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Pacific Legal Found. v. Costle

ELR Citation: 8 ELR 20731
Nos. No. 77-2909, 586 F.2d 650/11 ERC 2125/(9th Cir., 08/09/1978)

In response to a petition challenging the Environmental Protection Agency's (EPA's) action in extending for an additional two-and-one-half years the national pollutant discharge elimination system (NPDES) permit for the Hyperion Wastewater Treatment Plant in Los Angeles, the Ninth Circuit remands the proceeding for an adjudicatory hearing. The court first determines that a permit extension should be treated the same as a permit issuance for the purposes of §509(b)(1)(F) of the Federal Water Pollution Control Act (FWPCA) and that it thus has jurisdiction to review EPA's action in extending the permit. It also determines that EPA had the authority to order the extension, despite the earlier delegation of NPDES permitting authority to the state, because two of the three outfalls from the Hyperion Plant extend beyond the three-mile limit of the territorial sea and only EPA has the power under the FWPCA to permit such discharges beyond the state's jurisdiction. The court finds nothing in the FWPCA that forbids joint federal-state permitting action in situations, such as this one, where jurisdiction over a plant's outfalls is split between the federal and state governments. Noting that in reviewing the permit extension it must consider the issues that ordinarily arise on petition to review the issuance of a permit under §402, the court rules that no proper opportunity for a public hearing as required by §402(a)(1) was provided in this case. The fact that no one requested a hearing prior to the extension decision is relevant but not decisive as to whether such an opportunity was provided; the agency must show that the material facts supporting the decision are not subject to dispute in order to justify its failure to hold a hearing. Such a showing is not reflected in the present record, and a remand is thus required.

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

Counsel for Respondents
James W. Moorman, Ass't Attorney General; Raymond W. Mushal
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-3796

Lisa K. Friedman
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Anthony O. Garvin, Acting Regional Counsel
Environmental Protection Agency, Region IX
215 Freemont St., San Francisco CA 94105
(415) 556-2068

Before MERRILL, and SNEED, Circuit Judges, and EAST,* District Judge.