K&L I G/aTES
K&t Gates lLp
1661 K Street PAW
Washington, DG 20066-160 6
a 202 .778 .9000
www .klgatesxom
Barry M . Hartman
T: 202 .778 .9338
F : 202.778 .9100
Barry . hartman @klgates .com
February 13, 200 9
Via Hand Delivery
Jeffery N. Liithi
Clerk of the Pane l
United States Panel on Multidistrict Litigation
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Room G-255, North Lobby
Washington, D.C. 20002
Re : MDL- ,' In Re United States Environmental Protec tion Agency,
"Final National Pollutant Discharge Elimination System (NDPES) General Permit
Incidental to the Normal Operation of a Vessel, 73 Fed . Reg . 79,473 (Dec . 29, 2008)
Dear Mr . Liithi:
We represent the Lake Carriers' Association (LCA) in connection with a petition for review of
the above-referenced permitting action by the U .S . Environmental Protection Agency (EPA)
pending the U. S . Court of Appeals for the D .C. Circuit (Nos . 09-1001 and 09-1010) .
As you may recall, on January 26, 2009, we submitted the attached letter to you in anticipation
that EPA would be notifying the Panel that more than one petition for review of this EPA
NPDES permitting action was filed and served on the agency within the applicable 10-day
period. 28 U .S . § 2112(a)(3) . See Exhibit A. EPA so notified the Panel on February 12, 2009 .
In its submission, EPA contends that LCA's petition for review pending in the D .C. Circuit at
No . 09-1001, which was filed on January 5, 2009, was premature because, in EPA's view, the
challenged NPDES permit was not "issued" for purposes of judicial review and 28 U .S .C . § 2112
until January 12, 2009 . See EPA's Notice to the Panel at ¶5 .
For the reasons explained in our January 26, 2009 letter and as supplemented herein, EPA's
position is erroneous . The challenged permit was "issued" for purposes of judicial review and 28
U.S.C. § 2112 on December 18, 2008 . While EPA's notice to the Panel claims, citing 40 C.F.R.
§ 23 .2 that the challenged NPDES permit was not issued until January 12, 2009, it utterly fails to
address, let alone rebut, the undisputed fact that permit on its face states that it was signed and
"issued" on December 18, 2008, and the agency expressly stated the permit was effective th e
1 As of a call with the Panel this morning, this matter has not yet been assigned a docket number .
HA-220335 v4
K&L I GATE S
Jeffery N. Luthi
United States Panel on Multidistrict Litigation
February 13, 200 9
Page 2
next day . Exhibit B (permit excerpts) . Because EPA expressly provided an issuance date in the
challenged permit, the default provisions of 40 C .F.R § 23.2 for determining the date of issuance
do not apply. Indeed, EPA, with LCA's January 26, 2009 letter in hand, readily acknowledged
in a February 5, 2009 PowerPoint presentation to the regulated community that the permit was,
in fact, "issued" on December 18, 2008 . Exhibit C (PowerPoint excerpts). Given EPA's
express and repeated pronouncements to the regulated community that the challenged NPDES
permit was "issued" on December 18, 2008, and effective on December 19, there is no rational
basis, and it is arbitrary and capricious for the Agency to now advocate a contrary position to this
Panel.
Additionally, LCA is unaware of any p rior examples of EPA decla ring an entirely new NPDES
general permit program effective while bar ring judicial review until a later date .3 In previous
similar circumstances, the new NPDES general permit program became effective after, or
simultaneously with, its issu ance by EPA . See, e.g., 51 Fed. Reg . 24897 (July 9, 1986) (Final
NPDES General Permit for the Outer Continental Shelf of the Gulf of Mexico) ; 54 Fed. Reg.
29986 (July 17, 1989) (Final NPDES General Permit for Petroleum Ground/Storm Waters in the
State of Flo ri da); 64 Fed . Reg. 11885 (March 10, 1999) (Final NPDES General Permit for Oil
and Gas Exploration, Cook Inlet, AL) . The reason for that timing is clear : EPA cannot subject
the regulated community to the requirements of a new NPDES general permit while, at the same
time, delaying the availability of judicial review of the permit .
