Opposition — Costle v. Pacific Legal Foundation

EE Te

Supreme Court, U. &:

FILED

In the Supreme Court}} 4°R 25 1979

Ee MICHABL RODAK, 3, CLERK.

United States

Ocrosrer Term, 1978

No. 78-1472

Dovatas M. Costiz, Administrator of the

United States Environmental Protection Agency,

Petitioner,

v.

Paotric Legat Founpation ; Jonn B. Kirroy, 8r.;

Tue Crry or Torrance; and Tue Orry or Los ANGELEs,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court

of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

PACIFIC LEGAL FOUNDATION AND

JOHN B. KILROY, sk.

Rowaup A. Zomprun

Rosert K. Bust

Tomas E. Hooxano

Pacific Legal Foundation -

455 Capitol Mall, Suite 465

Sacramento, California 95814

Telephone: (916) 444-0154

Attorneys for Respondents

' Pacific Legal Foundation

and John B. Kilroy, Sr.

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. * &.F.,CA S411! ¢ (418) 981-7882

SUBJECT INDEX

| Page

6 Sach ne wle eer aane ace ues GAO RE Se Ax § BS ORR AON 1

Reasons for denying the writ ........................00050- 3

A. The decision of the Court of Appeals does not conflict

emus WN WE WU SUI «Ss oc ss naps tae ens 3

B. The petition requests this court to review evidence and

discuss specific facts not determined by the Court of

BE gta ss scopes GUeaMM a ss cuss sascedessy se: 6

C. The decision of the Court of Appeals does not present a

serious hindrance to effective eluutiietratitia of the Fed-

eral Water Pollution Control Act .................... 10

ERR PR, SO opt PTR CER BIE cfel ong Pea aS 14

li

TABLE OF AUTHORITIES CITED

Cases

Page

wre Central Hanover Bank and T.ust Co., 339 U.S. 306

BE wd digs wads bbc ons eeclaeee cee eee

National Independent Coal Operators’ Association v. Kleppe,

Okt RI a tn stein nanny wept 3, 4,5

Pacific Legal Foundation v. Costle, 586 F.2d 650 (9th Cir. 1978)

seals 4 ue 46 09 bu Coe Ble ae Oe emer 4, 5, 8,9, 10, 11, 12, 13

Pacific Legal Foundation v. Quarles, 440 F. Supp. 316 (C.D.

Cal. 1977), appeal pending, No. 77-3844 (9th Cir.) .......

Regulations

OGTR. De ok ba ii oe ste ees 11

RS ee Pye Oa Miles ue penx poe 7

BE ee re ry tee a deena 11

GIT oisnes's oan buch vawe ances 12

eS PEED ke 3525s sce ee. 8

Statutes

SC UOC, Be 568i a eae ee 12

OIE. 5 5 ob so weksak econ eee 12

SE i. ss sro cba iveuen Ceenee bas eee meee nene 12

EEE Sic knac sddcice ellis coe eden 12

33 U.S.C. Section 1251, etseq. ............ as hinteenteeigrma 10

ft 5 SRR eed eta ree SSS 8

Sh I Sed Ce nee 12

In the Supreme Court

United States

Octoser TERM, 1978

No. 78-1472

Dova.as M. Coste, Administrator of the

United States Environmental Protection Agency,

Petitioner,

v.

Paciric Lecau Founpation ; JoHn B. Kixroy, Sr.;

Tue Crry or Torrance; and Tue City or Los ANGELEs,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court

of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

PACIFIC LEGAL FOUNDATION AND

JOHN B. KILROY, SR.

STATEMENT

Respondents Pacific Legal Foundation (hereinafter

PLF) and John B. Kilroy, Sr., accept the statement of facts

set forth in the petition with the exception of the following

necessary corrections and additions.

As set forth in the following argument, PLF and Kilroy

disagree with the characterization of both the meaning and

the impact of the decision below as expressed by the

Environmental Protection Agency (hereinafter EPA) in

section 4 of the statement of facts at 10-11. In addition,

there is no merit to the suggestion on pages 8-10 of the pe-

tition that issues of law developed by EPA in separate pro-

ceedings initiated by EPA-and the response by Kilroy

thereto establish the lack of factual disputes to be consid-

ered in the adjudicatory hearing requested by Kilroy.

