Montgomery Environmental Coalition v. Costle

Decision Date08 October 1980
Docket Number79-1576,Nos. 79-1183,s. 79-1183
Citation646 F.2d 568,207 U.S.App.D.C. 233
Parties, 207 U.S.App.D.C. 233, 11 Envtl. L. Rep. 20,211 MONTGOMERY ENVIRONMENTAL COALITION et al., Petitioners, v. Douglas M. COSTLE, Administrator Environmental Protection Agency, Respondent, Washington Suburban Sanitary Commission, Maryland Dept. of Natural Resources, Intervenors. MONTGOMERY ENVIRONMENTAL COALITION, INC., et al., Petitioners, v. Douglas M. COSTLE, Administrator Environmental Protection Agency, Respondent, Prince George's County, Md., Washington Suburban Sanitary Commission, District of Columbia, State of Maryland, Dept. of Natural Resources, Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Richard A. Flye, Washington, D. C., with whom Herbert L. Fenster, Joe G. Hollingsworth, Washington, D. C., and William H. Rodgers, Jr., Pittsburgh, Pa., were on brief, for petitioners.

Nancy J. Marvel, Atty., Dept. of Justice, with whom Angus MacBeth, Acting Asst. Atty. Gen., Donald W. Stever, Jr., Atty., Dept. of Justice, and Diane L. Olsson, Atty., Environmental Protection Agency, Washington, D. C., were on brief, for respondent. James W. Moorman, Atty., Dept. of Justice, and John E. Varnum, Washington, D. C., Atty., Environmental Protection Agency, also entered appearances for respondents.

Henderson J. Brown, Hyattsville, Md., was on brief, for intervenor, Washington Suburban Sanitary Commission, J. Eugene Cleary, Laurel, Md., also entered an appearance for intervenor, Washington Suburban Sanitary Commission.

Richard E. Rice, and Thomas A. Deming, Asst. Attys. Gen., Annapolis, Md., State of Maryland, also entered appearances for intervenor, Maryland Dept. of Natural Resources.

Judith W. Rogers, Corp. Counsel, and John C. Salyer, Asst. Corp. Counsel, Washington, D. C., also entered appearances for intervenor, District of Columbia in No. 79-1576 only.

Richard S. Alper, Upper Marlboro, Md., also entered an appearance for intervenor, Prince George's County, Maryland.

Before MacKINNON, WALD and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

The Montgomery Environmental Coalition and the Center for Environmental Strategy petition this court for review of a decision by the Environmental Protection Agency approving the terms of permits issued to two sewage treatment plants that discharge pollutants into the Potomac River and its tributaries. Petitioners consider the conditions of these permits too lax to protect the water quality of the Potomac, and argue that the five years of administrative hearings on their objections have been tainted by a variety of legal errors. We consolidated these petitions for argument together. In the meantime, the individual permits being challenged here have both expired, and it has become necessary to separate the claims that are now moot from those that remain live controversies.

In his final decision on one of these permit challenges, the Administrator of the EPA confessed his embarrassment at reviewing the terms of a permit on the brink of expiration, and at being unable to take account of more recent information about the conditions of the Potomac. Joint Appendix (hereinafter "J.A.") at 1101. We share to some degree his embarrassment. Courts have always preferred to decide issues of public importance on the basis of a concrete and clear-cut record, with fresh evidence of current validity. But the evidence in a case may lose some of that freshness while running an endless gauntlet of litigation, particularly when judicial review follows several layers of administrative determination. This is such a case. In these circumstances, a court may still find that a party has few other opportunities for review, and that the case is presented in such a form that the lapse of time does not impede proper judicial determination of the merits.

After careful examination, we conclude that one of the petitions in this case has become wholly moot, but that several of the claims in the other petition survive the expiration of the permit, and must be decided. Of these surviving claims, we find that some of petitioners' objections to the permit are well taken.

I. BACKGROUND
A. The Federal Water Pollution Control Act

The history of the Federal Water Pollution Control Act has frequently been traced in opinions construing the statute, e. g., EPA v. State Water Resources Control Board, 426 U.S. 200, 202-09, 96 S.Ct. 2022, 2023-2026, 48 L.Ed.2d 578 (1976); Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692 (D.C.Cir.1975). As that history is relevant to the problems petitioners raise here, it is necessary to repeat some of this oft-told tale.

