Respondents Brief — Costle v. Pacific Legal Foundation

IN THE OCT 11 1979

Supreme Court of the Unitett Stabesoon, se. cee

October Term, 1978

No. 78-1472

DouGLas M. CosTLE, ADMINISTRATOR OF THE ENVI-

RONMENTAL PROTECTION AGENCY,

Petitioner,

vs.

PACIFIC LEGAL FOUNDATION, JOHN B. KILROY, SR., THE

CiTy OF TORRANCE, and THE CiITy OF Los ANGELES,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Brief for Respondent The City of Los Angeles.

BurT PINES,

City Attorney,

JOHN B. RICE,

Senior Assistant City Attorney,

FREDERICK N. MERKIN,

Assistant City Attorney,

1800 City Hall East,

200 North Main Street,

Los Angeles, Calif. 90012,

(213) 485-6597,

Attorneys for Respondent

The City of Los Angeles.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

I Se a a a 1

Introduction and Summary of Argument .................. 3

Oc nsnamedbbcbnbsial 4

A. The Hyperion Treatment Plant .................... 4

B. Permitting History of the Hyperion Treat-

meee Teme Gees 6.2... 5-22 ..3................... 5

1. Board Order No. 74-329, EPA NPDES

Permit No. CA 0109991 ~..000000 0. 5

2. Board Order No. 75-100, NPDES Per-

mit No. CA 0109991 ooo. 5

3. Board Order No. 75-165 ...................... 6

4. Board Order No. 76-80 ........................ 7

> eeee Greer feo. 76-202 ...........:......:... 8

6. Board Order No. 77-1, NPDES Permit

ee E ) 8

(ye Fy, ae 8

SB. Boete Gren 0, 77-84 .;....2....cccccec.c:... 8

9. The Action in Question ......... pabetecnsgbnadt 9

C. The EPA Enforcement Action ...................... 11

ete acleas aiid cecekanbecinccéhassasadecaesans 13

The City Was Denied an “Opportunity for Public

ITE SESS 5 ~ SER SSI AO 13

‘,

The Notice Was Inadequate ..........022.222...2.2... 13

II.

Inadequate Notice Is a Legal Infirmity ............ 14

ii.

Ill. Page

National Land Operators’ Association v.

Kleppe Is Distinguishediec on the Notice

WRN: RB SS “17

IG - oecrstsnentippnrsencepsiniichinimndapentingseninseestysseliatniee 19

RH LL

———

TABLE OF AUTHORITIES CITED

Cases Page

Baldwin v. Hale, 68 U. S. (1 Wall. ) 223, 17 L.Ed.

EE.” * aCe aR an ese IF ESTILO er 15

City of Santa Clara, Cal. v. Andrus, 572 F.2d 660

(9th Cir. 1978), cert. denied, ...... SM sung OO

S.Ct. 176-177, ...... L.Ed.2d ...... As, , Snares 15

Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58

Beh, BOGS CIGD cists ssestiscocsanrssncsssstscectecdiocasscile 15

Lewis v. Richardson, 428 F.Supp. 1164 (D. Mass.

sy de eT Rae ree ERE eRe at cee DT, ONY OL STS SE aS 15

Memphis Light, Gas & Water Division v. Craft, 436

USS. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) .... 16

Mullane v. Central Hanover Bank and Trust Co.,

339 US. 306, 70 S.Ct. 652, 94 L.Ed. 865

CREE stisins ccicpcrphine<slaiiladapstineitaniimamhanameeahiagbanicouninek 15, 16

National Land Operators’ Association v. Kleppe,

423 U.S. 388, 96 S.Ct. 809, 46 L.Ed.2d 580

PK © cacuctechicbbalgr nines sciiisdassndnnbiehindenadaciiées 17

Pembina Con. Silver Mining etc., Co. v. Pennsyl-

vania, 125 U.S. 181, 8 S.Ct. 737, 31 L.Ed. 650

CRIED = :iickin eStats silanintncigptclinighibhdaletitniemapiiinnt wikiieiniinn 15

Riley v. Stack, 128 Cal.App. 480, 18 P.2d 110

f . > 4 AREER RNS ene aS Poe ere OSs a 15

South Carolina v. Katzenbach, 383 U.S. 301, 86

S.Ct. 603, 13 L.Bd.24 769 (1966) .............0.0... 15

Constitutional Provisions

United States Constitution, Fifth Amendment .......... 14

United States Constitution, Fourteenth Amendment... 15

iv.

