearing.” By order filed December 19, 1977, the court of appeals ordered that “the record and all other documents received in these petitions for review * * * are ordered filed.” By order filed February 10, 1978, the court ordered that “the volume of exhibits to petitioners’ brief heretofore re- ceived is ordered filed.” See F.R. App. P. 16(b). 20. 21. INDEX California Regional Water Quality Control Board, Order No. 75-165, December 1, 1975 (LA Merits Exh. 2) ........ California Regional Water Quality Control Board, Order No. 76-80, May 24, 1976 (LA Merits Exh. 8) ................ California Regional Water Quality Control Board, Order No. 76-202, November 22, 1976 (LA Merits Exh. 4) ...... Letter, Lawrence L. Hoffman to Paul DeFalco, Jr., De- cember 9, 1976 (PLF Stay Exh. 6) .......................ccceeeeeeees Letter, Albert C. Martin to Paul DeFalco, Jr., December RR RF BR, 5 RPA RoR aN see Letter, Ronald A. Zumbrun to Paul DeFalco, Jr., De- cember 30, 1976; letter, Paul DeFalco, Jr., to Ronald A. Zumbrun, January 31, 1977 (PLF Stay Exh. 8) ........ Order (NPDES No. CA0109991), January 24, 1977 (A.R. BRN TD avnttcstichcdeccvecteesninns Asslasnatebcietnndinnlibecneseedematligiaasnlaastistipsasbin Letter, Raymond M. Hertel to City of Los Angeles, Att: Donald C. Tillman, January 27, 1977 (Order No. 77-1, January 24, 1977, attached) (A.R. Exh. 8) .......0000000...... . California Regional Water Quality Control Board, Order No. 77-29, February 28, 1977 (LA Merits Exh. 5) ........ . Affidavit of Paul DeFalco, Jr., April 18, 1977 (PLF Stay I Sai0 - eee Letter, R. L. O’Connell to Warren A. Hollier, June 2, nn a ais Letter, Raymond M. Hertel to City of Los Angeles, Att: Donald C. Tillman, June 2, 1977 (Order No. 77-84, May 28, 1977, attached) (A.R. Exh. 16) ...........................0....... Letter, David M. Shell to William H. Pierce, June 10, i gt RE ren een oe Page ay a — INDEX Telegram-Mailgram, John B. Kilroy, Sr., to Paul De- Falco, Jr., June 18, 1977 (EPA Stay Opp. Exh. B; PLF BR BR: TB) cecitenncicisdadincisnkicesinbbedisbnictdsledealioies . Letter, R. L. O’Connell to Donald M. Pach, june 23, ROTT CIRPA POR. BRO. DOIN. BBD. laccccscccccssttcicccecicncicstiniomees . Certification of Issues of Law by R. L. V’Connell for Paul DeFalco, Jr., June 23, 1977 (EPA Stay Opp. Exh. GG} icvicvhcacanectocenssetesonsonaepnanieahoielecadeintiun da tadeemaaat aaa aaa Letter, Anthony O. Garvin to David M. Shell, June 23, LOTT CR TE TG. OD ites ict . Brief of Pacific Legal Foundation on Behalf of John B. Kilroy on Certified Questions to General Counsel, July BR SOUT CHP Fe Be, I Gs scencctietcccncce crate Complaint in United States v. City of Los Angeles (C.D. Cal., Civ. No. 77-3047R), August 12, 1977 (EPA Stay Com. BUA: BP): ci cisscctacksdaveccsnashisscncnkiomaibecshanasbaulceiialeneieadiaemmarhiats . Letter, Paul DeFalco, Jr., to Thomas E. Hookano, Sep- tember 2, 1977 (EPA Stay Opp. Exh. E) ........000.00000....... . Decision of the General Counsel on Matters of Law Pur- suant to 40 ©.F.R. Section 125.36(m), No. 66, October 2B, 108 CPR UE BOD: SP ndicieceioea ene . Affidavit of Donald Calvin Tillman, November 23, 1977 (LA Stay, unnumbered attachment) ...........00......00000020.... . Letter, R. L. O’Connell to David M. Shell, December 20, BOTT CHEM BERR CE TE BP vncietnticcccteiaceateneties Cher ROUTINE CUI siccecdsiedecissistsicarttntindaeate as RELEVANT DOCKET ENTRIES DATE FILINGS-PROCEEDINGS 1977 Aug 22 FILED, AS OF AUGUST 18, ORIG AND SIX COPIES OF A PETITION TO REVIEW AN ORDER OF THE ENVIRONMENTAL PROTECTION AGENCY. —dmf—[77-2909] Filed as of August 31, 1977, original and six copies of a petition to review an order of the Environmental Pro- tection Agency—dmf—[77-3008] Nov 16 REC’D (LATE), AS OF OCT 20, CERT LIST OF RECORD PURSUANT TO RULE 17(b) FRAP.—dmf— Dec. 28 Filed, as of 12/23/77, order (G & A) upon due con- sideration, the court issues the following orders: a) the record and all other documents rec’d in these petitions for review, includiig the amicus curiae memorandum, are ordered filed; b) respondents’ motion to consolidate is GRANTED; and c) that the terms, conditions and re- quirements of NPDES Permit No. CA0109991 on review in these consolidated cases are hereby STAYED with the exception that effluent limitations which were applic- able to the Hyperion Plant and which were in effect for the discharges from the Hyperion Plant on 1/1/77, and the monitoring and reporting requirements related there- to shall remain in full force and effect pending final dis- position of these consolidated cases or further order of this court. d) the Clerk is directed to calendar these consolidated cases as an expedited appeal, to fix an ab- breviated briefing schedule and to notify all counsel of the schedule. jr 1978 Feb 16 Filed, as of Feb 10, order (Br), Upon due considera- tion, the volume of exhibits to petitioners’ brief hereto- fore received is ordered filed.—dmf— (1) DATE FILINGS-PROCEEDINGS 1978 Feb 16 Filed, as of Feb 10, 25 copies of Exhibits to Peti- tioners’ Brief.-—dmf— Feb 27 FILED AS OF 2/6/78, CERT ADMIN RECORD IN APPEAL IN ONE VOL, VOL I., PLDGS, THREE CERT COPIES. ers Mar 31 Filed as of 3/29/78, Order (G,A) IT IS ORDERED as follows: (1) Paragraph (c) of this court’s stay order of 12/23/78, was meant to include a stay of enforce- ment of NPDES Permit No. CA0109991 by the USA. (2) The resps and the USA are hereby restrained from instituting such action and from further prosecuting USA v. City of LA, CD Cal, Civ No. 77-3047-HP, pend- ing final disposition of these consolidated cases or further order of this court by the panel to which these consoli- dated cases are assigned for disposition. ers Apr 10 ARGUED AND SUBMITTED BEFORE MER- RILL, SNEED, CJJ, EAST, DJ. jmr Aug 10 As of Aug. 9, ORDERED OPINION (SNEED) FILED & JUDG TO JUDG TO BE FILED & ENTD Aug 10 As of Aug. 9, Filed opinion—REMANDED. Aug 10 As of Aug. 9, Filed & Entd Judgment.