Opposition — Kilroy v. Costle

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No. 79-1746 4 JUM 38 Iga

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In the Supreme Court of the United States

OCTOBER TERM, 1979

JOHN B. KILROY, SR... PETITIONER

v.

DOUGLAS M. COSTLE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WADE H. McCrer, JR.

Solicitor General

JAMES W. MoorMAN

Assistant Attorney General

JACQUES B. GELIN

EDWARD J. SHAWAKER

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

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I

CITATIONS

Cases:

Costle v. Pacific Legal Foundation,

No. 78-1472 (Mar. 18, 1980), reversing

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State Water Control Board v. Train.

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Statutes and regulation:

Clean Water Act, 33 U.S.C. (and Supp. II)

8 2 SN eee

Section 301, 33 U.S.C. (and Supp. II)

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Section 301(b)(1)(B), 33 U.S.C.

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~ Section 301(h), 33 U.S.C. (Supp. ID.

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Section 301(i), 33 U.S.C. (Supp. II).

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Page

Statutes and regulation—(Continued):

Section 402, 33 U.S.C. (and Supp. II)

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Section S51 1(c), 33 U.S.C. 1371(c) ........ a

Section 511(c)(1), 33 U.S.C

a a i engislionanicioninde :

National Environmental Policy Act of 1969, |

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Pe I I dea sh cerca clei dsdnassss ESTEE He 7

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Miscellaneous:

Senate Comm. on Public Works, 93d Cong..

Ist Sess., A Legislative History of the

Water Pollution Control Act Amendments

ee ee ee, 5) Ee nrennee 6

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1746

JOHN B. KILROY, SR., PETITIONER

Ve

DouGLAS M. COSTLE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

. IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-A4)

is reported at 614 F. 2d 225. The opinion of the district —

court (Pet. App. BI-B24) is reported at 440 F. Supp. 316.

JURISDICTION

The judgment of the court of appeals was entered on

February 25, 1980. The petition for certiorari was filed on

May 3, 1980. This Court’s jurisdiction is invoked under 28

U.S.C. 1254(1).

(1)

2

QUESTION PRESENTED

Whether the district court properly denied a

preliminary injunction to prevent EPA from enforcing a

compliance schedule without preparation of an cen-

vironmental impact statement.

STATUTES INVOLVED

Pertinent portions of 33 U.S.C. 137I(e)1) and 42

U.S.C. 4332(2)(C) are set out at pages 3 and 4 of the

petition.

STATEMENT

This is yet another effort by petitioner to defeat a

project once proposed by the City of Los Angeles to

curtail sewage-sludge discharges into the Pacific Ocean. In

Costle v. Pacific Legal Foundation, No. 78-1472 (Mar. 18,

1980), petitioner and others—ultimately without success

sought to defeat the project by invalidating an NPDES

permit on the ground that it was issued in violation of the

public-participation requirements of the Clean Water Act,

33 U.S.C. (and Supp. Il) 1251 ef seg. In the present case,

petitioner (represented by Pacific Legal Foundation) seeks

to invalidate the permit on NEPA grounds.

The background is the same as in Cost/e. The City of

Los Angeles owns and operates the Hyperion Wastewater

Treatment Plant located in Playa Del Ray. California.

Since 1960, that plant has processed most:of the City’s

sewage, and discharged the wastes through three “out-

falls” into the Pacific Ocean. Under Section 402 of the

Clean Water Act, 33 U.S.C. (and Supp. II) 1342. EPA

and the State of California Regional Water Quality

Control Board have issued a series of permits allowing the

City to discharge wastes from this plant into the Pacific

Ocean. One such permit, issued on August 1, 1975,

3

conditioned continuing discharges from the Hyperion

Plant on compliance by the City with a schedule designed

to achieve full secondary treatment! of wastewater by

October I, 1979, and the gradual elimination of the

discharge of sludge into the ocean over a 30-menth period

following “concept approval” of a plan for alternative

disposal of the sludge. On January 24, 1977, the

expiration date of the permit was extended to June 30,

1977, and on June 2, 1977, the expiration date was

extended to December 17, 1979. See Costle v. Pacific

Legal Foundation, supra, slip op. 6-12."

The permit, as extended, required the City to phase out

sludge discharges into the ocean. The permit also set

interim compliance dates for completion of the plans and

specifications and commencement of construction of

interim sludge-handling facilities (see Pet. 5-6 n.1). The

permit, however, left to the City the nature and details of

the interim project.

On February 4, 1977, petitioner, the Pacific Legal

Foundation, and others sued EPA, the State Water

Resources Control Board, and other state and federal

‘Primary treatment” of sewage includes relatively simple

processes, such as settling solids out of the sewage. screening out

floatable objects, and removing oil and grease. “Secondary treat-

ment” removes a higher percentage of solids by methods such as

anaerobic digestion. Pursuant to Section 301(b)(1)(B) of the Clean

Water Act, 33 U.S.C. 1311(b)(1)(B), publicly owned treatment plants

were generally required to achieve effluent limitations “based on

secondary treatment” by July |, 1977. See Cosile vy. Pacific Legal

Foundation, supra, slip op. 2-3.