Regulations = =— Page

Code of Federal Regulations, Title 40, Sec. 125.58

(e(2) (44 Federal Register 34816, June 15,

SOTD) ...:.-.«cceresescasnensioniadi aaa 10

Rules |

Federal Rules of Appellate Procedure, Rules 15-20.. 11

Statutes

Administrative Procedure Act (5 U.S.C. §§554, 556,

OG SST). necrencccinninnencnesivcitctntelts iain ia iJ 2

Clean Water Act, Sec. 301(b)(1)(B) (33 U.S.C.

$2311(b)(1)(@B)) ss. nae 6

Clean Water Act, Sec. 301(h) (33 U.S.C. §1311

(Bh) ) ., cmssvrnnensisiongeeecpeiiagedtuaiaieisugenhpenstiannaninennannnnnn 6, 10

Clean Water Act, Sec., 301(i) (33 U.S.C. §1311

D)) --~----xa0-seneoeonpmapusesosinntiaianatielsnaapeasaanaaaidila 6

Clean Water Act, Sec. 309 (33 U.S.C. §1319) ........ 11

Clean Water Act, Sec. 402(a)(1) (33 U.S.C.

EC ELS Sp neni AS See she 1, 13, 15

Clean Water Act, Sec. 402(d)(2) (33 U.S.C.

SISAZ(GP GZ) <.nccocinccentsghabidmeancadleeneiaass 13

Clean Water Act, Sec. 509(b)(1) (33 U.S.C.

SISOPCS FCA) ) cn... -cicccccéaseapeehantnalnctaa hentai 11

Federal Coal Mine Health and Safety Act of 1969,

Sec. 109(a) (3), 83 Stat. 742 (30 U.S.C. §§801

C0 900. ). 522... cs 17

IN THE

Supreme Court of the United States

October Term, 1978

No. 78-1472

DoucGLas M. CosTLE, ADMINISTRATOR OF THE ENVI-

RONMENTAL PROTECTION AGENCY,

Petitioner,

VS.

PACIFIC LEGAL FOUNDATION, JOHN B. KILRoy, SR., THE

CITY OF TORRANCE, and THe City oF Los ANGELES,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Brief for Respondent The C.iy of Los Angeles.

QUESTION PRESENTED,

Respondent The City of Los Angeles (“City” herein-

after) does not accept the “question presented” as stated

in the Brief for the Petitioner (“Pet. Br.” hereinafter )

y 3

First, the petitioner’ has introduced the question

of whether the “public hearing” contemplated by Clean

Water Act section 402(a)(1) [33 U.S.C. §1342(a)

(1)] is the adjudicatory hearing of the hearing provi-

sions of the Administrative Procedure Act (“APA”

1For convenience of expression, petitioner Douglas M. Costle,

Administrator of the United States Environmental Protection

Agency (“EPA” hereinafter), will be referred to by the name

of the agency he heads, the EPA.

— =

hereinafter) [5 U.S.C. §§554, 556, and 557]. The

question on. which certiorari was granted concerned

“adjudicatory hearings,” see Petition for a Writ of

Certiorari (“Pet. Cert.” hereinafter) 2; Appendix

(“App.” hereinafter) 208, whereas the question present-

ed by the EPA now concerns “APA-type adjudicatory

hearings.” The applicability of the APA was not ad-

dressed in the Petition, but it is dealt with in the

EPA’s brief on the merits. See Pet. Br. 30-33.

Second, the question as presented will not allow

for disposition of the case because it erroneously states

certain facts and omits others. The question improperly

assumes that “due notice of the proposed action” had

been given in the instant case, which assumption is

not warranted by a fair reading of the record or

the decision below. The court below found that notice

had been given the City of the proposed EPA action,

Pet. Cert. 6a, but it never held that such notice was

adequate. The court went no further than to observe

that the “failure of the city to request a hearing may

suggest that it does not contest any of the facts support-

ing the issuance of the permit . .. .” (Emphasis

added.) Pet. Cert. 19a fn. 3.

Clearly, the adequacy of notice (not only to the

City but to the other respondents as well) is an issue

that cannot be assumed away by the EPA and neces-

sarily must be before this Court for consideration.

