S Cal Alliance Treatment Works v. Epa , 853 F.3d 1076 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOUTHERN CALIFORNIA ALLIANCE No. 14-74047
OF PUBLICLY OWNED TREATMENT
WORKS,
Petitioner, OPINION
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; JARED BLUMENFELD,
Regional Administrator, USEPA,
Region IX,
Respondents.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted November 7, 2016
Pasadena, California
Filed April 12, 2017
Before: Kim McLane Wardlaw and Jay S. Bybee, Circuit
Judges, and Robert Holmes Bell,* District Judge.
Opinion by Judge Bybee
*
The Honorable Robert Holmes Bell, United States District Judge for
the Western District of Michigan, sitting by designation.
2 SCAP V. EPA
SUMMARY**
Environmental Law
The panel dismissed for lack of subject matter jurisdiction
the petition for review brought by the Southern California
Alliance of Publicly Owned Treatment Works, challenging an
Objection Letter sent by the United States Environmental
Protection Agency (EPA) regarding draft permits for water
reclamation plants in El Monte and Pomona, California.
The Clean Water Act prohibits the discharge of any
pollutant into navigable waters from any point source
without a permit, and permits are issued in accordance with
the National Pollutant Discharge Elimination System
(NPDES). When a state assumes primary responsibility for
issuing NPDES permits, the EPA retains supervisory
authority over state permitting programs under 33 U.S.C.
§ 1324(d).
In 1973, the EPA granted California authority to
administer its NPDES permits program. The Los Angeles
Regional Office of the California State Water Resources
Control Board prepared the draft NPDES permits for the
water reclamation plants at issue. The EPA issued an
Objection Letter to the draft permits raising concerns about
the effluent toxicity. The Los Angeles Board revised the
draft permits to meet the terms of the EPA’s Objection Letter,
and issued the permits.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SCAP V. EPA 3
Petitioners argued that the draft permits were consistent
with the Clean Water Act and that the EPA exceeded its
authority in requiring water quality-based effluent limitations
for whole effluent toxicity and other limitations.
The panel held that neither 33 U.S.C. § 1369(b)(1)(E) nor
(F) of the Clean Water Act provided the court with subject
matter jurisdiction to review the Objection Letter. The panel
held that when a state assumes responsibility for
administering the NPDES program, the state becomes the
permit-issuing authority, and an EPA objection to a draft
permit is merely an interim step in the state permitting
process. The panel held that here, the Los Angeles Board
chose to revise the draft permits and retain control of the
NPDES permitting process for the plants, and the permits
were issued through the State of California, not the EPA. The
panel concluded that the appropriate avenue for petitioners to
seek redress was through the State’s review process.
COUNSEL
Melissa Thorme (argued), Downey Brand LLP, Sacramento,
California, for Petitioner.
Eileen T. McDonough (argued), Attorney; John C. Cruden,
Assistant Attorney General; Environment Defense Section,
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.; Marcela von
Vacano, Assistant Regional Counsel, Region 9, United States
Environmental Protection Agency, San Francisco, California;
Pooja S. Parikh, Attorney-Advisor, Office of the General
Counsel, United States Environmental Protection Agency,
Washington, D.C.; for Respondents.
4 SCAP V. EPA
OPINION
BYBEE, Circuit Judge:
The Southern California Alliance of Publicly Owned
Treatment Works (SCAP) petitions for review of an objection
letter sent by the United States Environmental Protection
Agency (EPA) regarding draft permits for water reclamation
plants in El Monte and Pomona, California. SCAP argues
that we have original jurisdiction to review the objection
letter under 33 U.S.C. § 1369(b)(1)(E), which applies to EPA
action “approving or promulgating any effluent limitation,”
and 33 U.S.C. § 1369(b)(1)(F), which applies to EPA action
“issuing or denying any permit.” We agree with EPA that we
lack subject matter jurisdiction to hear SCAP’s claims, and
we dismiss the petition.
I. BACKGROUND
A. The Clean Water Act
In 1972, Congress enacted sweeping amendments to the
Federal Water Pollution Control Act (FWPCA) of 1948 “to
restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). After
another round of substantial amendments in 1977, the statute
became known as the Clean Water Act (CWA or the Act).
