Republic Steel Corp. v. Costle, 76-1557

Citation581 F.2d 1228
Decision Date20 September 1978
Docket NumberNo. 76-1557,76-1557
Parties, 8 Envtl. L. Rep. 20,686 REPUBLIC STEEL CORPORATION, Petitioner, v. Douglas M. COSTLE, Administrator, U. S. Environmental Protection Agency, George R. Alexander, Jr., Regional Administrator, U. S. Environmental Protection Agency, Ned E. Williams, Director, Ohio Environmental Protection Agency, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Eben H. Cockley, Ronald R. Janke, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for petitioner.

Robert V. Zener, Gen. Counsel, Environmental Protection Agency, Washington, D. C., Ray E. McDevitt Barry L. Malter, Thomas A. Pursley, III, Dept. of Justice, Edward J. Shawaker, Washington, D. C., E. Dennis Muchnicki, Columbus, Ohio, for respondents.

George R. Alexander, Jr., pro se.

Before CELEBREZZE, LIVELY and KEITH, Circuit Judges.

CELEBREZZE, Circuit Judge.

This case is before the Court on remand from the Supreme Court for further consideration in light of the Clean Water Act of 1977, P.L. 95-217. In our previous decision we held that the Administrator of the United States Environmental Protection Agency (EPA) had improperly vetoed issuance of a water pollution permit to petitioner Republic Steel Corporation (Republic) for its Canton, Ohio, mill. Republic Steel Corp. v. Train, 557 F.2d 91 (6th Cir. 1977) (hereinafter referred to as Republic Steel I ). 1 Contra, United States Steel Corp. v. Train, 556 F.2d 822, 854-55 (7th Cir. 1977).

The Administrator had objected to the permit, originally proposed by the Ohio Environmental Protection Agency (OEPA), on the ground that it improperly waived a July 1, 1977, statutory deadline for compliance with federal effluent standards. Under § 301(b)(1)(A)(i) 2 of the Federal Water Pollution Control Act as amended in 1972 (FWPCA) industrial dischargers were required to comply "not later than July 1, 1977" with "effluent limitations for point sources (requiring) the application of the best practicable control technology currently available, as defined by the Administrator pursuant to § 304(b)" of the Act. At the time of our previous decision EPA had not yet promulgated final regulations defining "best practicable technology currently available" (BPT) for categories of dischargers including iron and steel manufacturing, despite a requirement in § 304(b)(1) 3 of the Act that such regulations be published by October 18, 1973. 4

We reluctantly concluded that EPA's failure to timely define BPT precluded the Administrator from imposing a July 1, 1977, compliance deadline, since Congress had apparently established promulgation of regulations under § 304(b) as a necessary precondition for imposition of the deadline in § 301(b)(1)(A)(i). Our decision was designed "to relieve the discharger of the unfair consequences" of being forced to comply with the deadline in the absence of applicable standards for guidance. 557 F.2d at 97.

This Court stayed its mandate in Republic Steel I pending the EPA's petition for a writ of certiorari from the Supreme Court. Shortly after EPA filed its petition for certiorari, Congress enacted the Clean Water Act of 1977, which substantially revised FWPCA. In the wake of that enactment, the Supreme Court granted EPA's petition, vacated our judgment in Republic Steel I, and remanded the case to this Court for further consideration in light of the new law. Costle v. Republic Steel Corp., 434 U.S. 1030, 98 S.Ct. 761, 54 L.Ed.2d 778 (1978).

We have reviewed the 1977 Act and conclude that its provisions have effectively overruled our previous decision. Although neither § 301(b)(1)(A) (i), requiring industrial dischargers to achieve BPT no later than July 1, 1977, nor § 304(b), requiring EPA to define BPT by October 18, 1973, were amended by the 1977 Act, Congress did add a new § 309(a)(5)(B) 5 providing as follows:

(B) The Administrator may, if he determines (i) that any person who is a violator of, or any person who is otherwise not in compliance with, the time requirements under this Act or in any permit issued under this Act, has acted in good faith, and has made a commitment (in the form of contracts or other securities) of necessary resources to achieve compliance by the earliest possible date after July 1, 1977, but not later than April 1, 1979; (ii) that any extension under this provision will not result in the imposition of any additional controls on any other point or nonpoint source; (iii) that an application for a permit under section 402 of this Act was filed for such person prior to December 31, 1974; and (iv) that the facilities necessary for compliance with such requirements are under construction, grant an extension of the date referred to in section 301(b)(1)(A) to a date which will achieve compliance at the earliest time possible but not later than April 1, 1979.

