# Appendix — Costle v. Pacific Legal Foundation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0088%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 445 U.S. 198 ## Text Bupreme Court, u. & | BRILEVD } 4 979 APPENDIX ar “i P RTCA ROONK, JR., GLERK_| Iu the Supreme Court of the United States OCTOBER TERM, 1978 Ne. 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 PETITION FILED: MARCH 23, 1979 PETITION GRANTED: JUNE 11, 1979 ee Iu the Supreme Court of the United States OCTOBER TERM, 1978 No. 78-1472 DOouGLAS M. COSTLE, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Petitioner a PACIFIC LEGAL FOUNDATION, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT INDEX Page a og sseiinn cemsiguibpmnaisninsiiaiaiiianabin 1 2. NPDES Discharge permit, No. CA0109991/Order No. 75-100, August 18, 1975 (A.R. Exh. 1)* -......000...00...... icahaein 3 *“A R.” refers to the administrative record certified by EPA to the court of appeals. “PLF Stay” refers 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). 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. 3) ................ 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) -.........22...........20ccceceeee Letter, Albert C. Martin to Paul DeFalco, Jr., December a Be Fp RRR a RR 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. BPRS «OP ecehesaipdsesctusinnsepnvihendeniieaetngins nontedbaimmiaminjeanenit tint nbeatinsgin 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) ~.....0..000....... . 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 I ould cssaa dale hics canniaccansioncsdsng snag eabanheoiaetecdceesiaatoladabaebceameaia Letter, William H. Pierce to Warren A. Hollier, April es ST ST SO i a aetna . Notice of Proposed Action, C-77-18W(M), April 27, PE GARAea IES UEP hcnnne hn nacnitendepntnnitesteniininhndnaiievebiomiiclte Letter, R. L. O’Connell to Warren A. Hollier (undated) nn OY I snseeemaentbaaneiadiciniacntais Letter, Raymond M. Hertel to City of Los Angeles, Att: Donald C. Tillman, May 2, 1977 (A.R. Exh. 11) .... Public Voucher for Advertising, May 3, 1977 (A.R. Exh. sg RAS Bs BS REESE RMR T IE RB ae LSPA a NC Caine bp TA NI Oe ANE Transcript, Pacific Legal Foundation v. John R. Quarles, Jr. (C.D. Cal., Civ. No. 77-0521-HP), May 23, 1977 (PLF I ad . Letter, R. L. O’Connell to Warren A. Hollier, June 2, EN II TEE ecshhhteelasl en iste ctontaictistjenndintdieniectnatsincnssccavess Letter, Raymond M. Hertel to City of Lous Angeles, Att: Donald C. Tillman, June 2, 1977 (Order No. 77-84, May iy Pe MED CR ee Ts, BED ccccckcesnccdocececnccccocecocescces Letter, David M. Shell to William H. Pierce, June 10, ERE SRA REE ee ee ae Page ~~ a eee ee —, 2 — _- 22. 23. 31. 32. INDEX Telegram-Mailgram, John B. Kilroy, Sr., to Paul De- Falco, Jr., June 18, 1977 (EPA Stey Opp. Exh. B; PLF B. TURG TBD sectenscabcdicstgasa salsedipitind cbcatinteibbcaimnmisaiialiians Letter, R. L. O’Connell to Donald M. Pach, June 23, BOTS Cie ee OR. TO BA TD occccsisintinsvsterenccnctnanninn Certification of Issues of Law by R. L. O’Connell for Paul DeFalco, Jr., June 23, 1977 (EPA Stay Opp. Exh. 5 aeRO CET ema EILEEN oe PA ME ene Letter, Anthony O. Garvin to David M. Shell, June 23, PM Be Rt ere ee nee ee, . Brief of Pacific Legal Foundation on Behalf of John B. Kilroy on Certified Questions to General Counsel, July 1B, 1977 (CEPA Pot. Tah. Apps ©). ...c.ecsiccrccccccccisecccrceestnsos . Complaint in United States v. City of Los Angeles (C.D. Cal., Civ. No. 77-3047R), August 12, 1977 (EPA Stay Ey BRR Oe ee eee Ee ier eet SUS MAN Letter, Paul DeFalco, Jr., to Thomas E. Hookano, Sep- tember 2, 1977 (EPA Stay Opp. Exh. E) ...000....000.0000...... . Decision of the General Counsel on Matters of Law Pur- suant to 40 C.F.R. Section 125.36(m), No. 66, October a ay ee! Os See ea ee . Affidavit of Donald Calvin Tillman, November 23, 1977 (LA Stay, unnumbered attachment) _..0000000000000 Letter, R. L. O’Connell to David M. Shell, December 20, SOE CH ee ee IN ittiecnctaskcacsetechascineeeieess Order allowing certiorari ..........................c.....cccccccccocccesccseees — @ 20,000 “ FOR » 35,000 “ City of Los Angeles For Traverse 5: Hyperion Treatment Plant Station - Pin feet A. Location of Sampling Stations seal as Wah tent 1. A sampling station shall be established for each “ 6B 20,000 “ point of discharge and shall be located where For Traverse 7: representative samples of the effluent can be ob- Station 7A 5,000 feet tained. These stations shall be designated as Dis- “ "7B 20,000 “ charge Serial Nos. 001, 002, and 003, respectively. For Traverse 8 : . Offshore stations shall be established along eight Station _ nae feet traverses radiating outward from a point of “ g8C 35,000 “ origin which shall be the center of the five-mile effluent outfall diffuser pattern (approximately at Latitude 33° 54’ 30” N and Longitude 118° 31’ 30” W). These traverses shall proceed radially outward from that point of origin on bearings referenced to true north, as follows: Traverse 1 North es N 45° E East S$ 45° E South S 45° W West N 45° W The offshore stations shall be located along these traverses at the following distances from the origin: For Traverse 1: “ee CO 1H Crm CO ND Station 1A 7,500 feet a 1B 20,000 “ For Traverse 2: Station 2A 6,000 feet - 2B 15,000 “ In addition to the above, a control station (Sta- tion OC) shall be established at a location 6,000 feet offshore from Las Tunas Beach (34° 1’ 20.3” N, 118° 36’ W). The offshore stations shall be located by means of radar navigation; other means may be utilized if in the judgment of the Executive Officer they are of sufficient accuracy to permit reoccupation of the stations within a reasonable distance. . Eight nearshore stations shall be established, in order to facilitate commutation by boat, at a distance of 3,000 feet from the shoreline, as follows: Station Location Nl Off Las Tunas Beach (34° 1’ 50.3“N, 118° 36’W) N2 Along Traverse 1 and 40,000 feet from the origin N3 Offshore from Ocean Park tower, Santa Monica N4 Along Traverse 2 and 25,000 feet from the origin N5 Offshore from Shore Station S 34.8 (see below) N6 Along Traverse 3 and 28,000 feet from the origin N7 Off Municipal Pier, Manhattan Beach N8 Due west from northerly stack, near north end of King Harbor, Redondo Beach 40 4. Seventeen shore stations shall be established as follows: ; Station Location S21.7. Extension of Big Rock Road at 19543 Pacific Coasié Highway, Malibu S23.6 1,000’ east of Topanga Canyon Blvd., east side of The Point Restaurant, Malibu S25.6 East side of Bel Air Bay Club, Pacific Palisades S27.5 Extension of San Vicente Blvd., Santa Monica-300’ SE of abandoned pilings at Santa Monica Beach State Park S28.5 400’ SW of Wilshire Blvd., Santa Monica State Beach Park (NW of end of breakwater) $29.6 Strand Street extended, Santa Monica $31.8 Venice Blvd. extended, Venice Beach $32.4 Northstar Street extended, Venice Beach $33.7. Surf Street, north side of Westport Beach Club, Playa Del Rey $34.8 Epinard Street extended, Playa Del Rey $35.8 Opposite Hyperion East Headworks, 1,100’ north of one-mile submarine outfall S37.4 45th Street extended, Manhattan Beach State Park $39.38 6th Street extended, Manhattan Beach State Park $40.6 South side of Municipal Pier, Hermosa Beach $42.5 Pearl Street extended, south side of Redondo Park, Redondo Beach $43.7 Avenue I extended, Redondo Beach $45.0 Extension of Arroyo Circle, Malaga Cove, Palos Verdes Estates 5. Three diving stations shall be established at the main termini of the one-mile and 5-mile effluent outfalls and on the shelf above the submarine canyon in which the sludge outfall terminates; these shall be designated D1, D2 and D8, re- spectively. 6. Eight inshore diving stations shall be established on transects normal to the shoreline at the eight nearshore stations, at a depth of 80 feet. B. Type and Frequency of Sampling and Analysis 1. Effluent Monitoring Minimum Frequency Type of Discharge Serial No. 001,002,003 of Analysis Sample Units Parameter continuous grab mgd Flow twice daily daily 24-hr. composite 24-hr. composite grab °F mg/l mg/1 MPN/10Col 001,002,003 001,002 001,002 001,002 001,002 Temperature BOD, 20°C daily daily Suspended solids Coliform group Fecal coliform pH daily grab b MPN/10Col ~ —_ daily daily once every 8 hours gra grab grab mg/1 pH units ml/1 001,002,003 001,002,003 001,002 Oil and grease * Settleable solids Arsenic monthly monthly monthly monthly monthly monthly monthly monthly monthly 24-hr. composite 24-hr. composite 24-hr. composite 24-hr. composite 24-hr. composite 24-hr. composite 24-hr. composite 24-hr. composite 24-hr. composite mg/1 001,002,003 mg/1 001,002,003 Cadmium mg/1 001,002,003 001,002,003 Chromium mg/1 Copper Lead mg/l 001,002,003 mg/l mg/l 001,002,003 001,002,003 Mercury ? Nickel Silver Zine mg/1 001,002,003 001,002,003 mg/1 ‘IPL ‘PEL “dd ‘(spoujey, Vd) e7yefouceyd poyeuloyNe UOIzeI}T} JO WOTEZI19[SseU—UOTF][TS!P AG, ‘poyjaul ozBj[Ns oUTONAqG JO UOT}ONpel WINTUIPe ay} 4G 9 ‘aBpnys OT go ‘aBBMOS JOT + "QLET ‘T 10q0P~O 0} old paljeysur JusuIdInbs Aressedeu oY} SABY [[BYS JeZIVYyosIp oy], “UOT}eULIO[YO FO spolied Sutinp Ajuo perinbes 31 SISA[BUB SNONuUTzUOD ‘A[feNsIA JO Al[BdltjeWOIeduIe PauTULIEzep quiod pus oy} YIM ‘poyzUl dII}eUOpO! 94} Ad ¢ ‘uorydiosqe d1M10}8 ssojeurey Ag z ‘poyyeUL UOTBIZXS SUBYeOLONGLIOLO[YIIT} 4} AG 1 Arep d}ISOdUIOD “IY-FZ re, Sprjos pepuedsng Ajrep ay180dul0d *1Y4-FZ 1/3 — 0.02 “dod — pZul — MOLT qy31eM AIp SuLloyuoW JueNpUy ~% ATYyUOUL B}ISOAUIOD “1Y-FZ 1/3u Z00‘T00 soyepnoizzed BurzVol yy A[yquoul 9}ISOdUIOD “1Y-FZ {/3uw €00 asvei3 s]qeyruodes A[yyuoul dPISOAUIOD “1-H 1/3u £00 SPIO 9[IFBlOA [BIOL Ajrep a}ISOdUIOD “1Y-FZ 1/3w 00 SPITOS [F}0.L Ajyyuoul a}ISOdUIOD “1Y-FZ 1/3 €00°Z00'T00 (q 88) snzoydsoyd [230 A[y}uoul O}ISOAUIOD “1Y-FZ 1/su Z00°T00 (SVaN ‘gooUBISGNS 9ATPOB-ON[G aue[AyJoul 8B) 83U93.1049( A[yyuoul O}ISOdUIOD “1Y-FZ 1/3 * $00°Z00‘T00 UIBOI}TU IIUBBIO A[y}uouL 9} SOACUIOD *1Y-FZ 1/3u 200°100 , Ussor}IU BIUOUTY A[y}uoUl B}ISOAUIOD “1Y-HZ 1/3 Z00°T00 UdSOIPIU 9}VIFIN A[yyuour 9} 1SOdUIOD “1-H 1/su Z00°T00 9 UIZOI}IU 9FB1}ZIN Ajyyuoul B}ISOdUIOD “1Y-HZ 1/3u £00‘Z00‘T00 sAuaydiq poyeulsojyosjod Ajyyuour B}ISOdUIOD *1Y-FZ 9 BY/10d » [W/10d £00‘Z00‘T00 APATPOVOIPCY sziun A[yyuoul B}ISOAUIOD *1Y-FZ AYOIXO]T, Z00‘T00 UOI}ZV.IPUIIUOD APIOIXOT, A[yjuoul 9} ISOdUIOD “1Y-FZ 1/3 €00°Z00‘T00 suogreo0IpAY pezeult -O[Y9 B[QBy!zUp! [BIOL = snonut}uod 1/su Z00‘T00 g [BNPIsat SUILO[YS [8}O,L Ajqyuoul S}ISOCUIOD “1Y-FZ {/3u $00‘Z00‘T00 spunodulos d1jouesy A[yyuour B}ISOAUIOD “IY-HZ 1/3uL £00'Z00‘T00 uINnTUs[OS Ajyyuour O}ISOAUIOD “1Y-HZ T/3u £00‘Z00°T00 opruBsy sisA[euy JO ‘ajdueg sy1up) “ON [eHeg soyourBseg Aduanbes jo adh, OBIBYISIG UINUITUT 44 3. Receiving Water Monitoring a. Offshore sampling stations shall be occupied at least once each week between the hours of 7 a.m. and 6 p.m. Samples shall be taken at a depth of one to three feet. In the event of stormy weather that makes sampling hazard- ous or impractical, these samples can be omit- ted provided that such omissions do not occur in consecutive weeks or in more than four weeks in any calendar year. The following determinations shall be made at each station: (1) Dissolved oxygen (2) Grease (3) Temperature (4) Transparency (5) Floating particulates (surface sample only—quarterly monitoring only) - Once each month, on a day when samples are taken as specified in 3-a above, samples shal! also be obtained at each offshore station at depths of 20 feet, 50 feet, and approximately 10 feet below the thermocline (if the latter two stations lie within 10 feet of each other, the 50-foot station may be omitted), and the following determinations made: (1) Dissolved oxygen (2) Temperature (3) Grease (sub-thermocline samples only) _ Once each month a determination of water turbidity shall be made at each offshore sta- tion at the 5’, 10’, 20’, and 50’ depths, and approximately 10 feet below the thermocline. . Once every six months bottom samples shall be obtained at each offshore station fer deter- mination of content of organic matter, as a 45 percent of total dry solids. These bottom samples shall be taken by means of a Shipek, Petersen, or “orange-peel” dredge or an equiv- alent device having an open sampling area of not less than 60 square inches. Five bot- tom samples shall be obtained at each station and composited for analysis. . Once every six months bottom samples shall be obtained at each offshore station for deter- minations of thickness of the sludge layer, if any. These samples shall be taken by means similar to those specified for core samples in 3-a. above. Sludge thickness shall be deter- mined by direct measurement to the nearest millimeter. To the extent practicable, a photo- graphic record shall be made of each core. f. Once every six months bottom samples shall be obtained at each of the offshore stations for biological examination and determination of biomass and diversity. One of these sam- plings shall be made during the summer sea- son. The samples shall be collected with Shipek, Petersen, “orange-peel” or equivalent type dredge having an open sampling area of not less than 60 square inches. Not less than four samples shall be taken at each station and each shall be processed and analyzed sepa- rately. . For biomass, the volume and wet weight re- tained on a one millimeter screen per unit volume of sediment shall be determined. The animals representing at least ten percent of the total population shall be enumerated and mai as to genus (and species if possi- e). . An annual diving survey shall be made. This shall consist of : (1) An inspection and coring at and in the vicinity of each diving station to deter- 46 mine thickness of sludge layer, presence and thickness of any “cloud” of unset- tled solids, and bottom flora and fauna. A photographic record shall be made of the results of this inspection. (2) An examination of each outfall and dif- fuser port system for leaks and flow dis- tribution. i. At intervals of five years or less, beginning in 1971, an inspection shall be made at the terminus of the sludge outfall and in the vi- cinity, to determine thickness of sludge layer, presence and thickness of any “cloud” of un- settled solids, and bottom flora and fauna. A photographic record shall be made of the re- sults of this inspection. This inspection may be made by diving, by submarine, or by other suitable means. j. Nearshore sampling stations shall be occupied once each week between the hours of 7 a.m. and 6 p.m. Samples shall be taken at a depth of one to three feet. In the event of stormy weather that makes sampling hazardous or impractical, these samples can be omitted pro- vided that such omissions do not occur in con- secutive weeks or in more than four weeks in any calendar year. The following determi- nations shall be made at each station: (1) Dissolved oxygen (2) Coliform AT shallower than 55 feet). This measurement shall be made: (1) With a photometer fitted with a cosine collecting device and a blue filter having 50 percent transmission values at 450 and 650 millimicrons; (2) In units of ergs/cm?