32 ELR 20638 -- ONRC Action v. Columbia Plywood, Inc.

ONRC Action v. Columbia Plywood, Inc.

Nos. 98-36233; 99-35019 (286 F.3d 1137) (UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT April 16, 2002)

ELR Digest

The court affirms a district court grant of summary judgment to an Oregon plywood manufacturer that environmental groups sued under the Clean Water Act (CWA) for failure to renew its national pollutant discharge elimination system (NPDES) permit. The state enforces the NPDES permit program, part of which requires permit holders to submit permit renewal requests at least 180 days before the permit's expiration. In 1989, the manufacturer submitted its permit renewal application substantially less than 180 days before expiration, but the state environmental agency accepted the renewal application and extended the current NPDES permit until it took final action on the manufacturer's renewal application. In 1997, the state environmental agency had yet to take final action on the manufacturer's renewal application. Between 1989 and 1997, the manufacturer discharged pollutants under Oregon Revised Statutes § 183.430(1), a state enforcement shield allowing license applicants to continue operation until the state takes final action on the application. The groups, subsequently, initiated a CWA suit against the manufacturer. The court first holds that the Oregon Revised Statutes § 183.430(1) shield applies to such applications. On certification from the Ninth Circuit, the Oregon Supreme Court ruled that the state environmental agency could waive the 180-day time limit for NPDES permit renewal application. Thus, the state agency can make an untimely application timely. The court next holds that the 60-day CWA citizen suit notice that the groups gave the manufacturer was not sufficient to alert the manufacturer of the groups' claims that the state could not renew an NPDES permit beyond its original term and that the manufacturer had beenrequired to renew its NPDES permit application in 1994. The groups' notice informed the manufacturer that the groups intended to contest the validity of the permit and that the solution would be that the manufacturer get a new permit. In so doing, the groups' notice put forth a particular theory on which the permit was invalid--that the permit application was untimely. On receipt of such notice, the manufacturer could have believed that the state agency was acting within its authority to waive the 180-day requirement. Thus, it was reasonable for the manufacturer to conclude that no action in response to the groups' 60-day notice was required. The manufacturer was not required to speculate as to all possible attacks on its NPDES permit that might be added to a citizen suit when the 60-day notice specifically identified only one attack based on timeliness of the renewal application.

The full text of this decision is available from ELR (19 pp., ELR Order No. L-497).

Counsel for Plaintiffs
William Carpenter Jr.
Law Offices of William Carpenter Jr.
474 Willamette St., Eugene OR 97401
(541) 484-4436

Counsel for Defendant
Karen O'Casey
Law Offices of Karen O'Casey
421 Oak St., Portland OR 04101
(207) unlisted

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]