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Costle v. Pacific Legal Found.

Citation: 10 ELR 20225
No. No. 78-1472, 445 U.S. 198/14 ERC 1153/(U.S., 03/18/1980) Rev'd

The Supreme Court reverses a decision of the Ninth Circuit Court of Appeals, 8 ELR 20731, and rules that the Environmental Protection Agency (EPA) did not violate § 402(a)(1) of the Federal Water Pollution Control Act when it extended a national pollutant discharge elimination system (NPDES) permit for the Hyperion Sewage Treatment Plant in Los Angeles without holding a hearing on the action. The Court rejects as both erroneous and unworkable the Ninth Circuit's view thatt EPA was required to hold a public hearing because it failed to show that the material facts supporting its extension decision were not subject to dispute. EPA's regulations regarding public participation condition the availability of a prior public hearing on the presence of a significant degree of public interest in the proposed action and provide for the holding of a subsequent adjudicatory hearing on the filing of a timely request raising material issues of fact. The Court upholds the Agency's regulations as valid and fully consistent with the Act's command that an "opportunity for a public hearing" be provided as well as with the underlying legislative policy of encouraging public participation in the administration of the NPDES permit program. The Court likewise rejects the claim that EPA failed to comply with these regulatory provisions. The Agency's giving of notice by newspaper publication was adequate to apprise interested parties of its tentative determination to extend the permit, and its conclusion thatt a significant degree of public interest in the proposed action was lacking was reasonable in light of the absence of any request for a public hearing. Furthermore, respondents' request for a subsequent adjudictory hearing was properly denied because it raised legal rather than factual issues. The court of appeals' judgment remanding the case to EPA for an adjudicatory hearing on the permit extension is therefore reversed.

Counsel for Petitioner
William Alsup, Ass't Solicitor General; Louis F. Claiborne, Deputy Solicitor General; James W. Moorman, Ass't Attorney General; Angus Macbeth, Raymond W. Mushal
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2773
William F. Pedersen, Deputy General Counsel; Lisa K. Friedman
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Respondents
Robert K. Best, Ronald A. Zumbrun, Thomas E. Hokano
Pacific Legal Foundation
455 Capitol Mall, Suite 465, Sacramento CA 95814
(916) 444-0154