The CWA prohibits the discharge of any pollutant into
navigable waters from any point source without a permit. Id.§ 1311(a). Permits are issued in accordance with the National
Pollutant Discharge Elimination System (NPDES). Id.
§ 1342(a). These permits authorize certain point source
discharges and are typically conditioned on compliance with
SCAP V. EPA 5
water quality standards and effluent limitations issued under
the Act. Id. § 1342(a).
The CWA establishes two pathways for the issuance of
NPDES permits. First, EPA may issue the permits under
33 U.S.C. § 1342(a). Second, the states, with EPA approval,
may assume responsibility for issuing permits. Id. § 1342(b).
The state program must meet specific requirements, including
incorporating certain provisions of the NPDES regulations,
and be approved by EPA. Id.; 40 C.F.R. §§ 123.25(a)(15),
122.44. “If [NPDES permitting] authority is transferred, then
state officials—not the federal EPA—have the primary
responsibility for reviewing and approving NPDES discharge
permits, albeit with continuing EPA oversight.” Nat’l Ass’n
of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 650
(2007). Forty-six states, including California, currently have
authority to issue their own NPDES permits. EPA, NPDES
State Program Information, https://www.epa.gov/npdes/
npdes-state-program-information (follow: “Authority”
hyperlink).
Even when a state assumes primary responsibility for
issuing NPDES permits, EPA retains supervisory authority
over state permitting programs under 33 U.S.C. § 1342(d).
The state must transmit to EPA a copy of each permit
application received, as well as proposed permits, and EPA
has ninety days to notify the state of any objections it has to
the draft permit. Id. § 1342(d)(1)–(2). The objection must be
in writing and state “the reasons for such objection and the
effluent limitations and conditions which such permit would
include if it were issued by” EPA. Id. § 1342(d)(2). If the
disagreement proves intractable, the state or any interested
person can request that EPA hold a public hearing on the
objection. Id. § 1342(d)(4); 40 C.F.R. § 123.44(e).
6 SCAP V. EPA
Following a public hearing, EPA may reaffirm, withdraw, or
modify the original objection. 40 C.F.R. § 123.44(g). If the
state does not request a hearing or EPA maintains its
objection, the state then has a choice: It can either revise the
permit to address EPA’s objection or allow permitting
authority to pass back to EPA. 33 U.S.C. § 1342(d)(4); see
also 40 C.F.R. § 123.44(h).
The state’s decision either to make the changes and retain
jurisdiction over the permit or to relinquish permitting
authority to EPA has practical consequences for further
review. If the state chooses to revise and issue a permit, an
aggrieved party can seek further administrative review and
then judicial review in accordance with state law. See Am.
Paper Inst., Inc. v. EPA, 890 F.2d 869, 875 (7th Cir. 1989).
By contrast, if jurisdiction returns to EPA and EPA issues a
federal NPDES permit, EPA’s decision may be appealed
within EPA to the Environmental Appeals Board (EAB).
40 C.F.R. § 124.19(a)(1). A final EPA permit approved by
the EAB is subject to review in an appropriate circuit court of
appeals. 33 U.S.C. § 1369(b)(1)(F).
B. California’s NPDES Permitting Program
In 1973, EPA granted California authority to administer
the NPDES permits program. Approval of California’s
Revisions to the State National Pollution Discharge
Elimination System Program, 54 Fed. Reg. 40,664 (Oct. 3,
1989); Discharges of Pollutants to Navigable Waters:
Approval of State Programs, 39 Fed. Reg. 26,061 (July 16,
1974). Regional Boards make the initial permitting decisions.
The California State Water Resources Control Board (State
Board), the final NPDES permitting authority in California,
reviews the permits issued by Regional Boards. “[A]ny
SCAP V. EPA 7
aggrieved party” may then file a petition for review in
California Superior Court. Cal. Water Code § 13330(a).
Additionally, California and EPA have entered into a
Memorandum of Agreement that explains in greater detail the
rights the State has under the Act and the regulations. Under
that agreement, for example, if the State disagrees with
EPA’s objection, it has the option to pursue informal means
of resolving the dispute. See, e.g., NPDES Memorandum of
Agreement Between U.S. Environmental Protection Agency
and California State Water Resources Control Board 16
(1989) (MOA) (“If EPA and a Regional Board are unable to
resolve a disagreement over provisions of a prenotice draft
permit to which EPA has filed a formal objection, the State
Board may mediate the disagreement to a resolution that is
satisfactory to EPA and to the Regional Board.”). Once EPA
has filed an objection letter, the State may request that EPA
conduct a public hearing pursuant to 40 C.F.R. § 123.44 or
opt to conduct its own public hearing. Id. at 16–17. The
MOA, like the regulations, contemplates that, following this
process, EPA may modify or even withdraw its objections.