Finally, EPA acknowledged in yesterday's Federal Register that attempting to bar judicial review
of this permit after its stated issuance and effective date is unfair and inequitable . EPA stated,
with respect to the application of this challenged permit in the states of Hawaii and Alaska, that :
Under 40 C .F.R. § 23 .2, actions such as today's would by default be considere d
issued for purposes of judicial review two weeks after publication in the Federal
Register. However, in other contexts, affected parties have expressed concern that
deferring judicial review of Agency permits beyond the point at which regulated
entities are obligated to comply with them may compromise judicial review
rights . EPA is therefore exercising its discretion under 40 C .F.R. § 23 .2 to deem
2 The entire presentation is posted on EPA's website at: http://cfpub .epa .gov/npdes/home .cfm?program_id=350 .
3 EPA has done this in the past in different circumstances where a new NPDES general permit was replacing or
reissuing a prior NPDES general permit and the regulated community was, in the interim, operating under
administrative extension of the prior permit and was not subject to enforcement under the new permit while judicial
review was delayed . See, e .g., 73 Fed . Reg . 56572 (Sept . 29, 2008) (Final NPDES General Permit for Stormwater
Discharges From Industrial Activities) . To LCA's knowledge, the timing of EPA's "issuance" of those permits was
not challenged and, therefore, do not serve as precedent for EPA's action with respect to the NPDES permit being
challenged by LCA .
K&L GATE S
Jeffery N. Luthi
United States Panel on Multidistrict Litigation
February 13, 200 9
Page 3
the VGP for Alaska and Hawaii "issued for purposes of judicial review" on the
same date it becomes effective.
74 Fed . Reg. 7042 (Feb . 12, 2009) (emphasis added).
Because the challenged NPDES permit was issued on December 18, 2008, and effective the next
day, LCA's petition in the D.C. Circuit at No . 09-1001 was timely and, moreover, was the only
petition filed within the ten-day period after issuance of the challenged permit . EPA should be
directed by the Panel to fi le its record in the D .C. Circuit .
We respectfully request that this letter be included with the docket and that the Panel consider
this submission in its deliberations .
Thank you for your attention to this ma tter.
Sincerely ,
eaw g/6~v P~q~~
Barry M. Hartman
Christopher R . Nesto r
Enclosure s
c : M. McDermott
EXHIBIT A
K&LIGATES
K&L G,ites aN
1601 K Street NW
Washington, DC 20006-160 0
202 .778 .9000
January 26, 2009
www .klgatos .co m
Barry M . Ha rt man
D 202 .778 .933 8
F 202 .778 .9100
b arry . ha rt man @ki8ates .com
VIA HAND DELIVER Y
Jeffery N. Luthi
Clerk of Panel
United States Judicial P anel on Multidistrict
Litigation
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N .E.
Room G-255
North Lobby
Washington, DC 20002
Re :
Lake Carriers'Association v. Johnson, D.C. Circuit Nos . 09-1001,
09-1010 (filed January 5, 2009 )
Dear Mr. Ltithi :
We represent the Lake Carriers' Association (LCA) in connection with a petition for
review of a permi tting action by the U .S . Environmental Protection Agency (EPA) that is
pending the U .S. Court of Appeals for the D .C. Circuit . This letter is written at the
suggestion of one of your staff regarding a matter that might come before the panel .
As explained on the attached letter sent to the Department of Justice, this concerns
several petitions for review of action taken by the EPA . Pursuant to section 509 of the
Federal Clean Water Act, 33, U .S.C . §1369, the petition referenced above was filed in the
D .C. Circuit on January 5, 2008, and served on the EPA, within ten days of when judicial
review was permitted ; Three others were filed in several circuit courts after the initial 10-day
period .
Northwest Environmental Advocates, et al. v. EPA (9th Cir . No. 09-70115, file
January 12, 2009); Lake Carriers' Association v . Johnson, D.C. Circuit Nos., (D.C. Circuit
09-1010, filed January 12, 2009) ; Natural Resources Defense Council, Inc . v. EPA (2nd Cir.
