# Memorandum — Crown Simpson Pulp Co. v. Costle

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1275%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Memorandum
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 193

## Text

5 Sy
gD)

JAN 21 1980
No. 79-797
emeeesbdichenbgnt ay a

Iu the Supreme Court of the United States

OcTOBER TERM, 1979

CROWN SIMPSON PuLP COMPANY AND LOUISIANA-
PACIFIC CORPORATION, PETITIONERS

ve

DouGLas M. CostLE, ADMINISTRATOR.
ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT

WADE H. McCreer, Jr.
Solicitor General

SANFORD SAGALKIN
Deputy Assistant Attorney
General

Jacques B. GELIN

DEAN K. DUuNSMORE

Davip C. SHILTON
Attorneys
Department of Justice
Washington, D.C. 20530

~~

———

INDEX
Page
I a ea I
CEES ERME EC a PTR NUPDUIR I 125 SOS PACs ee EES !
BE EE REIS NET ERED POE 2
TEE SEO NASP en en. LR RN ae eine en ee ee 2
RI ite as ee Bt a 5
CITATIONS
Cases:
Central Hudson Gas & Electric Corp. v.
eg I i I de 6
E.l. du Pont de Nemours & Co. v. Train.
326 F.2d 1136, aff'd, 430. U.S, 112 .......... i. 8
Ford Motor Co. v. EPA, 567 F. 2d
4, BRIE LOR TEI A re UPON ne PO Fe Te ee RED 6
Granville-Smith v. Granville-Smith, 348 ;
ane I, SO I te )
Menominee Tribe v. United States, 390
a ee I, a as 9
Mianus River Preservation Committee v.
eg, ee a PI phic hn aka sda cas sscoacencce: 5, 6
Republic Steel Corp. v. Costle,
BO A ae 6
Save the Bay, Inc. v. EPA,
- ie 5 f° BR RE EER erence nen 5
Shell Oil Co. v. Train,
Sr a a a a ok i a 8 6
State of Washington v. EPA (Scott Paper).
Lip 2 ae 5 | BSC FAS ROR ERE 4.5
Weverhaeuser Corp. v. Costle, ‘
UE a hr i ieee Fie S)
i

il
Page
P:
- ” i a Statutes and regulation—(Continued):
-Statutes and regulation:
: Clean Warter Act of 1977, Pub. L. No. 95-
Clean Water Act, as amended, 33 U.S.C. I ke seneneies 2
(and Supp. 1) 1251, er seg. :
: I ear ai ti natsnsonaneintonnicbabe r)
Section 301, 33 U.S.C. (and Supp. 1)
RNS CERES Sy 2 Miscellaneous:
Section 301(b)(1)(A), 33 U.S.C. 42 Fed. Reg. 28167-28172 (1977) ................cceeeeee 3
Oe co gan, phe hE OCT ORE IT 3 oe Seat ee x
Section 301(c), 33 U.S.C. 131 Me) .......... 8. 9 H.R. Conf. Rep. No. 95-830, 95th Cong..
Section 402, 33 U.S.C. (and Supp. 1) I IPI sisadincahicivsantipoasinahidinieigitwinsnnaevenpaonsewe 8
“te hE EMSRS OT OPS AE BEL ek RE 7 'S. Rep. No. 95-370, 95th Cong.,
Section 402(b), 33 U.S.C. (and Supp. 1) NE, GRRESI LESH CUPRA a anne Seo eae WE &
2. I a Reh, SRE eR aA 2
Section 402(c), 33 U.S.C. (and Supp. 1)
ge REIL Sy oi ee eS ER 2
Section 402(d)(2), 33 U.S.C. (and Supp. 1)
sR hb. sn 0am wae cadetiann seer sac cscs 2
Section 402(d)(4), 33 U.S.C. (Supp. 1)
A 8 | StS! SeReee SOR tener neem y
Section 509, 33 U.S.C. 136@ ........................ 5
Section 50%(b), 33 U.S.C. 136%b) ............... 2
Section 509(b)(1), 33 U.S.C. d
INS I ae Dae a
Section 509(b)(1)(E), 33 U.S.C.
1369(b)(1)(E) aseonsesnasssegguenesesdcoeteses oe 4, 8 D
Section 509(b)(1)(F), 33 U.S.C. - |
fj |) SER ae oy ae

Jn the Supreme Court of the Hnited States

OCTOBER TERM, 1979

No. 79-797

CROWN SIMPSON PuLP COMPANY AND LOUISIANA-
PACIFIC CORPORATION, PETITIONERS

Vv.

DouGLas M. CostLe, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-21) is
reported at 599 F. 2d 897. The decision of the
Administrator of the Environmental Protection Agency
(Pet. App. 24-53) is reported at 10 E.R.C. 1841.