Id. at 19.
C. The Permits at Issue
The Whittier Narrows Water Reclamation Plant, located
in El Monte, California, and the Pomona Water Reclamation
Plant, located in Pomona, California (collectively, the Plants),
are tertiary-level treatment water reclamation facilities that
receive industrial, commercial, and residential wastewater
8 SCAP V. EPA
from the surrounding cities.1 They each produce
approximately 9000 acre-feet of recycled water per year,
which is used for groundwater recharge and landscape
irrigation in Southern California.
The Los Angeles Regional Office (L.A. Board) of the
State Board prepared the draft NPDES permits (Draft
Permits) for the Plants at issue. The L.A. Board also prepared
a “Fact Sheet,” which included its determination that effluent
limitations were required for “whole effluent toxicity”2
because the discharge potentially could cause or contribute to
chronic toxicity. The Draft Permits addressed chronic
toxicity by setting “Chronic Toxicity Trigger and
Requirements” (Toxicity Triggers).
The L.A. Board submitted the Draft Permits to EPA for
review consistent with 33 U.S.C. § 1342(d)(1). Jane
Diamond, the Region 9 Director of EPA’s Water Division,
issued a letter with EPA’s formal objections to the Draft
Permits on September 4, 2014 (“Objection Letter”). EPA’s
principal concern “relate[d] to numeric effluent limitations
for whole effluent toxicity.” EPA criticized the permits
because they “express a chronic toxicity requirement as a
series of steps which include a narrative trigger for further
investigation of effluent toxicity, not as an effluent limitation
1
Tertiary treatment plants produce water meeting drinking water
standards required by the Safe Drinking Water Act, 42 U.S.C. § 300f et
seq.
2
“Whole effluent toxicity” (sometimes referred to as WET) refers to
the fact that effluent can contain many different pollutants. Even if no one
pollutant is likely to cause harm to aquatic organisms, the combination of
several pollutants may have an adverse result. See Edison Elec. Inst. v.
EPA, 391 F.3d 1267, 1268–69 (D.C. Cir. 2004).
SCAP V. EPA 9
for WET. . . . Taken together, these toxicity triggers simply
require further investigation, and thus do not met meet the
definition of ‘effluent limitation’ under the CWA . . . .” EPA
offered other criticism as well and attached to its letter what
it characterized as “Required Changes” and “Recommended
Changes” in the permits. EPA stated that if the L.A. Board
did not submit revised permits addressing EPA’s concerns,
EPA would “acquire exclusive NPDES authority over the
discharges pursuant to 40 C.F.R. § 123.44(h)(3).”
The L.A. Board revised the Draft Permits to meet the
terms of EPA’s Objection Letter. After reviewing the revised
permits, EPA notified the L.A. Board, the State Board, and
the permit applicants that EPA’s objections had been satisfied
and that the NPDES permits for the Plants remained within
the L.A. Board’s jurisdiction. After complying with
procedures required by state law, the L.A. Board issued the
permits for both Plants in November 2014.
D. State Administrative Proceedings
On December 8, 2014, SCAP, along with the permittees
and other parties, filed an administrative appeal of the L.A.
Board’s action with the State Board. The petition requested
a hearing and a stay of the NPDES Permits. Three weeks
later, on December 31, 2014, SCAP also filed a petition for
review before us.
The State Board did not immediately act on SCAP’s
administrative petition. On July 9, 2015, the L.A. Board
amended the NPDES permits for the Plants. SCAP amended
its administrative petition in light of the amended permits.
SCAP then requested that the State Board hold the state
administrative appeals in abeyance until 2017. SCAP stated
10 SCAP V. EPA
that its request would “allow the opportunity for resolution of
these matters and for further discussion and exchanges
between the Petitioners and the [L.A. Board].” The State
Board granted SCAP’s request and placed the matter in
abeyance until August 10, 2017.