Kilroy’s participation in such agency initiated collateral

proceeding was solely to ensure the exhaustion of admin-

istrative remedies.

Several material facts have been omitted relating to the

action taken by EPA and the failure to provide PLF and

Kilroy with an adjudicatory hearing or any other opportu-

nity to participate :

1. The permit issued August 18, 1975, expired by its

terms on February 1, 1977. y

2. On November 18, 1976, EPA issued a negative

declaration which made public EPA’s description of the

interim sludge disposal project required by the permit.

(The permit contained compliance deadlines but no project

description.) A public controversy ensued. Appendix A at

A-5.

3. On December 15, 1976, EP-A announced its intention

to issue a new permit.

4. During the comment period on the new permit issu-

ance PLF submitted a letter objecting to certain permit

requirements and expressly requesting that they not be

included in a new permit.

1The materials reproduced in Appendices A and B are part of

the supplemented record before the court of appeals.

3

5. On January 24, 1977, EPA announced that the

expiration date of the old permit was extended to June 30,

1977, to give additional review time to consider the tenta-

tive waste discharge requirements prior to the expiration

of the permit. Administrative Record, Exhibit 7.

6. On February 14, 1977, PLF and Kilroy filed a lawsuit

challenging the negative declaration issued on November 18,

1976, and the failure of EPA to consider the adverse envi-

ronmental impacts which would occur.’

7. On April 18, 1977, the EPA Regional Administrator

signed a declaration which acknowledged the controversy

and agreed to withhold federal funding for the project until

an environmental impact statement was prepared. Appen-

dix A.

The effect of the challenged action taken on June 2, 1977,

extending the old permit was to require immediate imple-

mentation of the project without regard to the public con-

troversy, to the promised review of discharge requirements,

or to the findings of the environmental impact statement.

REASONS FOR DENYING THE WRIT

A. The Decision of the Court of Appeals Does Not Conflict

with Decisions of this Court

The petition asserts a conflict between the decision of the

court of appeals in this case and the decision of this Court

in National Independent Coal Operators’ Association v.

Kleppe, 423 U.S. 388 (1976). Petition at 13. The court of

appeals acknowledged that some language in the Natzonal

*Pacific Legal Foundation v. Quarles, 440 F. Supp. 316 (C.D. Cal.

1977), appeal pending, No. 77-3844 (9th Cir.).

4

Coai Operators decision suggests that a failure to request

a hearing would operate as a waiver of a right to a hearing.

Pacific Legal Foundation v. Costle, 586 F.2d 650, 658-59 n.3

(9th Cir. 1978); Petition at 19a n.3. However, the substan-

tial factual distinctions between the two cases clearly

justify the conclusion by the court of appeals that the

language of the National Coal Operators decision does not

determine the question of whether an adjudicatory hearing

should have been conducted in this case. The most signifi-

cant distinctions include:

1. The coal operators had received actual notice from

the Secretary of the Interior of the proposed assessment.

Neither PLF nor Kilroy received actual notice of the pro-

posed extension of the permit because EPA, even though it

knew of the interest and concerns of these parties, used

constructive notice in the form of a newspaper advertise-

ment.

2. The regulations of the Secretary of the Interior

expressly provided that if a coal operator failed to request

a hearing within 15 days he would be “ ‘deemed to have

waived ... his right of formal adjudication and opportunity

for hearing.’” National Coal Operators, 423 U.S. at 394.

EPA regulations contain no similar provision.

3. The coal operators failed to comply with the require-

ment in the regulations of the Secretary of the Interior

that a hearing be requested within 15 days. Kilroy did

request an adjudicatory hearing within the 10-day period

established by EPA regulation. EPA denied the request.

4. The coal operators did not seek in court to require

an adjudicatory hearing. The issue presented was whether

——

5

the assessment of civil penalties could be imposed “without

making formal ‘findings of fact’ even though no hearing was

requested.” National Coal Operators, 423 U.S. at 397, PLF

and Kilroy brought this action to obtain the right to be

heard in an adjudicatory hearing which the agency had

refused to conduct after receiving Kilroy’s request.