/day; (3) Between 10 a.m. and 2 p.m. when the sun is not obscured by clouds (a slight haze is permissible) . . Shore stations shall be sampled on a daily frequency, and the samples shall be analyzed for coliform organisms, most probable number (MPN). . At the time samples are collected of the wa- ters of Pacific Ocean (shore, nearshore and offshore stations) observations shall be made _and recorded of conditions of wind, weather, and tide. Observations shall also be made and recorded of water color, turbidity, odor, and of floating or suspended matter in the water or on the beach, rocks and jetties or beach structures. The character and extent of such matter shall be described. . The inshore diving stations shall be occupied at six-month intervals and the following de- terminations made: Thickness of organic- laden sediment and composition of substrate; general condition of ocean floor; water tem- perature and clarity; benthos; and fish count. CN at ee Ca Be! BP Rs a PA Bld SDR OO. eee (3) Transparency 7 C. Techniques of Sampling and Analyzing (4) Temperature 1. All samples shall be taken and all analyses shall . Once every six months (summer and winter) be performed in accordance with the latest edi- the blue light energy shall be measured at tion of “Standard Methods for the Examination nearshore stations N1 and N2 at a water of Water and Wastewater”, published by the depth of 50 feet (or 5’ above the bottom if American Public Health Association, Inc., except I 48 that for specific analyses newer techniques may be used if in the judgment of the Executive Offi- cer the results obtained are consistent with the objectives of these waste discharge requirements. Tests for most probable number (MPN) of coli- form organisms will be the confirmed test using at least three tubes per dilution and sufficient dilutions to permit determination of the upper and lower MPN limits from standard tables. . Those personnel involved in sampling and analy- sis shall be well trained to accomplish those func- tions. Sampling and analytical apparatus shall be appropriate to the task and in good working order. . Transparency measurements shall be made with a Secchi disc. A Secchi disc is a circular plate, having a standard diameter of 30 centimeters, the top side of which is white. The disc is low- ered in the water until the disc is just percepti- ble, and the depth in feet reported. . Turbidity shall be determined by means of a turbidity meter, using equipment and procedure similar to that described by L. V. Whitney, “Transmission of Solar Energy and the Scatter- ing Produced by Suspensoids in Lake Waters”, Transactions of the Wisconsin Academy of Sci- ences, Arts, and Letters, Vol. 31 (1938). Results shall be expressed as the percent of light attenu- ation per meter of sea water, as compared to a standard of distilled water. . Procedures for determination of acute toxicity of the waste using bioassay techniques shall be as specified in the latest edition of “Standard Meth- ods for the Examination of Water and Waste- water”, by American Public Health Association et al. Particular attention shall be directed to the selection and preparation of test animals so that the response of bicta in the marine environ- ment is accurately measured. Test species selec- 49 tions shall be submitted to the Executive Officer for advance approval. The duration of the tests shall be 96 hours. Modifications of procedures outlined in “Standard Methods” shall be only as approved in advance by the Executive Officer of this Board. 6. Radioactivity determinations of gross bets activ- ity shall be made within 48 hours following prep- aration of composite samples. The over-all effi- ciency of the counting system, size of sample and counting time shall be such that radioactivity can be determined to a sensitivity of ten picocuries ' per liter (pc/l) for sewage and ten picocuries per gram for sludge, with a 95% confidence limit not to exceed 50 percent. 7. Inshore diving station examinations shall be made in accordance with methods described by Turner, Ebert, and Given, California Fish and Game, Vol. 52, No. 1 (1966). D. Filing of Reports 1. One copy of a written report of the results of the monitoring program shall be submitted to the Board and one copy to the Regional Admin- istrator for each month by the first day of the second following month, beginning not later than November 1, 1975. 2. Each written report shall contain the following information: a. Dates and times of sampling and observa- tions; b. Weather conditions during sampling; ce. Average and peak daily volume of wastes dis- charged during the report period; d. Tabulated results of specified analyses and physical observations, including the monthly mean and range for each effluent parameter reported ; 50 51 State of California Resources Agency CALIFORNIA REGIONAL WATER QUALITY e. Depth of thermocline; f. In addition to reporting the most probable number of coliform organisms obtained from samples collected from shore and nearshore stations, the running median of the latest 6-month period shall also be determined and reported. Coliform data obtained during or within 48 hours following a rainstorm shall not be used in determining medians. . In reporting the results of analyses for acute toxicity, the following shall be reported for each analysis: (1) Median tolerance limit (96 hour test) ; (2) A concise statement or table of the ex- perimental data on which median toler- ance limit data are based; that is, the CONTROL BOARD, LOS ANGELES REGION Order No. 75-165 NPDES No. CA0109991 WASTE DISCHARGE REQUIREMENTS FOR CITY OF LOS ANGELES HYPERION TREATMENT PLANT The California Regional Water Quality Control Board, Los Angeles Region finds that: . ; 1. City of Los Angeles discharges wastes from the i number and species of test organisms Hyperion Treatment Plant under waste discharge | used and the recorded percentages of sur- requirements and a National Pollutant Discharge vival at each tested concentration. This Elimination System (NPDES) Permit contained in i table shall also include such data for the Order No. 75-100 jointly adopted by this Board and i controls used ; issued by the Environmental Protection Agency on | (3) The total number of test animals used in August 18, 1975. each analysis shall be reported along with 2. Order No. 75-100 and the NPDES Permit contain | the number of test animals surviving a time schedule for prohibition of the sludge dis- after 24 hours, 48 hours, and 96 hours; charge. The time schedule is related to the Clean (4) The species used in each test. Water Grant concept approval. ' In reporting the data on blue light energy 3. Concept approval was given on October 1, 1975. 3 (Item B3j) the measurement depths shall be 4, The Environmental Protection Agency is admin- reported. istratively modifying the NPDES Permit to sub- stitute definite dates in the time schedule for com- pliance with the sludge discharge prohibition. The Board has notified the discharger and interested agen- cies and persons of its intent to modify waste discharge requirements for this discharge and has provided them with an opportunity to submit their written views and recommendations. 52 The Board in a public hearing heard and considered all comments pertaining to the discharge and to the tentative requirements. IT IS HEREBY ORDERED, that Order No. 75-100 adopted by this Board on August 18, 1975, is modified as follows: A. Page 16 is deleted and replaced by the attached page. B. All other pages of Order No. 75-100 shall re- main unmodified. I, Raymond M. Hertel, Executive Officer, do hereby cer- tify that the foregoing is a full, true, and correct copy of an Order adopted by the California Regional Water en Control Board, Los Angeles Region, on December /s/ Raymond M. Hertel RAYMOND M. HERTEL Executive Officer RMH: dds i} 53 Completion Report of Task Date Compliance D-l January 11,1976 January 15, 1976 July 1, 1976 July 15, 1976 January 1,1977 January 15, 1977 Demonstration of com- July 1, 1977 July 15, 1977 pliance with limitations BA Completion of approvable April 1, 1976 April 16, 1976 plans and specifications for Phases I, II, and III Award contract and begin July 1, 1976 July 16, 1976 construction Receive delivery of Phase I December 31, 1976 January 16, 1977 dewatering equipment Complete constrution of April 1, 1977 April 16, 1977 Phase I and achieve operational level Complete construction of October 1, 1977 October 16, 1977 Phase II and achieve operational level Complete construction of April 1, 1978 April 16, 1978 Phase III and achieve operational level C Progress Reports on Pro- October 31, 1975 November 15, 1975 gram for Ultimate July 1, 1976 July 15, 1976 Disposal of Sludge January 1,1977 January 15, 1977 July 1, 1977 July 15, 1977 January 1,1978 January 15, 1978 I, Richard A. Harris, am Assistant Executive Officer of the California Regional Water Quality Control Board, Los Angeles Region, certify that this record is a true and complete copy of the original document. /s/ Richard A. Harris RICHARD A. HARRIS Modified 12/1/75 54 State of California Resources Agency CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, LOS ANGELES REGION Order No. 76-80 ORDER DIRECTING THE CITY OF LOS ANGELES TO COMPLY WITH REQUIREMENTS PRESCRIBED BY THE CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, LOS ANGELES REGION IN ORDER NO. 75-100 (NPDES PERMIT NO. CA- 0109991) (C1 1492) (CA0109991) (M-1492) The California Regional Water Quality Control Board, Los Angeles Region, finds: 1. City of Los Angeles discharges an average of 350 mgd (million gallons per day) of treated municipal wastewater and approximately 160 tons per day of sewage sludge to Santa Monica Bay from its Hyperion Treatment Plant in Playa del Rey under requirements prescribed jointly on August 18, 1975, by this Board and the United States Environmental Protection Agency in Order No. 75-100 (NPDES Permit No. CA0109991). 2. On December 1, 1975, this Board adopted Order No. 75-165, amending Order No. 75-100 and the NPDES Permit by modifying the time schedule for prohibition of sludge discharge to the ocean to pro- vide for definite dates for compliance with the Tasks required for compliance with the Discharge Prohibition, as specified in Provisions B-1, and B- 3 of Order No. 75-100. 3. The discharge requirements contained in Order No. 75-100 provide, in part, for the following Discharge Prohibition : 55 “B-1. As ordered by the schedule of compliance in Provision F-1 below, the discharge of sludge through Discharge Serial No. 003 shall be terminated.” “B-3. As used in this order, Phase I shall mean the facilities necessary to provide for the termination of no less than the first 144 of the sewage sludge presently discharged. Phase II shall mean the facilities necessary to provide for the termination of no less than an additional 14 of the sewage sludge presently discharged. Phase III shall mean the facilities necessary to provide for the termination of the final portion of sewage sludge. 4. The time schedule contained in Order No. 75-165 for accomplishment of the discharge termination for sludge is as follows: davies Completion Report of Task Date Compliance Completion of approvable April 1, 1976 April 16, 1976 plans and specifications for Phases, I, II, and III Award contract and begin July 1, 1976 July 16, 1976 construction Receive delivery of Phase I December 31, 1976 January i6, 1977 dewatering equipment Complete construction of April 1, 1977 April 16, 1977 Phase I and achieve operational level Complete construction of October 1, 1977 October 16, 1977 Phase II and achieve operational level Complete construction of April 1, 1978 April 16, 1978 Phase III and achieve operational level 5. The City has not completed or reported compliance with the first Task set forth in Finding 4 listed above. 