Adequacy of notice is an essential element of an “oppor-

tunity” for a public hearing.

The question presented also fails to take into account

that the decision of the court below was based, in

part, upon (a) the EPA’s failure to conduct a hearing

despite the known opposition to its proposal to use

a

the Palos Verdes landfill, Pet. Cert. 19a fn. 3, (b)

special circumstances resulting from the division of

jurisdiction over the Hyperion outfalls, Pet. Cert. 21a-

22a, and (c) the absence from the record of any

explanation of the June 2, 1977 extension. Pet. Cert.

22a.

INTRODUCTION AND SUMMARY OF ARGUMENT.

The court below remanded the matter to the EPA

for a “proper hearing,” Pet. Cert. 24a, because the

EPA bears the burden of demonstrating that a hearing

is unnecessary, that is, that material facts are -not

in dispute. Pet. Cert. 18a-19a. The EPA argues that

it bears no such burden, but rather, maintains that

it does all it must do to provide the “opportunity”

for hearing by making hearings available on a

as provided by their regulations.

Respondents Pacific Legal Foundation and John B.

Kilroy, Sr., in their brief, address themselves primarily

to (a) whether “opportunity” is limited to the availa-

bility of a hearing on request and (b) whether. they

were given such an opportunity. The City’s brief con-

siders whether the City was afforded such an sine’

tunity.”

The City was not afforded an “opportunity for public

hearing” because the notice it received was inadequate.

The notice failed to disclose that the proposed EPA

action would extend a permit containing a sludge-

out compliance schedule which the EPA believed to

be in effect despite the subsequent issuance by State

authorities of a permit containing a less demanding

sludge-out schedule, which permit had not been vetoed

by the EPA although it had the power to do so.

a

The EPA’s failure to give adequate notice deprived

the City of due process of law under principles long

ago laid down by this Court and for the same reason

deprived the City of its statutory right to an “opportu-

nity for public hearing”.

STATEMENT.

The City accepts the statement of facts and proceed-

ings provided by the EPA, see Pet. Br. 6-17, as cor-

rected and supplemented by the brief filed by respond-

ents Pacific Legal Fundation and John B. Kilroy, Sr.

and as set forth herein.

A. The Hyperion Treatment Plant.

The City’s Hyperion Treatment Plant treats most

of the City’s sewage and discharges the treated sewage

through three outfalls extending into the Pacific Ocean.

All such sewage receives primary treatment; about thirty

percent (30%) receives secondary treatment by the

activated sludge process. App. 3.

Combined treated effluent (primary and secondary)

is discharged through an outfall terminating 26,525

feet (about 5 miles) from shore at a depth of 187

feet. Separated solids are disgested, screened, and di-

luted (one volume digested sludge with three volumes

secondary effluent) prior to discharge through an outfall

terminating 35,572 feet (about 7 miles) from shore

at a depth of 300 feet at the head of a submarine

canyon. App. 3-4. An emergency outfall (to handle

increased flow during wet weather and when power

fails at the pumping plant) extends 5,364 feet (about

1 mile) to a depth of 50 feet. App. 4.

a

B. Permitting History of the Hyperion Treatment Plant

Outfalls.

Altogether, discharges from the Hyperion outfalls

have been regulated by nine*® discharage permits issued

over approximately the past five years. Five such per-

mits were issued by the California Regional Water

Quality Control Board, Los Angeles Region (“the

Board” hereinafter) acting alone and without rejection

of any such issuance by the EPA. Three other permits

were issued by the Board and the EPA acting jointly.

One such permit, the one in question, was issued by

the EPA acting alone.

1. Board Order No. 74-329, EPA NPDES Permit No. CA

0109991.°

This permit was the first and was jointly issued

on November 18, 1974. It dealt exclusively with the

five-mile (treated effluent) and one-mile (emergency)

outfalls. The seven-mile sludge outfall was not regulated.

The permit contained an expiration date of June 1,

1977. See Pet. Cert. 4a.

2. Board Order No. 75-100, NPDES Permit No. CA 0109991.

This permit was jointly issued on August 18, 1975.