—fn— Nov 28 Filed, as of 11/24/78, order (M, S & East) The peti- tion for rehearing is denied and the suggestion for re- hearing en banc is rejected. nw 1979 April 13 Received 3/29/79, SC notice of filing petition for cert. on March 23, 1979, assigned SC#78-1472. pn June 18 Filed certified copy of SC order of June 11, 1979, granting certiorari. (copies to panel) pn. weet 3 California Regional Environmental Protection Agency Water Quality Region IX Control Board (415) 556-3450 Los Angeles Region Permit No. CA0109991 (213) 620-4460 Authorization to Discharge under Order No. 75-100 the National Pollutant Discharge Waste Discharge Elimination System-Federal Water Requirements Pollution Control Act (33 U.S.C. 125 et. seq.) FOR City of Los Angeles _ Hyperion Treatment Plant The California Regional Water Quality Control Board, Los Angeles Region (hereafter Board) and the Regional Administrator, Environmental Protection Agency, Region IX, find that: 1. City of Los Angeles has filed a report of waste discharge and has applied for a permit to dis- charge wastes under the National Pollutant Dis- charge Elimination System. 2. Hyperion Treatment Plant, located at 12000 Vista Del Mar Boulevard, Playa Del Rey, California, currently discharges an average of 340 mgd (mil- lion gallons per day) of municipal wastewater to navigable waters or tributaries thereto (Santa Monica Bay). 3. Approximately 100 mgd of the flow currently re- ceives secondary treatment by the activated sludge process; the balance is primary effluent. a. The combined treated effluent (primary and secondary) is discharged through an outfall terminating 26,525 feet offshore in 187 feet of water. This discharge point, identified as Discharge Serial No. 002, is at Latitude 33° 54’ 45” N, Longitude 118° 31’ 15” W. b. Separated solids are digested, screened, and diluted one volume digested sludge with three d volumes secondary effluent prior to discharge through an outfall terminating at 35,572 feet offshore at the head of a submarine canyon at a depth of 300 feet. This discharge point, identified as Discharge Serial No. 003, is at Latitude 33° 55’ 35” N, Longitude 118° 33’ 15” W. ce. During wet weather when flow exceeds 650 mgd due to infiltration and inflow approxi- mately 0 to 20 million gallons of diverted flow from the secondary settling tanks are discharged for periods of 1 to 8 hours through an outfall which terminates 5,364 feet off- shore in 50 feet of water. This wet weather flow occurs approximately once or twice a year. This outfall is also used non-routinely for gyavity discharge in cases of power fail- ure at the pumping plant. This non-routine flow occurs approximately two to three times a year for a period less than one hour. This discharge consists of 0 to 4 million gallons of chlorinated secondary effluent. The out- fall is also flushed weekly with chlorinated secondary effluent for a period of 3 hours at a flowrate of 100 mgd. This discharge point is identified as Discharge Serial No. 001, at Latitude 33° 55’ 05” N, Longitude 118° 26’ 52” W. 4. City of Los Angeles discharges wastes from Hy- perion Treatment Plant under requirements con- tained in Order 74-329 and NPDES permit num- ber CA0109991, issued, respectively, by this Board and the Regional Administrator on November 18, 1974. This Order makes the following significant modification to Order No. 74-329 and NPDES per- mit issued on November 18, 1974: Discharge Serial No. 003, which was not in- cluded in Order No. 74-329 and the NPDES permit issued on November 18, 1974, is now regulated by this Order. 5 . The City of Los Angeles is participating in a joint study with the County Sanitation Districts of Los Angeles County and the County Sanitation Dis- tricts of Orange County to develop an optimum long-range sewage sludge disposal plan. The study is entitled “Regional Wastewater Solids Manage- ment Program—Los Angeles—Orange County Metropolitan Area”. . The City of Los Angeles expects to have interim sludge handling facilities in operation by Decem- ber 31, 1976. Studies should be conducted by the City of Los Angeles to determine the best method of disposal of the liquid fraction or supernatant from these interim facilities so as not to cause a violation of discharge requirements contained in this permit. . The State Water Resources Control Board adopted the “Water Quality Control Plan—Ocean Waters of California” on July 6, 1972. This plan contains water quality objectives for the Pacific Ocean. The Regional Administrator approved this plan on Au- gust 18, 1972, thereby establishing this plan as a State—Federal water quality standard. . The Board adopted a Water Quality Control Plan for Los Angeles River Basin on March 10, 1975. The Water Quality Control Plan contains water quality objectives for the nearshore and offshore zones of the Pacific Ocean. . The beneficial uses of the receiving waters are: Nearshore Zone: (includes water generally less than 30 feet deep of those waters within 1,000 feet of the shoreline): aesthetic en- joyment; ocean water contact sport (swim- ming, surfing, skindiving) ; propagation and sustenance of marine life, including kelp and shore birds; shellfish harvesting; scientific research and training; sport fishing; com- mercial fishing; pleasure boating; commer- cial and naval shipping; and industrial water supply. 6 Offshore Zone: (includes all waters located be- tween the nearshore zone and the seaward boundary of the Region): aesthetic enjoy- ment; propagation and sustenance of marine life; scientific research and training; sport fishing; commercial fishing; pleasure boat- ing; commercial and naval shipping; and in- dustrial water supply. 10. Effluent limitations, national standards of perform- ance, toxic and pretreatment effluent standards, and ocean discharge criteria estabiished pursuant to Section 208(b), 301, 302, 303(d), 304, 306, 307, 403, and 405 of the Federal Water Pollution Con- trol Act and amendments thereto are applicable to the discharges. The Board and Regional Administrator have notified the discharger and interested parties and persons of their intent to prescribe waste discharge requirements and issue a permit for this discharge and have provided them with an opportunity to submit their written views and recommendations. The Board and the Regional Administrator in a public hearing heard and considered all comments pertaining to the discharge and to the tentative requirements. This Order and permit shall take effect 30 days from the date of signature. IT IS HEREBY ORDERED, that City of Los Angeles, in order to meet the provisions contained in Division 7 of the California Water Code and regulations adopted thereunder, and the provisions of the Federal Water Pollution Control Act and regulations and guidelines adopted thereunder, shall comply with the following: A. Effluent Limitations 1. Wastes discharged shall be limited to treated municipal wastewater, as proposed. 