JURISDICTION

The judgment of the court of appeals was entered on
June 29, 1979. A petition for rehearing was denied on
October 15, 1979 (Pet. App. 22). The petition for a writ
of certiorari was filed on November 21, 1979. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

(1)

QUESTION PRESENTED

Whether a final action of the Environmental Protec-
tion Agency denying a variance and vetoing a National
Pollutant Discharge Elimination System permit issued by
an authorized state agency is directly reviewable in .the
court of appeais under Section 509(b) of the Clean
Water Act, 33 U.S.C. 1369(b).

STATEMENT

Pursuant to Section 301 of the Clean Water Act! (the
Act), 33 U.S.C. (and Supp. 1) 1311, the United States
Environmental Protection Agency (EPA) has
promulgated regulations limiting the amount of effluent
that can be discharged into navigable waters. Re-
quirements for particular discharges are implemented
through National Pollutant Discharge Elimination
System (NPDES) permits. Under the Act, EPA issues
NPDES permits directly, except in those states where
EPA has approved state administration of the NPDES
program. 33 U.S.C. (and Supp. 1) 1342(b) and (c).
California’s program has received EPA approval, and the
California State Water Resources Control Board (the
State Board) is therefore authorized to grant NPDES
permits. However, EPA must be notified of all actions
taken regarding permit applications and, if it acts within
ninety days, EPA may veto the issuance of any permit.
33 U.S.C. (and Supp. 1) 1342(d)(2).

Petitioners, who operate bleached kraft pulp mills
located near Eureka, California, initially sought NPDES
permits from the California Regional Water Resources
Board, North Coast Region (the Regional Board). The
Regional Board proposed to issue permits to petitioners

'This Act was generally known as the “Federal Water Pollution
Control Act” until it was amended by the Clean Water Act of 1977.
Pub. L. No. 95-217, 91 Stat. 1566.

on August 26, 1976. On September 3, 1976, the Director
of EPA’s Region IX Enforcement Division objected to
the proposed permits because they did not require
petitioners to achieve effluent limitations based upon the
best practicable control technology then available, as
required by 33 U.S.C. I311(b)(I)(A). Petitioners each
sought direct review of EPA’s action in the court of
appeals in Nos. 76-3161 and 76-3287 (Pet. App. 2-4).

Petitioners thereupon asked the State Board for
variances from EPA effluent guidelines. On March 17,
1977, the State Board granted variances, which were
explicitly subject to EPA approval, and proposed to
issue permits based on those variances. On May 26,
1977, the EPA General Counsel issued a Recommended
Decision of the Administrator recommending denial of
the variances. 42 Fed. Reg. 28167-28172 (1977). On
September 15, 1977, the EPA Administrator issued a
final decision denying petitioners’ variance requests and
disapproving the State’s proposed permits (Pet. App. 24-
53). The decision was based upon a review of the
extensive record compiled during the state proceedings,
briefs submitted by petitioners and written comments on
the recommended decision (Pet. App. 24-26).

Petitioners sought review in No. 77-3322 of the
Administrator’s refusal to approve the state-proposed
variances. They claimed jurisdiction under the direct
review provisions set forth in Section 509(b)(1)(E) and
(F) of the Act, 33 U.S.C. 1369(b)(1)(E) and (F).2 The
court of appeals held that it did not have jurisdiction to
consider the claim. The court concluded that Subsection

2EPA originally contended that jurisdiction existed under
Subsection (E) and later, in the joint petition for rehearing, it agreed
that jurisdiction would also lie under Subsection (F).

(E), which governs review of an action “in approving or
promulgating any effluent limitation or other limitation
under section 1311, 1312, or 1316,” did not apply here,
since the Administrator did not approve or promulgate
anything, but instead rejected a proposed permit (Pet.
App. 4, 5, 8). The court also found that Subsection (E)
applied to generalized effluent limitations affecting whole
categories of plants, rather than to adjudications
affecting single plants (Pet. App. 9-10).

Subsection (F) provides direct review of an EPA
Administrator’s action “in issuing or denying any permit
under section 1342 of this title.” The court followed its
previous decision in State of Washington v. EPA (Scott
Paper), 573 F. 2d 583 (9th Cir. 1978), which held that
Subsection (F) applied to the Administrator's own action
in issuing or denying a permit, but not to his veto of a
state’s issuance of a permit (Pet. App. 10-14). According-
ly, the court dismissed the petitions for review without
reaching the merits.