App. 3-50. It rescinded the 1974 permit and regulated

all three outfalls. It introduced a discharge prohibition

*The EPA counts twelve, presumably by regarding the jointly

issued permits as constituting separate permitting actions by

the two involved agencies. See Pet. Br. 10 fn. 6.

®The EPA has regulated the Hyperion dioctiniiin by means

of National Pollutant Discharge Elimination System (“NPDES”

hereinafter) “permits” where the Board has acted by “orders.”

Each Board order was given a different number whereas the

EPA from the very beginning ascribed the same number to

its permits. For convenience, all permitting actions affecting

the Hyperion outfalls will be referred to hereinafter as “per-

mits.”

wiicdllianis

of sludge, in accordance with a schedule of compliance.

App. 12. The schedule provided for the removal of

not less than one-third of the existing discharge in

each of three phases. Completion of the phases was

scheduled for 18, 24, and 30 months from the “date

of concept approval.”* App. 12, 18.

Much as the 1974 permit, this permit also set specific

effluent limitations for the outfalls, App. 6-12, receiving

water limitations, App. 13-15, and general requirements.

App. 15-17. In addition to sludge, as in the 1974

permit, compliance schedules were established to pro-

vide for full secondary treatment.° App. 17-18. The

permit contained an expiration date of February 1,

1977. App. 21.

3. Board Order No. 75-165.

This permit, issued on December 1, 1975 by the

Board alone® and without veto by the EPA, recited

that 75-100 and the NPDES permit contained a sludge-

out schedule “related” to “concept approval”, that “con-

‘The EPA erroneously states that 75-100 set target dates

of 1, 1977, October 1, 1977, and April, 1978. Compare

Pet. Br. 11 fn. 7 with App. 18.

‘Pursuant to Clean Water Act section 301(i) [33 U.S.C.

§1311(i)], on or about June 9, 1978 the City applied for

an extension of the July 1, 1977 secondary treatment deadline

established by Clean Water Act section 301(b)(1)(B) [33

U.S.C. §1311(b) (1) (B)]. The City has also applied for a

poy (i.e., waiver) of the secondary treatment

ent, t to Clean Water Act section 301(h) [33 U.S.C.

$1311 h)]. See note 9 infra.

‘The EPA improperly characterizes orders 75-165, 76-80,

76-202, and 77-29 as affecting “only the state’s compliance

schedule for the sludge management project.” See Pet. Br.

11 fn. 6.

a Te

cept approval” was given on October 1, 1975,’ and

that the EPA was “administratively modifying the

NPDES permit to substitute definite dates in the time

schedule for compliance with the sludge discharge pro-

hibition.” App. 51. Based on the stated date of concept

approval, this permit supplied the dates for the three

phases of the sludge-out schedule which in 75-100

has been keyed to “months from date of concept ap-

proval.” The dates for completion of the three phases

were April 1, 1977, October 1, 1977, and April 1,

1978. App. 53. 75-100 was otherwise left unchanged.

App. 52.

4. Board Order No. 76-80.

This permit, issued on May 24, 1976 by the Board

alone and without veto by the EPA, changed the

sludge-out compliance schedule from three phases of

one-third removal each to four phases of one-quarter

removal each. The dates given were August 1, 1978,

April 1, 1979, October 1, 1979, and April 1, 1980.

App. 57. 76-80 found that the City had failed to

meet the April 1, 1976 deadline for “completion of

approvable plans and specifications for Phases I, II,

and III,” which made it “highly probable that the

City will fail to meet the subsequent completion dates

for the remaining tasks described above.” App. 55-

56.

7Conditionai concept approval was given by the California

State Water Resources Control Board on such date. See Pet.

Cert. 4a-Sa. The City does not concede that concept approval

was then or at any other time given by the EPA.

alien,

5. Board Order No. 76-202.

On November 22, 1976 the Board, acting alone

and without veto by the EPA, amended 76-80 to

adjust the date for submittal of final plans and speci-

fications necessary to meet Phase I from January 1,

1977 to November 1, 1977. App. 60-61. The City

had advised the Board that it would be unable to

meet the January 1, 1977 deadline. App. 60. 76-

80 was left intact in all other respects. App. 62.

6. Board Order No. 77-1, NPDES Permit No. CA 0109991.

On January 24, 1977 this jointly issued permit ex-

pressly found that the Board had adopted 75-165,

76-80, and 76-202 “amending the time schedules con-

tained in Order No. 75-100.” App. 93. This permit

extended the expiration date of 75-100 from February

1, 1977 to June 30, 1977, 75-100 remaining intact

in all other respects. App. 95.