2. The discharge of an effluent in excess of the following limits for Discharge Serial No. 001 is prohibited: 3 30-Day 7-Day Daily Parameter Units Average Average Maximum BOD, 20°C lbs/day* 25,000 37,500 50,000 mg/1 ' 30 45 _- Suspended solids Ibs/day* 25,000 37,500 50,000 mg/1 80 45 — Fecal coliform MPN/100 ml 200 400 2,000 Oil and grease Ibs/day* 8,340 — 12,500 mg/l 10 — 15 Settleable solids ml1/1 0.1 — 0.2 Turbidity TU 50 -— 75 Floating particulates mg/1 (dry weight) 1.0 — 2.0 * Based on a design capacity of 100 mgd. 3. The discharge of an effluent in excess of the following limits for discharge Serial No. 002 is prohibited. 30-Day Daily Parameter Units Average Maximum BOD, 20°C Ibs/day* 438,000 665,000 mg/1 125 190 Suspended solids Ibs/day* 385,000 579,000 mg/1 110 165 Settleable solids ml/1 0.7 1.0 Oil and grease Ibs/day* 70,000 105,000 mg/l 20 30 * Based on a design capacity of 420 med. 4. As ordered by the schedule of compliance in F-1 below, the discharge of an effluent in ex- cess of the following limits for Discharge Seriai No. 002 is prohibited: 30-Day 7-Day Daily Parameter Units Average Average Maximum BOD, 20°C Ibs/day* 105,000 158,000 210,000 mg/1 30 45 _- Suspended solids Ibs/day* 105,000 158,000 210,000 mg/1 30 45 — Fecal coliform MPN/100 ml 200 400 2,000 Oil and grease Ibs/day* 35,000 — 52,500 mg/1 10 — 15 Settleable solids ml/1 0.1 — 0.2 Turbidity TU 50 — 75 Floating particulates mg/1 (dry weight) 1.0 —. 2.0 5. The discharge of an effluent from Discharge Serial Nos. 001 and 002 in excess of the follow- ing limits is prohibited: 30-Day Maximum Parameter Units Average Daily Arsenic Ibs/day* 35 70 mg/1 0.01 0.02 Copper lbs/day* 700 1050 mg/1 0.2 0.3 Lead Ibs/day* 350 700 mg/1 0.1 0.2 * Based on a design capacity of 420 mgd. 6. The discharge of an effluent from Discharge Serial Nos. 001 and 002 in excess of the follow- ing limits after July 1, 1978, is prohibited; provided, however, except as to residual chlo- rine, if it can be conclusively demonstrated by any discharger to ocean water tributaries that the treatment process required by Water Code Section 18379 (a and b), plus source control, will not result in complete compliance with the following limits by July 1, 1978, the Board and Regional Administrator may allow additional time for compliance not to exceed July 1, 1983: 9 Discharge Rate Concentration (Ibs/day)* Limit(mg) 30-Day Daily 30-Day Daily Constituents Average Maximum Average Maximum Silver 70 | 140 0.02 0.04 Cadmium 70 105 0.02 0.03 Total chromium 17.5 35 0.005 0.01 Mercury 3.5 7.0 0.001 0.002 Nickel 350 700 0.1 0.2 Zine 1050 1750 0.3 0.5 Cyanide 350 700 0.1 0.2 Phenolic compounds (expressed as phenol) 1750 3500 0.5 1.0 Ammonia (expressed as nitrogen) 105,100 140,000 30.0 40.0 Total identifiable chlorinated hydrocarbons 7.0 14 0.002 0.004 Toxicity concentration — -—— 1.5 tu 2.0tu Residual chlorine — — 1.0 2.0 * Based on a design capacity of 420 mgd. 7. The discharge of an effluent in excess of the following limits from Discharge Serial No. 003 is prohibited: 30-Day Maximum Parameter Units Average Daily Total solids lbs/day* 900,000. 1,350,000 mg/1 18,000 — * Based upon a flow of 6.0 mgd. 8. The discharge of an effluent from Discharge Serial No. 003 in excess of the following limits after July 1, 1978, is prohibited; provided, how- ever, except as to residual chlorine, if it can be conclusively demonstrated by any discharger to ocean water tributaries that the treatment process required by Water Code Section 13379 (a and b), plus source control, will not result 10 in complete compliance with the following limits by July 1, 1978, the Board and Regional Ad- ministrator may allow additional time for com- pliance not to exceed July 1, 1983: Total chromium Discharge Rate Concentration (Ibs/day) * Limit(mg) 30-Day Daily 30-Day Daily Constituents Average Maximum Average Maximum 0.50 1.00 0.01 0.02 1.00 1.50 0.02 0.03 0.25 0.50 0.005 0.01 10.0 15.0 0.2 0.3 5.00 10.0 0.1 0.2 0.05 0.10 0.001 0.002 5.00 10.0 0.1 0.2 1.00 2.00 0.02 0.04 15.0 25.0 0.3 0.5 5.00 10.0 0.1 0.2 Phenolic compounds (expressed as phenol) 25.0 50.0 0.5 1.0 Ammonia (expressed as 1,500 2,000 30 40 Total identifiable chlorinated hydrocarbons 0.10 0.20 0.002 0.004 Toxicity concentration Residua! chlorine —- — 1.0 2.0 — — 1,.6(tu) 2.0(tu) * Based upon a flow of 6 mgd. 9. 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Pesojous 843 YSs}!qNd 8g 03 S} 3/ “SJUNCISIP JENSEN Oyy YW SjENpiAipUy 8yBA\Zd 0} peBseyd 0) pezyOUNE S: Mojeq PoweU UORSWNIGNG Oy JO sOYs!IQNd SUL LL/9%/%0 XI NOISGU - ADNASV NOILOZLOUd TVINAWNOUIANS SN aivo ' gdiddD YO NVZUNG ‘LNIWHSMEVISS YO INSMANVdIO W3GNNN .waGHO | Evil °° ‘mses prepuns 0002 Wud “/nsess, Par gi _, 43040 ONISLLUBAQV com dig tee g 128 LEGAL KOTICES ¥ F Hi Hl it ai it igt B Ei “ie site 3 Pees igiad Le OR wk ban 1 Hi at a i uk a ae at eh tu ie ae ali i i : ee ne EEE He ray i | Fa he i its ¢ at ee i if ee nr > 129 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA HONORABLE HARRY PREGERSON, JUDGE PRESIDING Civil No. 77-0521-HP PACIFIC LEGAL FOUNDATION, ET AL., PLAINTIFFS Vs. JOHN R. QUARLES, JR., ET AL., DEFENDANTS REPORTER’S TRANSCRIPT OF PROCEEDINGS Los Angeles, California Monday, May 23, 1977 SAMUEL GOLDSTEIN Official Reporter United States District Court Los Angeles, California 90012 Telephones: 622-1678 and 622-2903 130 APPEARANCES: For the Plaintiffs: PACIFIC LEGAL FOUNDATION By: Thomas E. Hookano and ROBERT K. BEST 455 Capitol Mall, Suite 465 Sacramento, California 95814 For the City of Torrance: ROGER FREEMAN 3031 Torrance Boulevard Torrance, California 90503 For the Federal Defendants: WILLIAM D. KELLER United States Attorney By: BARRY J. TRILLING Assistant United States Attorney 312 North Spring Street Los Angeles, California 90012 and ENVIRONMENTAL PROTECTION AGENCY REGIONAL COUNSEL By: ANTHONY O. GARVIN For the State of California Defendants: EVELLE J. YOUNGER Attorney General By: EMIL STIPANOVICH, JR. Deputy Attorney General 800 Tishman Building 3580 Wilshire Boulevard Los Angeles, California 90010 — 131 [3] LOS ANGELES, CALIFORNIA; MONDAY, MAY 