6. Failure to meet the completion date specified for approval plans and specifications makes it highly 56 probable that the City will fail to meet the sub- sequent completion dates for the remaining Tasks described above. The Board in a public hearing heard and considered all testimony pertinent to the matter. All Orders referred to above and records of hearings and testimony therein are included herein by reference. IT IS HEREBY ORDERED, that City of Los Angeles shall comply with the following: 1. In accordance with Water Code Section 13301, the City of Los Angeles is directed to comply with the provisions of discharge prohibited B-1 of Order No. 75-100 (NPDES Permit No. CA0109991) as amended by Order No. 75-165 in accordance with the following time schedule for elimination of sludge discharge to the ocean: Phase Not Later Than The City Will I August 1, 1978 Reduce sludge discharge by 40 tons per day II April 1, 1979 Reduce sludge discharge by an addi- tional 40 tons per day for a cumula- tive reduction of 80 tons per day III October 1, 1979 Reduce sludge discharge by an addi- tional 40 tons per day for a cumula- tive reduction of 120 tons per day IV April 1, 1980 Eliminate all remaining discharges of sludge to the ocean. (Approxi- mately 160 tons) To accomplish compliance with the above schedule the City of Los Angeles shall perform the follow- ing tasks in accordance with the dates shown: Report of Completion Date Compliance Task Not Later Than Not Later Than Advertise for the demolition August 1, 1976 August 15, 1976 work, trucks and dewater- ing equipment for Phases I, II, Ill & IV 57 Report of Completion Date Compliance Task Not Later Than Not Later Than Award contract for demo- December 1, 1976 December 15, 1976 lition, trucks and dewarter- ing equipment for Phases I, II, II & IV Submit final plans and January 1,1977 January 15, 1977 specifications for support system Award contract for support May 1, 1977 May 15, 1977 system Complete construction of August 1, 1978 August 15, 1978 Phase I and achieve operational level Complete construction of April 1, 1979 April 15, 1979 Phase II and achieve operational level Complete construction of October 1, 1979 October 15, 1979 Phase III and achieve operational level Complete construction of April 1, 1980 April 15, 1980 Phase IV and achieve operational level City of Los Angeles shall submit to the Regional Board, the State Water Resources Control Board, and the Re- gional Administrator of Environmental Protection Agency on or before each compliance report date, a report on compliance or non-compliance with the specific schedule date and task. If non-compliance is being reported, the reasons for such non-compliance shall be stated, plus an estimate of the date when City of Los Angeles will be in compliance. City of Los Angeles shall notify the Regional Board, the State Water Resources Control Board, and the Re- gional Administrator of Environmental Protection Agency by letter when it has returned to compliance with the time schedule. 2. If the City of Los Angeles fails to comply with any provision of this Order, the Executive Officer is au- thorized, and he is hereby directed, to request the 58 Attorney General and District Attorney to take the appropriate action against the discharger, including injunction and monetary remedies. I, Raymond M. Hertel, Executive Officer, do hereby cer- tify that the foregoing is a full, true, and correct copy of an Order adopted by the California Regional Water Quality Control Board, Los Angeles Region, on May 24, 1976. /s/ Raymond M. Hertel RAYMOND M. HERTEL Executive Officer I, Richard A. Harris, am Assistant Executive Officer of the California Regional Water Quality Control Board, Los Angeles Region, and certify that this record is a true and complete copy of the original document. /s/ Richard A. Harris RICHARD A. HARRIS 59 State of California Resources Agency CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, LOS ANGELES REGION Order No. 76-202 AN ORDER AMENDING ORDER NO. 76-80 DIRECT- ING THE CITY OF LOS ANGELES TO COMPLY WITH REQUIREMENTS CONTAINED IN ORDER NO. 75-100 (CI 1492) (CA0109991) (M-1492) The California Regional Water Quality Control Board, Los Angeles Region, finds: 1. City of Los Angeles discharges an average of 340 mgd (million gallons per day) of treated municipal wastewater and approximately 160 tons per day of sewage sludge to Santa Monica Bay from its Hyperion Treatment Plant in Playa del Ray under requirements prescribed jointly on August 18, 1975, by this Board and the United States Environmental Protection Agency in Order No. 75-100 (NPDES Permit No. CA0109991). 2. On December 1, 1975, this Board adopted Order No. 75-165, amending Order No. 75-100 and the NPDES Permit by modifying the time schedule for prohibition of sludge discharge to the ocean to provide for definite dates for compliance with the tasks required to com- ply with the Discharge Prohibition, as specified in Provisions B-1, and B-3 of Order No. 75-100. 3. The City failed to meet the completion dates as speci- fied in Order No. 75-165 and at a hearing held May 24, 1976, this Board adopted Order No. 76-80 direct- ing the City of Los Angeles to comply with require- ments, as prescribed by this Board, to eliminate sludge discharge to the ocean. 60 Order No. 76-80 included the following time schedule to insure the elimination of the sludge discharge to the ocean by April 1, 1980: Report of Completion Date Compliance Task Not Later Than Not Later Than Advertise for the August 1, 1976 August 15, 1976 demolition work, trucks, and dewatering equipment for Phases I, II, III & IV Award contract for December 1, 1976 December 15, 1976 demolition, trucks and dewatering equipment for Phases I, II, III & IV Submit final plans and January 1,1977 January 15, 1977 specifications for support system Award contract for May 1, 1977 May 15, 1977 support system Complete construction of August 1, 1978 August 15, 1978 Phase I and achieve operational level Complete construction of April 1, 1979 April 15, 1979 Phase II and achieve operational level Complete construction of October 1, 1979 October 15, 1979 Phase III and achieve operational level Complete construction of April 1, 1980 April 15, 1980 Phase IV and achieve operational level 4. City of Los Angeles notified this Board by letter dated September 29, 1976, that they would be unable to com- plete submittal of final plans and specifications for the support system by the due date, January 1, 1977. The City stated that the support system is being designed in two phases and requested that the cur- rent time schedule be revised to allow the submittal of the final plans and specifications in two stages. The City has assured the Board that all final con- struction and operation due dates in Order No. 76- 80 will be met on time without change. 61 IT IS HEREBY ORDERED, that Order No. 76-80 adopted by this Board on May 24, 1976, is amended as follows: 1. The time schedule for compliance contained in Item 1 is deleted, and replaced with the following: Report of Completion Date Compliance Task Not Later Than Not Later Than Award vontract for December 1, 1976 December 15, 1976 demolition, trucks and dewatering equipment for Phases I, II, III & IV Submit plans and January 11,1977 January 15, 1977 specifications necessary to meet Phase I Award contract for May 1, 1977 May 15, 1977 Phase I support system Submit final plans and November 1, 1977 November 15, 1977 specifications for Phases II, III & IV Award contract for April 1, 1978 April 15, 1978 Phases II, III, & IV support system Complete construction August 1, 1978 August 15, 1978 of Phase I and achieve operational level Complete construction April 1, 1979 April 15, 1979 of Phase II and achieve operational level Complete construction October 1, 1979 October 15, 1979 of Phase III and achieve operational level Complete construction April 1, 1980 April 15, 1980 of Phase IV and achieve operational level City of Los Angeles shall submit to the Regional Board, the State Water Resources Control Board, and the Regional Administrator of Environmental Protection Agency on or before each compliance report date, a re- port on compliance or non-compliance with the specific schedule date and task. 62 If non-compliance is being reported, the reasons for such non-compliance shall be stated, plus an estimate of the date when City of Los Angeles will be in compliance. City of Los Angeles shall notify the Regional Board, the State Water Resources Control Board, and the Regional Administrator of Environmental Protection Agency by letter when it has returned to compliance with the time schedule.” 2. All other parts of Order No. 76-80 shall remain in full force and effect. I, Raymond M. Hertel, Executive Officer, do hereby cer- tify that the foregoing is a full, true, and correct copy of an Order adopted by the California Regional Water Quality Control Board, Los Angeles Region, on November 22, 1976. /s/ Raymond M. Hertel RAYMOND M. HERTEL Executive Officer RMH: dds I, Richard A. Harris, am Assistant Executive Officer of the California Regional Water Quality Control Board, Los Angeles Region, and certify that this record is a true and complete copy of the original document. RICHARD A. HARRIS /s/ Richard A. Harris 63 OFFICE OF CITY ATTORNEY CITY HALL EAST Los Angeles, California 90012 [SEAL] BURT PINES CITY ATTORNEY December 9, 1976 Mr. Paul DeFalco Regional Director United States Environmental Protection Agency Region IX 100 California Street San Francisco, California 94111 Re: OBJECTIONS TO THE ENVIRONMENTAL PROTECTION AGENCY’S NEGATIVE DECLARATION ON THE PRO- POSED ACTION BY THE ENVIRONMENTAL PROTEC- TION AGENCY OF MAKING A GRANT OFFER TO THE City oF Los ANGELES FOR THE PROJECT TITLED HYPERION TREATMENT PLANT, INTERIM SLUDGE PROCESSING AND DISPOSAL SYSTEM Dear Mr. DeFalco: The purpose of this communication is to lodge with you a formal protest, on behalf of the City of Los An- geles, as to your decision to proceed with the funding of the Hyperion Treatment Plant Interim Sludge Project without the preparation and serious consideration of a full environmental impact statement (EIS) pursuant to the provisions of the National Environmental Policy Act. The City of Los Angeles strongly believes that there are serious environmental considerations involved with the proposed project that under federal law are required to be seriously analyzed and considered in an appropriate EIS before the proposed project may properly proceed. In that regard, the view of the governing body of the 64 City of Los Angeles, its City Council, is set forth in a motion unanimously adopted by the City Council on Tues- day, December 7th, a copy of which we have enclosed. The City of Los Angeles has received EPA’s negative declaration and environmental impact appraisal for the above project. The City strongly questions the validity of the utilization of a negative declaration in support of the agency action. EPA’s environmental impact appraisal stated that the project consists of dewatering the disgested sludge by centrifugation at the Hyperion Treatment Plant (HTP) and hauling the sludge cake by truck to the Palos Verdes Class 1 saniltary landfill. The project capacity will be 160 dry tons/day and will be constructed in four phases, with construction of 40 dry tons/day capacity in each phase. The project will provide for the complete re- moval of sludge from the ocean by April 1, 1980. EPA’s environmental impact appraisal goes on to state that when the entire project is operational, the trucking opera- tion will require 255 round trips/week with a hauling distance of 42 miles/round trip. Operation of the cen- trifuges will require about 640 Ibs. per day of chemical polymers and will consume about 13.1 million kwh/year of electricity. An estimate of energy consumption for the transport of the sludge cake to the Palos Verdes landfill is 3,600 barrels of oil per year. EPA’s environmental impact appraisal further states that there will be dust and noise due to the construction work at HPT, impacts on the sanitary landfill site itself and impacts from the transport of the sludge to the site. The environmental impact appraisal of EPA states, on page 9: “Following are the unavoidable adverse impacts from the project: (a) The energy and materials required for the construction of the dewatering facilities and the energy required for hauling of the sludge cake to the landfill are less than any alternative which ac- complishes the objective of removing City of Los Angeles sludge from the Pacific Ocean. Sludge dis- 65 posal of the landfill will have less impact on the total environment than any of the other alternatives when energy, time, and biotic effects are considered ; (b) Dust generation during the construction of the facilities, and noise impacts from the dewatering and trucking operations are minimal; (c) the air quality impacts of the trucking are less than the impacts for any alternative except the “no project” which does not comply with State and Federal laws.” (Emphasis added) EPA, in its environmental impact appraisal, attempts to justify the utilization of a negative declaration on the ground that the project would have less environ- mental impact than any other alternative which EPA considered. In the City’s view, this does not justify a negative declaration. The administrative action of the EPA, which the nega- tive declaration purportedly supports, is the award of a grant pursuant to the Federal Water Pollution Control Act. Such action of the EPA is subject to environmental