II. DISCUSSION
SCAP seeks review of EPA’s September 4, 2014
Objection Letter. SCAP argues the original permits proposed
by the L.A. Board were consistent with the CWA and that
EPA exceeded its authority in requiring water quality-based
effluent limitations for whole effluent toxicity, numeric
effluent limitations, and daily maximum effluent limitations.
In response, EPA contends that we lack jurisdiction to review
its Objection Letter and that, so long as permitting authority
rests with California state agencies, SCAP’s judicial remedy
lies in California courts under California’s administrative
procedures. We review challenges to our jurisdiction de
novo. Bidart Bros. v. Cal. Apple Comm’n, 73 F.3d 925, 928
(9th Cir. 1996).
The CWA vests the federal courts of appeals with original
jurisdiction over seven categories of EPA action. 33 U.S.C.
§ 1369(b)(1).
We do not lightly hold that we have
jurisdiction under [33 U.S.C. § 1369(b)(1)].
We have counseled against [its] expansive
application. The specificity and precision of
section [1369], and the sense of it, persuade us
that it is designed to exclude EPA actions that
Congress did not specify. Indeed, [n]o
SCAP V. EPA 11
sensible person . . . would speak with such
detail otherwise.
Nw. Envtl. Advocates v. EPA, 537 F.3d 1006, 1015 (9th Cir.
2008) (second and fourth alterations in original) (citations
omitted) (internal quotation marks omitted). SCAP asserts
two bases for our jurisdiction. First, it claims that EPA
promulgated new daily and numeric effluent limitations for
chronic toxicity through the Objection Letter, giving our
court jurisdiction under 33 U.S.C. § 1369(b)(1)(E). Second,
SCAP claims that we have jurisdiction under 33 U.S.C.
§ 1369(b)(1)(F) because the Objection Letter was the
“functional equivalent” of EPA’s denial of the state-proposed
Draft Permits.
Neither provision gives us jurisdiction to review the
Objection Letter. When a state assumes responsibility for
administering the NPDES program, the state becomes the
permit-issuing agency. 33 U.S.C. § 1342(b). An objection
by EPA to a draft state permit is merely an interim step in the
state permitting process. Id. EPA may decide to withdraw
the objection after discussions with the state and regional
board or after holding a public hearing, or the state may
revise a draft permit to remedy EPA’s objection and issue the
permit. Id. In either case, the permitting decision remains
the state’s. The permits issued by the state are subject to
administrative and judicial review in accordance with state
law. See, e.g., Cal. Water Code § 13330 (providing for
review in California Superior Court of State Board decisions).
Alternatively, the state can choose not to remedy the
objection and let permitting authority pass back to EPA.
33 U.S.C. § 1342(d)(4). In that case, the state has
relinquished jurisdiction over the permitting process, and
EPA assumes full responsibility for the permit. If EPA issues
12 SCAP V. EPA
the permit, the permit is subject to review by the EAB first
and then the appropriate federal court of appeals. City of San
Diego v. Whitman, 242 F.3d 1097, 1101 (9th Cir. 2001).
Here, the L.A. Board chose to revise the Draft Permits and
retain control of the NPDES permitting process for the Plants,
and the permits were issued through the State of California,
not EPA. The appropriate avenue for SCAP to seek redress
is through the State’s review process. We explain our reasons
in greater detail below.
A. Jurisdiction Under 33 U.S.C. § 1369(b)(1)(E)
Section 1369(b)(1)(E) provides for federal appellate
review of EPA action “in approving or promulgating any
effluent limitation or other limitation under section 1311,
1312, 1316, or 1345 of this title.” Relying on a decision of
the Eighth Circuit, SCAP contends that EPA’s objection
effectively promulgated new effluent limitations and is
reviewable under § 1369(b)(1)(E). See Iowa League of Cities
v. EPA, 711 F.3d 844 (8th Cir. 2013). EPA counters that we
have already considered and rejected SCAP’s argument. See
Crown Simpson Pulp Co. v. Costle, 599 F.2d 897 (9th Cir.