Considering the substantial differences in the regulations

governing the provision of hearings and considering the

substantial differences between the actions of the complain-

ing parties and the relief they sought, the court of appeals

correctly concluded that this case is not controlled by

dictum in the National Coal Operators decision.

It must also be recognized that the decision of the court

of appeals did apply the legal principles set forth in Na-

tional Coal Operators and, for this reason, is not in conflict

with that decision. In the decision below the court said:

“Tt must be shown that the material facts supporting

the decision are not subject to dispute.” Pacific Legal

Foundation v. Costle, 586 F.2d at 658-59 (footnote

omitted) ; Petition at 19a.

In National Coal Operators, this Court in describing the

holding of the court of appeals identified the same prin-

ciple:

“T]he operator does not dispute the proposed order,

including the factual basis of the violation.” National

Coal Operators, 423 U.S. at 396.

The differences in result between the two cases followed

from the application of the same principle to substantially

different factual situations, not from a conflict between the

legal principles applied.

B. The Petition Requests this Court to Review Evidence

and Discuss Specific Facts Not Determined by the

Court of Appeals

The question presented as set forth by the petition con-

tains at least three assumptions of factual matters:

1. That there was due notice of the proposed action;

2. That no one requested a hearing before the proposed

action was taken; and

3. That the subsequent request for hearing did not raise

material issues of fact.

These factual premises are inconsistent with the facts of

the case.

The question of due notice was in substantial dispute

before the court of appeals. Kilroy did not see the notice

published in the Los Angeles Times and despite a standing

dispute with EPA over the content of the permit, including

an exchange of letters and active litigation in progress,

neither PLF nor Kilroy received actual notice of the pro-

posed action. At the time the action was taken, PLF and

Kilroy, based upon information they had received that a

hearing had been completed, were actively attempting to

determine the status of the proceeding. EPA would not

release the requested information in response to several

telephone contacts. It was necessary to file a Freedom of

Information Act request for this information. See Appen-

dix B. Only on the day the Freedom of Information Act

request was received did EPA call PLF on the telephone

with the information that the action had been taken. Under

these circumstances the conclusion by the court of appeals

that PLF and Kilroy could not be found to have waived an

7

adjudicatory hearing is consistent with the decisions of this

Court which have recognized that under similar circum-

stances a “mere gesture” for providing notice by “an

advertisement in small type inserted in the back pages of a

newspaper” is insufficient to put interested persons on

notice of the obligation to asseri the right to a hearing.

Mullane v. Central Hanover Bank and Trust Co., 339 U.S.

306, 315 (1949).

The Court should also note that the claim by EPA that

“Tp]ersons who chose not to make such a request [for direct

notice] must rely on newspaper notice” (Petition at 15 n.12)

is a misrepresentation of the notice requirements in 40

C.F.R. § 125.32(a). The primary requirement for notice is

that it “shall be circulated in a manner designed to inform

interested and potentially interested persons.” The provi-

sions relating to direct notice to those who request it and

newspaper publication are only two of several requirements

listed as the minimum acceptable actions.*

340 C.F.R. § 125.32(a) provides:

“(a) Public park of the proposed issuance, denial or modi-

fication of t or denial shall be circulated in a

ss neener-coctgned ts tndtopn talenichet ond pomestidiie: asunstid

persons of the discharge and of the determination to

issue, deny, or modify a permit for i Public notice

regarding issuance

SF egetccy ee tse AC oa = ~ mal

circulation of public notice shall include at least the following:

“(1) Notice shall be circulated within the cal area

of Me discharge; such circulation include any

one :

“(i) Posting in the office and public places of the

e Ect the peveaioet of thaagelionnk toate

the effluent source is located; ;

“(ii) Posting near the entrance to the applicant’s premises

The clear implication of the decision by the court of

appeals is that under these facts, PLF and Kilroy were

clearly “interested persons” and were not accorded “due

notice.” See Pacific Legal Foundation v. Costle, 586 F.2d at

658-59 n.3; Petition at 19a n.3.