The legislative history of this provision makes it abundantly clear that Congress intended the procedure outlined therein to be the exclusive avenue of relief from the dictates of a mandatory and unconditional July 1, 1977, deadline. The Senate Report expressly rejected the rationale of Republic Steel I : 6

Under existing law there are no circumstances that justify a time for compliance extending beyond July 1, 1977. The Administrator can only issue an enforcement order requiring compliance within 30 days or initiate civil or criminal action. Thus, the decision of the U.S. Court of Appeals for the Sixth Circuit in Republic Steel Corporation v. Train et al. and Williams, 557 F.2d 91, (6th Cir. 1977) was an incorrect interpretation of existing law. This amendment responds to the legitimate concern of dischargers who, despite good faith efforts, will not comply with the 1977 requirements. To accommodate this objective, the committee amended section 309(a) of the act to authorize the Administrator in his discretion, to pursue one of two new options with regard to a discharger out of compliance.

The committee believes that a case has been made in our hearings on this bill that some relief from penalties must be granted for those sources which have made a good faith attempt to comply with the deadlines in the statute but for justifiable reasons have been unable to do so. The committee considered but rejected the alternative of providing a case-by-case extension of the deadline set out in the statute. That alternative was rejected because the committee felt that such a case-by-case extension would not only burden the administrative process but that it would provide further opportunity for delay for those sources which are otherwise unable to make a legitimate case for additional time. Consequently, decisions by the Administrator pursuant to this new provision of law should not be the subject of administrative hearings and appeals but rather, if the Administrator feels he cannot determine that a source meets the requirements of section 309(a)(5)(B) that he will immediately proceed under any of the other enforcement options set out in section 309. This authorization of limited flexibility granted to the Administrator will maintain the pressure for compliance while at the same time enabling the Administrator to use his discretion to grant any justifiable extension.

Sen.Rep. 95-370, 95th Cong., 1st Sess. reprinted in 1977 U.S.Code Cong. & Admin.News, pp. 4326, 4385, 4387.

The import of the statute is now plain: the July 1, 1977, deadline cannot be waived by the courts. To the extent that noncompliance occurs despite good faith efforts as defined in § 309(a)(5)(B), relief is available only via discretionary extension of the deadline by the Administrator. 7

Republic urges that mere addition of a new remedial procedure does not change the operation of the rest of the Act as we construed it in Republic Steel I. We are bound, however, to read the amendment together with the original provisions of the Act "as parts of an integrated whole." Markham v. Cabell, 326 U.S. 404, 411, 66 S.Ct. 193, 90 L.Ed. 165 (1945). The unchanged sections and the amendment must generally be given "the most harmonious, comprehensive meaning possible" so that they do not conflict. Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 488, 68 S.Ct. 174, 92 L.Ed. 88 (1947). See also 1A Sutherland, Statutory Construction § 22.35 (1972). To insist on adherence to our earlier view would not only render § 309(a)(5)(B) largely meaningless, but also would defeat Congress' clearly expressed intent in enacting that section.

Moreover, the 1977 Act effectively responds to the concern we expressed in Republic Steel I That a discharger might suffer "unfair consequences" from EPA's failure to timely promulgate relevant BPT regulations. Under prior law the Administrator had no clear statutory authority to extend the July 1, 1977, deadline and a discharger could be subjected to liability without any consideration for the reasons for his noncompliance. 8 The new § 309(a)(5) (B) clearly permits the Administrator to extend the deadline where noncompliance was caused solely by the lack of BPT guidelines. 9

We conclude, then, that the Administrator can properly object under § 402(d) (2)(B) of the Act to a proposed permit for a point source governed by § 301(b) (1)(A)(i) if that permit does not require attainment of BPT by July 1, 1977, unless the Administrator has determined that a time extension is warranted pursuant to § 309(a)(5)(B).

This does not, however, end our inquiry. We must decide whether the 1977 Act may be applied in the context of this case, which was pending before the Supreme Court at the time the new law took effect.

The general rule is that "a court is to apply the law in effect at the time of its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). This principle...

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