Opposition Brief — Laguna Gatuna, Inc. v. Browner

Supreme Court, U.S.

” ae Ge Page D

ev pee: 211995

No. 95-465

—-_—_ A

‘In the Supreme Court of the United States

OCTOBER TERM, 1995

ae ee

LAGUNA GATUNA, INC., PETITIONER

Uv.

CAROL M. BROWNER, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ETAL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

DREW S. DAYS, III

Solicitor General

LOIS J. SCHIFFER

Assistant Attorney General

ROBERT L. KLARQUIST

JOHN A. BRYSON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a compliance order issued by the En-

vironmental Protection Agency (EPA) under Section

309(a)(3) of the Clean Water Act, 33 U.S.C. 1319(a)(3),

is subject to judicial review.

2. Whether Congress’s preclusion of judicial re-

view of EPA compliance orders violates due process.

TABLE OF CONTENTS

(III)

Page

I aa l

ESE RS CE ne oa l

STITT SNC ial thineclisdiasth bicenininissitnhedededenebessenscenncadastedcecsses 2

RE iS AEC a, SECA 7

aa TS RCL ee oe AN ope a 17

TABLE OF AUTHORITIES

Cases:

Abbott Lab. v. Gardner, 387 U.S. 136 (1967) ............ 7

Atlantic States Legal Found., Inc. v. Tyson

Foods, Inc., 897 F.2d 1128 (11th Cir. 1990) ............ 16

Barnes v. United States District Court, 800 F.2d

Ee GOURD Was BOWED ceccovencescvessivennsnsenepsecsveseveveceesvesees 12

Block v. Community Nutrition Inst., 467 U.S. 340

SINT shaialh bthohtubiubsabsbbedenshcedhaveaseanscosowebeeseucseasnceseeesens ~

Board of Governors of Federal Reserve System v.

MCorp Fin., Inc., 502 U.S. 32 (1991) .....cccccccccccccee. 15

Board of Managers v. Bornhoft, 812 F. Supp. 1012

(D.N.D. 1993), aff’d, 48 F.3d 1223 (8th Cir. 1995) ... 12

Chicago & Southern Air Lines, Inc. v. Waterman

S.S. Corp., 333 U.S. 108 (1948) ..........ccccccccsseseesecees 14

Child v. United States, 851 F. Supp. 1527 (D. Utah

REREAD Co oo See aS 12, 14

EPA v. California ex rel. State Water Resources

Control Bd., 426 U.S. 200 (1976) ............................ 2

Fiscella & Fiscella v. United States, 717 F. Supp.

I 12

Hoffman Group, Inc. v. EPA:

29 Env’t Rep. Cas. (BNA) 1180 (N.D. III. 1989),

aff’d, 902 F.2d 567 (7th Cir. 1990) ...........00..... 10

902 F.2d 567 (7th Cir. 1990) ..................... 7, 11, 12, 15

Howell v. United States Army Corps of Engineers,

794 F. Supp. 1072 (D.N.M. 1992) ................ 7, 11, 12, 14

J.V. Peters & Co. v. Administrator, EPA,

000 F 2G BGS (Cth Cir. 1985) ..........ccccccccsccccccccccccccece 12

Cases—Continued: Page

Leslie Salt Co. v. United States:

789 F. Supp. 1080 (N.D. Cal. 1991) ..............cceccess 12, 14

55 F.3d 1388 (9th Cir.), cert. denied, 116 S. Ct.

SE IMEI inchsctnsnsonsennbvchicc&ien Aaausbedsibbisantaimebets 16, 17

Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885

COas Sle SU) ceencicatiaaeshkehcdkeieinsianiiieiel cambeiinecens 11

McGown v. United States, 747 F. Supp. 539 (E.D.

I; UNE cscinelenbdeashonhaahpnakiahaasioinenbenenbuamiaaaiiansiien 12

Mississippi Power & Light Co. v. Mississippi ex rel.

BOOTS, GT Ti FOS CGD cncisnktiahesehsedinreuntntsiseoen 15

Pacificorp v. Thomas, 8838 F.2d 661 (9th Cir. 1988) .. ll

Route 26 Land Dev. Ass’n v. United States, 753 F.