7. Beard Order No. 77-29.

This permit was issued on February 28, 1977 by

the Board alone and without veto by the EPA. It

amended 76-80’s sludge-out schedule by modifying a

provision relating to trucks (for hauling dewatered

sludge). App. 104-107. 76-202 was rescinded. 76-80

was in all other respects left intact. App. 107.

8. Board Order No. 77-84.

On May 23, 1977 this permit was issued by the

Board alone and without veto by the EPA. This permit

found that 75-100 had been amended by 75-165 and

*The EPA pej ae Ee at we n Ciats

inability to meet this as “delays.” See Pet. Br. 11

_—

ee

77-1, made no reference to 76-80 and 76-202, and

noted 75-100’s expiration date of June 30, 1977. App.

154. It further found that the EPA was “administratively

modifying the expiration date of the NPDES permit

to extend the permit to the full five-year statutory

length as provided in the Federal Water Pollution Con-

trol Act and has requested that Order No. 75-100

be extended for the same period.” App. 154-155. The

permit provided that it was to “serve as part of”

an NPDES permit in the absence of objections by

the EPA Regional Administrator. App. 155-156. It

tescinded 77-1, extended the expiration date of 75-

100 to December 17, 1979, and left 75-100 intact

in all other respects. App. 156.

The letter advising the City of the Board’s proposed

action, which became 77-84, stated that the Board

“will consider extending the expiration date of Order

No. 75-100 (NPDES Permit No. CA 0109991) to

December 17, 1979.” App. 123.

9. The Action in Question.

By a letter of Apri! 26, 1977 the City was advised

of proposed “modifications” to NPDES Permit No.

CA 0109991, which modifications became the June

2, 1977 permit extension. App. 115-116. This letter

did not describe the proposed modifications but enclosed

a copy of the “public notice” relating thereto. App.

115. The public notice’s entire description of the pro-

posed modification was that the “Regional Administra-

tor proposes to extend the expiration date of the permit

from June 30, 1977 to December 17, 1979. All other

terms and conditions of the permit would remain un-

changed.” App. 118. No further description of the

proposed action and no explanation were provided. The

_— om

permit referred to was NPDES Permit No. CA 0109991

issued on December 18, 1974, App. 117, the permit

which had been expressly rescinded on August 18,

1975. App. 20.

Both the April 26, 1977 letter and the public notice

advised the City that comments on the proposed modifi-

cations or a request for a public hearing could be

submitted within thirty (30) days of the public notice.

App. 115, 119. The public notice further advised the

City of the availability of a request for an adjudica-

tory hearing with ten (10) days following receipt of

the final determination. App. 120.

By a letter of June 2, 1977 the EPA transmitted

a final determination to extend the expiration date

of NPDES Permit No. CA 0109991 from June 30,

1977 to December 17, 1979.° App. 149. The City

did not request either hearing and no hearing was

held, despite the existence of a major controversy over

*The June 2, 1977 action extended either the 1974 permit

or the 1975 permit. By an application dated July 30, 1976,

yy Shoe hoody ied for a new NPDES. permit Certified

ecord (“AR” hereinafter), documents 3-5,

sas on aeiie. It was apparently decided that the existing

permit should be extended rather than a new one be issued,

see AR, document 6, , es and hence the City’s

1976 application remains g- In addition, on or about

12, 1979 the City applied for a permit which

would “modify” (i.e., waive) the secondary treatment require-

ment, pursuant to Clean Water Act section 301(h) [33 U.S.C.

§1311(h)]. EPA regulations implementing section 301(h) pro-

vide, and the City’s application included, a completed

NPDES application Standard Form A, Parts II, and MI.”

40 C.F.R. §125.58(e)(2) (44 Fed. ror 34816, June 15,

ees Finally, on or about October b.. raat the City submitted,

a precautionary measure, ications to the EPA

and tip Dena Gar a: folet penal Hieperion outtelle.

~~. =

the Hyperion Treatment Plant Interim Sludge —

ect.”

