District of Columbia v. Schramm, 78-2209
| Decision Date | 18 June 1980 |
| Docket Number | No. 78-2209,78-2209 |
| Citation | 631 F.2d 854,203 U.S. App.D.C. 272 |
| Parties | , 203 U.S.App.D.C. 272, 10 Envtl. L. Rep. 20,520 DISTRICT OF COLUMBIA, a Municipal Corporation, Appellant, v. Jack J. SCHRAMM, Regional Administrator, Region III, U. S. EPA, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia. (D.C.Civil No. 78-0785).
Frederick F. Stiehl, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, John C. Salyer and Richard G. Wise, Asst. Corp. Counsel, Washington, D. C., were on brief, for appellant.
Thomas A. Deming, Asst. Atty. Gen., State of Maryland, Annapolis, Md., with
whom Edward F. Lawson, Asst. Atty. Gen., State of Maryland, Annapolis, Md., was on brief, for appellee Andrews, Director of Maryland Water Resources Administration.
Nancy B. Firestone, Atty., Dept. of Justice, Washington, D. C., with whom James W. Moorman, Asst. Atty. Gen., John E. Varnum and Dirk D. Snel, Attys., Dept. of Justice, and Joan Z. Bernstein, Gen. Counsel, and Diane L. Olsson, Atty., Environmental Protection Agency, Washington, D. C., were on brief, for appellees.
Paul T. Sisson was on brief for appellee Washington Suburban Sanitary Commission.
Charles G. Dalrymple, Silver Springs, Md., and John J. Delaney, Washington, D. C., were on brief for appellee RCTS Charter Ass'n.
Stephen M. Truitt and David G. Burwell, Washington, D. C., were on brief for amicus curiae National Wildlife Federation urging reversal and remand.
Before J. EDWARD LUMBARD, * U. S. Senior Circuit Judge for the Second Circuit, and TAMM and MIKVA, Circuit Judges.
Opinion for the court filed by Circuit Judge TAMM.
Though Rock Creek flows placidly through the Maryland countryside and the heart of Washington, D. C., apprehension about future quality of the creek's water has erupted into a dispute between these two jurisdictions. The District of Columbia (District) sought injunctive and declaratory relief against the United States Environmental Protection Agency (EPA or Agency), the state of Maryland, and their respective officials to revoke the operating permit of an advanced wastewater treatment plant that discharges effluent into the creek. The United States District Court for the District of Columbia denied relief, finding the District had not been harmed by operation of the plant. We agree and in addition conclude that Congress intended limited federal court review of state National Pollution Discharge Elimination System (NPDES) permits. Accordingly, we remand the case to the district court with instructions that it dismiss certain counts of the District's complaint, and we otherwise affirm.
One scar on America's record of technological and economic progress has been the pollution of its air and water. After several ineffective legislative responses to the pollution problem, 1 Congress passed the Water Pollution Control Act Amendments of 1972 (Clean Water Act), Pub.L.No. 92-500, 86 Stat. 816 (current version at 33 U.S.C. §§ 1251-1376 (1976 & Supp. I 1977)), "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." H.R.Rep.No. 911, 92d Cong., 2d Sess. 71 (1972), reprinted in 1 Cong.Research Serv., A Legislative History of the Water Pollution Control Act Amendments of 1972, at 758 (1973) (hereinafter cited as Legislative History). Congress established a goal of "eliminat(ing) the discharge of pollutants into the waters of the United States by 1985 and . . . achiev(ing) water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water to be achieved by 1981." Id.
To reach this goal, Congress has established strict limitations on the discharge of effluents into the nation's waterways. 33 U.S.C. §§ 1311-1328. 2 Congress has created the National Pollution Discharge Elimination System (NPDES) to enforce the limitations. Anyone wishing to discharge effluent into a waterway needs an NPDES permit, which limits the amount and types of pollutants which may be discharged into an affected waterway.