Supp. 532 (D. Del. 1990), aff’d, 961 F.2d 1568

Ce Ce, BD ares Miicseecd alte eaneiasescitinlonive 12, 14

Rueth v. EPA, 13 F.3d 227 (7th Cir. 1993) ... 7, 12, 14, 15

Salt Pond Assocs. v. United States Army Corps

of Engineers, 815 F. Supp. 766 (D. Del. 1993) ......... 12

Solid State Circuits, Inc. v. EPA, 812 F.2d 383

GR Ge BIE? cnciscsctsndieveceocndetititaath cea = 17

Southern Ohio Coal Co. v. Office of Surface Mining,

Reclamation & Enforcement, 20 F.3d 1418 (6th

Cir.), cert. denied, 115 S. Ct. 316 (1994) .... 7, 10-11, 12, 15

Southern Pines Assocs. v. United States, 912 F.2d

FOR CRs Sire Se hntcthcsicindometatviaietine ited 7, 12, 13, 15

Stoddard v. Western Carolina Regional Sewer

Auth., 784 F.2d 1200 (4th Cir. 1986) ................. eee 16

Thunder Basin Coal Co. v. Reich, 1148. Ct. 771

CEES. Adnntditatccinciaietaecganecmeeaiaanianaa ds 8, 9, 10, 13, 14, 15

Union Electric Co. v. EPA, 593 F.2d 299 (8th Cir.),

cert. denied, 444 U.S. 839 (1979) ............cccccceseseceeees 11

United States v. Erika, Inc., 456 U.S. 201 (1982) ... 10

United States v. Fausto, 484 U.S. 439 (1988) ... 7, 8, 10

United States v. Outboard Marine Corp., 789 F.2d

497 (7th Cir.), cert. denied, 479 U.S. 961 (1986) ...... 11-12

Cases—Continued: Page

Wagner Seed Co. v. Daggett, 800 F.2d 310 (2d Cir.

INID ccccetsescessnssdsaveselotnivacommen kana en enone)” 11, 17

West Penn Power Co. v. Train, 522 F.2d 302 (3d

Cir. 1975), cert. denied, 426 U.S. 947 (1976) ............ 1]

Wheaton Indus. v. EPA, 781 F.2d 354 (3d Cir.

SOUT sondudubnusaiiediabiiciedisbier beanie as oe ae > 1]

Young, Ex parte, 209 U.S. 123 (1908) ............cccc0ec0ee0e 15

Statutes and regulations:

Administrative Procedure Act:

>. Ra HE adie ction 4

RE eh 8 7 ROAR ttre ope i Ser Omer Ne Oe eR 7

Agricultural Marketing Agreement Act of 1937,

©. SR II OE BUN iin cade csdivciincn ces aiebtaisinclcacinasinstes mies »

Civil Service Reform Act of 1978, Pub. L. No. 95-454,

fe: ORE EE, vee MPC OSA ome 8

Clean Air Act, 42 U.S.C. 7401 et seq. ..cccccccccccccccceeeeses ll

ME OE Ree SO 5 SE eee eee URE A rem ae 1]

ME Aas I heptenacaidanddechclentessseiene dccuekeaiin 1]

Clean Air Amendments of 1970, Pub. L. No. 91-604,

© I ae Bt BEE acdc dascdd eesti teceesies ced feccasehese 1]

Clean Water Act, 33 U.S.C. 1251 et seq. .............0000000. 2

Fs ee MP MED iciiscknucasccacosecesaviduccnesoues 2,6

Oe ST aa 3

FU SEE WP re BOUND | osaiccceccacciccecsaccevacsoccineneis 3

§ 309(a)(3), 33 U.S.C. 1819(a)(3) ............00... 3, 5, 9, 10, 12

© Sly I Ms BOI Co lvccivnacecendereseconeccesoce sc: 3, 9, 10

De Me Me hs RIN MIIND, i ccuscscacnsccaceswoceuuensseseueces 3

BS IF Rte BUPMIIED sccanccxocovescncessaccesccocerucce 10, 16

OF ee SE AP BONUNOIED sc bs cs nine cascsscedncscreseosocs 3, 4, 9

§ 309(g)(2), 33 U.S.C. IMEI oo cs siden ebaeuibaansles 4

§ 309(g)(3), 33 U.S.C. 1319(g)(B) ccccecccceccesececcecceseees 16

$ SO%g8), 33 U.S.C. 1BIM(gNMS) ............ccceccccccscoees 4, 10

Be ON ko RR Beebe a eae en es 2

© ea Ue Ore BUILT Siatiaccdapsctincoccecsasscasancocess, 2

RG HE ia MI MID oircdla cic wonesiccusducceakoconis 2

§ 509(b)(1)(F), 33 U.S.C. 1369(b)(1)(F) ..........0..0068. 3, 5

Vi

Statutes and regulations—Continued: Page

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980,

GB Us Bee 66 ONG. « ceciccnesbnciettittieesinieeen 1]

Federal Mine Safety and Health Amendments Act

of 1977, Pub. L. No. 95-164, 91 Stat. 1290 ................. 8

Federal Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500, § 2, 86 Stat. 859-860 .......... 1]