23, 1977; 3:10 P.M. THE COURT: Call the calendar. THE CLERK: No. 15 on calendar. Civil No. 77-521- HP, Pacific Legal Foundation, et cetera, et al., vs. John R. Quarles, Jr., et cetera, et al. Your Honor, this matter is on the Court’s calendar this afternoon for hearing plaintiffs’ application for pre- liminary injunction. That application was filed on March 29, 1977. Counsel will please state their appearance for the record. MR. HOOKANO: Thomas Hookano for plaintiffs. MR. BEST: Robert Best for plaintiffs. MR. FREEMAN: Roger Freeman for plaintiff City of Torrance. MR. TRILLING: Good afternoon, your Honor. For the federal defendants, Assistant United States Attorney Barry Trilling; and Environmentz. Protection Agency, Anthony Garvin. MR. STIPANOVICH: For the State defendants, Emil Stipanovich, Jr., Deputy Attorney General. THE COURT: Very well. Mr. Best, do you want to address these questions, or Mr. Hookano? MR. BEST: Mr. Hookano will, your Honor. [4] THE COURT: Allright. Fine. MR. HOOKANO: Your Honor, would you like the questions read into the record? THE COURT: Well, I will give the clerk a copy of the questions for the Government and questions for the plaintiffs, and I will ask him to insert those questions in the record at this point as though they had been read in full, so that will obviate the need to read those ques- tions into the record. (Question No. 4 from the list entitled “Questions for Plaintiffs,’ which was handed to the reporter appears in the following words and figures, to wit:” 132 “Even if an EIS is required for the EPA’s fund- ing of the Hyperion project, why should a remedy on that cause of action include an injunction against enforcement of Hyperion’s permit? Under the Act, isn’t enforcement of pollution standards in permits independent from and not contingent upon the avail- ability of federal funding? “If the permit was held up pending an EIS as to the grant, wouldn’t the court be overruling the Water Act’s exemption from NEPA for permits and effluent limitations? “Even if it seems anomalous to require an [5] EIS pending federal funding of a project while leav- ing the EPA free to enforce orders requiring the project’s completion without federal funds, doesn’t that result stem from the plain meaning of Section 511?”) MR. HOOKANO: The question, now, in summary form is, why should a remedy on plaintiffs’ cause of action which relates to the request for an injunction pending completion of an EIS on the funding of the conversion of the Hyperion project, why should this in- junction if issued act against enforcement of the Hyperion permit. I think the response to that question first calls for an understanding of the project that we are seeking to en- join. That project is the physical conversion of the Hyperion plant to faciliate interim sludge processing. That project also consists of the federal and state de- fendants’ requirement that that project take place. THE COURT: Why don’t you just take the questions and answer them, without paraphrasing them. I think it would be more manageable that way. Question 4, do you have that in mind? MR. HOOKANO: Yes. THE COURT: Why don’t you answer that? MR. HOOKANO: The response is that we are not challenging the permit issued for the Hyperion plant. We are [6] challenging the conversion project. We are not seeking to upset the effluent limitations or any of the water quality standards set for operation of that plant. = 133 So the injunction would go towards the implementation of the requirements— THE COURT: One of the questions there is this: “Under the Act, isn’t enforcement of pollution stand- ards in permits independent from and not contingent upon the availability of federal funding?” “were HOOKANO: The answer to that question is, es. THE COURT: All right. MR. HOOKANO: But that is not what we are seek- ing here. THE COURT: What I am seeking is your answers to the questions. Title 38, United States Code, § 1842(b) (1)(C) (iii) provides that a permit can be terminated or modified for: “(iii) change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge.” See also 33 U.S.C. §§ 1842(b)(1)(C) (i), 1842(b) (1) (C) (ii). 178 ance of a new permit is the statutorily and regulatory prescribed method of action. Ill THE ACTION TAKEN BY THE REGIONAL AD- MINISTRATOR WAS THE ISSUANCE OF AN NPDES PERMIT Incorporating the above arguments, the action taken by the Regional Administrator regarding NPDES Permit No. CA0109991 was the issuance of a new NPDES per- mit. This conclusion is supported by the provisions of 40 C.F.R. § 125.2(a) (1). The regulations in 40 C.F.R. § 125 “do not prescribe policy or procedures for the issu- ance of permits by States under programs approved by the Administrator. . . .” (40 C.F.R. § 125.2(b).) NPDES Permit No. CA0109991 was issued by EPA and it ap- pears that the position taken by EPA is that 40 C.F.R. § 125 would apply. (See Attachment B.) It is recommended that the General Counsel determine that the action taken by the Regional Administrator was to issue a new NPDES permit for discharges of pollutants from the Hyperion Treatment Plant previously permitted under NPDES Permit No. CA0109991 which expired on February 1, 1977. As such, the Administrator failed to comply with applicable regulations and erroneously denied John B. Kilroy’s petition for an adjudicatory hearing. IV A PERMITTEE SHOULD NOT BE FORCED TO IMPLEMENT A PROJECT CONTAINED IN A COMPLIANCE SCHEDULE WHEN THAT PROJ- ECT IS BEING STUDIED IN AN EIS NPDES Permit No. CA0109991, issued to the City of Los Angeles for the Hyperion Treatment Plant, includes in the schedule of compliance an interim sludge manage- ment project which is to be evaluated in an EIS being prepared by EPA in compliance with the requirements of NEPA and FWPCA. (See Attachment C at 3-4.) If 179 EPA continues to mandate the interim sludge manage- ment project and the EIS prepared for the project. indi- cates another preferred, more environmentally sound alternative, an irreversible commitment of resources may occur and the NEPA process rendered purely academic, contrary to the intent and policies of NEPA. On June 3, 1977, the State Water Resources Control Board of California determined that the Secondary Treat- ment Standards set pursuant to Pub. L. No. 92-500 would require large expenditures for no measurable