C. The EPA Enforcement Action.

On August 12, 1977, slightly more than two months

after its most recent permitting action and well after

the time for requesting a hearing on the June 2, 1977

extension had passed, the EPA caused an action to

be filed in federal district court under Clean Water

Act section 309 [33 U.S.C. §1319] to enforce the

NPDES permit issued on August 18, 1975." App.

10The project consisted of trucking dewatered sludge to

a landfill in Palos Verdes. A letter of December 9, 1976

from the City to the EPA protested the EPA’s decision on

November 18, 1976 to fund the project without the prepara-

tion and consideration of an environmental impact statement,

the City expressing its concern about the environmental impacts

of the project. App. 63-72. A letter of November 30, 1976

from the Pacific Legal Foundation to the EPA expressed

similar concerns and questioned the legal basis for the EPA’s

or against the ocean discharge of sludge. App. 84-

8

On April 18, 1977 the EPA, by an affidavit filed with

the court in another case, admitted the existence of “the

controversy regarding the Hyperion Interim Sludge Project which

arose subsequent to the issuance of the Negative Declaration

and Environmental Impact Appraisal... .” App. 111.

“United States of America v. City of Los Angeles, et al.,

No. CV 77-3047-HP (C.D. Cal.). It should be kept in mind

that inasmuch as the instant case began as petitions for review

under Clean Water Act section 509(b)(1) [33 U.S.C. §1369(b)

(1)], its focus has been upon the adequacy of EPA’s admin-

istrative record s rting the June 2, 1977 extension. See

Rules 15-20 of Federal Rules of Appellate Procedure.

This case has not concerned itself in a major way with the

enforceability of the three-phase sludge-out schedule of 75-100.

If necessary, that issue will be dealt with in a more sub-

stantial fashion in the enforcement action where, unlike this

proceeding, the parties can develop a fuller factual record

(e.g., though discovery and the cross-examination of witnesses).

Proper subjects for detailed consideration in the enforcement

action will be the perceptions and intentions of the EPA, Board

and City relative to the various sludge-out schedules.

—j2—

181-189. The complaint alleged violations of the permit,

which included allegations that the City had failed

to meet certain deadlines in the three-phase sludge-

out compliance schedule. App. 183-189. Civil penalties

were sought as well as a mandatory injunction to

impose the four-phase sludge-out schedule contained

in 76-80, although no express reference was made

to 76-80. App. 187-189. The complaint made no

express reference to any Board action, although

the permit it sought to enforce, which was attached

as an exhibit, was a jointly issued permit. In enforcing

the three-phase sludge-out schedule of 75-100, the EPA

relied upon an alleged granting of “concept approval”

‘(which would trigger the schedule) by the California

State Water Resources Control Board. App. 184.

re ee ee

li,

ARGUMENT.

THE CITY WAS DENIED AN “OPPORTUNITY

FOR PUBLIC HEARING”.

The City was not afforded the “opportunity for

public hearing” mandated by Clean Water Act section

402(a)(1) [33 U.S.C. §1342(a)(1)] on the June

2, 1977 permit extension because it was not given

adequate notice of the proposed action. The notice

was inadequate because it failed to inform the City

that the EPA regarded the three-phase sludge-out sched-

ule of 75-100 to be in effect despite the Board’s subse-

quent issuance of 76-80, which contained a more lenient

four-phase schedule.

I.

The Notice Was Inadequate.

The permitting history of the Hyperion Plant is

one of confusion and uncertainty. By issuing permits

for the Hyperion outfalls, both the EPA and the Board

were claiming at least some degree of jurisdiction over

them although the nature and extent of each agency’s

jurisdiction was unclear. This jurisdictional uncer-

tainty was not finally resolved until the decision below.

While acting in concert in issuing the first two permits

jointly, on December 1, 1975 the Board began the

practice of occasionally, but not always, acting alone—

a practice of the EPA tolerated by its nonexercise of

its veto right under Clean Water Act section 402(d)(2)

[33 U.S.C. §1342(d)(2)]. Although the EPA never |

vetoed any of the Board’s actions, it nonetheless re-

garded itself free, when it filed its enforcement action,

to adopt after the fact those State actions which served

its purposes. Thus, on the one hand, in its complaint

filed in the enforcement action the EPA alleged: that

="

the State had given “concept approval” on October

1, 1975, so as to trigger the three-phase sludge-out

schedule of 75-100. Yet, on the other hand, in the

same complaint it chose to ignore entirely any of

the Board’s actions, most significantly 76-80, which

had changed 75-100’s three-phase sludge-out schedule

to a four-phase schedule extending the date for total

sludge-out by two years.