review pursuant to the National Environmental Policy Act, 40 Code of Federal Regulatons, 35.925-8. EPA was required to make an environmental review, pursuant to 40 CFR 6.204, to determine whether significant impacts are anticipated from the proposed action, whether any feasible alternatives can be adopted or changes can be made in project design to eliminate significant adverse impacts, and whether an EIS or a negative declaration is required. Section 6.212(a) of these regulations states that when the environmental review indicates there will be no significant impact or significant adverse impacts have been eliminated by making changes in the project, the responsible official shall prepare a negative declara- tion to allow public review of his decision before it be- comes final. However, clearly the law does not provide that a negative declaration can be prepared merely be- cause it is believed the project will have less of an en- vironmental impact than the other alternatives. The principal concern of the City of Los Angeles is the total failure of EPA to consider the consequences of continuing the discharge of sludge into the ocean, the 66 alternative described as “No project”. EPA has sum- marily dismissed this alternative in its environmental impact appraisal as not complying with State and Fed- eral laws. We are unaware of any State or Federal law that mandates the Interim Sludge Processing and Disposal System that is the subject of the instant grant offer, nor are we aware of any requirements of law that require the City to diccontinue discharge of sludge to the ocean at this time. Even if we accept the proposition that EPA need not consider an alternative that conflicts with the mandate of a federal statute, it is our judgment that at most the discontinuance of ocean dumping of sludge may not be required by the Federal Water Pollu- tion Control Act until 1985. Any decision to require such discontinuance prior to that date is purely within the discretion of EPA. Clearly, pursuant to 40 CFR 6.304(b), EPA is required to prepare an EIS, which “ . . shall develop, describe, and objectively, weigh feasible alternatives to any proposed action, including the options of taking no action or postponing action.” (Emphasis added. ) The City, in its environmental assessments did not consider the continuation of sludge discharge into the ocean as an alternative since the City was subject to an order of a State Regional Water Quality Control Board ordering the eventual cessation of ocean discharge of sludge. Pursuant to The California Environmental Quality Act (Public Resources Code, Section 21154), the City was precluded from considering ocean discharge as an alternative since it would conflict with the State Agency’s order. EPA, however, is not subject to the restraints of Section 21154. Additionally EPA couid not justify refusal to con- sider continuance of ocean discharge of sludge as an al- ternative merely because the law may preclude such discharge in the future or even at present. The United States Court of Appeals, District of Columbia circuit, in the case of Natural Resource Defense Council, Inc. v. Morton, 458 F.2d 827 (1972) stated that: 67 “The need for continuing review of environmental impact of alternatives under NEPA cannot be put to one side on the ground of past determinations by Congress or the President.” (p. 836.) The court went on to say that: “The mere fact that an alternative requires legis- lative implementation does not automatically estab- lish it as beyond the domain of what is required for discussion, particularly since NEPA was intended to provide a basis for consideration and choice by the decision makers in the legislative as well as the executive branch.” (p. 837.) The Morton case has been cited, as to this point, with approval in subsequent decisions. Environmental De- fense F., Inc. v. Corps of Engineers of United States Army, 492 F.2d 1128, 1185 (1974); Sierra Club v. Linn, 502 F.2d 48, 62 (1974). The failure of EPA to consider the alternative of con- tinued ocean discharge is sufficient by itself to require further environmental assessment. The City of Los An- geles has other concerns, however, with the adequacy of the supporting data for EPA’s Negative Declaration. For example, EPA’s environmental impact appraisal is totally conclusionary in content. It states, on page 6, that the dust and noise due to construction activities will have minimal impacts on the surrounding area. There is no supportive data in the appraisal for this conclu- sion. It further states that the use of the Palos Verdes landfill for final disposal of sludge will result in the least environmental impacts from the hauling of sludge, (p. 7) and the impact on air quality is insignificant when compared to all other viable alternatives. (p. 8). Again there is no supporting data in the appraisal for these statements. The appraisal declares that the “(n)oise impacts pro- duced by this transport should be minimal because the trucks will be operated during normal working hours over standard truck routes.” (p. 7, emphasis added.) This statement, by its very language, implies that the 68 noise impacts may not be minimal and thus there may be a significant environmental impact just from noise. There are to be 255 round trips/week or 51 round trips on an average each day, which means 102 goings and comings from the landfill per day. Assuming the trucks operate on an eight hour day, and allowing for an hour going and coming, this could mean there would be six hours of activity in the area of the landfill, or approxi- mately 17 trips per hour or approximately one every 314 minutes. To what extent is there presently truck activity on these routes? How significant is the increase in truck activity, and in the use of the landfill? What impact will this trucking and project use of the landfill have on this area? The environmental impact appraisal does not even address these questions. In making the determination as to whether a project will not have significant adverse environmental conse- quences, the inherent danger, as stated by the United States Court of Appeals (9th Cir.) in City of Davis v. Coleman, 521 F.2d 661, 673, is that the most serious environmental effects of a project may not be obvious, and that the puipose of the EIS requirements is to en- sure that to the “fullest extent possible, agency decision- makers have before them and take into proper account a complete analysis of the project’s environmental im- pact.” EPA’s negative declaration asserts that it reviewed the City’s environmental impact assessment. The City, in its assessment, namely, the final environmental impact report it prepared for the project, dated August 1, 1975, stated, on page 44, that the disposal of sludge at a land- fill may produce severe unavoidable adverse environmental impacts. The City’s EIR also states that the generation of noise and traffic, and the consumption of energy by the operation of the sludge dewatering facilities, trucks and landfill vehicles are adverse effects which cannot he avoided if the project is to be implemented. In short, both the City’s EIR and EPA’s Environmental Impact Appraisal indicate that the project may cause a signifi- cant affect on the environment. 69 The court, in City of Davis v. Coleman, supra, at p. 673 stated that an “EIS (Environmental Impact State- ment) must be prepared whenever a project ‘may cause a significant degradation of some human environmental factor.’” The court went on to quote with approval the language of the case of Minnesota Public Interest Re- search Group v. Butts, 498 F.2d 13820, wherein that court said: “An initial decision not to prepare an EIS pre- cludes the full consideration directed by Congress. In view of the concern for environmental disclosure present in NEPA, the agency’s discretion as to whether an impact statement is required is properly exercised only within narrow bounds. Action which could have a significant effect on the environment should be covered by an impact statement.” (Em- phasis added.) The United States District Court in the case of Pacific Legal Foundation v. Burns (Central District, California), enjoined the operation of the Diamond Lane on the Santa Monica Freeway, stating therein that “in de- termining whether a project ‘may have a significant ef- fect on the environment,’ the courts properly interpret that phrase to impose a low threshold requirement.” In the case of Concerned Residents of Buck Hill Falls v. Grant, 388 F. Supp. 394, 409, the United States Court of Appeals stated that: “The duty imposed on all federal agencies by N.E.P.A. to prepare an environmental impact state- ment in appropriate cases is to be construed gene- rously and enforced strictly; Congress intended by enacting NEPA to require all federal agencies to give fuller study and consideration to environmental effects to their projects, a goal which can be realized only by requiring strict compliance with the proce- dure set forth in Section 102 (2) (C) of the Act.” The United States Court of Appeals in Calvert Cliffs Coordinating Committee v. United States Atomic Energy Commission, 449 F.2d 1109, 1112 (1971) (D.C. Cir.) rd 70 stated that NEPA contains very important “procedural” provisions—“provisions which are designed to see that all federal agencies do in fact exercise the substantial discretion given them. These provisions are not highly flexible. Indeed, they establish a strict standard of com- pliance.” . The Palos Verdes landfill adjoins a residential area. We are advised that representatives of the affected com- munities have already contacted you to underscore their serious concerns regarding the potential impacts on their communities. By utilizing the EIS procedure, EPA would be required to publish a notice in local newspapers stating that the draft EIS is available for comment and listing where copies could be obtained, and submitting news releases to other media. 40 CFR 6.208(b) (3). A public hearing would also be available. While EPA is not required by statute to hold public hearings on EIS’s the responsible official should hold a public hearing on a draft EIS whenever a hearing may facilitate the resolu- tion of conflicts or significant public controversy. 4 CFR 6.402. Certainly, however, only by complying with the EIS procedures can all the affected parties present their concerns and have them properly evaluated and consid- ered. ‘The City of Los Angeles has not decided that the Palos Verdes landfill is the appropriate landfill for disposal of HTP sludge. Even if it is eventually determined to be the most appropriate site, what happens when it is filled? We see no evidence in EPA’s data that indicates EPA is aware of the remaining capacity of the site and the pro- jected demand for other refuse disposal at the site. If the Class I landfill capacity of Southern California is used up for sludge disposal, what alternative disposal methods are availavie"fOF"those wastes, many hazardous, that can only be placed in Class I landfills? In light of these factors, we must question the validity of EPA’s statement in the Environmental Impact Assessment that “No secondary impacts on the environment are antici- pated from the implementation of the project.” This City continues to be very concerned about the tentative decision to use the Palos Verdes landfill for 71 disposal of the sludge. It will be difficult to cope with the almost certain public controversy that will ensue when the communities surrounding the Palos Verdes landfill, or communities around other potential landfill sites, become aware of the intention to dispose of the sludge at those sites if a thorough environmental assessment of alterna- tives has not been done. As noted above, the preparation and public review of an EIS will allow public participa- tion and comment on all of the alternatives involved be- fore a decision has been finally made. Finally, the Environmental Impact Assessment iden- tifies a number of alternative methods of disposing of the sludge when ocean discharge is discontinued and dis- misses them summarily on the basis of higher costs, other environmental considerations, conflict with existing EPA requirements due to delays in implementing the alterna- tive, or uncertainty as to technological capability. We are not aware of any in-depth study of these alternatives to determine whether the conclusions supporting their rejection are valid, and if so, whether on balance the disadvantages of disposal in the Palos Verdes landfill might not outweigh the disadvantages of other alterna- a even if they are more costly or pose other prob- ems. It is requested, therefore, that EPA prepare a full and legally adequate environmental impact statement developing, describing, and objectively weighing feasible alternatives to the project, as required by the National Environmental Policy Act and applicable regulations thereunder, including the options of taking no action or postponing action. The feasible alternatives should in- clude the alternative of the continuation of sludge dis- charge into the ocean. EPA’s environmental impact appraisal, both by its inclusions and ommissions, indicates that an EIS is nec- essary prior to EPA’s making a grant offer in this matter. It is our judgment that without an EIS the grant offer would be in violation of NEPA, a situation that the City of Los Angeles cannot countenance. We feel confident that EPA, as the principal federal agency responsible for protecting