1979) (Crown Simpson I), rev’d in part, 445 U.S. 193 (1980)
(per curiam) (Crown Simpson II). EPA is correct. Following
our circuit’s decision in Crown Simpson I, we hold that we
lack jurisdiction to review the Objection Letter under
§ 1369(b)(1)(E).3
3
The Supreme Court reversed our decision only with respect to
jurisdiction under 33 U.S.C. § 1369(b)(1)(F). See infra Part II.B. It
declined to consider that portion of our decision addressing
§ 1369(b)(1)(E). Crown Simpson II, 445 U.S. at 196 n.7 (“Because we
find that the Court of Appeals had jurisdiction over this action under
§ [1369](b)(1)(F), we do not decide whether it might also have had
jurisdiction under § [1369](b)(1)(E).”). Our decision with respect to
SCAP V. EPA 13
In Crown Simpson I, we held that 33 U.S.C.
§ 1369(b)(1)(E) does not provide jurisdiction over a claim
like SCAP’s. Similar to this case, Crown Simpson I involved
a challenge to EPA’s veto of NPDES permits that the
California State Board proposed to issue to bleached kraft
pulp mills pursuant to 33 U.S.C. § 1342(b). Crown Simpson
argued that EPA’s veto was “the functional equivalent of a
newly promulgated, generalized regulation” and that “if the
Administrator had formally promulgated such a generalized
variance regulation, it would have been directly reviewable
by the court of appeals as an ‘effluent or other limitation’
under subsection (E).” Id. at 900. We simply rejected the
premise that the “Administrator’s vetoing of the two permits
was tantamount to the promulgation of a new variance
regulation.” Id. at 901. We characterized EPA’s actions as
“not the establishment of new regulations through an irregular
procedure, but simply two individualized adjudications to
determine the proper application of already promulgated
effluent limitation regulations covering the entire industry.”
Id. We concluded that “[s]ubsection (E) provides for direct
review of the promulgation of effluent limitations, not for
direct review of all of the Administrator’s actions that may in
any way be dependent upon the Administrator’s power to
promulgate such limitations.” Id. at 902.
Crown Simpson I is controlling in this case. The statutory
regime differentiates between the promulgation of effluent
limitation regulations, which are “standards restricting the
quantities of pollutants that enterprises in a given industry
33 U.S.C. § 1369(b)(1)(E) is still binding precedent in our circuit absent
intervening higher authority that is clearly irreconcilable with our existing
precedent. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en
banc).
14 SCAP V. EPA
may discharge,” and “individualized adjudications to
determine the proper application of already promulgated . . .
regulations covering the entire industry.” Id. at 901–02.
Here, as in Crown Simpson I, EPA did not “approve or
promulgate anything” in objecting to the Draft Permits. Id.
at 900, 902 (internal quotation marks omitted). Instead, it
applied preexisting regulations on an individualized basis to
determine that the Draft Permits were inadequate. See id. at
901. “The two permits and variances at issue here have no
. . . far reaching implications” beyond their effect on the
Plants, as compared to “generalized effluent limitations,”
which “may affect dozens or even hundreds of plants.” Id. at
902. Our precedent therefore compels the conclusion that we
lack jurisdiction under § 1369(b)(1)(E).
Petitioners urge us to follow the Eighth Circuit’s decision
in Iowa League of Cities, 711 F.3d 844. In that case the Iowa
League of Cities (the League) believed that EPA had imposed
new requirements for water treatment processes and that it
was doing so without promulgating regulations. At the
League’s request, U.S. Senator Charles Grassley wrote to
EPA. EPA responded in two guidance letters. The League,
believing that the guidance letters were inconsistent with the
CWA and EPA’s own regulations, brought a challenge in the
Eighth Circuit under 33 U.S.C. § 1369(b)(1)(E). EPA argued
that the court lacked subject matter jurisdiction, but the
Eighth Circuit held that the guidance letters not only had a
“binding effect on regulated entities,” 711 F.3d at 863, but
that “communications from the EPA indicat[ed] that it would
object to any permits that were inconsistent with the policy
outlined in the EPA letters,” id. at 864. On that
understanding, the court held that EPA’s letters “were
promulgations for the purposes of CWA section
SCAP V. EPA 15
[1369](b)(1)(E),” id. at 866, and should be reviewed under
the APA, id. at 872–78.
