538 F.2d 513 (2nd Cir. 1976), 939, Bethlehem Steel Corp. v. E.P.A.

Docket Nº:939, Docket 75-4119.
Citation:538 F.2d 513
Case Date:June 28, 1976
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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538 F.2d 513 (2nd Cir. 1976)




No. 939, Docket 75-4119.

United States Court of Appeals, Second Circuit

June 28, 1976

Argued April 27, 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

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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.


The FWPCA, originally enacted in 1948, Pub.L. No. 80-845, 62 Stat. 1155, has been amended several times. 2 The most recent major statutory change, the Federal Water Pollution Act Amendments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

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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...

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