United States v. Itt Rayonier, Incorporated

This case involves government delay in promulgating water pollution guidelines and industry delay in implementing pollution control technology. Each party asserts that its delay was justified and did not excuse the other’s lack of diligence.

Specifically, the federal Environmental Protection Agency (EPA) and ITT Rayonier (Rayonier) dispute the meaning of a footnote attached to the discharge permit for Rayonier’s pulp mill in Port Angeles, Washington, on the Straits of Juan de Fuca. Because this precise issue was previously litigated in state courts and determined favorably to Rayonier, we find the EPA collaterally estopped from asserting a contrary position in this enforcement action in federal court.

BACKGROUND

In 1972 Congress established the National Pollutant Discharge Elimination System (NPDES) under § 402 of the Federal Water Pollution Control Act (FWPCA). 33 U.S.C. § 1342 . Under this system state agencies, pursuant to an approved state program, may issue water pollution discharge permits. In November’ 1973, the EPA approved Washington’s permit program and transferred permit-issuing authority to the Washington Department of Ecology (DOE). See 39 Fed.Reg. 26,061…