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Crown Simpson Pulp Co. v. Costle

Citation: 11 ELR 20450
No. Nos. 76-3161 et al., 642 F.2d 323/16 ERC 1556/(9th Cir., 04/20/1981) On remand

Following the Supreme Court's remand on jurisdictional grounds, 10 ELR 20230, the Ninth Circuit Court of Appeals affirms the Environmental Protection Agency's (EPA's) veto of state-issued variances from best practicable technology (BPT) effluent limitations. The California State Water Resources Control Board, which has authority to issue national pollutant discharge elimination system permits, granted permits for two of petitioner's bleached kraft pulp mills that included variances from EPA's nationally applicable BPT standards. EPA vetoed the permits on the ground that the variances had improperly been based on the state's determination that adherence to the BPT standards was unnecessary to preserve the quality of the receiving waters. The court affirms EPA's veto of the permits, agreeing with EPA that no discharger may escape the requirements of BPT standards because of the allegedly insignificant impact of a discharge on local water quality. Such variances are authorized where a discharger can show that its facilities or processes are fundamentally different from the facilities or processes considered by EPA in developing nationwide standards, but the legislative history of the Federal Water Pollution Control Act and past decisions by EPA make it clear that variances may not be granted on the basis of local water quality impacts.

Counsel for Petitioners
W. Reece Bader
Orrick, Herrington, Rowley & Sutcliffe
600 Montgomery St., San Francisco CA 94111
(415) 392-1122

Joseph A. Darrell
Thelen, Marrin, Johnson & Bridges
2 Embarcadero Center, San Francisco CA 94111
(415) 392-6320

Counsel for Respondent
Edmund B. Clark; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Richard G. Stoll, James A. Rogers
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before DUNIWAY, CHOY and SNEED, Circuit Judges.