the nation’s environment, also 72 desires to avoid a clear violation of the applicable federal law. We trust you will advise us of the actions you intend to take in response to this formal protest as expedi- tiously as possible. Very truly yours, BURT PINES City Attorney By/s/ L. L. Hoffman LAWRENCE L. HOFFMAN Chief Assistant City Attorney On behalf of the City of Los Angeles LLH:jm ec: Hon. Tom Bradley, Mayor Each Member of the City Council Hon. Board of Public Works Dr. C. Erwin Piper, City Administrative Officer Donald C. Tillman, City Engineer State Water Resources Control Board State Regional Water Quality Control Board Ken Spiker, Chief Legislative Analyst 73 {EMBLEM ] LOS ANGELES AREA CHAMBER OF COMMERCE 404 South Bixel Street, P.O. Box 3696 Los Angeles, California 90051 (218) 482-4010 December 15, 1976 Mr. Paul De Falco, Jr. Regional Administrator U. S. Environmental Protection Agency Region IX 100 California Street San Francisco, California 94111 Hyperion Treatment Plant, Interim Sludge Processing and Disposal System Dear Mr. De Falco: This is in reply to your letter of November 18, 1976, to All Interested Government Agencies and Public Groups in connection with the proposed modifications to the Hyperion Treatment Plant and Interim Sludge Process- ing and Disposal System. Chamber of Commerce Position Briefly, it is the position of the Los Angeles Area Cham- ber of Commerce that an environmental impact report must be prepared, circulated, considered and approved by the City of Los Angeles, the State Water Resources Control Board and the U. S. Environmental Protection Agency in connection with the proposed plans to stop the discharge of sludge from the City of Los Angeles Hyperion Treatment Plant and to provide for the dis- posal of this sludge by transportation and disposal in an appropriate sanitary landfill, or by incineration, or some other means of disposal. It is the position of the Los Angeles Area Chamber of Commerce, based upon a detailed analysis of the pro- 74 posal that there will be a significant and major impact on the environment if the proposed Interim Sludge Proc- essing and Disposal System contemplated by the Agency is carried out. In addition, there will be a substantial financial impact on the citizens and taxpayers of Los Angeles. Since there is no demonstrable adverse envi- ronmental impact from the present system of sludge disposal into the deep submarine ocean waters off of southern California, there are no demonstrable benefits to be derived from putting the proposed plan into effect. Finally, the Los Angeles Area Chamber of Commerce believes that the Agency’s letter of November i8, 1976 has not been sent to a sufficient number of public agen- cies and other interested parties in southern California to constitute adequate notice of the Agency’s proposed plans. The Agency’s proposal with its significant environ- mental and financial impact has not been published in the Federal Register as required under the Federal Reg- ister Act. Finally, no provision has been made for neces- sary public hearings at which the environmental effect of the Agency’s proposed Interim Sludge Processing and Disposal System can be evaluated. In essence, since the proposed plan involves action by the City of Los Angeles, the California State Water Re- sources Control Board, and the U. S. Environmental Pro- tection Agency, the statutory and procedural require- ments imposed by the California Environmental Quality Act and the National Environmental Protection Act must be complied with. Background of Proposed Project : At the present time the City of Los Angeles’ major Hy- perion Treatment Plant discharges 360 million gallons per day of waste water effluent and the resulting digested primary and secondary sludge into a deep submarine canyon in the Pacific Ocean through an outfall termi- nating 7 miles offshore at a depth of 330 feet. The efflu- ent is 0.75% (3/4 of 1%) suspended solids, made up of: 75 1.3 mgd of screened digested sludge (primary) 1.0 mgd of waste activated sludge (secondary) 2.5 mgd of secondary effluent 4.8 mgd average daily discharge This method of disposal of the sludge has been in effect and in operation for a period of nearly 20 years. Under the Agency’s proposed plan to alter this method of sludge disposal, instead, special dewatering facilities are to be installed at the Hyperion Treatment Plant. The result- ing estimated 800 wet tons per day of sludge are then to be trucked across the City and disposed of by dumping into an acceptable sanitary landfill. While such sludge dumping, constituting a Class 1 landfill operation is now permitted at the nearby Palos Verdes landfill site, start- ing in about 1980, it will be necessary to truck the re- sulting sludge a distance of up to 40 miles for dumping in the City’s Lopez Canyon sanitary landfill site in the Sunland-Tujunga area or up to 40 miles for disposal in the Los Angeles County Calabasas sanitary landfill. The present volume of sludge in the underwater offshore submarine canyon has occupied an area of about 2 kilometers with a depth of up to 1 meter. An even greater allowance for disposition of such volumes of sludge will be required in Lopez Canyon or any alternate site utilized under the Agency’s plan. Based upon an 80-mile round trip for each truck load and 50 truck loads per day it is estimated that 350,000 additional gallons of gasoline will be consumed on an annual basis adding to the air pollution and congestion in the Los Angeles Air Basin. In this regard, both the California Air Resources Board, and the U. S. Environ- mental Protection Agency itself, have already expressed their concern over the emission of any additional air pollutants into the Los Angeles Air Basin, stating that such additional emissions can only be authorized in the event that there be a shut-down of an equivalent amount of other air emissions on a “trade-off” basis. No such 76 “trade-off” is contemplated under the Agency’s proposed plan. Lack of Environmental Benefit In order to assess the environmental impact of the pres- ent Los Angeles City and County sanitation waste dis- charge practices, since 1969, both the City and County have participated in a joint Southern California Coastal Water Research Project employing about 30 qualified scientists, at a cost of about $800,000 a year. $500,000 of this cost is underwritten by the Cities of Los Angeles and San Diego, Ventura County, and the County Sanita- tion Districts of Los Angeles and Orange Counties. An additional $230,000 is underwritten by the U. S. Envi- ronmental Protection Agency, and the remainder of the funding is from miscallaneous sources, including the Uni- versity of California. Over the more than five years of the Project’s existence more than $5 million has been expended studying the biology, chemistry and engineer- ing problems covering the Southern California Bight ocean area from Ventura County to the Mexican Border, the ocean area into which the City’s Hyperion Plan efflu- ent and sludge is discharged. The Project’s research work, carried on over a period of time, has analyzed in detail the effect on marine life, including fish, marine life, invertebrates, and bacteria in the entire southern California offshore area. The Project’s conclusion, as set forth in the Project’s 755- page 1973 Three Year Report is: “Because of the generally minor and reversible na- ture of the effects and uncertainty as to the actual consequences of the most well-intentioned corrective actions, there is presently no justification for any major alteration of waste management or discharge practice...” The present Director of the Project has concluded that there appears to be “no possibility” of harming a “sig- nificant percentage of the population of any species” of marine animals. Even if the present waste discharge 77 practices are continued for several years at about the present rate and toxicity it is his opinion, backed by the scientists working on the project, that there will not be “any serious or irreversible effect on the sealife.” Compared to the continuation of the present practice of discharging sewage effluent and sludge into the deep ocean waters of California the Agency’s proposed Interim Sludge Processing and Disposal System would have sig- nificant adverse environmental impacts not only with respect to the transportation of the sludge, but with re- spect to the environmental impact of the disposition of the resulting sludge in the Lopez Canyon and Calabasas sanitary landfills. In this connection the environmental impact on adjacent landfill homeowners, the effect on the flora and fauna and the ecology of the sanitary landfill area concerned must be assessed, as well as the effect on ground water supplies underlying the areas in which the disposition is planned to take place. In this regard, the need for environmental impact analysis for exactly such proposed landfill operations has been precisely recognized in the preparation and presentation of a four-volume Environmental Impact Statement covering the City of Los Angeles’ proposed reactivation of the Mission Canyon Landfill area for exactly the type of sanitary landfill operations proposed in the present plan. Adverse Financial Impact In addition to the substantial adverse environmental im- pact (which does not exist under the present deep ocean submarine sludge disposal system) there is a clear ad- verse financial impact. According to the Agency’s letter not only will new project facilities totalling $7.2 million be required, but in addition to this, substantial increased Operation and Maintenance Expenses will also be in- curred. In contrast to the Agency’s statement, it is the City of Los Angeles’ estimate that the cost to implement the interim sludge processing project is estimated at $10.9 million of which the City anticipates grant reimburse- 78 ment of approximately $8.5 million. However, the esti- mated Operation and Maintenance cost is $3.7 million annually and is not grant eligible. Since it may take five years to implement a permanent process which may be recommended in a present on-going regional study, if the interim process is operational through this five year period, the total cost of the interim project will be $31.3 million. Inasmuch as the wastewater study will be completed in a reasonably short time and may show that no project is necessary, there is serious doubt whether the Agency’s interim proposal is cost effective. Under the criteria established in the 1972 Water Pollu- tion Control Act, these additional costs must be met by increases in sewage process or user charges imposed on water consumed by the City’s Residential, Commercial, and Industrial water users or by increases in property taxes imposed upon Los Angeles taxpayers. Under the alternatives required to be reviewed and under the environmental review required, the lack of present environmental impact and increased adverse impact of the proposed Agency plan and its financial impact must be considered. Lack of Notice and Hearings In its letter of November 18, 1976, the Agency’s admin- istrator sets forth the Agency’s plan in a 2-page letter concluding with the Agency’s “preliminary decision” not to prepare an environmental impact statement, going on to state that no action would be taken within 15 working days from the November 18th date of the Notice—pre- sumably providing a basis for Agency action after De- cember 10th. In this regard it is the Chamber of Commerce’s position that there has been a lack of effective notice of the Agency’s plans. Not only was the Agency’s November 18th letter circulated only to a small restricted service list, but no notice of the Agency’s action was published in the Federal Register as required under the Federal Register Act. Since the Agency’s present action would 79 circumvent the environmental review principles set forth in the National Environmental Policy Act by refusing to prepare and circulate an appropriate Environmental Impact Report, additional formal notices must be given of the Agency’s plans in this regard. The need for this additional notice and the required holding of hearings are evident by the Agency’s actions in similar circumstances regarding the City of Phila- delphia’s proposal to continue its 2-year practice of sludge disposal into shallow Delaware Bay waters adjacent to the City of Philadelphia. In that case involving the In- terim Ocean Disposal permission granted to the City of Philadelphia (Permit No. PA-010) several days of hear- ings were held. At the end of this hearing period, at which representatives of the City of Philadelphia ap- peared and testified a detailed 65-page Report was pre- pared by the Chairman of the panel convened and desig- nated by the Environmental Protection Agency (G. Wil- liam Frick, Panel Chairman) September 19, 1975. There- after, on September 25, 1975, the Agency administrator issued an 8-page decision reviewing the circumstances (Russell E. Train, Administrator). While it is the Chamber of Commerce’s position and understanding that the circumstances surrounding the disposition of sludge in the shallow waters of the Dela- ware Bay are different than the circumstances surround- ing the disposal of sludge over a 20-year period from the City of Los Angeles’ Hyperion Treatment Plant into the deep submarine ocean waters off of southern California, it is nevertheless clear that based on this direct precedent, the sufficient environmental issues were raised in