On the subject of a request for a hearing, the regulations

of EPA do not provide an opportunity to request an

adjudicatory hearing until after a “determination with

regard to a permit” has been made. 40 C.F.R. § 125.36(b)

(1). Kilroy complied with these procedures. EPA’s claim

that PLF and Kilroy were required to request an adjudica-

tory hearing prior to the determination “in response to

EP4A’s published notice of its proposed action” (Petition at

14-15) is in direct conflict with EPA’s own regulations. It is

obvious that had a request for an adjudicatory hearing been

submitted before the action was taken, it would have been

denied as premature and not authorized by the regulations.‘

The final factual assertion by EPA that there were no

material issues of fact to be considered in an adjudicatory

hearing is indieative of the agency’s attempt to hide from

the issues in this case. EPA was well aware that PLF and

“(iii) Publishing in local newspapers and periodicals, or,

if iate, in a dail of general circulation.

“(2) Notice be meidind On the axalicain Weclers eed

and agencies, other

Section of

the Federal Water Pollution ¢ : Act, 2 U.S.C. § 138804) 1).

Kilroy had substantial concerns about the environmental

impact of the actions required in the permit. EPA had

stipulated that it would address the factual issues of these

impacts. Petition at 7-8 n.8. Appendix B. It was based upon

this stipulation that Kilroy requested that the environ-

mental impacts be considered in an adjudicatory hearing

before the permit was modified.* Likewise, the claim by

Kilroy that the “record developed” was inadequate obvi-

ously related to the lack of consideration of the factual

issues. One does not request an “adequate record” for the

consideration of issues of law. Moreover, in the court of

appeals, EPA readily admitted that the hearing request

raised factual issues :

“(H]is request raised only procedural legal issues and

issues concerning the land-based sludge disposal

method used to implement the sludge phase-out con-

ditions of the permit.” Brief for Respondents at 38.

These “issues concerning the land-based sludge disposal

method” are the exact factual issues which the court of

appeals identified as being in dispute and requiring an

adjudicatory hearing. Pacific Legal Foundation v. Costle,

586 F.2d at 659; Petition at 20a-21a. 1

Petitioner has fashioned the question presented so as to

require this Court to review evidence and discuss at least

three significant factual issues which were in dispute before

the court below. Moreover, since these issues were not deter-

mined as set forth in the petition, it is a request that this

Court rule on a hypothetical case.

SKilroy’s request for an adjudicatory hearing is reproduced in

hepeailie B to the Petition at 25a-26a.

10

C. The Decision of the Court of Appeals Does Not Present

a Serious Hindrance to Effective Administration of the

Federa! Water Pollution Control Act

The apparent motivation for the petition seeking review

in this Court is the conclusion. expressed at 15-17 that the

administration of the Federal Water Pollution Control Act,

33 U.S.C. §§ 1251, e¢ seq., will “become hopelessly bogged

down” because the decision of the court of appeals requires

EPA to routinely hold numerous unnecessary adjudicatory

hearings. The decision below will create no such result.

The court of appeals expressly and with great care

limited its decision to the facts of this case:

“Yet,.on this record we can conclude unequivocally

neither that the parties have no dispute about these

matters nor that they do. Under these circumstances

we are unable to deny an adjudicatory hearing on the

ground that none of the material facts upon which the

EPA’s decision rests are disputed. Although ordinarily

we might conclude that a silent record reflects no dis-

agreement as to material facts, the special circum-

stances of this case cautions us against that course

here. We acknowledge that, should a showing on

remand be made in a proper manner that no dispute as

to material facts exists, it would be necessary for us

to reconsider our holding that no ‘opportunity for a

hearing’ was provided.” Pacific Legal Foundation v.

Costle, 586 F.2d at 659 (emphasis added) ; Petition at

21a.