To the extent Iowa League of Cities is inconsistent with
our decision in Crown Simpson I, we are, of course, bound by
Crown Simpson I. Moreover, there are other reasons to
distinguish this case from Iowa League of Cities. Unlike the
Iowa case, EPA here was commenting specifically on the
Draft Permits submitted by the Plants, consistent with
33 U.S.C. § 1342(d)(1). EPA was not responding to a more
general inquiry about its “binding policy,” and nothing in the
EPA comments suggest that it was proposing objections
applicable to “any permits that were inconsistent with the
policy outlined in the EPA letters.” Iowa League of Cities,
711 F.3d at 865. We need not decide whether we would
agree with the Eighth Circuit’s decision in Iowa League of
Cities in other circumstances. Those circumstances are not
presented to us in this case.
There are other features of our case that persuade us that
we may not review EPA’s Objection Letter. First, unlike
with the guidance letters to Senator Grassley in Iowa League
of Cities, EPA here was participating in an interim step in a
complex statutory scheme. Under the scheme, EPA’s
Objection Letter was not a binding order to the L.A. Board.
To be sure, EPA notified the L.A. Board that if it did not
make the changes EPA wanted EPA would assume
jurisdiction over the NPDES permits. Nonetheless, the L.A.
Board was given the option of adopting EPA’s required
changes or ceding permitting jurisdiction to EPA.4 And no
4
Even if EPA had assumed jurisdiction, the Objection Letter would
still not be a final order. Permits issued by EPA must follow numerous
procedural requirements outlined in 40 C.F.R. § 124.1–124.21,
16 SCAP V. EPA
matter what the L.A. Board decided—whether to ignore or to
adopt EPA’s requested changes—there was going to be an
opportunity in due course for court review. Cf. City of San
Diego, 242 F.3d at 1101–02 (holding that EPA letter
regarding the city’s as-yet-unfiled application for renewal of
a modified NPDES permit was not reviewable until EPA
actually issued the permit in question).
Under the Act’s scheme of cooperative federalism, if the
L.A. Board refused to make EPA’s required changes, EPA
would assume jurisdiction and, presumably, issue its own
permits. The petitioners could then have filed a petition for
review first before the EAB and then in this court and
challenged the substance of the EPA-issued permits.
Because, however, the L.A. Board acquiesced to EPA’s
requests, the Plants may pursue available state remedies,
including review by the State Board, in the California courts,
and, potentially, in the U.S. Supreme Court. See Am. Paper
Inst., 890 F.2d at 875; cf. S.D. Warren Co. v. Me. Bd. of
Envtl. Prot., 547 U.S. 370, 375 (2006) (reviewing state court
decision regarding conditions placed in permit by state
environmental agency under 33 U.S.C. § 1341); PUD No. 1
of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700(1994) (same).
There is a another reason for us to decline to exercise
jurisdiction at this stage in the process. Under the CWA,
California may impose restrictions that exceed the CWA’s
124.51–124.66. The Plants would have had the right to submit written
comments and seek a hearing before EPA, 40 C.F.R. § 124.11, the right
to an administrative appeal to the EAB, id. § 124.19(a)(1), and the right
to review under the APA in a federal court of appeals, 33 U.S.C.
§ 1369(b)(1)(F).
SCAP V. EPA 17
minimum requirements and EPA’s regulations. 33 U.S.C.
§1370; 40 C.F.R. § 122.44(d). The L.A. Board (or the State
Board) may take a more aggressive view of the requirements
for keeping the state’s waters clean. In that circumstance, any
request for review of EPA’s Objection Letter would be moot
because California water regulators may determine that the
discharges at issue exceed the requirements of state water
quality standards. 40 C.F.R. § 122.44(d). EPA’s views, in
that case, are irrelevant, and a petitioner’s remedies, if any,
lie with the State Board and the California courts. We have
no business getting into the middle of this process.
We have no jurisdiction to review EPA’s Objection Letter
under § 1369(b)(1)(E).
B. Jurisdiction Under 33 U.S.C. § 1369(b)(1)(F)
Section 1369(b)(1)(F) provides for review of an EPA
action “issuing or denying any permit under section 1342.”
SCAP urges us to find that EPA’s Objection Letter
effectively denied the permits sought by the Plants and
tentatively approved by the L.A. Board. For authority, SCAP
points to the Supreme Court’s decision in Crown Simpson II.