water qual- ity benefit. (See Attachment D at 2.) The interim slude management project for the Hyperion Treatment Plant is primarily based on requirements set pursuant to EPA’s interpretation of 33 U.S.C. §1311(b)(1)(B). If the primary basis for a project is determined in an EIS to be environmentally unsound, the project’s adverse environ- mental impacts should be mitigated, where feasible. In the instant case, evidence has been presented which casts doubt on the propriety of going forward with this project. Moreover, implementation of the project prior to comple- tion of the NEPA process forecloses any opportunity to expeditiously mitigate any negative environmental conse- quences, It is incumbent upon EPA to avoid taking action which could cause an irreversible and irretrievable loss of resources. There is the absence of any compelling need to imple- ment the interim sludge management project prior to completion of the NEPA process. In Flint Ridge v. Scenic Rivers Association, —— U.S. ——, 8 E.R.C. 2137 (1976), the Supreme Court held that where statutory limitations preclude preparation of an EIS, then the absence of an EIS will not bar an agency action. In the instant case there is no statutory or regulatory time limit on implementation of the project. NEPA requires that all federal agencies comply “to the fullest extent possible” with the directives of 42 U.S.C. § 4832. Here, EPA has not complied with the dictates of NEPA. An interim project is being mandated which could cause an irreversi- ble and irretrievable commitment of resources when there is no statutory time limit to preclude the prior prepara- 180 tion of an EIS and full evaluation of each alternative, including no project. Requestor recommends that General Counsel determine that a project which is being studied in an EIS should not be mandated until the EIS has been completed and com- ments received. CONCLUSION There is no statutory authority for the Regional Ad- ministrator to extend the expiration date of an NPDES permit, or to treat the extension of the expiration date as a modification. The statutes and regulations unam- biguously provide for issuance of a permit for a fixed term, and upon expiration of the term for the issuance of a new permit. The Regional Administrator has not complied to the fullest extent possible with the dictates of NEPA. The potential irreparable and irreversible commitme:t of re- sources mandated by the implementation of the interim slude project prior to completion of an EIS defies both logic and the law. It is recommended that the General Counsel adopt this position and provide guidance for future disputes which may arise under FWPCA. DATED: July 12, 1977. Respectfully submitted, RONALD A. ZUMBRUN ROBERT K. BEST THOMAS E. HOOKANO . By /s/ Thomas E. Hookano | THOMAS E. HOOKANO Attorneys for Requestor Pacific Legal Foundation 455 Capitol Mall, Suite 465 Sacramento, California 95814 Telephone: (916) 444-0154 [Attachments Omitted] ~~ 181 ROBERT L. BROSIO United States Attorney FREDERICK M. BROSIO, JR. Assistant U.S. Attorney Chief, Civil Division BARRY J. TRILLING Assistant U.S. Attorney 1100 U.S. Court House 312 North Spring Street Los Angeles, California 90012 Telephone: (213) 688-2450 Attorneys for Plaintiff UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Filed Aug 12, 1977 No. CV 77 3047 R UNITED STATES OF AMERICA, PLAINTIFF Vv. CITY OF LoS ANGELES, DEFENDANT COMPLAINT FOR INJUNCTIVE RELIEF AND CIVIL PENALTIES [38 U.S.C. §§ 1311, 1319 and 1342] The United States of America, by its undersigned at- torney, by authority of the Attorney General, and at the request of the Administrator of the Environmental Pro- tection Agency, alleges that: I This is a civil action instituted pursuant to Sections 309(a), (b), and (d) of the Federal Water Pollution Control Act Amendments of 1972, (hereinafter “the Act”) [83 U.S.C. §§ 1819(a), (b) and (d)] to enjoin 182 the City of Los Angeles (hereinafter Defendant) from violating certain conditions of a permit issued to defend- ant under Section 402 of the Act [33 U.S.C. § 1342], and from violating Section 309(a) of the Act [83 U.S.C. § 1311], and to impose civil penalties against defendant for violations of said permit as provided in Section 309(d) of the Act [33 U.S.C. § 1319(d) ]. II This court has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. § 1345 and 33 U.S.C. § 1319(b). in The defendant is an incorporated city of the State of California and is located in the County of Los Angeles in the Central District of California. IV At all times herein mentioned, the defendant has owned and operated the Hyperion Treatment Plant located at 12000 Vista Del Mar Boulevard, Playa Del Rey, Cali- fornia. . The Hyperion Treatment Plant discharges sewage sludge by means of an outfall sewer, known as discharge serial number 003, which extends approximately six and seven-tenths (6.7) miles imto the Pacific Ocean at Santa Monica Bay, which is in the contiguous zone. This dis- charge is approximately 4.24 million gallons per day (4.24 MGD) and consists of digested sludge diluted with secondary effluent. The discharge contains arsenic, cadmium, chronium, copper, cyanide, lead, mercury, nickel, silver, zinc, phenols, and chlorinated hydrocarbons as well as other chemical and organic substances. VI The Hyperion Treatment Plant discharges treated wastewater by means of an outfall sewer, known as dis- charge serial number 002, which extends approximately 183 five and two-hundreths (5.02) miles into the Pacfic Ocean at Santa Monica Bay, which is in the contiguous zo1.e. This discharge is approximately 360 million gallons per day (360 MGD) and consists of approximately 100 mil- lion gallons (100 MGD) of wastewater which currently receives secondary treatment with the balance (260 MGD) receiving only primary treatment. VII On August 18, 1975, pursuant to Section 402 of the Act and the regulations promulgated thereunder, the de- fendant was issued a National Pollutant Discharge Elimi- nation System Permit (hereinafter permit) for the dis- charge of sewage sludge from discharge serial number 003, and for the discharge of wastewater from discharge serial number 002. The permit, Number CA 0109991, was issued by the Environmental Protection Agency (hereinafter EPA) with an effective date of September 18, 