The effect of the decision of the court of appeals is to

require that EPA support a refusal to provide an adjudica-

tory hearing with a record which demonstrates “that the

material facts supporting the decision are not subject to

—_

11

dispute.” Pactfic Legal Foundation v. Costle, 586 F.2d at

658-59; Petition at 19a. Petitioners without any substantia-

tion imply that this ruling significantly modifies present

requirements for an opportunity for a hearing. Petition at

12-13 and 16-17. However, EPA’s own regulations already

require that a hearing must be held under similar circum-

stances even though no request has been received. These

regulations establish a lesser threshold finding to require

a hearing than that established by the court of appeals.

Title 40, Code of Federal Regulations, § 105.7(¢) provides:

“(c) Opportunity for Hearings. Where the oppor-

tunity for public hearing is called for in the Act, and

in other appropriate instances, a public hearing should

be held if the hearing official finds significant public

interest (including the filing of requests or petitions for

such hearing) or pertinent information to be gained.

Instances of doubt should be resolved in favor of hold-

ing the hearing, or if necessary, of providing alterna-

tive opportunity for public participation.”

This regulation expressly refutes the contention in the

petition that hearings must be granted only on receipt of a

request. The minimal threshold test established by the

regulations for determining whether a hearing should be

held without a request—whether there is “pertinent infor-

mation to be gained”—is clearly less rigorous than that

employed by the court of appeals. Therefore it is impossible

to believe EP A’s unsubstantiated assertion that there is a

significant number of cases in which the decision of the

12

court of appeals would require a hearing which is not al-

ready required by regulation.

The claimed burden on EPA is particularly unlikely since

the conclusion of the court below follows from the applica-

tion of the adjudication requirements of the Administrative

Procedure Act, 5 U.S.C. $4 554, 556, and 557.’ Pacific Legal

Foundation v. Costle, 586 F.2d at 658; Petition at 17a.

Under the Administrative Procedure Act provisions

quoted by the court of appeals in its decision, an adjudica-

tory hearing is required only when there is a controversy

and the parties are unable to resolve that controversy short

of hearing. 5 U.S.C. § 554(c). Therefore, considering the

“ ‘relatively small percentage of cases’” (Petition at 16)

which apparently involve significant dispute, there will be

little, if any, increased burden on EPA. This conclusion is

reinforced by the fact that an adjudicatory hearing is al-

ready available in cases in which there are disputed facts

under present EPA regulations. 40 C.F.R. § 125.36.

To bolster the questionable claim of great administrative

burden EPA suggests that “all a complainant need do in

order to set aside the Agency’s action, under the court’s

decision, is to suggest plausibly in the court of appeals that

some members of the public might disagree concerning

factual matters implicated by the Agency’s action.” Petition

at 16. The decision says no such thing. The court of appeals

clearly indicated that review of an EPA decision not to

conduct an adjudicatory hearing would be conducted as

‘Petitioner has not taken exception to the naling the court of

that Section 402(b)(1) of the Federal Water Pollution

Control Act requires the application of the adjudication provision

of the Administrative Act.

————EE————

13

with other administrative action by determining whether

the record supported that determination. The court stated

that it would look to see “whether a showing has been made

demonstrating that a hearing is unnecessary” (Jd. at 658;

Petition at 18a) and that on a proper record “it would be

necessary for us to reconsider our holding” (Id. at 659;

Petition at 21a). The record presented in this case, how-

ever, was “barren of any explanation.” Jd. at 660; Petition

at 22a. The court also noted that it would not order a hear-

ing where it “would be futile” (Jd. at 659; Petition at 20a) or

“would be useless” (Jd. at 660; Petition at 22a). There is

no basis in the decision for a conclusion that a mere sug-

gestion to the court of appeals of a plausible factual issue

would result in the remand of an otherwise proper decision

not to conduct an adjudicatory hearing.

Petitioner also misreads the decision of the court of

appeals as acknowledging the existence of the burden of

which EPA complains. Petition at 16. The cited portion

of the decision, however, is not discussing administrative

burdens from conducting hearings but the “ ‘heavy burden

of justification’ ” resting on the agency when refusing to

allow a hearing. Jd. at 658-59; Petition at 18a-20a. EPA

made no factual showing to the court of appeals that a sig-

nificant administrative burden would result from providing

hearings under the facts of this case. The petition likewise

fails to make any such showing. Instead, EPA relies on the

unsubstantiated assumption that interested persons who

desire adjudicatory hearings which are readily available

to them on request under EPA regulations will instead flock

to the court of appeals to obtain orders for such hearings.