SO UW ide GUEEL D scccéscdssenctucuarsatesansbiadiemateteniaeeaane 13

33 C.F.R.:

SOREN SIUOSUL) | ceconcccsisessecsicnerscatniibintnedmesstas 3

SEOUREOET GENE ccccccecdceocccnscuchideushianthcdedadibintaiandaeeds 3

40 C.F.R.:

iF Ga: SE Rakavenonasdensehdeboennsbunadenedduisacssiaeiamemiona aod 4

Pt. 122:

SERIIUET RELATED ccpcccnscecapdadevsanipeaiederintsiiieicatadaniealitediions :

OTD BHI Sckcecentccctbveincnsbetsesaaainbhansinnialth 3

Miscellaneous:

56 Fed. Reg. (1991):

i, FEED tbcesedcsncdsvadvenkbentbsananiteaeiessiiataemaainenniatse 5

DD. "FUWO ccecscchootebssebcestigeastdedenensouadmentabadseniiaapamentita 5

S. Rep. No. 414, 92d Cong., Ist Sess. (1971) ............... 1]

In the Supreme Court of the Giuted States

OCTOBER TERM, 1995

No. 95-465

LAGUNA GATUNA, INC., PETITIONER

v.

CAROL M. BROWNER, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-7) is

reported at 58 F.3d 564. The order of the district

court (Pet. App. 8-9) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 20, 1995. The petition for a writ of certiorari

was filed on September 18, 1995. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Clean Water Act (CWA), 33 U.S.C. 1251 et

seq., was enacted “to restore and maintain the

chemical, physical, and biological integrity of the

Nation’s waters.” To that end, Section 301(a) of the

Act, 33 U.S.C. 1311(a), prohibits the “discharge of any

pollutant” except in accordance with the Act’s speci-

fic requirements. The Act defines “discharge of a pol-

lutant” to mean “any addition of any pollutant to

navigable waters,” 33 U.S.C. 1362(12), and defines

“navigable waters” as “the waters of the United

States, including the territorial seas,” 33 U.S.C.

1362(7). Regulations issued by the Administrator of

the Environmental Protection Agency (the EPA), in

turn, define “waters of the United States” to include,

among other things, “waters such as intrastate lakes,

rivers, streams (including intermittent streams),

mudflats, sandflats, ‘wetlands,’ sloughs, prairie pot-

holes, wet meadows, playa lakes, or natural ponds the

use, degradation, or destruction of which would affect

or could affect interstate or foreign commerce

including any such waters * * * [wJhich are used or

could be used for industrial purposes by industries in

interstate commerce.” 40 C.F.R. 122.2(c) (emphasis

added).

Discharges of pollutants into waters of the United

States may be authorized by a National Poilutant

Discharge Elimination System (NPDES) permit is-

sued pursuant to Section 402 of the CWA. 33 U.S.C.

1342. See EPA v. California ex rel. State Water

Resources Control Bd., 426 U.S. 200, 205 (1976).

NPDES permits may be issued either as “individual

permits,” to individual point source dischargers, or

as “general permits,” applicable to groups of point

Ee a

3

sources involving the same or substantially similar

types of operations. 40 C.F.R. 122.28. Whether in-

dividual or general, an NPDES permit may be chal-

lenged by any interested person in the appropriate

court of appeals, within 120 days of issuance. 33

U.S.C. 1369(b)1)(F).

Under Section 309 of the Act, when the EPA'

discovers a violation, it may (i) issue an admin-

istrative order requiring compliance, 33 U.S.C.

1319(a)(3); (ii) initiate a civil action in a United States

district court for appropriate relief, including a

permanent or temporary injunction or monetary pen-

alties, 38 U.S.C. 1319(b); or (iii) assess administrative

penalties after an agency hearing, 33 U.S.C. 1319(g).”

A compliance order issued under Section 309(a)(3),

33 U.S.C. 1319(a)(3), is a document served on the

discharger, which describes the nature of the viola-

tion and demands adherence to the requirements of

the Act, sometimes including the initiation of re-

medial measures. The compliance order is not self-

executing, however. To compel performance, the

EPA must seek injunctive relief in district court,

under Section 309(b), 33 U.S.C. 1319(b); to exact

monetary penalties for noncompliance, the agency

must either bring suit in district court under Section

309(b) or initiate administrative proceedings under

Section 309(g), 33 U.S.C. 1319(g). Irrespective of the

forum or the relief requested, the EPA has the

1 Enforcement of the Act is shared jointly by the EPA and

the Army Corps of Engineers. See 33 U.S.C. 1319(a), (b) and

(g); 33 C.F.R. 326.3(c)(1), 326.6. Because this case involves

action by the EPA, for the sake of simplicity we refer only to

the EPA in our description of the enforcement scheme.