Pollution of our nation's waters both by industrial by-products and by accumulated human wastes has been a constant accompaniment to our growth. Legal doctrines condemning this pollution and a technological capacity to reduce it have long been available in theory, but the technology was not voluntarily implemented and the legal limitations were rarely enforced. The transformation of the conservation movement into the environmental activism of the 1960s and 1970s spurred a major reevaluation of national policies regarding the natural environment. One important part of that reevaluation was the Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 816 (hereinafter cited as "the Amending Act"; the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. II 1978) as amended, will be cited as "the Act").

The Amending Act established a new and more effective regulatory regime aimed at "restor(ing) and maintain(ing) the chemical, physical, and biological integrity of the Nation's waters." Act § 101(a). 1 The earlier Federal Water Pollution Control Act ("the pre-1972 Act"), first enacted in 1948, and amended on several occasions, 2 had relied on setting water quality goals for interstate waters, but could only enforce these goals through a cumbersome process of conference by federal and state officials, followed by a civil abatement suit against the polluter. See Federal Water Pollution Control Act Amendments of 1961 § 8, Pub.L. No. 87-88, 75 Stat. 204. The Amending Act emphasized the more powerful method of directly controlling the polluting sources. It declares a national goal of totally eliminating discharge of pollutants into our waters by 1985, and an interim goal of making water fit for fish, wildlife, and recreation wherever possible by July 1, 1983. Act § 101(a) (1, 2). In the meantime, the Act sets up a system of government-issued permits for discharge of pollutants, and proscribes the discharge of any pollutant by any person except in compliance with such a permit. Act § 301(a). The permits are to specify, among other things, the precise quantities of pollutants that may be discharged; these quantities are to be reduced over time to achieve the 1983 "fishable-swimmable" and the 1985 "no discharge" goals.

Responsibility for supervising the implementation of the Act was vested in the Environmental Protection Agency (EPA), which had been created in 1970 and had inherited the Secretary of the Interior's authority under the pre-1972 Act. The Administrator of the EPA (the Administrator) has the power to issue a National Pollution Discharge Elimination System (NPDES) permit to any "point source" 3 discharging pollution into the nation's waters. The Amending Act encouraged states to take over responsibility for issuing permits by developing NPDES regulatory systems of their own, subject to the Administrator's approval and supervision.

The core of the new approach is the imposition of "effluent limitations" in the NPDES permits. These effluent limitations are technical specifications of the quantities of various polluting substances that a permittee may lawfully discharge. The limitations are designed to achieve water quality goals by forcing discharges to adopt technology for reducing the pollutant content of their effluents. Until the 1985 "no discharge" rule becomes binding, effluent limits will also reflect some measure of accommodation between water quality needs and economic feasibility. See Act § 304(b)(1)(B), (2)(B). This balance is expressed, in part, in the Act's phased schedule specifying the level of technology that must serve as the basis of effluent limitations. For example, private dischargers are currently judged by the "best practicable control technology currently available," but the standard is to be tightened over the next decade to "best available technology economically achievable." See Act § 301(b)(1)(A), (2)(A). Similarly, publicly owned treatment works are presently judged by a "secondary treatment" standard, but by July 1983 this is to be replaced by the "best practicable waste treatment technology over the life of the works." See Act § 301(b)(1)(B), (2)(B).

Besides this phased technology schedule, effluent limitations are also governed by a state's right to demand purer water than the national standard. The state can embody this judgment in binding "water quality standards" that must be respected in the drafting of the permit. Act § 301(b)(1)(C). The efficacy of effluent limitations is also reinforced by the Administrator's power to impose further conditions in the permit that are designed to assure compliance with those limitations. Act § 402(a)(2).

B. The Seneca and Blue Plains Challenges

The Seneca Creek Wastewater Treatment Plant is a small sewage treatment plant operated by the Washington Suburban Sanitary Commission. It discharges treated sewage into Seneca Creek, a tributary of the Potomac River in Montgomery County, Maryland. The Blue Plains Sewage Treatment Plant is a huge treatment facility located on the Potomac itself, within the District of Columbia, and operated by the District of Columbia Department of...

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