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Crown Simpson Pulp Co. v. Costle

Citation: 9 ELR 20603
No. Nos. 76-3161 et al., 599 F.2d 897/13 ERC 1602/(9th Cir., 06/29/1979)

The Ninth Circuit Court of Appeals rules that it lacks jurisdiction to review the Environmental Protection Agency (EPA) Administrator's veto of pollutant discharge permits which the California Water Resources Control Board proposed to issue for two pulp mills under § 402 of the Federal Water Pollution Control Act (FWPCA). Direct review in the court of appeals is not available under § 509(b)(1)(E) of the Act because a permit veto is not tantamount to the approval or promulgation of an effluent limitation. The Administrator did not approve or promulgate any limitation, and his rejection of a permit based upon a proposed variance from existing effluent limitations does not constitute the setting of a new limitation. Nor does § 509(b)(1)(F), which makes the Administrator's issuance or denial of a permit reviewable in the courts of appeals, provide an avenue for direct review. Noting an apparent conflict among the circuits on this point, the court reiterates its previously articulated conclusion, see Washington v. EPA, 8 ELR 20314 (9th Cir. 1978), that § 509(b)(1)(F) applies solely to the Administrator's own issuance or denial of permit and does not permit review of his veto of a state's issuance of a permit. The court emphasizes that its decision does not deprive petitioner of a judicial forum in which to challenge the veto since the district courts have jurisdiction to hear such a case. A concurrence differs with the majority's conclusion that § 509(b)(1)(F) does not apply to EPA vetoes of state-issued permits and recommends that the case be reconsidered en banc because of conflicts with the case law in other circuits.

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

Counsel for Respondent
James A. Rodgers, Assoc. General Counsel
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before DUNIWAY and CHOY, Circuit Judges, and RENFREW,* District Judge.