Congress also has enlisted the states in the battle against water pollution. Recognizing "the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution," id. § 1251(b), Congress has let states assume the regulatory duties. A state may apply to the EPA to take responsibility for licensing under the NPDES all discharges into navigable waters 3 within its boundaries. If the state program meets certain requirements, see id. § 1342(b); 40 C.F.R. § 123.1-.62 (1979), 4 the Agency approves the program and suspends its own NPDES licensing program in that state. 33 U.S.C. § 1342(c). The Agency continues to receive copies of applications for NPDES permits and retains the power to veto state NPDES permits. Id. § 1342(d). It may waive this notice requirement, however, id. § 1342(e), and the responsibility for supervising state programs, id. § 1342(d) (3). Congress in this scheme thus placed on the states the burden of administering and approving NPDES applications. 5
Maryland has established its own water quality control program under its Department of Natural Resources and Water Resources Administration to administer requests for NPDES permits. The Regional Administrator of the EPA approved this program in September 1975. In their Memorandum of Agreement, state officials and the Regional Administrator concluded that the state would assume primary responsibility for the NPDES program, and the "Regional Administrator's role (would) be one primarily of issuing guidance, providing financial and technical assistance, and reviewing applications and other program accomplishments (to the extent possible) as required or deemed desirable by the parties involved." Memorandum of Agreement Regarding the NPDES Permit Program Between Maryland Department of Natural Resources and the Environmental Protection Agency, Region III at 2, reprinted in Joint Appendix (J.A.) at 36, 37.
Maryland and the EPA also has established a joint review program for certain NPDES applications. Under this procedure, the Regional Administrator participates more actively in the permit issuance process in conjunction with the state and the applicant. He must concur in the effluent limitations and in any other conditions included in the permit by the state. Once the permit is issued, he again assumes an advisory role.
This particular controversy involves the issuance of an NPDES permit by the state of Maryland to the Washington Suburban Sanitary Commission (Sanitary Commission) to operate for five years an advanced wastewater treatment plant that may discharge up to three million gallons per day of treated effluent into Rock Creek. Officials and developers in Maryland proposed the plant to relieve the overburdened Blue Plains Sewage Treatment Plant by diverting sewage from Blue Plains and discharging the treated effluent into Rock Creek. The plant would allow continued growth in Montgomery County, Maryland, and at the same time give area officials time to devise a permanent solution to metropolitan Washington's acute shortage of sewage treatment capacity.
The Montgomery County Council approved the proposal to construct the plant in July 1975. 6 The Washington Suburban Sanitary Commission then submitted the proposal to the Maryland Water Resources Administration for an NPDES permit. The Water Resources Administration in turn notified the EPA of the application, which designated the application as meriting joint review. During a year-long study of the permit application, Maryland authorities mailed notices of the application to interested parties 7 and published classified advertisements in newspapers announcing public hearings on the application. See J.A. at 251, 257.
After the EPA indicated under its joint review procedures that it had no objections to the project, Maryland issued a permit to the Sanitary Commission on October 4, 1976. Pursuant to 33 U.S.C. § 1311(b)(1)(C) (1976), the permit established limitations on the discharge of effluent that incorporated both federal and more stringent state standards, see 1:1 Md.Reg. 40-41 (1974) (codified at COMAR (Code of Maryland Regulations) 08.05.04.03 (1979)). 8
The District became involved seven months after issuance of the permit. District and Maryland officials exchanged letters and held meetings to resolve differences over the plant, which was under construction during this period. On May 2, 1978, after efforts at accommodation failed, the District filed suit in federal district court seeking declaratory relief and an injunction against the discharge of effluent by the plant into Rock Creek. Named as defendants were the EPA; the State of Maryland; and officials of the EPA, the Washington Suburban Sanitary Commission, and the Maryland Water Resources Administration. 9
The plant began operation on September 14, 1978. Eleven days later, the court held a hearing on the District's complaint and on its consolidated motion for a temporary injunction prohibiting operation of the plant. Both sides presented witnesses and documentary evidence.
On September 25, 1978, the court entered judgment for the defendants. The court held that the plaintiff had
failed to show that it will suffer irreparable injury because of the operation of the (plant); plaintiff has not shown that the discharge of the treated effluent has had or will have an adverse impact on the water quality of Rock Creek or that it will violate the adopted water quality standards for Rock Creek.
District of Columbia v. Schramm, No. 78-0785, at 4 (D.D.C. Sept. 29, 1978), reprinted in J.A. at 449, 452. Having found no harm from the operation of the plant, the court did not resolve...
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