that case, and are raised in this case to require the prepara- tion of an environmental impact report—plus a detailed further Agency environmental review followed by hear- ing process for disposition of the issue raised by the Agency’s proposed plan. Under these circumstances, it is the Chamber of Com- merce’s position that in view of the luck of environmental benefit from the proposed plan, and the adverse environ- 80 mental impact that is predicted to result and the financial impact on the City of Los Angeles water users, a similar environmental review process must be followed by the Agency in the present instance. Summary In sum, it is the position of the Los Angeles Area Chamber of Commerce that an environmental impact report must be prepared, circulated, considered and approved by the City of Los Angeles, the State Water Resources Control Board and the U.S. Environmental Protection Agency in connection with the proposed plans to stop the discharge of sludge from the City of Los Angeles Hyperion Treat- ment Plant and to provide for the disposal of this sludge by transportation and disposal in an appropriate sani- tary landfill, or by incineration, or some other means of disposal. It is the position of the Los Angeles Area Chamber of Commerce, based upon a detuiled analysis of the pro- posal that there will be a significant and major impact on the environment if the proposed Interim Sludge Processing and Disposal System contemplated by the Agency is carried out. In addition, there will be a sub- stantial financial impact on the citizens and taxpayers of Los Angeles. Since there is no demonstrable adverse environmental impact from the present system of sludge disposal into the deep submarine ocean waters off of southern California, there are no demonstrable benefits to be derived from putting the proposed plan into effect. A copy of the Resolution of the City Council concerning this issue approved on October 22, 1975 is attached for your information. Copies of this letter are being sent to the California State Water Resources Control Board, and a number of City of Los Angeles officials including the Mayor, the City Council, its Public Works Committee, the City’s Department of Public Works and its Bureau of Sanita- tion. In addition, copies are being forwarded to inter- ested sanitation officials and other interested parties in 81 southern California, as well as to other southern Cali- fornia members of the Legislature and Congress. Yours very truly, /s/ Albert C. Martin ALBERT C. MARTIN President 82 RESOLUTION WHEREAS the Federal Water Pollution Control Act amendments of 1972 (PL 92-500), require the discon- tinuance of the discharge of pollutants, including sludge, into the waters of the United States; and WHEREAS the Water Quality Control Plan for Ocean Waters of California, prepared pursuant to the Porter- Cologne Water Quality Control Act, requires the discon- tinuance of ocean disposal of sewage sludge; and WHEREAS at the request of the Federal Environ- mental Protection Agency (EPA) and the State Water Resources Control Board (SWRCB) the City has en- tered into a joint regional Wastewater Solids Manage- ment Program study with the sanitation districts of Los Angeles and Orange Counties and the EPA and SWRCB to develop a long term regional solution for sludge disposal, which study is estimated to be complete in the fall of 1978; and WHEREAS the City is participating in the Southern California Coastal Water Research Project which is studying the effects of wastewater discharges, including sludge, into Santa Monica Bay; and WHEREAS the City is currently disposing of sludge into the ocean under the authority of a National Pollu- tion Discharge Effluent System (NPDES) permit issued jointly by the EPA and the California Regional Water Quality Control Board, which permit requires the City to partially discontinue ocean disposal of sludge by April 1977; and WHEREAS it is within the legal authority of the EPA and the California Regional Water Quality Control Board to review the NPDES permit and extend the sludge out deadline until such time as the regional Waste Water Solids Management Program study is complete; and WHEREAS the Executive Officer of the State Water Resources Control Board in a letter to the City Engineer 83 on October 31, 1974, stated that should the engineering and environmental feasibility of implementing an interim sludge out project “show that these solutions are not cost effective or environmentally acceptable, we will then give further consideration to your request to an extension of the deadline.” ; and WHEREAS there is no consensus of scientific opinion that the City’s current practice of ocean disposal of sew- age sludge has more significant adverse environmental effects than land disposal; and WHEREAS the environmental impact report for the interim sludge out alternatives which shows that the interim sludge out proposal is not cost effective inasmuch as the proposed hauling of sewage sludge by trucks to a landfill site, at an implementation cost of $10,940,000 and an annual operation expense of $3,700,000, may be- come obsolete upon completion of the regional Waste- pom hg Management Program study in the fall of ; an WHEREAS the said environmental impact report shows that land disposal of sludge has adverse environ- mental effects; and WHEREAS the City does not presently have adequate funds available for the interim sludge project and also the mandatory upgrading of the City’s wastewater treat- ment facilities; now THEREFORE BE IT RESOLVED that the City of Los Angeles hereby requests the Regional Administrator of the Federal Environmental Protection Agency and the State Regional Water Quality Control Board to re- view the current NPDES permit and postpone the dead- line for the discontinuance of ocean disposal of sewage sludge until a reasonable time after the regional Waste- water Solids Management Program study is completed. 84 PACIFIC LEGAL FOUNDATION 455 Capitol Mall, Suite 465 Sacramento, California 95814 Telephone (916) 444-0154 December 30, 1976 Mr. Paul De Falco, Jr. Regional Administrator United States Environmental Protection Agency Region IX 100 California Street San Francisco, CA 94111 Dear Mr. De Falco: Pacific Legal Foundation, as a nonprofit public-interest law firm, has examined the legal basis for the require- ments emanating from the EPA and the State Water Quality Control Board concerning discharges from the City of Los Angeles Hyperion Treatment Plant. This letter contains our conclusions on the law and our re- quest for EPA to take certain corrective actions which we believe to be in the public interest. It is our understanding that EPA bases the require- ments it is making concerning the elimination of the discharge of digested sewage sludge to ocean waters and the achievement of secondary treatment standards for effluent from the Hyperion Plant on the belief that these requirements are mandated by Congress in the Federal Water Pollution Control Act Amendments of 1972. PL 92-500. For that reason, EPA has not and will not consider developing reasonable standards for the discharges from the Hyperion Plant based on the environmental impact to the ocean area concerned. We disagree with this reading of the law. In fact, the law applicable to ocean discharges specifically requires thorough consideration of the environmental impacts of such discharges and the setting of reasonable standards based upon the analysis of such environmental impacts. EPA’s own regulations governing the requirements for 85 ocean discharges specifically state this same interpreta- tion. For these reasons, it is requested that EPA immedi- ately suspend any orders, requirements or permit condi- tions directed toward the City of Los Angeles concerning the cessation of ocean discharge of digested sewage sludge or the upgrading of wastewater treatment facilities which discharge to the ocean to secondary treatment stand- ards. Specifically, requirements to this effect in NPDES Permit CA 0109991 and any approved federal grants are to be suspended and no such requirements included in future permits or grant approvals until a thorough environmental analysis has been completed and stand- ards developed for the affected ocean area based on the environmental aanlysis as required by law. We have been informed that EPA is basing its present requirements on Section 301(b)(1)(B) of PL 92-500. EPA is reading into that section a requirement that all publicly owned wastewater treatment plants must achieve secondary treatment technology regardless of where the plant is located and how it is operated. Section 301 must be read in the context of the entire act. We must call to your attention that the definitions of “discharge of pollutants” as used in Section 101 (a) (1) and “effluent limitations” as used in Section 301(b) (1) (B) carefully preserve the distinction between navigable waters and ocean waters. Sections 501(11) and (12). These distinctions clearly convey the intention of Con- gress that requirements concerning discharges to the different waters were not indiscriminately lumped to- gether. To the extent that PL 92-500 is directed towards dis- charges into the ocean waters, a specific provision is in- cluded as Section 403. The requirements of Section 403 differ substantially from Section 301 in that the stand- ards to be applied are not to be based on technological achievement, but rather on environmental impacts. It is clear that, as stated in the EPA’s own regulations, Sec- tion 403(c) requires “that applications for permits for the dumping or other discharge of any materials into the marine environment be evaluated on the basis of 86 the impact of the materials on the marine environment . . « and on the economic and social factors involved.” 40 C.F.R. 227.1(c). EPA’s regulations also make it clear that these requirements apply to “discharge through out- falls.” 40 C.F.R. 227.1(b). It is also pertinent to note that shortly after the pas- sage of PL 92-500, directed primarily at the protection of navigable waters, the same Congress felt it appropri- ate to pass PL 92-532, directed at protection of ocean waters. The requirements for criteria in this second law are very similar to Section 403 of PL 92-500—-so similar, in fact, that EPA has chosen to adopt a single set of regulations to implement both. 40 C.F.R. 227. In this second law, Congress reaffirmed its intention that con- trol of pollutants in the ocean be based on criteria con- cerning the impact on the marine environment. Section 102. Since the definition of navigable waters (to which Sec- tion 301 applies) includes “territorial seas” (Section 502 (7)) and since Section 403 by its terms applies directly to the “territorial seas,” there is the potential for some initial confusion as to the application of these two sec- tions. However, Section 403 is a specific requirement by Congress that NPDES Permits issued pursuant to Section 402 “for a discharge into the territorial sea” must be issued in compliance with the guidelines estab- lished under the requirements of Section 403 “for de- termining of the degradation of the waters of the terri- torial seas. . .”. EPA openly admits in the regulations published pursuant to Section 403 that this section con- tains a congressional mandate that discharges must be “evaluated on the basis of the impact on the marine en- vironment. . .” 40 C.F.R. 227.1(c). This specific man- date by Congress cannot be avoided by reference to Sec- tion 301 which is a general section on “Effluent limi- tations.” As an additional factor of significance, it should be noted that the Hyperjon Treatment Plant discharges effluent and sludge not to the “territorial seas” but to the “con- tiguous zone,” an area clearly included in PL 92-500 87 in Section 403 only. Only a single emergency outfall discharges into the territorial sea and such discharges are rare. While Congress may have intended a uniform national requirement for discharges to the navigable waters based on treatment technology, it is clear that the congres- sional intent in the case of discharges to the oceans was that requirements would be based on the environmental impacts likely to result. The requirements in Section 403(c) of PL 92-500 and Section 102(c) of PL 92-5382 for a complete environ- mental analysis, including economic and social factors, of the marine environment are separate and distinct from the requirement for the development of an En- vironmental Impact Statement under the National En- vironmental Policy Act. While we hold grave reserva- tions as to the legality and, in particular, the appropriate- ness of EPA’s use of a “negative declaration” for the Hyperion Plant in lieu of an EIS, we are not asserting that matter here. It is clear that the requirements of PL 92-500 and PL 92-532 can not be set aside by a “negative declaration” and that a comprehensive environ- mental review must be performed to comply with these laws. 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ByeAjId 0) PEBseys 03 PEzZOUINE S$; Moje PEWEY UO}ZeR/QNd Oy JO ZOYsIIqGnd ey, LL/9%/%0 XI NOIST - AONADV NOILOZLOUd TVINAWNOWIANS SN 2ivo ’ 3D14d9 YO NVEUNG ‘ANIWHSMEVISD YO ANSHANVEIO W3GNINN .waGNO |° CvIt *° ‘mses puepuns 0002 Wud Ansees, » 02€0-2/-0V ees Y30YO ONISILYSAGY Reape ELI sequieyeg_ LEGAL KOTICES : i nt ie ae Aa Uisialans a HE Lh aoe i it Ff a ie i a ¥iyé i vs i3 eel Pe | rn —— and e Fermi 115. 