In that case, the Supreme Court held that under the 1972
version of the CWA, when EPA “objects to effluent
limitations contained in a state-issued permit, the precise
effect of its action is to ‘den[y]’ a permit within the meaning
of § [1369](b)(1)(F).” 445 U.S. at 196 (first alteration in
original). EPA argues that Crown Simpson II is not
applicable because Congress amended the CWA in 1977 and
revised the procedures relating to EPA supervisory authority
of state NPDES permitting. Although the Supreme Court in
Crown Simpson II was aware of the 1977 CWA amendments,
it expressly declined to consider their impact on the
18 SCAP V. EPA
jurisdictional question before it, because the EPA objection
at issue occurred before the amendments took effect. Id. at
194 n.2 (“Section [1342] was amended in 1977, after the
permits in the present case were vetoed, to give EPA the
power, which it did not then have, to issue its own permit if
the State fails to meet EPA’s objection within a specified
time. We do not consider the impact, if any, of this
amendment on the jurisdictional issue presented herein.”
(citation omitted)). Since Crown Simpson II, neither the
Supreme Court nor we have addressed the interaction of 33
U.S.C. § 1342(d) and § 1369(b)(1)(F). Doing so now for the
first time, we conclude that the Objection Letter did not
constitute the “issu[ance] or den[ial]” of the Draft Permits at
issue, and we do not have jurisdiction under § 1369(b)(1)(F).
In our view, the 1977 amendments significantly changed
the CWA. Section 1342(d)(2), as enacted in 1972 and
construed by the Court in Crown Simpson II, provided:
No permit shall issue (A) if the Administrator
within ninety days of the date of his
notification under subsection (b)(5) of this
section objects in writing to the issuance of
such permit, or (B) if the Administrator within
ninety days of the date of transmittal of the
proposed permit by the State objects in
writing to the issuance of such permit as being
outside the guidelines and requirements of
this Act.
Pub. L. 92-500, § 2, 86 Stat. 816, 882 (1972) (CWA
§ 402(d)(2)). Under this version of the statute, once EPA
objected to a state permit, the permit could not be issued
unless the state revised it to remedy EPA’s objection. And if
SCAP V. EPA 19
the state refused to address EPA’s objection, EPA and the
state were at an impasse: “No permit shall issue . . . .” At
that point neither the state nor EPA had authority to issue a
permit. In this scheme, EPA’s objection was “functionally
similar to its denial of a permit.” Crown Simpson II, 445 U.S.
at 196. The Court expressed concern that “denials of NPDES
permits would be reviewable at different levels of the federal-
court system depending on the fortuitous circumstances of
whether the State in which the case arose was or was not
authorized to issue permits.” Id. at 196–97. Additionally, the
Court thought that “the additional level of judicial review in
those States with permit-issuing authority would likely cause
delays in resolving disputes under the Act.” Id. at 197. The
Court thought such a “bifurcated system” was “seemingly
irrational.” Id. However, it added that its conclusion was
based in part on the absence of “a far clearer expression of
congressional intent.” Id.That “clearer expression of congressional intent” came in
the form of the 1977 CWA amendments. In 1977, Congress
amended the CWA and added § 1342(d)(4). It reads:
In any case where, after December 27, 1977,
the Administrator, pursuant to paragraph (2)
of this subsection, objects to the issuance of a
permit, on request of the State, a public
hearing shall be held by the Administrator on
such objection. If the State does not resubmit
such permit revised to meet such objection
within 30 days after completion of the
hearing, or, if no hearing is requested within
90 days after the date of such objection, the
Administrator may issue the permit pursuant
to subsection (a) of this section for such
20 SCAP V. EPA
source in accordance with the guidelines and
requirements of this chapter.
Pub. L. 95-217, § 65, 91 Stat. 1566, 1604 (1977). In contrast
to the prior iteration of the statute, which made EPA’s
objection binding, the amended statute creates a process in
which the state can request a hearing, following which there
is additional opportunity for back and forth between the state
and EPA. See 33 U.S.C. § 1342(d)(4); 40 C.F.R. § 123.44(e),
(g). The state then has the choice to issue the permit with
EPA’s requested changes or to allow jurisdiction over the
permitting process to return to EPA. The amendment
resolves the impasse that occurred under the prior scheme
when EPA objected to a permit and the state chose not to
modify the permit to remedy EPA’s objection. See Crown
Simpson II, 445 U.S. at 194 n.2 (“Section [1342] was
amended in 1977 . . . to give EPA the power, which it did not
then have, to issue its own permit if the State fails to meet
EPA’s objection within a specified time.”).