2 Violators are also subject to imprisonment and fines for

criminal violations of the Act. 33 U.S.C. 1319(c).

burden of proving the statutory violation without

regard to the existence of the compliance order.

Consequently, issuance of a compliance order is

merely an optional preliminary step in a process that

may (depending on the agency’s exercise of its

prosecutorial discretion) result—after notice and

opportunity for a hearing—in an injunction or in the

assessment of a civil penalty.’

2. Petitioner was engaged in the business of

disposing of waste brine, produced during oil extrac-

tion, in Lajuna Gatuna, an area of approximately 398

acres located in Lea County, New Mexico. Laguna

Gatuna is subject to seasonal inundation and is fed by

a natural spring. No streams flow into or out of it.

Pet. App. 2, 11-14.

In July 1987, petitioner’s corporate predecessor

wrote to the EPA, providing certain information in

support of its request for confirmation that Laguna

Gatuna was not “waters of the United States” within

the purview of the CWA. Pet. App. 138; Pet. C.A. App.

120. The EPA replied (Pet. C.A. App. 120) as follows:

Based on the information you submitted, EPA

would not consider the referenced playa lake to be

“waters of the United States” as that term is

defined at 40 C.F.R. § 122.2. Playa lakes may be

3 If the EPA elects to seek an administrative penalty under

Section 309(g), the agency must provide written notice to the

discharger and afford the discharger 30 days to request a

hearing on a proposed penalty order. 33 U.S.C. 1319(g)(2).

Depending on the size of a proposed penalty, the hearings may

be required to be held pursuant to the adjudicatory procedures

of the Administrative Procedure Act, 5 U.S.C. 554. See 33

U.S.C. 1319(g)(2); 40 C.F.R. Pt. 22. The EPA’s assessment of a

civil penalty is expressly subject to judicial review. 33 U.S.C.

1319(g)(8).

considered “waters of the United States” if they

“would affect or could affect interstate or foreign

commerce.” You indicate in your letter that there

are no recreational, industrial, or other uses that

could affect interstate commerce, and that the

playa lake is not hydrologically connected to

“waters of the United States.” Based on this

understanding of the facts, EPA agrees that La-

guna Gatuna would not be considered “waters of

the United States.”

On February 25, 1991, EPA Region VI issued a

general NPDES permit applicable to certain facilities

in New Mexico engaged in onshore oil and gas extrac-

tion, which contained a “no discharge” limitation for

“produced water,” including waste brine. 56 Fed.

Reg. 7698, 7704 (1991). The general permit was sub-

ject to judicial review for 120 days after issuance

(until June 25, 1991), pursuant to Section 509(b)(1)(F)

of the CWA, 33 U.S.C. 1369(b)(1)(F).

In the spring of 1991, while the opportunity to

challenge the general permit was still pending, the

EPA notified petitioner that it now believed that

Laguna Gatuna was “waters of the United States”

subject to the EPA’s jurisdiction under the CWA,

based on new indications of Laguna Gatuna’s use by

migratory birds. Pet. App. 13-14. Thereafter, peti-

tioner met with the EPA to provide the agency with

information relating to petitioner’s belief that

Laguna Gatuna was not “waters of the United

States” within the meaning of the Act. Jbid.

On May 22, 1992, after further study, the EPA

issued a compliance order, under Section 309(a)(3),

directing petitioner to cease discharging pollutants

into Laguna Gatuna. Pet. App. 3, 14; Pet. C.A. App.

54-58. The order stated that Laguna Gatuna provided

a nesting, feeding, and resting area for migratory

birds, that the area was capable of receiving

discharges by industries engaged in interstate

commerce, and, therefore, that Laguna Gatuna was

“waters of the United States.” Jd. at 56. The order

notified petitioner that its disposal activities were not

authorized by the terms of the general permit for

discharges in New Mexico and, consequently, that its

discharges into Laguna Gatuna violated Section

301(a) of the Act. Pet. C.A. App. 57.

Petitioner ceased dumping waste brine into Laguna

Gatuna and met again with the EPA, to provide the

agency with further information relating to peti-

tioner’s belief that Laguna Gatuna was not “waters of

the United States.” Pet. App. 14-15. The EPA did

not, however, alter its determination or withdraw its

order. Since then, petitioner has not discharged

waste into Laguna Gatuna, and the EPA has taken no

further action against petitioner.