The court below noted that the record is “barren

of any explanation of the extension of June 2, 1977.”

Pet. Cert. 22a. If its purpose was to restore the three-

phase sludge-out schedule of 75-100, the notices sent

to the City did not make this clear. The only message

conveyed by the notices from both the EPA ard the

Board was that NPDES Permit No. CA\ 0109991 and

75-100 would be extended to December 17, 1979.

Considering that the City had been given reason to

believe that. the four-phase schedule and the April

‘1, 1980 date for complete sludge-out would be in

effect, see App. 64, adequate notices would have made

clear that the EPA intended to revivify’ the three-

phase siludge-out schedule of 75-100.

‘I.

Inadequate Notice Is a Legal Infirmity.

In failing to give the City adequate notice of its

intended action, it denied the City due process of

law’* and an “opportunity for public hearing” within

'2In point of fact, this was impossible. By June 2, 1977

the City was already substantially behind the target dates

set forth in 75-100 as modified by 75-165.

8This Court has a a eS oe

of whether a aa ‘Guemaiene such as the City, i

a “person” for purposes of the Fifth Amendment’s Due

Clause. The Court has ruled, on the one hand, that a sta

&

OO

me

the meaning of Clean Water Act section 402(a)(1)

[33 U.S.C. §1342(a)(1)]. This Court has long held

that adequate notice is an essential element of due

process. Thus it was stated, in Baldwin v. Hale, 68

U.S. (1 Wall.) 223, 233, 17 L.Ed. 531 (1864), that

“parties whose rights are to be affected are entitled

to be heard; and in order that they may enjoy that

right they must first be notified.” In Grannis v. Ordean,

234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363

(1914), it was stated that the “fundamental requisite

of due process of law is the opportunity to be heard.”

More recently, in the familiar case of Mullane v.

Central Hanover Bank and Trust Co., 339 U.S. 306,

70 S.Ct. 652, 94 L.Ed. 865 (1950), which concerned

the adequacy of the form of notice given, the Court

articulated the fundamental relationship of notice to

a fair hearing:

is not a “person” under the Clause, South Carolina v. Katzen-

bach, 383 U.S. 301, 323-324, 86 S.Ct. 803, 15 L.Ed.2d

769 (1966), while, on the other hand, it has found the

private corporation to be a “person” protected by the Fourteenth

Amendment’s Equal Protection Clause. Pembina Con. Silver

Mining etc., Co. v. Pennsylvania, 125 U.S. 181, 188-189,

8 S.Ct. 737, 31 L.Ed. 650 (1888). The court below in

another case has opined that a municipal corporation could

be protected by the Due Process Clause. City of Santa Clara,

Cal. v. Andrus, 572 F.2d 660, 675 (9th Cir. 1978) (dictum),

cert. denied, ........ UBas cisterns , 99 S.Ct. 176-177, ........ L.Ed.2d

phat (1978); but see, Lewis v. Richardson, 428 F.Supp.

1164, 1167 fn. 3 (D. Mass. 1977) (equal protection); but

cf., Riley v. Stack, 128 Cal.App. 480, 18 P 2d 110, 111

(1932) (county not a “person” under Fourteenth Amendment

Due Process Clause).

The substantial regulation of municipalities by the Federal

Government, such as pursuant to the Clean Water Act, militates

in favor of affording municipalities protection of the Clause. They

are treated much in the same fashion as other “persons.”

In any event, the Court need not rule on this question here

because the protections afforded by the Due Process Clause

surely inhere in the statutory language “ yestry tg for public

hearing” of Clean Water Act section 402(a)(1) [33 U.S.C.

§1342(a)(1)].

en

“Many controversies have raged about the cryp-

tic and abstract words of the Due Process Clause

but there can be no doubt that at a minimum

they require that deprivation of life, liberty or

property by adjudication be preceded by notice

and opportunity for hearing appropriate to the

nature of the case.” 339 U.S. at 313.

“The right to be heard has little validity or

worth unless one is informed that the matter is

pending and can choose for himself whether to

appear or default, acquiesce or contest.” 339 U.S.

at 314.