No. 09-0244, filed January 16, 2009) .
We believe the Department of Justice, which represents EPA, may advise the cou rt
that more than one petition was filed and served on it in within the initial ten-day pe riod, and
may seek to invoke the lottery procedure set fo rth in 28 U .SC. § 2112(a)(3) to determine in
which court the record in this case should be filed. We believe doing so would be in error.
DC-1292283 v3
K& L I GATE S
Jeffery N. Luthi
January 26, 2009
Page 2
Under the current circumstances, the record is required to be filed in accordance with 28
U.S.C. § 2112(a)(1) . The reasons why we believe the Department is obligated to follow 28
U .S .C . § 2112( a) and file the record in the D.C Circuit, are largely set forth in the a tt ached
letter sent to the Department today . Should the Department seek to invoke 28 U .S .C. §
2112(a)(3), we respectfully request the opportunity to more fully address why that would be
incorrect.
Thank you for your attention to this matter.
Sincerely,
A~' - Wk1~0PICZ--
Barry M. Hartman
Christopher Nesto r
Enclosure
K&L I GATES
k&t Cates uN
1601 K 5troet NW
Washington, DC 20006 160 0
i 202 .x78 . 9000
January 26, 2009
www .kIptes .imn
Barry M . Hartman
D 202 .778 .9338
F 202 .778 .9100
b arry .hartman@klgates .com
VIA EMAIL ONL Y
Mr. Martin McDermott
Senior Trial Counsel
Environmental Defense Section
U.S. Department of Justice
Environmental and Natural Resources Division
950 Pennsylvania Avenue, N .W .
Room 214 1
W as hington, D.C. 2053 0
Re : Lake Carriers' Association v . Johnson, D.C. Circuit Nos. 09 -1001, 091010 Petitions for Review - National Pollutant Discharge Elimination
System ("NPDES") Vessel General Permit (VGP) issued December 18,
2008, 73 Fed . Reg. 79473 (December 29, 2008)
Dear Martin :
As we discussed, our firm represents the Lake Carriers' Association (LCA) in
connection with the above referenced petition of review filed in the U .S . Court of Appeals for
the D.C. Circuit . As I discussed with you last week, the purpose of this letter is to confirm the
Department's intention regarding the filing of the record in the D .C. Circuit in accordance with
its obligations set forth in 28 U .S .C . §2112(a)(1), and that the Department will seek to have all
other petitions pending in other circuits transferred to the D .C. Circuit .
LCA filed its initial petition (D .C. Cir. No 09-1001) on January 5, 2009 . It has also
come to our attention that at least two other petitions for review of the VGP have been filed,
one in the U .S. Court of the Appeals for the Ninth Circuit on January 12, 2009, and the other in
the U.S. Court of Appeals for the Second Circuit on January 16, 2009 . See Northwest
Environmental Advocates, et al. v. EPA (9`h Cir. No. 09-70115); Natural Resources Defense
Council, Inc . v. EPA (2°d Cir. No. 09-0244) .
K & L I GATE S
Mr. Martin McDermott
January 26, 200 9
Page 2
As you know, 28 U.S.C. §2112(a)( 1) provides :
If within ten days after the issuance of the order the agency, board,
commission, or officer concerned receives, from the persons instituting the
proceedings, the petition for review with respect to proceedings in only one
court of appeals, the agency, board, commission, or officer shall file the
record in that court notwithstanding the institution in any other court of
appeals of proceedings for review of that order .
For purposes 28 U .S.C . §2112, the VGP for which review is sought was issued on
December 18, 2008 . Pursuant Fed. R. App . P . 26, the ten-day period subsequent to that
issuance date ended on January 5, 2009 . To our knowledge, LCA's January 5, 2009 petition
for review of the VGP filed in the D .C. Circuit and served on you on that date, was the only
such petition filed on or before January 5, 2009 . Accordingly, the Department is obligated to
file the record for this appeal in the D .C. Circuit, notwithstanding the filing of other petitions in
other circuit courts, and those other petitions (and any future ones filed within 120 days of
issuance of the VGP), should be transferred to the D .C. Circuit .
