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ONRC Action v. Columbia Plywood, Inc.

 

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ONRC Action and Klamath Forest Alliance (collectively ONRC) brought a citizen lawsuit against Columbia Plywood, Inc. (Columbia) under the Clean Water Act (CWA).[1] ONRC alleged that Columbia’s National Pollution Discharge Elimination System (NPDES) permit was invalid because Columbia failed to renew it in a timely manner, and therefore was illegally releasing pollutants into the Klamath River. They alternatively argued that if Columbia’s permit was valid originally, its failure to renew after five years invalidated it in 1994. Further, ONRC argued that the Department of Environmental Quality (DEQ) did not have the authority to renew the permit after the original period. The district court granted Columbia’s motion for summary judgment on the renewal issue, stating that the DEQ had waived the renewal period and Columbia properly discharged pollutants under the shield of ORS 183.430(1).[2] The district court dismissed ONRC’s alternative claims for lack of subject matter jurisdiction because ONRC failed to properly raise them in the required sixty-day citizen suit notice. Columbia filed a counterclaim for attorney fees, which the district court also dismissed. Both parties appealed.

The CWA requires a NPDES permit before an entity can discharge pollutants into a waterway.[3] Oregon’s permit program is administered by the DEQ, which issued Columbia the original permit in 1984. Pursuant to Oregon Administrative Rule 340-045-0030(1),[4] Columbia was required to submit a renewal 180 days before the expiration of the permit in 1989. Under Oregon law, while a renewal application is pending, the entity has a continuing shield which allows it to keep on discharging pollutants until the DEQ either approves or denies the renewal.[5] Although Columbia submitted a renewal application outside the 180-day period, DEQ accepted the application, and Columbia continued to discharge pollutants. At the time the suit was filed in 1997, the DEQ had yet to approve or deny the permit renewal.

The Ninth Circuit affirmed the district court’s determination that Columbia’s NPDES permit was valid because the DEQ waived the time limit, and that while awaiting renewal Columbia could continue discharging pollutants under the shield regulation. On appeal, the Ninth Circuit certified two questions to the Oregon Supreme Court: 1) whether DEQ had authority to accept permit renewals that do not meet the time guidelines, and 2) whether DEQ’s extension of the permit beyond its original five year term was invalid due to an invalid waiver. The Oregon Supreme Court certified that “DEQ has the legal authority to accept and process permit renewal applications that do not meet the 180-day filing requirement in . . . OAR
340-045-0030(1).”[6] Since it found the waiver valid, the Oregon Supreme Court did not reach the second certified question. Based on the Oregon Supreme Court’s answer, the Ninth Circuit held that Columbia’s renewal application was “timely,” and therefore Columbia could avail itself of the continuing shield of section 183.430(1) of the Oregon Revised Statutes.

The Ninth Circuit then addressed ONRC’s alternative claims that 1) DEQ does not have the authority to renew a NPDES permit beyond the original term and 2) Columbia was required to renew its renewal in 1994, five years after its first renewal application. The district court dismissed ONRC’s alternative claims for lack of adequate notice under 40 C.F.R. section 135.3(a) because the notice was not “sufficiently specific.”[7] Under the CWA, a citizen suit requires that sixty-day notice be given to the violator, the State, and the Environmental Protection Agency with “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation.”[8] The Ninth Circuit cited Hallstrom v. Tillamook County,[9] a United States Supreme Court case that required strict compliance with the notice provision for citizen suits. Based on this standard, the Ninth Circuit concluded that the notice in question was not sufficient to alert Columbia to these alternate claims, although it was sufficiently specific as to the theory that the permit application was invalid for being untimely. Finding that ONRC failed to give requisite notice for a citizen suit, a divided Ninth Circuit
panel affirmed the district court’s dismissal of the alternative claims for lack of subject matter jurisdiction.

Dissenting only on this last issue, Judge Reinhardt argued that ONRC gave Columbia sufficient notice and addressed the merits of the alternative claims. In support for his position, he cited the policy behind the notice requirement, stating that the wording of the notice alerted Columbia to ONRC’s contention that it did not have a valid permit, and the alternative claims directly challenge that validity.[10] Having reached the claims, Judge Reinhardt would dismiss the first claim that Columbia was required to renew its permit, but reverse on the basis that the DEQ’s failure to act for more than twelve years usurped the federal government’s power to establish the term of a NPDES permit.

The Ninth Circuit also affirmed the district court’s dismissal of
Columbia’s claim for attorney fees, determining that ONRC had filed a nonfrivolous complaint.


[1] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2000).

[2] Or. Rev. Stat. § 183.430(1) (2001) (extending a shield from liability for discharging pollutants while a renewal is pending).

[3] 33 U.S.C. § 1311(a) (2000).

[4] Or. Admin. R. 340-045-0030(1) (2001).

[5] Or. Rev. Stat. § 183.430(1) (2001).

[6] ONRC Action v. Columbia Plywood, Inc., 26 P.3d 142 (Or. 2001).

[7] ONRC Action v. Columbia Plywood, Inc., 286 F.3d 1137, 1143 (quoting Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985 (9th Cir. 2000)).

[8] 40 C.F.R. § 135.3(a) (2001).

[9] 493 U.S. 20 (1989).

[10] ONRC Action, 286 F.3d at 1143 (stating two policies behind strict notice as to give the violator a chance to rectify the problem and give the agency a chance to take remedial action, making the citizen suit unnecessary).

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