“An elementary and fundamental requirement

of due process in any proceeding which is to

be accorded finality is notice reasonably calculated,

under all the circumstances, to apprise interested

parties of the pendency of the action and afford

them an opportunity to present their objections.”

Id.

“The notice must be of such nature as reason-

ably to convey the required information. . . .”

Id.

The importance of the content of notice was recently

indicated by the Court in Memphis Light, Gas &

Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554,

56 L.Ed.2d 30 (1978). The Court there held that

due process required a municipal utility to notify its

customers of the availability of an avenue of redress

should they wish to contest charges on their bills.

The Court found that the notice given in that case

was not “reasonably calculated” to provide customers

with that information. /d., at 14.

The notice given to the City in the instant case

failed to disclose that the EPA regarded the three-

phase sludge-out schedule of 75-100 to be in effect,

the more recently issued four-phase schedule of 76-

80 notwithstanding. And sludge, it should be noted,

was the focus of disagreement between the City and

the EPA. See, e.g., App. 63-72, 202. Adequate notice

of the EPA’s intentions regarding sludge may very

well have induced the City to request a hearing on

the proposed extension. Clearly a hearing would have

disclosed the EPA’s intentions."

III.

National Land Operators’ Association y..Kleppe Is

Distinguishable on the Notice Issue.

The inadequacy of the notice given the City dis-

tinguishes the instant case from National Land Oper-

ators’ Association v. Kleppe, 423 U.S. 388, 96 S.Ct.

809, 46 L.Ed.2d 580 (1976), a case relied upon

by the EPA. That case concerned section 109(a)(3)

of the Federal Coal Mine Health and Safety Act of

1969, 83 Stat. 742 [30 U.S.C. §§801 ef seqg.], which

empowers the Secretary of the Interior to assess civil

penalties for health and safety standard violations only .

after operators charged with such violations have been

144A hearing would have also fostered coordination between

the EPA and the Board in its dealings with the City. The

Court below noted:

“Among the special circumstances of this case is the

division of jurisdiction over discharges in the ocean betwéen

the federal and state authorities which significantly compli-

cates compliance by an affected agency. It becomes both

possible and tempting for each authority to deny respon-

sibility by attributing the command in question to the

other. The ease with which this can be done increases

as the opportunities for confrontation in a hearing setting

diminish. Considerations such as these may properly in-

fluence our decision about whether a hearing in the situation

before us would be useless.” (Emphasis added.) Pet.

Cert. 21a-22a.

=

given an “opportunity for a public hearing.” The regula-

tions challenged in that case provided for the issuance

of proposed orders containing penalty assessments. /d.,

at 394.

The message conveyed by a notice that an agency

proposes to assess a penalty is far different from that

conveyed in the instant case. The issuance of an NPDES

permit is a licensing action of great complexity. One

need only briefly consider the detailed effluent limita-

tions, receiving water limitations, compliance schedules,

and other technical requirements (not to mention the

legal framework they presumably implement), see 75-

100, for example, App. 3 ef seq., to understand the

problems faced by a discharger in comprehending what

the EPA intends to do. Conversely, notice of a penalty

assessment conveys a message that is not lost on its

recipient. Even if the reasons for the proposed penalty

are obscure, the agency’s intended action is unmis-

takably clear. This very distinction, in substance, was

articulated by the court below. Pet. Cert. 19a fn.

3,35

As a consequence, even if this Court were to agree

with the EPA that the “opportunity for public hearing”

requires only that such a hearing be made available

upon request, the failure of the EPA to give the

City adequate notice constituted a denial of any mean-

ingful “opportunity” to request a hearing.

find the EPA’s notice to the

City to ‘ no further than to observe

ei Heer lef fh Meg eat Seca Ba. Al aon

th es acts rting the issuance

of the permit. . . .” (Emphasis added.) Pet. Cert. 19a fn. 3.

=

CONCLUSION.

For the foregoing reasons, the City respectfully re-

quests that the decision below be affirmed.

Respectfully submitted,

BurT PINES,

City Attorney,

JOHN B. RICE,

Senior Assistant City Attorney,

FREDERICK N. MERKIN,

Assistant City Attorney,

Attorneys for Respondent

The City of Los Angeles.

October, 1979