The 1977 Amendments alter the permit-approval process
so that an EPA objection no longer automatically and finally
results in the denial of a permit if the state refuses to conform
to EPA’s request. EPA’s objections are now part of an
ongoing process, not the end of the process. Thus,
complaints about an EPA Objection Letter are premature
because when EPA objects to a permit, the administrative
process is not yet at an end: The state and EPA may resolve
their dispute over the objection informally, see, e.g., MOA at
16; the state may request that EPA hold a public hearing, or
hold its own public hearing, after which EPA may reaffirm,
withdraw, or modify its objection, 40 C.F.R. § 123.44(g);
MOA at 16–17; the state may decide to modify the permit,
and EPA may accept the modifications; or the state may
SCAP V. EPA 21
decide not to act or refuse to accept EPA’s modifications, and
EPA may then issue the permit on its own authority,
40 C.F.R. § 123.44(h); MOA at 19–20. In sum, under the
current scheme, an objection by EPA is no longer
“functionally similar” to denying a permit outright, because
there are other procedures still available to the interested
parties before the state denies the permit. And, if the state
chooses not to adopt the recommendation of EPA, permitting
authority simply transfers out of the state’s hands and back to
the federal level.5
Our conclusion is also consistent with decisions of the
Seventh and Eighth Circuits, the only other circuits to have
addressed the issue directly. The Seventh Circuit held that
the “amendments to the [CWA] fundamentally altered the
underpinnings of the Crown Simpson [II] decision” such that
“an EPA objection to a proposed state permit is no longer
‘functionally similar’ to denying a permit.” Am. Paper Inst.,
890 F.2d at 874 (quoting Crown Simpson II, 445 U.S. at 196).
Emphasizing the “strong congressional intent to make the
5
A statement by Senator Muskie, floor manager of the conference bill
in the Senate during Senate debate on the 1977 amendments, is consistent
with our reading of the statute:
It is intended that this process be utilized to insure
the rapid issuance of an effective, valid permit. The
Administrator’s action in objecting to a permit would
generally not be subject to judicial review since it will
always be followed by further administrative action.
The final issuance of a permit by EPA would be subject
to judicial review pursuant to [33 U.S.C.
§ 1369(b)(1)(F)].
123 Cong. Rec. S39,187 (daily ed. Dec. 15, 1977) (statement of Sen.
Muskie).
22 SCAP V. EPA
states, where possible, the primary regulators of the NPDES
system,” the Seventh Circuit concluded that the CWA, as
amended, “does not contemplate federal court review of state-
issued permits” and, accordingly, the federal courts may not
review EPA’s objections to state-drafted permits before those
permits have been issued by the states. Id. at 873, 875.
Because “state courts are perfectly competent to decide
questions of federal law,” the “state courts may examine
challenges to any pertinent EPA objections.” Id. at 875.
The Eighth Circuit reached a similar conclusion.
Determining that it lacked subject matter jurisdiction to
review an EPA Regional Administrator’s objection to a state
NPDES permit, the court wrote:
The crucial question here is whether the EPA
Administrator has issued or denied an NPDES
permit. . . . EPA’s action here, although
indicating disapproval with the City’s NPDES
permit as drafted, does not constitute a
decision by the Regional Administrator—let
alone the EPA’s Administrator, to whom the
Regional Administrator’s decision is
appealable—to issue or deny an NPDES
permit. . . . The EPA’s actions thus far
constitute preliminary objections to the State’s
proposed permit.
City of Ames v. Reilly, 986 F.2d 253, 256 (8th Cir. 1993).
The Eighth Circuit noted the administrative options that
remain following an EPA objection: “[T]he State could issue
its own permit, the EPA could withdraw its objections, or the
EPA could issue a final NPDES permit.” Id.; cf. Champion
Int’l Corp. v. EPA, 850 F.2d 182, 188 (4th Cir. 1988)
SCAP V. EPA 23
(holding that when EPA files an objection for a state permit
and then assumes NPDES issuing authority, EPA has not
reached a final agency action subject to judicial review).
We lack jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to
review EPA’s Objection Letter.
III. CONCLUSION
We conclude that neither 33 U.S.C. § 1369(b)(1)(E) or (F)
provides us subject matter jurisdiction to review the
Objection Letter, and we dismiss SCAP’s petition for review.
DISMISSED.