386-3000 modification, {act sheets if to une taay be gbtsinec by wriung tne ‘Zaforcement Divinon at 415: § the for notice to t*e attention of all persons woud ts daareees to Oeammanan itt _ Picase hom AL you ee eee 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 0. 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 Environmental 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?” wae 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. WR wigs HOOKANO: The answer to that question is, es. THE COURT: All right. way don’t you answer the question that precedes that one? MR. HOOKANO: Again, your Honor, we are not seeking an injunction on the permit itself. We are seek- ing an injunction as to the conversion of the plant, and that plant conversion is a physical project; it is not an injunction relating to water quality standards or the effluent limitations contained in the permit. That’s about as simply as I could state it. [7] We are talking about the physical conversion of that plant, and the implementation of capital expendi- tures to install centrifuges, to purchase trucks, and the related activity. That is the project. It is not an injunc- tion going towards enjoining the provisions in the permit setting forth quality standards. THE COURT: You are not seeking an injunction against enforcement of Hyperion’s permit? MR. HOOKANO: No, we are not. THE COURT: All right. Earlier when I referred to the clerk, I meant the court reporter. We have been dealing now with Question 4. MR. HOOKANO: May I qualify my answer regard- ing the permit? THE COURT: Yes. 134 MR. HOOKANO: There is something I wanted to add. One thing is that it may be the conversion project is deemed a portion of the NPDS permit. Insofar as we are seeking an injunction, we are not seeking an injunction as to the water quality standards or the effluent limitations. If the conversion project is a part of the permit, then we are seeking to enjoin that portion of the permit, but only that portion of the permit. [8] THE COURT: Why don’t you answer the next question of 4? MR. HOOKANO: Your Honor, the no-project alter- native would vary in different locations, and, again, would not be a prohibition on implementation of the uniform secondary treatment standards. I think I might give an example. There are several ways that the federal defendants could apply a uniform secondary treatment standard, but yet the no-project alternative, or variation of no-project alternative— THE COURT: Wait a second. I am going to have to read these into the record, because I can’t direct your attention to the questions that I want answered. I am looking at the question now that reads—this is part of 4: “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 effulent limi- tations?” That’s the next question you are to answer. MR. HOOKANO: I don’t believe it would, your Honor, because it is contemplated that for funding proj- ects that there would be a NEPA statement, and that is integrated into the Act. It was conceived, I believe, by Congress, that when [9] there would be funding of a particular project to implement the standards contained in the permit, that there would be a NEPA statement. The two could be harmonized; the two actions could be harmonized. THE COURT: The next question which is part of 4 reads: 135 “Even if it seems anomalous to require an EIS pend- ing federal funding of a project while leaving the EPA free to enforce orders requiring the project’s completion without federal funds, dosen’t that result stem from the plain meaning of Section 511?” MR. HOOKANO: Again, your Honor, I am not sure that that result is required by the Act, by the Water Act. If the EPA is going to issue funds for a particular implementation project, then I think it is contemplated that an EIS would be prepared for that project, and that would not—that would be more consistent with carrying out the meaning of Section 511. THE COURT: Go to 5 and just answer the first part of 5. (Question No. 5 from the list entitled “Questions for Plaintiffs,” which was handed to the reporter, ap- pears in the following words and figures, to wit: “If everytime an EIS were done on proposed [10] fund- ing for a sewage plant project, that EIS had to in- clude all alternatives including ‘no project,’ then wouldn’t every EIS have to reevaluate the EPA’s definition of secondary treatment according to the needs of the particular locale of the sewage treat- ment plant? Wouldn’t that destroy the concept of a uniform secondary treatment requirement for sew- age treatment plants?’’) MR. HOOKANO: That may be possible, your Honor. In the Hyperion situation where a uniform secondary treatment standard is being applied, the no-project al- ternative may include, for example, extension of the out- falls in the ocean. It may include examination of various disposal methods related to ocean disposal. THE COURT: Then the final part of Question 3. MR. HOOKANO: Again, the answer would be in the negative, because the uniform secondary treatment stand- ards of effluent limitations could be established, but the manner of disposal could be determined—could be differ- ent at different locations. THE COURT: Why don’t you address yourself now to Question 6. 136 (Question No. 6 from the list entitled “Questions for Plaintiffs,’ which was [11] handed to the re- porter, appears in the following words and figures, to wit: “Even if the court were to accept plaintiffs’ argu- ment that the EPA has incorrectly sought to regu- late the disposal of sludge from ocean outfalls under Section 301, when such regulation should proceed under Section 403, doesn’t the Water Act, under Sec- tion 403, still give the EPA power to regulate the discharge of pollutants from ocean outfalls? And the EPA could, under Section 403, determine that sludge should not be disposed of in the ocean? So, if the EPA has the power under the Water Act to prohibit the disposal of sludge in the ocean, isn’t a policy to that effect, even if arrived at under the incorrect section and through incorrect procedures, still a policy arrived at ‘pursuant to’ the Water Act, within the meaning of Section 511 (¢) (1) ?”) MR. HOOKANO: The answer to the first part of Question 6 is, yes. The answer to the second part of Question 6 is also, Yes. The answer to the third part of Question 6 is we don’t know what the origins of that policy are. We are not certain whether or not they come from the Water Act, and [12] therefore, within the provisions of Section 511(c). I think that is a factual matter to be determined. THE COURT: All right. Fine. I will hear from Mr. Garvin. Why don’t you address yourself to Question 6, as well, Mr. Garvin. MR. GARVIN: Your Honor, regarding Question No. 1, the citation for the guidelines under Section— THE COURT: Let’s go to the one we just finished off, 6. These are plaintiffs’ questions. MR. GARVIN: Well, your Honor, the Act does give EPA the authority to regulate discharges of sludge or any pollutants from ocean outfalls. 137 THE COURT: You are referring now to Section 403? MR. GARVIN: Yes. THE COURT: All right. MR. GARVIN: And, also, your Honor, to Section 301(a) of the Act, the principal section of the Act, which states that the discharge of a pollutant from any point source is illegal in the absence of compliance with var- ious sections of the Act. That requires compliance with Section 301(b) (1) (b), which requires secondary treat- ment by publicly-owned treatment plants. And also to Section 402, which requires a permit to be issued, or that the discharger have a permit in order to continue dis- charge. [13] Section 402 requires compliance with several sec- tions of the Act. One of those is Section 403. And EPA could under Section 403 determine that sludge should not be disposed of in the ocean. THE COURT: The last part of Question 6? MR. GARVIN: Well, I suppose the answer is, Yes, your Honor. However, the definition of pollutant within Section, I think it is 502 of the Act, specifically includes sewage sludge as one of the pollutants which are regu- lated under the Act. So it is not really a generalized power or authority to regulate the discharge of sludge. But the Act’s definition of pollutant specifically in- dicates that the discharge of sludge is a pollutant which must be regulated. THE COURT: That’s 502? MR. GARVIN: Excuse me. I will give you the exact section. 502(6). The term pollutant means dredge, spoils, solid waste, incinerator residue, sewage garbage, sewage sludge, et cetera. THE COURT: Are you saying, then, that 502(6) -is a source of the policy prohibiting disposal of sludge in the ocean? MR. GARVIN: Not exactly, your Honor. THE COURT: What is the source of the policy? MR. GARVIN: The source of the policy is derived [14] from the secondary treatment requirements. THE COURT: 301? MR. GARVIN: 301(b) (1) (b). 138 Your Honor, it might be helpful in answering that question if I could go to your Question 2. THE COURT: Well, do you want to answer 1, then? Start in on that. MR. GARVIN: Okay. (Question No. 1 from the list entitled “Questions for Government,” which was handed to the reporter, appears in the following words and figures, to wit: “What is the citation for the guidelines that the EPA is required to promulgate under Section 403?”) MR. GARVIN: The citation to the guidelines pro- mulgated by EPA under Section 403 is 40 C.F.R. Part 227. I am sorry I don’t have the Federal Register citation at the moment. THE COURT: You will get that and leave it with the clerk? MR. GARVIN: Yes, your Honor. THE COURT: All right. (Question No. 2 from the list entitled “Questions for Government,” which was [15] handed to the reporter, appears in the following words and figures, to wit: “When the EPA adopted its definition of secondary treatment in 1973, was it understood that the scope of the definition included a prohibi- tion against disposal of sludge into the receiving waters of sewage treatment plants? If so, why wasn’t the disposal of sludge dealt with in Hy- perion’s first NPDES permit? Isn’t sludge usually considered a by-product of secondary treatment? If Congress intended to include sludge in Section 301, why did it enact section 405?”) MR. GARVIN: Under Question 2, EPA’s definition of secondary treatment, or when EPA adopted its defini- tion of secondary treatment, it was understood that the definition included the disposal of sludge. Sludge is noth- ing more than concentrated, suspended solids from the effluent stream of a discharge from a treatment plant. 139 Suspended solids can be any kind of organic matter. They can be cigarette butts or marbles, anything like that is considered to be a suspended solid. When EPA promulgated—proposed and then promul- gated its secondary treatment requirements, it estab- lished in those regulations limitations upon the amounts of suspended [16] solids that could be discharged. Now, no definition or no distinction was made between suspended solids as they came to the sewage treatment plant in a dilute mass, or no distinction was made be- tween suspended solids in that form and suspended solids after they have been taken out of the waste stream and concentrated into more compact matter, which we are referring to as sewage sludge. . When EPA issued those regulations I don’t think it was contemplated that a municipality would seek to remove the total suspended solids in order to comply with the secondary treatment requirements, and then put them right back into the same—well, or into a dif- ferent pipe into the same receiving waters. Perhaps EPA should have thought of all possibilities, but that seemed—I imagine to those who established the regulations that seemed just a bit beyond what could be expected. THE COURT: In other words, what you are saying is, what’s the point in putting water that has gone through a secondary treatment process into the ocean, if you follow that up with the disposal of the sludge that was removed from the water? MR. GARVIN: Exactly. The requirements establish a limitation on volume or amount of suspended solids that can [17] be discharged from the effluent stream; that the municipality must remove a certain volume of the total suspended solids. It simply doesn’t make sense to have a municipality meet the requirements for secondary treatment by re- moving these total suspended solids and then allow them to put it back in through a different pipe. That doesn’t make any economic sense, or any environmental sense. Now to your question why wasn’t the disposal sludge dealt with in Hyperion’s first NPDES permit. 