3. In June 1993, petitioner filed an action for de-

claratory relief in the United States District Court

for the District of New Mexico (Pet. App. 10-23),

claiming that the EPA lacked jurisdiction over

Laguna Gatuna, because (in petitioner’s view) it was

not “waters of the United States,” and asserting that

the EPA’s issuance of the compliance order violated

petitioner’s due process rights, primarily because the

CWA and its implementing regulations provide peti-

tioner no way to challenge the EPA’s determinations

short of violating the order and thereby running the

risk of a substantial penalty. Pet. App. 3, Pet. App. 19-

21.

The district court granted the EPA’s motion to dis-

~—~ miss the complaint for lack of jurisdiction, agreeing

that review of the agency’s compliance orders is

precluded by the CWA. Pet. App. 8 (citing Rweth v.

EPA, 13 F.3d 227 (7th Cir. 1993); Southern Pines

Assocs. v. United States, 912 F.2d 713 (4th Cir. 1990);

Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th Cir.

1990); and Howell v. United States Army Corps of

Engineers, 794 F. Supp. 1072 (D.N.M. 1992)).

The court of appeals affirmed. Pet. App. 1-7. After

surveying the cases cited by the district court, and

looking in addition to Southern Ohio Coal Co. v.

Office of Surface Mining, Recalamation & Enforce-

ment, 20 F.3d 1418 (6th Cir.), cert. denied, 115 S. Ct.

316 (1994), the court found “no reason to disagree”

with the decisions of the Fourth, Sixth, and Seventh

Circuits that judicial review is precluded by the CWA

and that the Act’s bar on pre-enforcement review does

not violate due process. Pet. App. 6.

ARGUMENT

1. Petitioner argues (Pet. 11-19) that an EPA com-

pliance order is subject to judicial review before, and

in the absence of, any attempt by the EPA to enjoin

the alleged violation or to assess civil penalties on

account of it. The court of appeals, however, cor-

rectly concluded that the CWA precludes review of

the EPA’s compliance orders. That decision follows

from the teachings of this Court and is consistent

with the decisions of every other court of appeals that

has considered the matter. There is accordingly no

warrant for further review.

a. Although Congress is presumed to have in-

tended judicial review of final agency action, Abbott

Lab. v. Gardner, 387 U.S. 136, 140 (1967), review is

not available where it has been specifically precluded

by statute. 5 U.S.C. 701(a)(1); see United States v.

Fausto, 484 U.S. 439, 452 (1988) (The “presumption

favoring judicial review is not to be applied in the

‘strict evidentiary sense,’ but may be ‘overcom(e]

whenever the congressional intent to preclude review

is “fairly discernible in the statutory scheme.”’”),

quoting Block v. Community Nutrition Inst., 467

U.S. 340, 351 (1984). Whether a particular statute

(here, the CWA) “is intended to preclude initial

judicial review is determined from the statute’s

language, structure, and purpose, [and] its legislative

history.” Thunder Basin Coal Co. v. Reich, 114 S.

Ct. 771, 776 (1994).

In Block, this Court held that the Agricultural

Marketing Agreement Act of 1937 implicitly pre-

cluded APA review of agency milk marketing orders

at the behest of consumers. That Act incorporated an

elaborate scheme of administrative and judicial re-

view that did not involve consumers, and the Court

found that permitting suits by consumers “would

severely disrupt” the statutory scheme. 467 U.S. at

348.

In Fausto, the Court concluded that the Civil

Service Reform Act of 1978 implicitly precluded

review of certain adverse federal personnel actions

that were not made expressly reviewable under that

Act. In Fausto, as in Block, the Court’s determina-

tion regarding Congress’s intent to preclude review

was based on “inferences of intent” drawn from the

structure of the statute as a whole. 484 US. at 452.

Recently, in Thunder Basin Coal Co., the Court

examined the provisions of the Federal Mine Safety

and Health Amendments Act of 1977, which pro-

vided expressly for review of Mine Safety and Health

Administration (MSHA) citations. Under the statu-

tory scheme, such citations were to be challenged

9

first before the Federal Mine Safety and Health

Review Commission and then before the courts of

appeals. 114 S. Ct. at 776-777. The Court held that

Congress’s express provisions for review of MSHA

citations precluded by implication review of the

MSHA’s pre-citation determinations, as to which the

statute was “facially silent.” Jd. at 777.