?In that case, the Ninth Circuit found procedural errors in the June

2, 1977, extension of the permit. As a result. the court stayed the

compliance schedules incorporated in the permit. though leaving in

effect those requirements which were in effect on January 1, 1977. See

586 F. 2d 650. This Court reversed in Costle v. Pacific Legal

Foundation, supra.

4

defendants to enjoin the interim sludge project on the

ground that EPA should have prepared an environmental

impact statement before requiring the construction of an

interim sludge project. On March 29, 1977, the plaintiffs

filed a motion for a preliminary injunction to enjoin EPA

“from funding, requiring, directing implementation of, or

otherwise participating in the Interim Hyperion Sludge

Management Project” without first preparing an en-

vironmental impact statement. They also sought the same

relief against “all persons to whom knowledge of this

injunction shall come * * *.” On April 18, 1977, the EPA

voluntarily agreed to prepare an EIS before funding the

interim project (Pet. App. Cl-C5), but EPA refused to

eliminate the requirement in the permit that Los Angeles

construct interim sludge-handling facilities in accordance

with the specified schedule. As for all aspects other than

funding, the district court denied an injunction (Pet. App.

B1I-B24). The court found that Section 51 1(c) of the Clean

Water Act, 33 U.S.C. 1371(c), expressly exempts NPDES

permits from the requirement of an EIS and, therefore,

EPA may properly require the City to carry out an

interim sludge-disposal project without first preparing an

EIS (Pet. App. B6-B7).2 The court of appeals affirmed

(Pet. App. Al-A4).

The plaintiffs had also sought a preliminary injunction against

EPA’s policy to eliminate the disposal of sludge in the ocean. The

court found that Section 301 of the Act, 33 U.S.C. (and Supp. I)

_I311, applies to sewage treatment plants discharging into the

contiguous zone, and that all such plants are subject to at least

secondary treatment under the Act. The court denied an injunction

(Pet. App. B8-B24).

On October 14, 1977, the petitioners filed .a motion requesting the

district court to reconsider its denial of the preliminary injunction.

After briefing, the district court affirmed its previous decision.

5

ARGUMENT

The decision of the court of appeals is correct and is

not in conflict with any decision of another court of

appeals or of this Court. In addition, a pending settlement

of the government’s enforcement action against the City

of Los Angeles has eclipsed whatever significance this case

might otherwise have had.

1. Section SI1(c)(1) of the Clean Water Act, 33 U.S.C.

1371(c)(1), states that, with the exception of grants for the

construction of public treatment works and the issuance.

of NPDES permits for new sources, “no action of the

Administrator taken [under the Act] shall be deemed a

major Federal action significantly affecting the quality of

the human environment within the meaning of the

National Environmental Policy Act of 1969.” Plainly, the

conditions in the NPDES permit requiring the City of Los

Angeles to phase out the discharge of sewage sludge into

the Pacific Ocean were neither a grant for a treatment

works nor a permit for the discharge from a new source.

Accordingly, no EIS was required for those conditions.

The NPDES permit also required the City to adhere to

a schedule for the construction of interim sludge handling |

facilities (Pet. 5-6 n.1). That schedule merely required that

some facilities be constructed in accordance with the

schedule as a means of assuring prompt compliance with

the prescribed schedule. Once again, under the language

of Section SII(c), the construction schedule for the

carrying out the interim project does not require the

preparation of an EIS because it is neither a grant nor a

new-source permit.

One purpose of the broad exemption in Section 511(c)

was to assure that the deadlines set out in the Clean

Water Act would not be delayed by the time required to

6

prepare and consider environmental impact statements.

The Conference Committee Report on the Federal Water

Pollution Control Act Amendment of 1972 stated:*

The sole purpose of the Act is the enhancement of

environmental quality. In the administration of the

Act, EPA will be required to establish numerous

guidelines, standards and limitations. With respect to

each of these actions, the Act provides Congressional

guidance to the Administrator in as much detail as

could be contrived. Virtually every action required of

the Administrator by the Act, however. involves

some degree of agency discretion, judgments in-

volving a complex balancing of factors that include

technological considerations, economic con-

siderations, and others. The Act seeks to guide the

Administrator, to the extent possible. in the matter of

assigning relative weight to the many factors that he

must consider.

If the actions of the Administrator under this Act

were subject to the requirements of NEPA, ad-

ministration of the Act would be greatly impeded.

With regard to publicly owned treatment works,

Section 301(b)(1)(B) set July 1, 1977, as the deadline for

the achievement of secondary-treatment standards. The

discharge of sludge by the City of Los Angles violates the

secondary-treatment requirement and should have ended

by July 1, 1977. See 40 C.F.R. 133.102.° Preparation of

4Senate Comm. on Public Works, 93d Cong.. Ist Sess.. A

Legislative History of the Water Pollution Control Act Amendments

of 1972, at 332 (Comm. Print 1973).

sSludge violates the component Tienitasions of the secondary-

treatment regulations.

