Bethlehem Steel Corp. v. E.P.A., 939

• Citation: 538 F.2d 513
• Decision Date: 28 June 1976
• Docket Number: No. 939,D,939
• Parties: , 6 Envtl. L. Rep. 20,597 BETHLEHEM STEEL CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY et al., Respondents. ocket 75-4119.
• Court: U.S. Court of Appeals — Second Circuit

Page 513

538 F.2d 513

9 ERC 1027, 6 Envtl. L. Rep. 20,597

BETHLEHEM STEEL CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY et al., Respondents.

No. 939, Docket 75-4119.

United States Court of Appeals, Second Circuit.

Argued April 27, 1976.

Decided June 28, 1976.

David K. Floyd, Buffalo, N. Y. (Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N. Y., on the brief), for petitioner.

Patrick A. Mulloy, Atty., Dept. of Justice, Washington, D. C. (Peter R. Taft, Asst. Atty. Gen., Alfred T. Ghiorzi, Atty., Washington, D. C., on the brief), Steven Schatzow, Atty., E.P.A., Washington, D. C. (Robert V. Zener, Gen. Counsel, Washington, D. C., Warren H. Llewellyn, Atty., E.P.A., New York City, on the brief), for respondents.

Before LUMBARD, WATERMAN and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

Bethlehem Steel Corporation petitions for review of the action of the Environmental Protection Agency (EPA) in partially approving New York State's revised water quality standards. 40 Fed.Reg. 13216 (March 25, 1975); 40 C.F.R. § 120.10. Bethlehem claims that this action was for various reasons inconsistent with the Federal Water Pollution Control Act (FWPCA) and should therefore be set aside. Respondents EPA and its Administrator ¹ dispute these contentions on the merits, and also argue that this court lacks jurisdiction to review this sort of agency action, and that Bethlehem's petition was not timely. We agree with EPA that we lack jurisdiction, and dismiss the petition for review.

I

The FWPCA, originally enacted in 1948, Pub.L. No. 80-845, 62 Stat. 1155, has been amended several times. ² The most recent major statutory change, the Federal Water Pollution Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 816, which was passed over President Nixon's veto, substantially revised, expanded and recodified the FWPCA. 33 U.S.C. § 1251 et seq. The present statute provides for a complex combination of state and federal regulation of water pollution. ³

In this case, Bethlehem seeks review of EPA's action partially approving New York's thermal water quality standards pursuant to section 303 of the FWPCA. 33 U.S.C. § 1313. EPA contends that the courts of appeals lack jurisdiction over such a petition, because section 509(b)(1) of the FWPCA, 33 U.S.C. § 1369(b)(1), ⁴ which provides for review of certain actions of EPA, does not mention the approval or disapproval of state water quality standards pursuant to section 303 as one of the EPA actions that may be reviewed by courts of appeals. In view of the specificity of the judicial review provision, this omission presents Bethlehem with considerable difficulty in establishing jurisdiction in this court. Bethlehem seeks to surmount this hurdle by relying on subdivision (E) of section 509(b)(1), see note 4 supra, which permits court of appeals review of EPA action "approving or promulgating any effluent limitation or other limitation under section 301, 302, or 306," and arguing that state water quality standards are limitations within the meaning of that clause.

The background and legislative history of the 1972 Amendments make this proposition dubious. The drafters of that statute drew a definite distinction between water quality standards and effluent limitations, and were unlikely to have confused the two, or used one term to include the other.

Title III of the FWPCA as amended in 1972 provides for two major types of regulation: "water quality standards" and "effluent limitations." The former controls are provided for in section 303 of the Act, 33 U.S.C. § 1313, and are the type of regulation at issue in this case. Water quality standards made their first appearance in the FWPCA through section 5 of the Water Quality Act of 1965, Pub.L. No. 89-234, 79 Stat. 903. Such standards, under the present Act,

shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.

33 U.S.C. § 1313(c)(2). Before the 1972 Amendments, water quality standards, as the Eighth Circuit has noted, were the "keystone" of the federal pollution control program. "Under that program, if wastes discharged into receiving waters reduced the quality below permissible standards, legal action could be commenced against the discharger." CPC International Inc. v. Train, 515 F.2d 1032, 1034-35 (8th Cir. 1975). See former 33 U.S.C. § 1160(c)(5), repealed by the 1972 Act. This system was subject to criticism for several reasons. Many critics argued that the water quality standards simply were not set high enough. ⁵ More important for our purposes, it was argued that enforcement was inadequate, both because the procedure was peculiarly cumbersome, and because the burden of proving that a particular polluter had caused the water quality to dip below the standards was all but impossible to satisfy. ⁶

It was this dissatisfaction with water quality standards as a method of pollution control that led to the proposal that they be replaced or supplemented with "effluent limitations":

The concept of effluent limitation has been offered as a logical alternative to the water quality standards. Instead of indirectly measuring discharges by their effect on water quality, monitoring equipment would directly measure discharges at their source.

