544 F.2d 657 (3rd Cir. 1976), 75-2452, Bethlehem Steel Corp. v. Train

Docket Nº:75-2452.
Citation:544 F.2d 657
Party Name:BETHLEHEM STEEL CORPORATION, Petitioner, v. Russell E. TRAIN, Administrator of the Environmental Protection Agency, Respondent.
Case Date:November 01, 1976
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 657

544 F.2d 657 (3rd Cir. 1976)

BETHLEHEM STEEL CORPORATION, Petitioner,

v.

Russell E. TRAIN, Administrator of the Environmental

Protection Agency, Respondent.

No. 75-2452.

United States Court of Appeals, Third Circuit

November 1, 1976

Argued Sept. 8, 1976.

As Amended Nov. 10, 1976.

Page 658

John McN. Cramer, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for petitioner.

Peter R. Taft, Asst. Atty. Gen., Alfred T. Ghiorzi, Thomas A. Pursley III, Attys., Dept. of Justice, Robert V. Zener, Gen. Counsel, Barry L. Malter, Atty., EPA, Washington, D. C., John Buffington, Atty., EPA, Philadelphia, Pa., for respondent.

Eben H. Cockley, Ronald R. Janke, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for amicus curiae Republic Steel Corp.; James D. Donohoe, Cleveland, Ohio, of counsel.

Before ADAMS, ROSENN and GARTH, Circuit Judges.

OPINION

ADAMS, Circuit Judge.

This case involves an important question regarding the interpretation of the Federal Water Pollution Control Act (FWPCA). 1 We must determine whether the Environmental Protection Agency (EPA) may issue a permit which would allow dischargers to comply with effluent limitations at a time subsequent to July 1, 1977, the date set forth in the legislation.

I.

FWPCA encompasses a complex statutory scheme that seeks "to restore and maintain the chemical, physical and biological integrity of the nation's waters" in order to achieve a "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." 2

Three interrelated provisions form the heart of the program and are the focus of this litigation. Section 301(b) 3 establishes two stages of effluent limitations. The stage relevant to our present inquiry is the requirement of conformity by July 1, 1977 with "effluent limitations for point sources . . . which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act . . . ." Section 304(b)(1)(A), 4 in turn, mandates the EPA to promulgate guidelines for emissions by certain industries,

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including the iron and steel industry, by October 18, 1973. The third provision, section 402, 5 establishes the National Pollutant Discharge Elimination System (NPDES) permits as the primary means through which effluent limitations are to be enforced. All discharges of pollutants must be authorized by a permit issued by either the EPA or the state environmental authorities. Subsection (a)(1) of section 402 6 states that the permits are to be conditioned on conformity with all applicable requirements of certain other statutory provisions, including section 301. It is further provided that all permits must be issued by December 31, 1974. 7

Thus, the legislative structure is that general standards of pollution control are to be promulgated under sections 301 and 304, and that these standards are then to be implemented in particular cases through the use of section 402 permits.

The sequence of administrative action contemplated by Congress has never taken hold in the iron and steel industry. The section 304 guidelines for that industry were not established by October 18, 1973; indeed, none are in force today. 8 As a result, permits have been issued to iron and steel manufacturers under a clause of section 402(a)(1) that empowers the EPA to grant permits, on an interim basis, before formal guidelines are promulgated. 9

II.

On December 31, 1974, the EPA issued a permit to Bethlehem, pursuant to its stopgap authority, containing effluent limitations and compliance schedules, and requiring attainment of final compliance levels by July 1, 1977. 10 For Bethlehem to meet this deadline it would have to complete extensive construction by April 1, 1977, an accomplishment which Bethlehem has insisted is physically impossible in spite of good faith compliance efforts. 11 The earliest date by which it could meet the prescribed levels would be July 1, 1979. 12 Bethlehem fully pursued its administrative remedies in an attempt to obtain an extension of the compliance date. Although EPA agreed that compliance by July 1, 1977 was not feasible, it ruled at all stages that it was without power under FWPCA to grant an extension. 13

A significant development occurred subsequent to the filing of the petition for review in the present case that bears heavily on the resolution of this proceeding. On June 3, 1976, EPA circulated a memorandum which stated that, in certain instances, it would not undertake enforcement actions against dischargers for failure to meet the July 1, 1977 deadline. 14 Recognizing that some industrial dischargers would be unable to conform, despite good faith efforts, the agency announced that if a discharger did

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not have a final permit, EPA would issue an Enforcement Compliance Schedule Letter (ECSL). The ECSL would specify a program requiring final Stage I effluent limitation levels at some time after July 1, 1977. EPA was careful to note, however, that the permit issued to recipients of an ECSL would contain the July 1, 1977 compliance date. EPA has continued to insist that it is without statutory power to alter the deadline. Rather, the EPA urges that the ECSL program is merely an exercise of its prosecutorial discretion.

In a letter commenting on the impact of the ECSL scheme on the present action, and at oral argument, EPA stated that Bethlehem, having already received a final permit, is not eligible for an ECSL. However, EPA informed us that its stipulation with Bethlehem has the same effect as an ECSL and that enforcement action was, perforce, highly unlikely.

This Court has jurisdiction pursuant to section 509(b)(1) of FWPCA, 15 which provides for review in the courts of appeals of action by the Administrator of EPA "in issuing or denying any permit under section 402." 16 After scrutinizing the contentions of the parties, we have decided that the petition for review must be dismissed.

III.

As the first step in our analysis, we must explore the problem whether this case has become moot. As noted, EPA has told the Court that, because of the stipulation between the parties, it does not contemplate bringing enforcement action against Bethlehem when the projected failure to comply with the July 1, 1977 deadline comes to pass. Since the stipulation, however, does not obviate all the adverse consequences that might be visited upon Bethlehem because of its inability to conform to the deadline date, we conclude that a live case or controversy still exists. 17

Two considerations shape our determination. Although EPA made clear that it had no intention to bring either a civil or a criminal action against Bethlehem, it conceded that it could not foreclose that possibility in the future. A more significant factor affecting the question of mootness, however, is the provision in section 505 of FWPCA 18 for citizen suits against dischargers which fail to comply with the terms of a permit. While a citizen must give the EPA advance notice of his intention to sue, 19 there is no authorization to block a citizen's suit under section 505 even though the agency believes that the suit should not go forward. Thus, the EPA-Bethlehem stipulation would not foreclose the possibility that a citizen could proceed with litigation seeking the imposition of sanctions because of Bethlehem's inability to comply with the statutory deadline. Accordingly, this case cannot be deemed moot and...

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