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California v. EPA

Citation: 12 ELR 21055
No. No. 81-2043, 689 F.2d 217/17 ERC 2057/(D.C. Cir., 09/17/1982)

The D.C. Circuit affirms the district court ruling that the Environmental Protection Agency's (EPA's) rejection of funding for two California sewage treatment projects applying "advanced waste treatment" on the basis of its conclusion that their costs were not justified by the improvement in public health and water quality they would achieve is authorized by the Federal Water Pollution Control Act (FWPCA). The court first rules that EPA's policy adopted in response to a congressional directive, under which it rejected funding for the California projects, is within EPA's authority under the FWPCA. It rejects California's argument that EPA's policy violates § 216, which allows the states to determine which projects have priority for funding. While EPA must comply with § 216, it must also comply with the directive of § 101(f), which requires the Agency to use procedures in all programs that make the best use of available manpower and funds, even though the result is deferral of funding for a project high on the state's priority list. The policy fulfills the requirements of § 101(f). The court also rules that the policy was validly issued despite the lack of notice and comment procedures. Neither the Administrative Procedure Act nor EPA public participation regulations required notice and comment.

Counsel for Appellants
George Deukmejian, Attorney General; William D. Cunningham, R.H. Connett
Department of Justice, 555 Capitol Mall, Suite 350, Sacramento CA 95814
(916) 445-4334

Counsel for Appellees
Albert M. Ferlo Jr., Edward J. Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Before: ROBB, Senior Circuit Judge; and BORK, Circuit Judge and JAMES F. GORDON,* Senior District Judge for the Western District of Kentucky.