Section 509 of the Clean Water Act ("CWA") provides that judicial review of the VGP
may be had by filing a petition for review within 120 days of "issuance" of the permit . 33
U.S.C. §1369. The VGP itself and EPA's website notice speci fically and unequivocally
provided that the permit was "issued" by EPA on December 18, 2008 and, moreover, became
"effective" on Decemberl9, 2008.See http://cfpub.epa.gov/npdes/home .cfin?program_id=35 0.
The agency confirmed this in its Federal Register notice of December 29, 2008 . See 73 Fed.
Reg. 79473 (Dec . 29, 2008).
After specifically announcing that the VGP was issued on December 18 and effective
on December 19, EPA indicated in its December 29, 2008 Federal Register notice that,
pursuant to 40 C .F.R. §23 .2, the VGP would be issued for purposes of Section 509 of the Clean
Water Act at "1 :00 p. m. eastern time (standard or daylight, as appropriate) on . . . the date that
is two weeks after the date when the document is published in the Federal Register . . . ." 73
Fed. Reg. 79473. It is untenable for EPA to take the position that it may have a permit that is
"issued" and "effective" for the regulated community, yet not "issued" for purposes of judicial
review until sometime thereafter. That is, EPA may not, under 40 C .F.R. §23 .2 or the CWA in
these circumstances, lawfully impose a permit obligation on the regulated community and at
the same time, prevent the regulated community or other interested parties from obtaining
judicial review of that permit obligation . Additionally, 40 C .F.R. §23 .2 provides that its timing
provisions do not apply where the Administrator otherwise explicitly provides an issuance
date. Here, the Administrator otherwise explicitly provided that it the VGP was issued on
December 18, 2008 and effective on December 19, 2009.
K&L I GATE S
Mr. Martin McDermott
January 26, 2009
Page 3
No court has ever upheld the application of 40 C .F.R. §23 .2 to defer judicial review
until after the action being reviewed is already issued and effective . In fact, at least one court
has expressly rejected such a notion . In Virginia Electric Power Company v . EPA, 610 F.2d
187 (4" Cir . 1979), the agency had promulgated regulations under the CWA, which were
subject to judicial review under section 509 of the Act, just as the VGP permit is here . The
regulations at issue in Virginia Power were deemed by EPA to be issued for purposes of
judicial review after they were published in the Federal Register (thus deferring judicial
review), but well before they became effective . See Virginia Power, 610 F .2d at 188; 44 Fed.
Reg. 32854 (June 7, 1979) . The Fourth Circuit held that EPA's use of the deferral mechanism
in Virginia Electric was appropriate, because "the exposure to judicial review commenced
prior to the stated time at which the regulations were to become effective for substantive
purposes." Id. Moreover, the Fourth Circuit specifically said that its approval of EPA's use of
a deferral mechanism to clarify the start date for a judicial review period "does not imply that
an agency may postpone for any period of time past the time of substantive effectiveness of
regulations their exposure to judicial review ." Virginia Electric, 610 F .2d at 189 (emphasis
added). The deferral mechanism at issue in Virginia Electric ultimately was the basis for the
current regulation relied on by EPA here . See 50 Fed . Reg. 7268 (Feb . 21, 1985) .
Here, given the statements made by the EPA on December 18, 2008, and again in the
Federal Register on December 29, 2008, the 120-day judicial review period necessarily started
to run on December 18, 2008 - the date the VGP was, in fact, "issued ." Applying the timing
provisions of Fed. R. App. P . 26, the 10-day period in 28 U.S.C. §2112 expired on January 5,
2009. Because LCA filed its petition for review in the D .C. Circuit on January 5, 2009, and no
others were filed on or before that date, the Department has the obligation to "file the record in
[the D .C. Circuit] . . . notwithstanding the institution in any other court of appeals of
proceedings for review of that order ." 28 U.S.C. § 2112(a)(1) .1 Under these circumstances, it
would be inappropriate for the Department to invoke 28 U .SC. §2112(a)(3), and notify the
Judicial Panel on Multidistrict Litigation that two or more petitions have been filed in different
circuits within the initial ten-day period, because that is not the case . Please notify us
immediately if the Department disagrees and intends to attempt to invoke 28 U .SC. §
2112(a)(3), so that we have an opportunity to advise the court of our position . We further
request that any notification by the agency be accompanied by this letter notifying the panel of
our position .
t
LCA filed a second, protective petition for review (D .C. Cir. No.09-1010), on January
12, 2009, in the event it is determined that EPA's regulation at 40 C .F .R. §2 3 .2 is applicable .