14

Such unfounded speculation is hardly a worthy basis to

invoke the review of this Court.

CONCLUSION

For the reasons set forth above, the Petition for a Writ

of Certiorari does not raise a substantial issue worthy of

consideration by this Court and should be denied.

Respectfully submitted,

Ronaup A. ZuMBRUN

Rosert K. Best

Tomas EK. Hooxano

Attorneys for Respondents

Pacific Legal Foundation

and John B. Kilroy, Sr.

April, 1979

Appendices

(Appendices Follow)

>

a

:

a

ee eed

A-l

APPENDIX A

WILLIAM D. KELLER

United States Attorney

BARRY TRILLING

Assistant United States Attorney

1100 United States Courthouse

312 North Spring Street

Los Angeles, California 90012

Telephone: (213) 798-2450

DAVID R. ANDREWS

Regional Counsel

ANTHONY O. GARVIN

Assistant Regional Counsel

US. Environmental Protection Agency

100 California Street

San Francisco, California 94111

Telephone: (415) 556-2068

Attorneys for Defendants John R. Quarles, Jr., Paul

DeFalco, Jr., and U.S. Environmental Protection Agency

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

5

PACIFIC LEGAL FOUNDATION, et al., Civil No

Plaintiff, | 77.9501 HP

Vv.

> Affidavit

JOHN R. QUARLES, JR., et al, of Paul

Defendants. | De Falco, Jr.

A-2

State of California

County of San Francisco on

Paul De Falco, Jr. being duly sworn, deposes and says:

1. I am the Regional Administrator, Region IX, United

States Environmental Protection Agency (EPA), San

Francisco, California. In my capacity as Regional Admin-

istrator, I am the chief executive officer for EPA in Region

IX and am responsible for administration of EPA’s pro-

grams in Arizona, California, Hawaii, Nevada, Guam,

American Samoa, and the Trust Territories.

2. Under Title II of the Federal Water Pollution Con-

trol Act Amendments of 1972 (FWPCA), 33 U.S.C. §1281

et seq., the Administrator of EPA is authorized to award

grants to municipalities for construction of wastewater

treatment facilities. The authority of the Administrator of

EPA to award grants under Title IT of FWPCA has been

delegated by the Administrator to the Regional Administra-

tors of EPA.

3. Under an agreement signed May 23, 1975, general

administration of the construction grant program of Title

II of FWPCA was delegated to the California State Water

Resources Control Board (SWRCB). The agreement, how-

ever, did not delegate to the SWRCB the actual authority

to award Federal construction grants. The final decision

making authority for award of Federal construction grants

in California is thus my responsibility as Regional Admin-

istrator.

a

A-3

4. On August 22, 1975, the City of Los Angeles sub-

mitted an application for a grant under Title II of

FWPCA, for construction of an interim sludge processing

and disposal system for the Hyperion treatment plant. The

City had previously submitted a Project Report to EPA in

1975 which discussed the feasibility of the Interim Sludge

Project.

5. The proposed Interim Sludge Disposal Project is

designed to eliminate the discharge of sewage sludge to the

ocean from the Hyperion plant until an ultimate solution

for the disposal of sludge is developed. The City of Los

Angeles is presently a participant in a cooperative effort

with Los Angeles County and Orange County to develop a

facilities plan and joint Environmental Impact Report/

Environmental Impact Statement (EIR/EIS) regarding

alternatives for the ultimate disposal of sewage sludge.

This effort is partially funded by a grant from EPA under

Title IT of FWPCA.

6. In accordance with EPA’s Guidelines for Compliance

with NEPA in the Title II Wastewater Treatment Works

Construction Grants Program (40 C.F.R. §6.512), EPA

prepared an Environmental Impact Appraisal for the

Interim Sludge Disposal Project which was issued on

November 18, 1976. (Attachment Q, Memorandum in Sup-

port of Motion To Dismiss). The Environmental Impact

Appraisal contained a discussion of the anticipated impact

of the project on the environment, a discussion of mitiga-

tion measures to be taken, and a discussion of alternatives

to the proposed project.