Judge Renfrew concurred (Pet. App. 15-21) on the
ground that Scott Paper was controlling. However, he
went on to urge the court to convene en banc to
reconsider Scott Paper, which he felt to be wrongly
decided. Judge Renfrew concluded that the policies of
the Act were best effectuated by reading “denying [a]
permit” to include objecting in writing to a permit and
thus that Subsection (F) conferred jurisdiction on the
court of appeals.

Petitioners and the United States filed a joint petition
for rehearing and suggestion for rehearing en banc on
the jurisdictional question, which was denied on October
15, 1979 (Pet. App. 22).

DISCUSSION

The petition in this case raises the question of the
appropriate forum for reviewing final EPA actions in
states that administer approved NPDES permit systems.°*
We believe that the decision below is erroneous on two
counts, one of which creates a conflict in the courts of
appeals. We note, however, that the continuing impor-
tance of the issue may be affected by the intervening
passage of amendments to the Clean Water Act in 1977.

|. The decision below and the Ninth Circuit’s earlier
decision in State of Washington v. EPA (Scott Paper),
573 F. 2d 583 (9th Cir. 1978), both relied upon decisions
of the Second and Fifth Circuits holding that direct
court of appeals review of EPA’s failure to object to a
permit granted by a state agency was not available under
Section 509, 33 U.S.C. 1369. Save the Bay, Inc. v. EPA,
556 F. 2d 1282 (Sth Cir. 1977); Mianus River Preserva-
tion Committee v. EPA, 541 F. 2d 899 (2d Cir. 1976). As
Judge Renfrew points out (Pet. App. 17-19), these
decisions do not support the decision of the court of
appeals. EPA’s failure to object to state issuance of a
permit requires no more than silent acquiescence for the
90-day statutory period. Accordingly, failure to object
would not necessarily be “Administrator's action” within
the meaning of Section 509(b)(1). Moreover, because no
action is taken, it is likely that no administrative record
amenable to review would result from a decision not to
object to a state-issued permit. See Save the Bay, Inc. v.
EPA, supra, 556 F. 2d at 1291-1292. In contrast, when
the Administrator vetoes a state permit that is based

‘The Court is presently considering an analogous jurisdictional
issue under the Clean Air Act in Harrison v. PPG Industries, Inc..
cert. granted, No. 78-1918 (Oct. 1, 1979). Because of differences in
the two statutes, the decision in Harrison’ will not resolve the
question presented in this case.

6

upon a variance, he has clearly taken an action. and an
administrative record will have been prepared the same
as if EPA were denying a permit directly as it does in
States that do not administer their own program. Indeed,
the Second Circuit stated in dictum in Mianus that an
EPA veto clearly would be reviewable under Section
509(b)(1). 541 F. 2d at 909.

Apart from the dictum in Mianus, the decision of the
court of appeals squarely conflicts with the Sixth
Circuit’s decision in Ford Motor Co. v. EPA, 567 F. 2d
661, 668 (1977), which held that an EPA veto of a state-
granted NPDES permit was directly reviewable under
Section 509(b)(1)(F). This holding was reaffirmed
subsequent to the decision in Scott Paper in Republic
Steel Corp. v. Costle, 581 F. 2d 1228, 1230 n.1 (6th Cir.
1978). Thus, it appears that the conflict between these
two circuits will not be resolved without action by this
Court. Finally, in Shell Oil Co. v. Train, 585 F. 2d 408
(1978), a different panel of the Ninth Circuit stated in
dictum that an EPA veto of a State-issued variance
would be “reviewable in this court under 33 U.S.C.
§ 1369(b)(1).” 585 F. 2d at 412.

2. The decision of the court of appeals established a
two-tiered system of review that must result in delays in
resolving disputes under the Act, frustrating the purpose
of Section 509(b)(1). See Central Hudson Gas & Electric
Corp. v. EPA, 587 F. 2d 549, 557 (2d Cir. 1978).
Moreover, there is no practical difference between a
direct EPA denial of a permit or the veto of a state-
issued permit considered here. The effect of both actions
is to deny the permit within the meaning of 33 U.S.C.
1369(b)(1)(F). The bizarre result of the decision of the
court of appeals is that some permit denials will be
challenged in district court and others directly in the

court of appeals, depending on whether the state where
the plant is located administers an approved permit
system. The court of appeals does not suggest any policy
reason for this distinction other than that Congress may
have intended to divide the burden of “this potentially
staggering new caseload between the district courts and
the courts of appeals” (Pet. App. 14). Nothing in the
legislative history or the Act itself suggests that Congress
intended such a division of review: rather, Congress’
desire was for a unified review system at a single level to
prevent delay in the achievement of the Act’s goals. See
E.l. du Pont de Nemours & Co. v. Train, 528 F. 2d
1136, 1141-1142 (4th Cir. 1975), affd, 430 U.S. 112
(1977). As this Court found in a slightly different
context, it is “unlikely that Congress intended such
bifurcated review” under the Act. 430 U.S. at 128 n.18.