K&LIGATE S
Mr. Martin McDermott
January 26, 2009
Page 4
Please contact me if you should have any questions or wish to discuss this matte r
further.
Sincerely ,
dn~~
Barry M . Hartman
Christopher Nestor
EXHIBIT B
Vessel General Permit (VGP)
Version 2/5/2009
United States Environmental Protection Agency (EPA)
National Pollutant Discharge Elimination System (NPDES)
VESSEL GENERAL PERMIT FOR DISCHARGES INCIDENTAL TO THE NORMAL
OPERATION OF VESSELS (VGP)
AUTHORIZATION TO DISCHARGE UNDER THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTE M
In compliance with the provisions of the Clean Water Act (CWA), as amended (33
U.S.C. 1251 et seq.), any owner or operator of a vessel being operated in a capacity as a means
of transportation who:
• Is eligible for permit coverage under Part 1 .2;
• If required by Part 1 .5.1, submits a complete and accurate Notice of Intent (NOI )
is authorized to discharge in accordance with the requirements of this permit .
General effluent limits for all eligible vessels are given in Part 2 . Further vessel class or
type specific requirements are given in Part 5 for select vessels and apply in addition to any
general effluent limits in Part 2 . Specific requirements that apply in individual States and Indian
Country Lands are found in Part 6 . Definitions of permit-specific terms used in this permit are
provided in Appendix A .
This permit becomes effective on December 19, 2008 for all jurisdictions except Alaska
and Hawaii .
This permit and the authorization to discharge expire at midnight, December 19, 2013
i
Vessel General Permit (VGP)
Version 2/5/2009
Signed and issued this t8 h day of December, 2008
Robert W . Varney ,
Regional Administrator, EPA Regio n
William K . Honker, Acting Director
Water Quality Protection Division, EPA Region
6
Signed and issued this 18"i day of December, 2008
Barbara A . Finazzo, Directo r
Division of Environmental Planning, and
Protection, EPA Region 2
Signed and issued this 18 'h day of December,
200 8
William A . Spratlin, Director
Water, Wetlands and Pesticides Division, EPA
Region 7
Signed and issued this 18d' day of December, 2008
Carl-Axel P . Soderberg, Directo r
Caribbean Environmental Protection Division,
EPA Region 2
Signed and issued this 18" day of December, 2008
Jon M . Capacasa, Directo r
Water Protection Division, EPA Region 3
Signed and issued this 18" day of December, 2008
James D . Giattina, Director
Water Protection Division, EPA Region 4
Signed and issued this 18d' day of December,
2008
Peter Swenson, Acting Director
Water Division, EPA Region 5
Signed and issued this 18th day of December,
2008
Signed and issued this 18d` day of December,
2008
Eddie A. Sierra, Acting Assistant Regional
Administrato r
Office of Partnerships and Regulatory
Assistance, EPA Region 8
Signed and issued this 18th day of December,
200 8
Nancy Woo, Associate Director
Water Division, EPA Region 9
Signed and issued this 1 8 1 n day of December,
2008
Michael Gearheard, Director
Office of Water and Watersheds, EPA Region 1 0
This permit becomes effective on February 6, 2009 for Alaska and Hawaii .
Signed and issued this 2nd day of February, 2009
Alexis Strauss, Directo r
Water Division, EPA Region 9
Signed and issued this 2°d day of February, 2009
Michael A . Bussell, Director
Office of Water and Watersheds, EPA Region 10
ii
EXHIBIT C
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Ryan Albert, U S EPA
2/51,09
77
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December 18, 2008,", - final V GP i
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