Boston College Note, supra note 5, at 752. See also Statement of Hon. William D. Ruckelshaus, then Administrator of the Environmental Protection Agency, in Hearings on H.R. 11896, House Committee on Public Works (Dec. 7, 1972), reported in 2 Legislative History, supra note 2, at 1182-83. The 1972 Amendments to the FWPCA adopted this proposal, and

changed the emphasis in the statutory scheme of water pollution control from that of regulating the quality standard of the body of water involved to regulating not only the quality standard of the body of water but also the quality of the effluent discharged into the body of water.

E. I. du Pont de Nemours & Co. v. Train, 528 F.2d 1136, 1137 (4th Cir. 1975), cert. granted, --- U.S. ---, 96 S.Ct. 1662, 48 L.Ed.2d 174, 44 U.S.L.W. 3592 (1976) (du Pont I ). Effluent limitations are defined in section 502(11) of the FWPCA, 33 U.S.C. § 1362(11), ⁷ and are established pursuant to sections 301, 304 and 306, 33 U.S.C. §§ 1311, 1314, 1316.

Thus, although water quality standards and effluent limitations are related, see, e. g., sections 301(b)(1)(C) and 302, 33 U.S.C. §§ 1311(b)(1)(C), 1312, permitting effluent limitations to be based on water quality standards, the two are entirely different concepts and the difference is at the heart of the 1972 Amendments.

II

Despite this history, Bethlehem argues that the structure of the Act demonstrates that in this instance "effluent limitation or other limitation under section 301, 302, or 306" includes water quality standards under section 303, and therefore jurisdiction over this action rests in this court.

First, it contends that from sections 301(b)(1)(C) and 502(11) of the FWPCA, 33 U.S.C. §§ 1311(b)(1)(C), 1362(11), it is clear that "effluent limitations" include regulations promulgated by the states as well as by EPA. Indeed, citing the Eighth Circuit's decision in CPC International Inc. v. Train, supra, Bethlehem argues that only the states have authority to issue effluent limitations, and that section 301 does not authorize EPA to issue such limitations. If this view is accepted, Bethlehem argues, the inclusion in section 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E), see note 4 supra, of "approving or promulgating any effluent limitation or other limitation under section 301" among EPA actions that may be reviewed in the courts of appeals would be meaningless unless water quality standards are considered "limitations," which arise "under section 301" because they are designed to meet the goals established in that section.

This argument is fallacious. We have rejected the Eighth Circuit's view of section 301, Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 624-629 (2d Cir. 1976), as have other courts that have faced the issue. E. I. du Pont de Nemours & Co. v. Train, --- F.2d ----, 8 ERC 1718, 1720-22 (4th Cir. March 10, 1976), cert. granted, --- U.S. ---, 96 S.Ct. 3165, 48 L.Ed.2d ----, 44 U.S.L.W. 3738 (1976) (du Pont II ); American Meat Institute v. EPA, 526 F.2d 442 (7th Cir. 1975); American Iron & Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975). If, as we have held, section 301 authorizes EPA to issue effluent limitations, the reference in section 509(b)(1)(E) is readily understandable. Although Bethlehem is correct that the Act does contemplate effluent limitations promulgated by the states, this does not mean that water quality standards, because they are initially issued by the states, must therefore be regarded as effluent limitations. Moreover, even on the Eighth Circuit's view, the reference to section 301 is understandable without reference to section 303. CPC International Inc. v. Train, supra, 515 F.2d at 1043.

Second, Bethlehem argues that the use of the word "approving" in section 509(b)(1)(E) must refer to some action beyond the sections specifically enumerated, because EPA does not "approve" any limitations under any of those sections. The reference must therefore be to water quality standards, which are issued by the states and "approved" by EPA under section 303.

EPA replies that there are indeed actions that may be taken under sections 301, 302 and 306 that can be called "approval." ⁸ But we do not think it necessary to decide whether the actions specified by EPA were what Congress had in mind in using that word. The "approving or promulgating" language was used in the original Senate version of the 1972 Amendments, S. 2770, see 2 Legislative History, supra note 2, at 1713, and was taken over in the somewhat revised version of section 509 passed by the House, which eventually became law. The Senate bill, however, did not contain the section on water quality standards, ...