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Georgia-Pacific Corp. v. EPA

Citation: 12 ELR 20415
No. No. 80-7665, 671 F.2d 1235/17 ERC 1393/(9th Cir., 03/18/1982)

The court upholds the Environmental Protection Agency's (EPA's) veto of a state-issued variance from the Federal Water Pollution Control Act (FWPCA) effluent limitations for a segment of the pulp and paper industry. The State of Washington granted petitioner's request for a variance from the best practicable control technology (BPT) effluent limitations on the basis of its conclusion that petitioner's unique byproduct recovery facility constituted a "fundamentally different factor" qualifying it for a variance under EPA regulations. EPA disapproved the variance. On appeal, the court first holds that the 90-day deadline for seeking judicial review under § 509(b)(1)(F) is tolled not on the date of the adverse decision but when notice of the decision is received. Because petitioner filed its appeal within 90 days of receiving notice, the court has jurisdiction. EPA's disapproval was not procedurally deficient as a result of the lack of a prior hearing because there were no factual issues in dispute.Moreover, petitioner waived any right to a hearing by not requesting one during the 18 months that the matter was before EPA. Applying the arbitrary and capricious standard of review, the court holds EPA properly determined that petitioner's facility is not fundamentally different from the industry at large even though it incorporates a unique combination of a pulping plant and a by-product recovery plant. The existence of merely different factors does not qualify a plant for a variance. Finally, it holds that EPA did not abuse its discretion by ignoring the BPT variance granted to a Wisconsin paper mill in somewhat similar circumstances. A variance is based on the factors considered by the Agency in setting the industry-wide effluent limitations, not on a comparison of particular facilities.

Counsel for Petitioner
G. Keith Grim
Lane, Powell, Moss & Miller
3800 Rainier Bank Tower, 1305 5th Ave., Seattle WA 98101
(206) 223-7000

Counsel for Respondent
Rosanne Mayer
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5409

Deborah Gates
Legal Support Services
Region 10, Environmental Protection Agency
1200 6th Ave., Seattle WA 98101
(206) 442-1220

Before ANDERSON and ALARCON, Circuit Judges, and COUGHENOUR,* District Judge.