A4

7, On the basis of the Environmental Impact Appraisal

and the EIR prepared by the City of Los Angeles, EPA

issued a Negative Declaration on November 18, 1976,

regarding the environmental impact of the Hyperion in-

terim sludge project. (Attachment P, Memorandum in

Support of Motion to Dismiss). The Negative Declaration

stated that it was EPA’s conclusion that the proposed

project would not have significant environmental impacts

and that EPA had made a preliminary decision not to

prepare an Environmental Impact Statement.

8. The City of Los Angeles is presently developing a

facilities plan covering all aspects of future wastewater

treatment, which is referred to as the City of Los Angeles

Wastewater Facilities Plan. This plan will include a

detailed discussion of alternative means of achieving

effluent limitations based upon secondary treatment at the

City’s existing treatment facilities and a discussion of the

Interim Sludge Disposal Project. The City and EPA are

also developing a joint EIR/EIS covering the environ-

mental impact of the City of Los Angeles Wastewater

Facilities Plan. Preparation of the plan and the joint

EIR/EIS is partially funded by a grant from EPA under

Title II of FWCPA.

9. The EIR/EIS for the City of Los Angeles Waste-

water Facilities Plan will include a detailed analysis of the

potential environmental impact of the Interim Sludge

Disposal Project. This analysis will include a discussion of

alternatives to the Interim Sludge Disposal Project and a

discussion of the environmental impacts of the present

disposal of sludge to the ocean.

A-5

10." In view of the controversy regarding the Hyperion

Interim Sludge Project which arose subsequent to the

issuance of the Negative Declaration and Environmental

Impact Appraisal, I have decided that EPA should not

award a grant to the City of Los Angeles for construction

of the project until the public has had a further opportunity

to comment on the environmental impact of the project. I

have, therefore, directed that no action should be taken on

the grant application submitted by the City of Los Angeles

for the Hyperion Interim Sludge Project until the require-

ments of the National Environmental Policy Act have been

satisfied with respect to the EIR/EIS for the City of Los

Angeles Wastewater Facilities Plan.

PAUL DE FALCO, JR.

Paul De Falco, Jr.

Subscribed and sworn to before me this

18th day of April, 1977.

(SEAL)

MELINDA TAPLIN

Notary Public

My commission expires July 6, 1980.

APPENDIX B

(Letterhead of Pacific Legal Foundation,

455 Capitol Mall, Suite 465,

Sacramento, California 95814,

Telephone (916) 444-0154)

June 10, 1977

Mr. William H. Pierce, Chief

Permits Branch Enforcement Division

United States Environmental

Protection Agency

100 California Street

San Francisco, CA 94111

Dear Mr. Pierce:

In re: Hyperion Treatment Plant, Los Angeles, Califor-

nia, Interim Sludge Processing and Disposal Sys-

tem Extension of Expiration Date for NPDES

Permit No. CA0109991, Reference: E-4-1 869.2D

This is a request pursuant to the Freedom of Informa-

tion Act, as amended, 5 U.S.C. § 552. .

We have attempted through telephone conversations with

Environmental Protection Agency Region IX offices to find

out whether the extension has been approved and, if so, on

what date. Thus far, we have not been given a response.

In accord with the provisions of the Freedom of Informa-

tion Act, please furnish us with the following:

1. The date of issuance of the Environmental Protection

Agency extension of the expiration date to December 17,

1979, of NPDES Permit No. CA0109991.

B-2

2. The official document of the Environmental Protec-

tion Agency which establishes the extended expiration date

of the permit.

3. All supporting documents and materials which form

the basis for the decision to extend the expiration date of

NPDES Permit No. CA0109991 from June 30, 1977, to

December 17, 1979.

Pacific Legal Foundation is a nonprofit, tax-exempt law

firm serving the public interest. We therefore request that

in accordance with the provisions of the Freedom of

Information Act any fees be waived, as the information is

requested primarily to benefit the public.

Very truly yours,

DAVID M. SHELL

Law Clerk