3. Section 402 of the Clean Water Act was amended
in 1977, after the permit in this case was denied. to
provide that:

(d)(4) In any case where, after December 27.
1977, the Administrator, pursuant to paragraph (2)
of this subsection, objects to the issuance of a
permit, on request of the State, a public hearing
shall be held by the Administrator on such
objection. If the State does not resubmit such permit
revised to meet such objection within 30 days after
completion of the hearing, or, if no hearing is
requested within 90 days after the date of such
objection, the Administrator may issue the permit
pursuant to subsection (a) of this section for such
source in accordance with the guidelines and
requirements of this chapter.

33 U.S.C. (Supp. 1) 1342(d)(4). This power was granted
to EPA “in order to avoid the impasse” that existed
when EPA vetoed a state-issued permit and the state did

not then issue a new permit consistent with EPA
guidelines. S. Rep. No. 95-370, 95th Cong., Ist Sess. 73
(1977). The Conference Report makes clear that “the
Administrator is expected to use the authority given by
this amendment to issue a permit after objecting to a
State-issued permit.” H.R. Conf. Rep. No. 95-830, 95th
Cong., Ist Sess. 97 (1977). Under the law, as amended,
an EPA veto of a state permit is therefore essentially a
preliminary action to issuance of a “inal permit under 33
U.S.C. (Supp. I) 1342(d)(4) and thus should not be
reviewable until the permit issues. See 44 Fed. Reg.
32877-32878 (1979). The Conference Report explicitly
States that “any litigation over the degree of effluent
reduction required for a source should take place in the
context of judicial review of the permit, rather than in
the context of an enforcement action.” H.R. Conf. Rep.
No. 95-830, supra, at 97. Thus, the question of the
proper forum for review of a veto of a state permit may
not be of much future importance.

If the veto is still reviewable after the 1977
amendments, however, the Conference Report makes it
clear that review is to be directly in the court of appeals.
“Judicial review arising out of this provision would be in
the same manner as judicial review of any EPA issued
402 permit” (ibid.) which is in the court of appeals under
33 U.S.C. 1369(b)(1)(F).

4. The court of appeals also held that Section
509(b)(1)(E) did not authorize direct review in the court
of appeals of an EPA denial of a variance, and no court
of appeals has specifically held to the contrary. The
court held that an EPA denial of an individual variance
was not covered by Subsection (E) because that refers
only to general effluent guidelines. This theory is at odds
with this Court’s suggestion in E./. du Pont de Nemours
& Co. v. Train, 430 U.S. 112, 136 (1977), that a variance

granted under Section 30l(c) of the Act is directly
reviewable in the court of appeals under Subsection (E).
See also Weyerhaeuser Corp. v. Costle, 590 F. 2d 1011,
1033 n.29 (D.C. Cir. 1978). The court distinguished these
cases on the ground that an EPA objection to a state-
proposed variance is to be treated differently from an
EPA denial of a variance (Pet. App. 10-11 n4).4

First, the court suggests no justification for this
distinction. More importantly, the court erred in failing
to recognize that, unlike permits, variances “must be
approved” by EPA-—states have no authority to issue
variances. See 40 C.F.R. 430.72. Thus, EPA’s action was
an EPA denial! of a variance and must be reviewable
directly in the court of appeals under Subsection (E). In
light of the absence of a conflict, however, we do not
urge that the Court grant plenary review at this time in
respect of this question.

5. In the circumstances, we do not oppose the
granting of the petition for certiorari. The Court may
wish to consider, however, whether summary reversal
would be appropriate.5

+The court also relied on the fact that Section 301(c) applies only
to permit applications filed after July 1, 1977, but the variance in
this case is not sought under Section 301(c) but under the variances
established by regulation for the 1977 limitations.

‘We note that, if certiorari is granted, all parties will be urging
reversal. If the Court deems plenary consideration appropriate. it
may wish to consider the appointment of counsel to appear as
amicus curiae in support of the judgment below. See Granville-
Smith v. Granville-Smith, 348 U.S. 885 (1954), 349 U.S. 1. 4 (1955):
cf. Menominee Tribe v. United States, 390 U.S. 916, 391 U.S. 404.
407 (1968).

10

Respectfully submitted.

WapE H. McCree, Jr.
Solicitor General

SANFORD SAGALKIN
Deputy Assistant Attorney
General

JACQUES B. GELIN

DEAN K. DUNSMORE

Davip C. SHILTON
Attorneys

JANUARY 1980

DOJ-1980-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1275%3A2. Public record. Not legal advice.