1975. A copy of the permit is attached and marked Exhibit I and is hereby incorporated herein. The city did not appeal or object to the permit conditions at the time of issuance, nor did it file any timely administrative appeal. FIRST CLAIM Vill The permit provides for the termination of the dis- charge of sewage sludge from discharge serial number 003 thirty (30) months from the date of concept ap- proval. The permit provides that this termination is to be accomplished in three (3) phases: (1) the elimination of no less than 1/3 of the sewage sludge presently dis- charged; (2) the elimination of no less than an addi- tional 1/3 of the sewage sludge presently discharged; and (3) the termination cf the discharge of the final portion of sewage sludge. : x In order to accomplish the termination of discharge of sludge as described in Paragraph VIII above, the permit 184 prescribes several interim actions. The defendant was required to provide complete approvable plans and spe- cifications for phases 1, 2, and 3 described in Paragraph VIII not later than six (6) months from the date of con- cept approval. pt app x Concept approval was given on October 1, 1975 by letter to Donald E. Tillman, City Engineer from Larry F. Walker of the State Water Resources Control Board (hereinafter Board), a copy of which is attached and marked Exhibit 2 and is hereby incorporated herein. The termination of the sewage sludge discharge is due to occur on or before April 1, 1978. The required ap- provable plans and specifications referred to in Para- graph IX were to be completed on or before April 1, 1976. XI Defendant has failed to meet the requirements de- scribed in Paragraphs IX and X. XII The permit required the defendant to submit a report of compliance fifteen (15) days after the date specified for completion of a required task. Thus, a report of com- pliance with the requirement referred to in Paragraphs 1X and X was due on or before April 16, 1976. XIII The defendant has failed to meet the requirement de- scribed in Paragraph XII. XIV The permit required the defendant to award contracts and begin construction for the facilities set forth in the approvable plans and specifications not later than nine (9) months from the date of concept approval. Thus, construction was to begin on or before July 1, 1976. 185 XV The defendant has failed to meet either of the require- ments set forth in Paragraph XIV. XVI In addition, defendant has been aware since 1971 that sewage sludge discharge had to be eliminated. Grants of Federal and State funds amounting to $20 million have been accepted by the defendant, conditioned upon the total elimination of sludge discharges from the Hyperion works. Such grants required cessation of the discharge by December 1, 1976. Tie City sought, and obtained, an extension of the deadline until 1978 in a discharge permit issued to it by the Environmental Protection Agency. Thereafter, on April 23, 1976, defendant’s City Council adopted a report of the Council’s Public Works Commit- tee which stated that “it is not practicable for the City to bind itself to a specific timetable for the termination of the discharge of the sewage sludge.” SECOND CLAIM XVII The permit provides for the upgrading of the Hyperion Treatment Plant so that all wastewater discharged through discharge serial number 002 receives secondary treatment by October 1, 1979. XVIII In order to accomplish the upgrading of the wastewater discharge described in Paragraph XVII the permit pre- scribes several interim actions that the defendant shall perform in order to meet the October 1, 1979 deadline. These interim actions are as follows: 186 Tasks Completion Date Report of Compliance Complete draft facility plan 12/19/75 12/31/75 Progress report 7/1/76 7/15/76 Complete final plans and specifications 12/1/76 12/15/76 Award contract and begin construction 1/1/77 1/15/77 Progress reports 7/1/77 7/15/77 1/1/78 1/15/78 7/1/78 7/15/78 1/1/79 1/15/79 Complete construction 9/1/79 9/15/79 Operational level attained 10/1/79 10/15/79 XIX The defendant has violated the terms of the permit and has failed to comply with the terms and conditions of the permit in, among other things, the following respects: A) The interim action of completing a “draft facility plan” on or before December 19, 1975, has not been per- formed by defendant. B) The interim action of completing “final plans and specifications” on or before December 1, 1976, has not been performed by the defendant. C) The interim action to “award contracts and begin construction” on or before January 1, 1977, has not been performed by the defendant. D) On December 19, 1975, the defendant submitted a “preliminary final draft” of the “draft facility plan” called for in the permit. The defendant’s submittal was in preliminary form and did not constitute compliance with the permit requirement for a “complete draft facility plan”. E) On July 8, 1976, the defendant submitted a pro- gress report which stated that “copies of the Final Draft” of the facility plan were scheduled to be available by the end of March, 1977. The final draft of the facility plan, which was to be completed on December 19, 1975, has not been submitted. 187 G) On January 7, 1977, the defendant submitted a compliance report stating that the final plans and specifi- cations as required by December 1, 1976, were not com- plete, and that awarding of the contract and the begin- ning of construction as required by January 1, 1977, had not yet been undertaken. XX Section 309(b) of the Act [83 U.S.C. § 1819(b)] pro- vides that the Administrator may commence a civil action for appropriate relief, including permanent or temporary injunction, for any violation of any permit condition in a permit issued pursuant to Section 402 of the Act [33 U.S.C. § 1842]. XXI Section 309(d) of the Act [88 U.S.C. § 1819(d)] pro- vides that any person who violates any term or condition of a permit issued under Section 402 of the Act [33 U.S.C. § 1342] shall be subject to a civil penalty not to exceed TEN THOUSAND DOLLARS ($10,000.00) per day of violation. XXII The defendant’s violations of NPDES Permit No. CA 0109991 are of a continuing nature for which there is no adequate remedy at law, and are preventing the plaintiff from achieving the goals mandated by the Federal Water Pollution Control Act, as amended. [33 U.S.C. § 1251 et seq. ] WHEREFORE, plaintitf United States of America de- mands judgment against the defendant City of Los Angeles: a) To enjoin further violations of NPDES Permit No. CA 0109991. b) For penalties in the sum of TEN THOUSAND DOLLARS ($10,000.00) for each day of violation of NPDES Permit No. C/. 