b. The structure of the CWA’s enforcement

scheme likewise demonstrates Congress’s intention

to preclude review of Section 309(a)(3) compliance

orders. As we have explained, when the EPA finds

that a person is in violation of the CWA, the agency is

authorized to take action to remedy the situation. 33

U.S.C. 1319(a)(3). Congress provided the EPA with

the flexibility to respond to such violations in a

number of alternative and complementary ways. The

agency is authorized immediately to initiate a civil

enforcement action in district court (under Section

309(b)) or to institute administrative proceedings to

assess civil penalties (under Section 309(g)). It may,

however, choose initially to take the lesser step of

issuing an ex parte order (under Section 309(a)(3))

notifying the discharger of the violation and demand-

ing compliance. That option is distinguished both by

the absence of any punitive sanction and by the

expeditious fashion in which it can be employed: A

compliance order can protect the environment from

violations of the Act promptly and at minimal

transaction cost to the agency, the courts, and the

regulated parties. “[P]re-enforcement review of com-

pliance orders would,” however, “render that option a

meaningless alternative to bringing a civil enforce-

ment action at the outset, and effectively eliminate

the compliance order as a means of expeditiously

abating violations of the CWA without resort to

10

judicial process. It is doubtful Congress intended

such a result.” Hoffman Group Inc. v. EPA, 29 Env’t

Rep. Cas. (BNA) 1180, 1182 (N.D. Ill. 1989), aff’d, 902

F.2d 567 (7th Cir. 1990).

The Act’s specific and detailed provision for ju-

dicial involvement in the EPA’s enforcement pro-

ceedings also evidences Congress’s intention that the

courts refrain from pre-enforcement review. Under

Section 309(a)(3), (b), and (d), upon the agency’s initia-

tion of a judicial action, the district court may adjudi-

cate an alleged violation of the CWA in the first

instance, order appropriate injunctive relief, and/or

assess civil penalties. Under Section 309(g)(8), when

the EPA assesses a penalty through its own admin-

istrative enforcement proceedings, the resulting en-

forcement order is reviewable in a district court or a

court of appeals (depending on the size of the penalty)

at the behest of the person assessed. 33 U.S.C.

1319(g)(8). The agency’s enforcement order may not

be set aside on judicial review “unless there is not

substantial evidence in the record, taken as a whole,

to support the finding of a violation or unless the

[agency’s] assessment of the penalty constitutes an

abuse of discretion.” Jbid. The CWA thus delineates

carefully the occasions when (and the manner in

which) the courts may intervene; the issuance of a

compliance order under Section 309(a)(3) is not one of

those occasions. Consistent with this Court’s teach-

ings, see Thunder Basin Coal Co., 114 U.S. at 777;

Fausto, 484 U.S. at 447-449; Block, 467 U.S. at 345-348;

United States v. Erika, Inc., 456 U.S. 201, 208 (1982),

the CWA’s express provision for judicial involvement

in the EPA’s enforcement actions suggests by nega-

tive implication that review of the agency’s pre-

enforcement determinations is precluded. Southern

EE eEOoOOo

1]

Ohio Coal Co., 20 F.3d at 1426; Hoffman Group, 902

F.2d at 569-570; Howell, 794 F. Supp. at 1074.

The legislative history of the CWA provides fur-

ther support for that conclusion. The CWA’s en-

forcement provisions were modeled on those in the

Clean Air Act (CAA), 42 U.S.C. 7401 et segq.,' which

also authorize the EPA to respond to a violation

either by bringing an enforcement suit in district

court or by issuing an administrative compliance

order. 42 U.S.C. 7413(a)(1) and (b). Cases under the

CAA have consistently held that Congress intended

to preclude pre-enforcement judicial review of EPA

compliance orders issued under that Act. See, e.g.,

West Penn Power Co. v. Train, 522 F.2d 302, 311 (3d

Cir. 1975), cert. denied, 426 U.S. 947 (1976); Union

Electric Co. v. EPA, 593 F.2d 299, 304 (8th Cir.), cert.

denied, 444 U.S. 839 (1979); Lloyd A. Fry Roofing Co.

v. EPA, 554 F.2d 885, 889-891 (8th Cir. 1977); ef.

Pacificorp v. Thomas, 883 F.2d 661 (9th Cir. 1988)

(compliance order issued under CAA not final agency

action).’ Given the common derivation of the statutes’

4 The enforcement provisions of the CAA were codified in

1970. Clean Air Amendments of 1970, Pub. L. No. 91-604,

§ 4(a), 84 Stat. 1686-1687. The similar provisions of the CWA

were adopted in 1972. Federal Water Pollution Control Act

Amendments of 1972, Pub. L. No. 92-500, § 2, 86 Stat. 859-860.

The Senate committee report that proposed the new

enforcement section of the CWA explained that it “drew

extensively upon the provisions” of the 1970 CAA amendments.

S. Rep. No. 414, 92d Cong., Ist Sess. 63 (1971).

® Several courts reached a similar result, later codified by

Congress, under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq.

See, e.g., Wagner Seed Co. v. Daggett, 800 F.2d 310, 315 (2d Cir.

1986); Wheaton Indus. v. EPA, 781 F.2d 354, 356-357 (3d Cir.