140 To my understanding there are three outfall pipes from the Hyperion plant. One is labeled 001, and that is the one-mile outfall which is used in emergencies. Then there is the five-mile outfall, which is 002, and that is the one used to discharge the effluent. Then there is discharge No. 008, which is the seven- mile outfall. When the permit was initially issued in 1974, no requirements were established for 003, that particular discharge. I think it was merely on oversight. I don’t know, frankly, why that outfall was not covered. However, I don’t think— THE COURT: It is kind of a big oversight. MR. GARVIN: There are probably about 50,000 per- mits that are being issued throughout the country to various facilities, some of them more complex than this. If there [18] weren’t some oversights I would be sur- prised. But exactly why it was left out in the initial permit I don’t know. The important point, though, is that it was included and effluent limitations were established for it in the amended permit, which was issued in August of 1975. Now, before a permit is actually issued a draft permit is developed. The permittee is given a copy of it, notice of the permit’s proposed issuance is published in the papers of general circulation, and the public and the permittee are given a 30-day period in which to comment before an informal public hearing is held. Then an in- formal public hearing is held, and EPA then issues the permit. And then after that EPA’s regulations allow any interested party an opportunity to request an ad- judicatory hearing to challenge the terms of the permit. Although EPA may have been or was in error in not issuing it, effluent limitations for discharge 003 in 1974, if there was anything improper about them doing so in 1975, the public, and the City of Los Angeles, the per- mittee, had ample opportunity to contest the establish- ment of limitations for discharge 003. Yet no such chal- lenge was ever made. Pn COURT: What about the next part of Question 141 MR. GARVIN: Sludge is normally—well, is in es- sence a by-product of secondary treatment, because it is merely the concentration of the total suspended solids which [19] are in the effluent stream. THE COURT: What about the last part of Question 2? MR. GARVIN: Well, 405 covers the disposal of sew- age sludge to navigable waters or the waters of the ter- ritorial sea, regardless of from what type or outfall or how it arrives in the sea. It is important—one of these types of disposal that is covered by Section 405 is the dumping from barges. Now, in this point—and this is really the primary purpose, I think, of Section 405, to cover discharge from vessels, because the Marine Protection and Sanctuaries Act of 1972 was adopted and passed the same year as the Federal Water Pollution Control Act, and that Act re- quired a permit for any municipality or any person wishing to discharge any material, including sewage sludge, beyond the three-mile limit. However, it did not regulate dumping within the three-mile limit. Section 405 should be viewed in that context as ex- tending or in enacting a permit program for the dis- charge or disposal of sludge from vessels into areas with- in the three-mile limit, and not as a provision which totally—which is the only mechanism of regulating the discharge of sludge into the ocean. You see, when the Marine Sanctuaries Act was adopt- ed, that Act or bill was in a different committee or committees [20] than was the Federal Water Pollution Control Act. The jurisdiction of the committees were separate and distinct. The jurisdiction of the committees having control or debating the Marine Protection and Sanctuaries Act was beyond the three-mile limit, and the committee considering and adopting the Federal Wa- ter Pollution Control Act, their jurisdiction extended only within the three-mile limit. And this was a com- promise worked out between them. THE COURT: But a treatment plant on shore with an outfall beyond the three-mile limit, was that problem specifically addressed by either committee? 142 MR. GARVIN: Your Honor, I think it was. And I think we have citations to it in our brief. I may be wrong there. I have seen some discussion of that, though, in the legislative history discussing a compromise that was worked out. The most important thing, now that I recall, is the definition of the term “dumping” under the Marine Sanctuaries and Protection Act specifically excludes the discharge of pollutants from ocean outfalls. So under the Marine Act—the Marine Act establishes procedures whereby anyone who wishes to dump must obtain a per- mit from EPA under the Act. So the definition of the term “dumping” specifically excluded the discharge of pollutants from ocean outfalls, meaning a pipe. And that is discussed in our memorandum in opposition to the mo- tion for preliminary injunction. As [21] establishing a clear congressional intention that the discharge through ocean outfalls should be regulated under the Federal Water Pollution Control Act and not under the Marine Protection and Sanctuaries Act. THE COURT: What about Question 3? (Question No. 3 from the list entitled “Questions for Government,” which was handed to the reporter, appears in the following words and figures, to wit: “Do you think Cingress intended that the EPA re- quire a municipality to go ahead with a sewage treatment project when the EPA had not yet fin- ished its EIS for the funding of the project? Doesn’t that make the EIS an academic exercise?’’) MR. GARVIN: When the Federal Water Pollution Control Act was adopted in December of 1972, it estab- lished a July 1, 1977 date for communities to meet the requirements of secondary treatment. So that was ap- proximately four and a half years in the future from the time that the Act was adopted. I think Congress anticipated that communities would, rather than challenging the basic requirements of the Act, would seek to implement them. And with that understanding I think they could justifiably have felt that the environmental impact statement process would have 143 gone on in an orderly [22] manner before the compli- ance date of July 1, ’77 arrived. However, in the case of Los Angeles the City has not taken rapid action to implement either the secondary treatment requirements or the sludge removal require- ments of its permit, so here we are faced—this is May 23, 1977—and the Act establishes a July 1, 1977 compli- ance date. I think if it appears inconsistent, I think it is just the crunch of time has fallen upon everyone, all of the actors in this drama, in that the Act establishes an abso- lute date for compliance. The City is nowhere near ready to implement that compliance date. And if that means that enforcement must occur before the EIS is issued regarding funding, then that appears to be the result. However, one thing should be stressed. That a munici- pality or any dischargers—well, any municipality’s duty to comply with the Federal Water Pollution Control Act is independent of the decision of EPA whether or not to award grant funds. I think the problem was discussed in depth by the dis- trict court in the Eastern District of Virginia in State Water Resources Board v. Train, which is 424 F.Supp. 146, that is in 1976, discussed the problem and pointed out that Congress had to be aware, when it adopted the Act and was aware that there weren’t sufficient grant funds available for [23] all communities to meet the requirements of Section 301 (b) (1) (b). The court in State Water Resources Control Board v. Train held that communities’ or municipalities’ obliga- tion tc comply with those requirements were independent of the availability of federal funds. The preparation of an EIS is merely to determine whether EPA should participate in the project; not whether the project should go forward. If the project is required in order to comply with the terms of the Act. THE COURT: Anything else? MR. GARVIN: Your Honor, I would just like to point out that the plaintiffs stated that they were not 144 challenging the terms of the permit. However, they then amended their response to say that they would be chal- lenging the terms of the permit which require—or to the extent it requires an interim sludge project. The permit or the effluent limitations in the permit include the compliance schedules established in the per- mit. This is clear from a specific reading of the defini- tion of the term “effluent limitation” in Section 502 (11) of the Act. So when the plaintiffs state that they are challenging the requirement that an interim sludge project go for- ward, they are challenging a compliance schedule which is an effluent limitation of a permit. And that can only be challenged in the Court of Appeals. [24] Thank you. THE COURT: Does anyone else wish to be heard? Anything further? MR. BEST: Could we add a couple of comments, your Honor? THE COURT: Sure, sure. MR. BEST: I would like to point out that it is our understanding that there are no regulations in effect im- plementing the provisions in defendants’ Question No. 1; that these were repealed recently with the adoption of the new ocean-dumping criteria. And I hope that that will be cleared up by the defendants in this case that as of now under Section 403 there are no guidelines in effect. MR. GARVIN: Your Honor, the guidelines under Part 227 were repealed with respect to the ocean-dump- ing requirements under the Marine Sanctuary and Pro- tection Act. However, the guidelines under Part 227 still apply, to my knowledge, to the compliance with Section 403. The agency is in the process of developing revised guidelines specifically for Section 403. THE COURT: Why don’t you check that out and shoot me a note tomorrow on it? MR. BEST: Our understanding is in the exact oppo- site. 145 I want to just mention a couple of points in what the [25] defendants have mentioned today. First of all, I would like to point out that although they claim that 405 did not apply to the Hyperion plant, they have stated that a 405 permit has been issued for the sludge outfall of the Hyperion plant. So it would seem that EPA has in fact considered that 405 would be applicable in this instance. Also, I believe that it is important to recognize that to the best of our knowledge the City is not in violation of the permits which have been issued. And that’s a point that we want to urge by way of saying that the permits, the effluent limitations, and the requirements that have been placed on the outfalls are at present being met. And the statement that the City had a duty to comply with these requirements separate from grant funds and implementation of the project we think again reinforces the fact that an injunction against the project and the grant funds does not interfere with the enforce- ment or the standards, the uniform nationwide require- ments that are put into the act. I think maybe it should be recognized also that the permit we are dealing with here actually expired in Jan- uary of this year and was extended by a summary action of the state board and the EPA only through June of this year, and the permit itself, I believe, is scheduled to expire in June. [26] Is that incorrect? MR. STIPANOVICH: Yes. The Regional Board this morning extended that, your Honor, to 1979. MR. BEST: They have again extended without no- tice? MR. STIPANOVICH: There was a full public hear- ing this morning. MR. BEST: It has been extended until when? MR. STIPANOVICH: I believe it is September 17, 1979. MR. BEST: The last point. I think perhaps the fed- eral defendants have cleared up some of the confusion by pointing out that it was perhaps never contemplated that 146 a situation such as Hyperion would arise under the Fed- eral Water Pollution Control Act; that a circumstance would arise where it would make sense to put the sludge back in the water under separate conditions, because of the impacts that would result under the localized condi- tion. I think that recognized again that Section 301 and the requirements in the Act were not built around the inclu- sion of prohibitions against sludge. THE COURT: What’s the point of going through secondary treatment if the by-product of that treatment is then put into the ocean? MR. BEST: There is some question as to whether there is any point going through secondary treatment, I will agree to that, your Honor. I think as to whether it makes any [27] sense to separate out the solids and put those in the ocean in a different place in a different manner than to leave them suspended in the effluent and put them all in the same place together, there are some good reasons for doing that; one of them being the re- source recovery that occurs in that process, and another one being that the impacts on the water are considerably different. In other words, if you make these discharges in a different manner at a different location, at a differ- ent depth, and so forth, that it does modify and change the impact. I think this is evidenced by the fact that Santa Monica Bay was considered to be contaminated when all of the products were dumped together out in the original out- fall in the inshore waters. By separating them out and applying a different technology and putting the sludge out into the— THE COURT: Is that what used to be the one-mile outfall? MR. BEST: That is correet. By separating these out into different locations and different manners of putting them in the water there was substantially less impact on the ocean. So I think it can be established that it is not unreason- able to have a different method of doing it and to split 147 off the products and to discharge these products in an- other way. [28] THE COURT: Does anyone else have anything to say? (No response. ) THE COURT: The matter will stand submitted. You will get that information? MR.GARVIN: Yes, your Honor. (Whereupon at 3:55 p.m. an adjournment was taken. ) 148 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA No. 77-0521-HP PACIFIC LEGAL FOUNDATION, ET AL., PLAINTIFFS v8. JOHN R. QUARLES, JR., ET AL., DEFENDANTS REPORTER’S CERTIFICATE I hereby certify that I am a duly appointed, qualified and acting official court reporter for the United States District Court, Central District of California. I further certify that the foregoing 28 pages comprise a true and correct transcript of the proceedings had in the above-entitled cause on the dates specified therein, and that said transcript is a true and correct transcrip- tion [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0088%3A02. Public record. Not legal advice.