0109991. ec) For such other and further relief as the Court may deem just and proper. 188 d) For the following schedule of compliance for the elimination of the discharge of sewage sludge. Phase Task Completion Date Report of Compliance I Reduce sludge August 1, 1979 August 15, 1978 discharge by 40 tons per day. II Reduce sludge April 1, 1979 April 15, 1979 discharge by 40 tons per day for a cumulative reduction of 80 tons per day. III Reduce sludge October 1, 1979 October 15, 1979 discharge by 40 tons per day for a cumulative reduction of 120 tons per day. IV Eliminate all April 1, 1980 April 15, 1980 remaining discharge of sludge. e) For the following schedule of compliance to upgrade the Hyperion Treatment Plant so that all wastewater dis- charged through discharge serial No. 002 receives sec- ondary treatment. Task Completion Date Report of Compliance A-4 and A-12 (Secondary Treatment) Complete facility plan December 1, 1977 December 15, 1977 Complete final plans March 1, 1978 March 15, 1978 and specifications Advertise Contracts April 1, 1978 April 15, 1978 for construction Award Contracts May 1, 1978 May 15, 1978 for construction Begin Construction June 1, 1978 June 15, 1978 Progress Reports December 1, 1978 December 15, 1978 June 1, 1979 June 15, 1979 December 1, 1979 December 15, 1979 Complete Construction December 1, 1980 December 15, 1980 Operational Level January 1,1981 January 15, 1981 attained 189 Each Report of Compliance shall be mailed to Director, Enforcement Division, EPA, Region IX, 100 California Street, San Francisco, California 94111, not later than fifteen (15) calendar days after each completion date. Each report shall detail compliance or noncompliance with the specific task and date. If noncompliance is being re- ported, the reason(s) for such noncompliance shall be stated, plus an estimate of the date when the defendant shall be in compliance. f) That Donald C. Tillman, City Engineer for the de- fendant, or his successor, be named the responsible of- ficial for the purpose of insuring that the Reports of Compliance requested by Subparagraphs (d) and (c) of this prayer are properly prepared and submitted in a timely fashion. g) That the defendant pay a civil penalty of One Thousand Dollars ($1,000.00) for each and every day the defendant violate any of the requirements of Para- graph XVI(d) and (c) as hereinabove set forth. DATED: This 10th day of August, 1977. ROB: xT L. BROSIO United States Attorney FREDERICK M. BROSIO, JR. Assistant U.S. Attorney Chief, Civil Division /s/ Barry J. Trilling BARRY J. TRILLING Assistant U.S. Attorney Attorneys for Plaintiff 190 PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES _) I, the undersigned, say: I am a citizen of the United States and a resident of the County of Los Angeles. I am over the age of 18 and not a party to the within action or proceeding. My business address is 200 North Main Street 1800 City Hall East Los Angeles, CA 90012 On February 22, 1978, I served the within CITY’S MEMORANDUM IN REPLY TO MOTION FOR CLARIFICATION OF ORDER on the person(s) indicated below, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Los Angeles, California, addressed as follows: Raymond W. Mushal, Esq. Anthony O. Garvin, Esq. Attorney, Pollution Control Assistant Regional Counsel Section U.S. Environmental Land and Natural Protection Agency, Resources Division Region IX U.S. Department of Justice 215 Fremont Street Washington, D.C. 20530 San Francisco, CA 94105 Joan Z. Bernstein, Esq. Robert K. Best, Esq. General Counsel Pacific Legal Foundation U.S. Environmental 455 Capitol Mall Protection Agency Suite 465 401 M Street, S.W. Sacramento, CA 95814 Waterside Mall Washington, D.C. 20460 "4 m Remeimayer, Lisa K. Friedman, Esq. City Attorney Water Quality Division 3031 Torrance Boulevard (A-131) Torrance, CA 90503 U.S. Environmental Protection Agency Washington, D.C. 20460 191 Richard R. Terzian, Esq. / Burke, Williams & Sorensen 707 Wilshire Blvd., Suite 3800, Los Angeles, CA 90017 [X}-Federal—I declare that. I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of perjury that the foregoing is true and correct. Executed on February 22, 1978, at Los Angeles, Cali- fornia. /s/ Hilda Y. Alatorre HILDA Y. ALATORRE 192 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Region IX 100 California Street San Francisco, California 94111 Sept. 2, 1977 Mr. Thomas E. Hookano Pacific Legal Foundation 455 Capitol Mall, Suite 465 Sacramento, CA 95814 Re: Request for Stay of Enforcement of NPDES Permit No. CA0109991 for City of Los Angeles Hyperion Treatment Plant Dear Mr. Hookano: In response to your request dated August 18, 1977, for a stay of enforcement of National Pollutant Discharge Elimination System (NPDES) Permit No. CA0109991 is- sued on June 2, 1977, for the Hyperion treatment plant owned by the City of Los Angeles, it is my determination that a stay of enforcement would not be warranted or in the public interest for the following reasons. First, the Complaint filed by the United States against the City of Los Angeles in the U.S. District Court for the Central District of California (C 77-3047-R) does not name as parties any of the petitioners seeking review of the per- mit in the U.S. Court of Appeals for the Ninth Circuit (C 77-2909). The enforcement action thus does not seek to impose penalties or otherwise affect the legal rights of the petitioners. Second, it is the position of EPA that Section 509 (b) (1) of the Federal Water Pollution Control Act Amendments of 1972 (83 U.S.C. § 1869(b) (1)) precludes review of the terms and conditions of the subject permit with the exception of the expiration date of the permit. The only change made by EPA to NPDES Permit No. CA0109991 on June 2, 1977, was to extend the expira- tion date of the permit from June 30, 1977, to Decem- 193 ber 17, 1979. The substantive conditions of the permit remained in effect as issued on August 18, 1975. Review of the substantive conditions