7

an EIS prior to the phasing out of that discharge would

have had the effect of delaying the congressionally

mandated deadline and was therefore not required.®

To be sure, in Section 511(c) Congress prescribed an

EIS prior to federal funding of any publicly owned

treatment works. But EPA was authorized to require the

City to obey the compliance schedule without regard to

whether EPA would fund the interim sludge project or

any other project. EPA’s decision to do so in this case was

not a funding decision. It was simply an imposition of

permit conditions. Section 51 1(c) could not be clearer that

no EIS was required. See State Water Control Board vy.

Train, 559 F. 2d 921, 924 (4th Cir. 1977).

Petitioner contends (Pet. 8-10) that between the

decision below and this Court's decision in Cosz/e, he has

been deprived of any opportunity to be heard concerning

the environmental consequences of gradually reducing

sludge discharges into the ocean and disposing them in

landfills. This is not'so. Although the 1975 permit did not

identify the precise way in which the City would choose to

discontinue its sludge discharges, EPA invited public

*In the 1977 Amendments to the Clean Water Act. Congress made

a time extension possible under limited circumstances. The 1977

statute added Section 301(i), 91 Stat. 1584-1586, 33: ULS-C. (Supp. 1)

1311(1), which allows an extension of the deadline if construction of a

project was impossible by July 1. 1977. or if federal funds were not

available for a timely construction. [he 1977 Amendments also added

a new Section 301(h), 91 Stat. 1584. 33 ULS.C. (Supp. Th) Lath).

That section allows the Administration to issue an NPDES permit

modifying secondary-treatment standards for marine discharges if

certain strict conditions are met.

8

comment in 1975 on its proposal to require the City to

adopt some means to phase out sludge discharges.

Petitioner did not, however, object at that time.’

7As this Court observed in Cost/e (slip op. 18-19):

It is undisputed that the most controversial aspects of the

Hyperion permit—the compliance schedule for secondary

treatment, the “sludge-out” requirement, and the resultant

requirement that the city develop an alternative method of sludge

disposal—were all included within the 1975 permit. That permit

was issued following EPA publication of advance notice of its

tentative determination to revise the initial 1974 permit, and a

hearing on the proposed revisions. None of the respondents

objected to the issuance of the 1975 permit or requested an

adjudicatory hearing. We agree with the position advanced by

petitioner that respondents may not reopen consideration of

substantive conditions contained within the 1975 permit through

hearing requests relating to a proposed permit modification that

did not even purport to affect those conditions.

The EPA’s determination to modity the 1975 permit by

extending its expiration date to December 17. 1979. was made

followmg newspaper publication of the proposed action,

including notice: of an opportunity for submission of comments

and hearing requests. Respondent Los Angeles received an

individual notice of the EPA's tentative determination to extend

the permit, and raised no objection. Respondents PIF and

Kilroy, who argue that the EPA was aware of their interesi in the

Hyperion permit and their opposition to the Interim Sludge

Disposal Project, could have received such individual notice if

they had asked to be placed on the EPA’s mailing list tor notices

of proposed agency actions within the pertinent geographical

area. 40 C.F.R. §125.32(a)(3). They made no such request. Under

the circumstances, we think it reasonable that the Regional

Administrator decided to extend the expiration date of the

permit without another public hearing. on the grounds that the

public had not exhibited a significant degree of interest in the

action under consideration, and that information pertinent to

such a decision would not have been adduced if a hearing had

been held. This simply is not a case in which doubt existed

concerning the need for a hearing.

9

2. Subsequent events have all but mooted this case.

Under the 1975 time schedule the interim project should

have been completed by !978. Because of the stay of that

schedule by the Ninth Circuit in Costle, however, the

interim project was never built. Furthermore, since the

Costle decision, the United States and the City of Los

Angeles have entered into a settlement of the

government’s enforcement suit in United States v. Los

Angeles, No. CV 77-3047-HP (C.D. Cal.). Subject to

approval by the district court, the government agreed that

it will not enforce the sludge-out requirement until July 1,

1985. It is anticipated that this new deadline for

enforcement will permit a completely different method for

the disposal of the City’s sewage (see Br. in Opp. of State

of California at 3).*

*The consent decree itself (in paragraphs VI. VII, and VIII)

evidences the City’s abandonment of the interim-sludge project in

favor of the Hyperson Energy Recovery System. As PLF and Kilroy

stated in their petition for rehearing in Coste (at 4), “[t}his

project does not involve the trucking and dumping operations to

which Kilroy objects.”

10

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted.

WADE H. McCree, JR.

Solicitor General

JAMES W. MoorMAN

Assistant Attorney General

JACQUES B. GELIN

EDWARD J. SHAWAKER

Attorneys

JUNE 1980

DOJ-1980-06