1986); United States v. Outboard Marine Corp., 789 F.2d 497,

12

enforcement schemes, those decisions under the CAA

strongly suggest that there is no pre-enforcement

review of compliance orders issued under the CWA.

Southern Ohio Coal Co., 20 F.3d at 1426; Southern

Pines Assocs., 912 F.2d at 716.

c. The lower courts have consistently concluded,

from the language, structure, and history of the

CWA, that the Act precludes judicial review of Sec-

tion 309(a)(3) compliance orders. See, e.g., Southern

Ohio Coal Co., 20 F.3d at 1426-1428; Rueth, 13 F.3d at

230; Southern Pines Assocs., 912 F.2d at 715-716 (4th

Cir. 1990); Hoffman Group, 902 F.2d at 569; Child v.

United States, 851 F. Supp. 1527, 15383 (D. Utah 1994);

Salt Pond Assocs. v. United States Army Corps of

Engineers, 815 F. Supp. 766, 771 n.16 (D. Del. 1993);

Board of Managers v. Bornhoft, 812 F. Supp. 1012,

1014 (D.N.D. 1993), aff’d, 48 F.8d 1223 (8th Cir. 1995)

(Table); Howell, 794 F. Supp. at 1074; Leslie Salt Co. v.

United States, 789 F. Supp. 1030, 1033-1034 (N.D. Cal.

1991); Route 26 Land Dev. Ass’n v. United States, 753

F. Supp. 532, 540 (D. Del. 1990), aff’d, 961 F.2d 1568 (8d

Cir. 1992) (Table); McGown v. United States, 747 F.

Supp. 539, 541-542 (E.D. Mo. 1990); Fiscella & Fiscella

v. United States, 717 F. Supp. 1148, 1147 (E.D. Va.

1989).

d. Nothing in this Court’s decision in Thunder

Basin Coal Co. argues to the contrary. The Court

suggested in that case that a statute might more

readily be interpreted to permit pre-enforcement

review if in the absence of early judicial involve-

505-506 (7th Cir.), cert. denied, 479 U.S. 961 (1986); J.V. Peters

& Co. v. Administrator, EPA, 767 F.2d 263, 264-265 (6th Cir.

1985); Barnes v. United States District Court, 800 F.2d 822

(9th Cir. 1986).

13

nent the complainant would have no opportunity for

“meaningful review.” 114 S. Ct. at 776. At issue

there was a letter from the MSHA instructing a coal

company to post the employees’ designation of mine

representatives pursuant to 30 U.S.C. 813(f). This

Court concluded that, if the company chose not

to comply and the agency initiated enforcement pro-

ceedings, the company’s statutory and constitutional

claims could “be meaningfully addressed” in the

agency’s proceedings and, on review, in the court of

appeals. 1148S. Ct. at 779-780 & n.20.

Like the MSHA letter in Thunder Basin Coal Co.,

the EPA compliance order at issue here is not self-

enforcing. It imposes no penalty or other sanction.

The issuance of such a compliance order does nothing

to alter the legal position of the alleged violator. As

the Fourth Circuit has explained:

A compliance order is a document served on the

violator, setting forth the nature of the violation

and specifying a time for compliance with the Act.

33 U.S.C. § 1319(a)(5)(A). If a violator fails to

abide by that order, EPA may seek to enforce the

order by bringing a suit in federal district court

under section 309(b) of the Act, 33 U.S.C. 1319(b).

However, EPA need not issue a compliance order

before bringing an action. The penalties for vio-

lating either the Act or a compliance order are

the same. * * * The violator is subject to the

same injunction and penalties whether or not

EPA has issued a compliance order.

Southern Pines Assocs., 912 F.2d at 715-716. In effect,

the compliance order merely apprises the alleged

violator of the agency’s pre-enforcement position. Its

issuance is by no means a final administrative

14

determination that a violation has occurred.’ If the

EPA later “seeks judicial or administrative enforce-

ment of penalties against [the alleged violator], then

[it] will be entitled to [its] day in Court.” Rueth, 13

F.3d at 230.'

2. Petitioner argues (Pet. 7-10) that the preclusion

of review of the compliance order effected a depri-

vation of due process, because the consequences of

disobeying the order are potentially so overwhelming

that petitioner cannot realistically afford to disobey

its mandate and test its legality in later enforcement

proceedings. That contention is without merit.

In Thunder Basin Coal Co., this Court acknowl-

edged that the Mine Safety and Health Act’s manda-

tory civil penalties “unquestionably may become

onerous if petitioner chooses not to comply” with the

agency’s interpretation, but concluded that the

petitioner would face no constitutional deprivation if

it chose not to comply, because the Act’s civil

penalties “become final and payable only after full

review by both the [Mine Safety and Health Review]

® Indeed, because a compliance order does not “impose an

obligation, deny a right or fix some legal relationship as a con-

summation of the administrative process,” Chicago & Southern

Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113

(1948), several lower courts have concluded (correctly, in our

view) that issuance of a compliance order is not “ final agency

action” for purposes of APA review. See, e.g., Child, 851 F.