of the permit is precluded at this date in the absence of new information not avail- able in 1975. Since the request for a stay of enforcement submitted by the Pacific Legal Foundation does not indi- cate that additional information exists which was not available when the permit was issued in 1975, there does not appear to be any compelling reason to delay enforce- ment of the substantive conditions of the permit. Finally, the enforcement action filed by the United States against the City of Los Angeles concerns, in part, violations which occurred prior to the extension of the expiration date of the permit on June 2, 1977. The re- view in the Ninth Circuit will not affect the liability of the City of Los Angeles for violations of the permit which occurred prior to June 2, 1977, since the Petition for Review seeks review only of the permit as issued on that date. There is thus no reasonable basis for staying en- forcement of the permit. Sincerely, /s/ R. L. O'Connell for PAUL DE FALCO, JR. Regional Administrator Exhibit No. 6 194 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Washington, D.C. 20460 DECISION OF THE GENERAL COUNSEL ON MATTERS OF LAW PURSUANT TO 40 C.F.R. SECTION 125.36 (m) No. 66 In the matter of National Pollutant Discharge Elimi- nation System Permit for the City of Los Angeles, CA0109991, the Regional Administrator has certified three issue of law to the Office of General Counsel for decision pursuant to 40 C.F.R. Section 125.36(m). The parties, having had the opportunity to provide written briefs in support of their respective positions,’ present the follow- ing issues. ISSUES OF LAW NO. I AND II Questions Presented 1. Must EPA conduct an informal public hearing prior to taking action to extend the expiration date of an NPDES permit where public notice of the proposed action was published more than 30 days in advance of the action?» 2. Must a detailed factual record be developed prior to modification of an NPDES permit where the only modification made to the permit is the extension of the permit’s expiration date? ” 1 Briefs were filed by EPA Region IX and by the Pacific Legal Foundation on behalf of John B. Kilroy. 2 Kilroy urges that I address the following issue: Whether there is authority under the applicable statutes or regulations to extend the expiration date of an existing Na- 195 Decision EPA has the authority to extend the expiration date of an NPDES permit by modification of the permit. In any permit modification proceeding an opportunity for pubiic hearing must be provided, but a hearing must be held only if the Regional Administrator finds that there is a significant degree of public interest in the permit modifi- cation. Since Kilroy does not specifically argue that the record supporting the permit modification is inadequate this question need not be addressed. Discussion On April 27, 1977 a notice of a proposed modification of the NPDES permit issued to the City of Los Angeles for its Hyperion sewage treatment plant was published in the Los Angeles Times. The proposed change was to the expiration date of the permit, which was then June 30, 1977. On June 2, 1977, the permit was modified to extend its expiration date to December 17, 1979. No requests for a public hearing prior to modification of the permit pursuant to 40 C.F.R. § 125.34 were made. On June 18, 1977, John B. Kilroy requested an adjudicatory hearing pursuant to 40 C.F.R. § 125.36. That request was denied but three issues of law were referred to the General Counsel. Kilroy is correct in arguing that federally-issued NPDES permits, no less than State-issued permits, are subject to the requirement that they be for fixed terms not exceeding five years. FWPCA § 402(b) (1) (B) read in conjunction with § 402(a) (3)), 40 CFR § 125.25. But this does not resolve the questions he raises. This re- quirement of the statute, and EPA regulations, does not forbid modification of the expiration date of a permit, so long as the permit, as modified, as a fixed expiration date and that date is no more than five years from the date it was established. The purpose of § 402(b)(1)(B) is ciear; to insure that at intervals not greater than five tional Pollutant Discharge Elimination System (NPDES) per- mit, or whether the action taken by EPA with regard to Permit No. CA 0109991 was the issuance of a new permit. 196 years the terms and conditions of a permit be subject to reevaluation by the Agency (or State) and that the pub- lic have an opportunity to participate in this reevalua- tion.’ This purpose is not compromised by a modification of an expiration date such as occurred here, since in no event will more than five years elapse between opportuni- ties for the Agency, and the public, to decide whether the requirements placed on the discharger should be changed.* Kilroy also argues that the FWPCA and EPA regu- lations provide authority to modify only certain provi- sions of a permit and do not provide such authority with regard to the expiration date. 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Te! ~ RFE TE 207 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Region IX 215 Fremont Street San Francisco, Ca. 94105 In reply refer to: E-4-1 RIN 77F-91 David M. Shell Law Clerk Pacific Legal Foundation 455 Capitol Mall, Suite 465 Sacramento, Ca. 95814 Dec. 20, 1977 Dear Mr. Shell: As you requested in your letter of December 12, 1977, pursuant to the Freedom of Information Act, enclosed is a copy of the public notice for the City of Los Angeles— Hyperion Treatment Plant National Pollutant Discharge Elimination System modification which extended the ex- piration date of the permit to June 30, 1977. If you have any questions, please contact our Permits Branch at (415) 556-3450. Sincerely, /s/ R. L. O'Connell R. L. O’CONNELL Director, Enforcement Division Enclosure : 208 SUPREME COURT OF THE UNITED STATES No. 78-1472 DOUGLAS M. CosTLE, Administrator, Environmental Protection Agency, PETITIONER v. PACIFIC LEGAL FOUNDATION, ET AL. ORDER ALLOWING CERTIORARI. Filed June 11, 1979 The petition herein for a writ of certiorari to the United States Court of Appeals for the Ninth Circuit is granted. 8. 8. covennment painrine orricz; 1979 297646 41 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0087%3A02. Public record. Not legal advice.