Supp. at 1535; Howell, 794 F. Supp. at 1075; Leslie Salt Co., 789

F. Supp. at 1033-1034; Route 26 Land Dev. Ass’n, 753 F. Supp.

at 540.

7 Because petitioner will have the unquestioned right to

judicial review of any enforcement action, “this case does not

implicate ‘the strong presumption that Congress did not mean

to prohibit all judicial review.’” Thunder Basin Coal Co., 114

S. Ct. at 776 n.8.

—_ °° °° 7

15

Commission and the appropriate Court of Appeals.”

114 8S. Ct. at 781-782. See also Board of Governors of

Federal Reserve System v. MCorp Fin., Inc., 502

U.S. 32, 43-44 (1991) (“If and when the Board finds

that MCorp has violated that regulation, MCorp will

have, in the Court of Appeals, an unquestioned right

to review of both the regulation and its application.”).

The very same reasoning applies here. See Southern

Pines Assocs., 912 F.2d at 717: Hoffman Group, 902

F.2d at 568-569."

The absence of initial judicial review may offend

due process in extreme cases where “the practical

effect of coercive penalties [is] to foreclose all access

to the courts.” Thunder Basin Coal Co., 114 S. Ct. at

782 (citing Fx parte Young, 209 U.S. 123, 148 (1908)).

The CWA’s enforcement scheme does not present

* Contrary to petitioner’s assertions, the analysis in this

case does not differ simply because petitioner has chosen to

characterize its complaint as a challenge to the EPA’s juris-

diction, rather than a challenge to the EPA’s application of the

Act. “[T]here is no discernible line between an agency’s

exceeding its authority and an agency’s exceeding authorized

application of its authority. To exceed authorized application

is to exceed authority. Virtually any administrative action can

be characterized as either the one or the other, depending upon

how generally one wishes to describe the ‘authority.’” Missis-

sippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S.

354, 381 (1988) (Scalia, J., concurring in the judgment). To the

extent that there may be rare circumstances in which an

agency “completely overextend[s] [its] authority,” thereby

necessitating judicial review, Rueth, 13 F.3d at 231, the EPA’s

issuance of the compliance order in this case, upon its

determination that Laguna Gatuna constitutes “waters of the

United States,” was an action well within the scope of the

EPA’s statutory authority, irrespective of whether its deter-

mination was correct. See Southern Ohio Coal Co., 20 F.3d at

1427-1428.

16

such a case, however, because it does not threaten

such overwhelming and severe penalties as to cut off

all access to the courts.

Although some penalty is required under the Act

upon the finding of a violation, the amount of that

penalty is subject to guided discretion. Leslie Salt

Co. v. United States, 55 F.3d 1388, 13896-1397 (9th Cir.),

cert. denied, 116 S. Ct. 407 (1995); Atlantic States

Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128,

1142 (11th Cir. 1990); Stoddard v. Western Carolina

Regional Sewer Auth., 784 F.2d 1200, 1208 (4th Cir.

1986). Section 309(d) of the Act directs the district

courts, in determining the amount of a civil penalty,

to consider

the seriousness of the violation or violations, the

economic benefit (if any) resulting from the

violation, any history of such violations, any

good-faith efforts to comply with the applicable

requirements, the economic impact of the penalty

on the violator, and such other matters as justice

may require.

33 U.S.C. 1319(d). Section 309(g)(3) similarly directs

the EPA, in administrative proceedings, to take into

account

the nature, circumstances, extent and gravity of

the violation, or violations, and, with respect to

the violator, ability to pay, any prior history

of such violations, the degree of culpability,

economic benefit or savings (if any) resulting

from the violation, and such other matters as

justice may require.

33 U.S.C. 1319(g)(3). The common directive to con-

sider “such other matters as justice may require”

17

affords the courts sufficient leeway to alleviate any

due process concerns. See Leslie Salt Co., 55 F.3d at

1397."

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

ROBERT L. KLARQUIST

JOHN A. BRYSON

Attorneys

DECEMBER 1995

° Cf. Wagner Seed Co., 800 F.2d at 316 (notwithstanding

potential treble liability for refusal to comply with order for

hazardous waste cleanup, due process is satisfied by judicial

discretion over imposition of penalties); accord Solid State

Circuits, Inc. v. EPA, 812 F.2d 383, 389-390 (8th Cir. 1987).