Petition — Bethlehem Steel Corp. v. Quarles

Supreme Court. | 1 8

FFII fF Dp

| JAN 28 1977

IN THE

Supreme Court of the Uni

OcToser TrerM, 1976

RQDAK, N., N. CLERK

2610385

BETHLEHEM STEEL CORPORATION,

Petitioner, a

v.

JOHN QUARLES,

ACTING ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

JOHN MCN, CRAMER

Reep Surrn SHaw & McCLAY

P. O. Box 2009

Pittsburgh, Pa. 15230

Counsel for Petitioner

Dated: January 28, 1977

SMITH BROS, LAW PRINTERS, 620 SECOND AVENUE PITTSBURGH, Pa

TABLE OF CONTENTS

PAGE

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Constitutional and Statutory Provisions Involved... 3

, . 1

Reasons for Granting the Writ 8

e ⸗ ! e. 665560 13

Appendix A

Opinion of the Court of Appeals la

Appendix B

Legal Opinion of the General Counsel of EPA 18a

Appendix C

Decision of the Regional Administrator of Region

r .... 22a

Appendix D

Decision of the Administrator of EPK 25a

Appendix E

Factual Stipulation between the Environmental

Protection Agency and Bethlehem Stee! Corpo-

PREITY” chicollenersesceubnestnbvnsnsssccnsnnnnsancedictensesssstidéeencdéedocios 30a

TABLE OF CITATIONS

CasEs

American Iron and Steel Institute v. BPA, 526 F.2d

K» 5A 6

Republic Steel Corp. v. Train, et al., Docket No. 76

1557 in the Court of Appeals for the Sixth

( eee 9

State Water Control Board v. Train. F. Supp.

0 , 8 ERC 1609 (E. D. Va. 19769)

Union Electric Co, v. EPA, ........ as 49 L.

Ed. 2d 474, 96 8. Ot. 2518 ne 10

Statutes and Rules.

STATUTES AND RULES PAGE

Federal Water Pollution Control Act, As Amended

Section 301(b) 86 Stat, 844, 33 U.S.C, §1311(b)

Section 301 (b) (1) (A) 86 Stat. 844, 33 U.S.C.

CERES CD) CAD CA) ccrcccrcsecccercccvssseescesscomerecvencens

Section 304(b) 86 Stat. 850, 33 U.S.C, §1314(b)

Section 309(c)(1) 86 Stat. 859, 33 U.S.C.

D ̃

Section 309 (e) (3) 86 Stat. 859, 33 U.S.C. 61319

r EA Sa ESE 2 VEE, aioe

Section 309 (d) 86 Stat. 859, 33 U.S.C. 61319 (d)

Section 402 86 Stat, 880, 33 U.S.C, 61342

Section 502 86 Stat. 886, 33 U.S.C. 61362

Section 502(11) 86 Stat. 886, 33 U.S.C. 61362

3

11

Section 505 86 Stat, 888, 33 U.S.C, 613658 9, 10

28 U.S.C. 6125401) —

FEDERAL REGULATIONS

I Roe

Z

40 C. F. R. 5128.36 () . evvvvusaueus 1

OTHER

BNA Environment Reporter, Current Developments

Section, Vol. 7, No. 6 (June 11, 1976)

Environmental Policy Division of the Library of

Congress, A Legislative History of the Water

Pollution Control Act Amendments of 1972, 93

Cong., 1st Sess., (Cong. Print 19733)

IN THE

Supreme Court of the United States

Octosner Term, 1976

BETHLEHEM STEEL CORPORATION,

Petitioner,

v.

JOHN QUARLES,

ACTING ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The Petitioner, Bethlehem Steel Corporation (here-

inafter sometimes Bethlehem“), prays that a writ

of certiorari issue to review the opinion and judgment

of the United States Court of Appeals for the Third

Circuit rendered in these proceedings on November

1, 1976.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

544 F. 2d 657. It also appears at Appendix A infra, p. Ia.

The legal opinion of the General Counsel of the Environ-

mental Protection Agency (hereinafter PA“), the

decision of the Regional Administrator of Region III

of EPA and the decision of the Administrator of EPA

are not reported and appear at Appendix B, C and D

respectively.

Questions Presented.

JURISDICTION

The judgment of the Court of Appeals was entered

on November 1, 1976. The petition was filed less than

90 days from that date. The jurisdiction of the Court

is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the Federal Water Pollution Control

Act Amendments of 1972 require the Administrator

of EPA to impose in a National Pollutant Discharge

Elimination System (“NPDES”) permit a compliance

date of July 1, 1977 for effluent limits based on best

practicable control technology currently available in a

case where it is undisputed that the permittee com-

menced timely design, purchase and installation of con-

trol facilities and is presently engaged in installing best

practicable control technology currently available or

its equivalent and that despite the best efforts of the

permittee, the installation cannot be completed before

July 1, 19797

2. In the event that the preceding question is

answered in the affirmative, do the Federal Water Pol-

lution Control Act Amendments of 1972 deny the per-

mittee due process of law?

3

Constitutional and Statutory Provisions Involved.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

CONSTITUTION OF THE UNITED STATES, AMENDMENT V:

“No person shall. . . be deprived of life, lib-

erty or property without due process of law .. .”

FEDERAL WATER POLLUTION CONTROL ACT:

Section 301(b), as amended 86 Stat. 844, 33

U.S.C. §1311(b):

“In order to carry out the objective of this

Act there shall be achieved—

(1)(A) Not later than July 1, 1977, ef-

fluent limitations for point sources, other than

publicly owned treatment works, (i) which

shall require the application of the best prac-

ticable control technology currently available

as defined by the Administrator pursuant to

Section 304 (b) of this Act... .”

Section 502, as amended 86 Stat. 886, 33 U.S.C.

81362:

Except as otherwise specifically provided,

when used in this Act:

(11) The term ‘effluent limitation’ means

any restriction established by a State or the

Administrator on quantities, rates, and concen-

trations of chemical, physical, biological, and

other constituents which are discharged from

point sources into navigable waters, the

waters of the contiguous zone, or the ocean,

including schedules of compliance.”

Statement of Facts.

STATEMENT OF FACTS

This matter arises out of a petition for review filed

in the United States Court of Appeals for the Third

Circuit by Bethlehem seeking review of the action of

the Administrator of EPA in issuing an NPDES water

discharge permit for Bethlehem’s iron and steel manu-

facturing facilities located in Bethlehem, Pennsylvania.

The permit was issued pursuant to Section 402 of the

Federal Water Pollution Control Act Amendments of

1972, 86 Stat. 880, 33 U.S.C. §1342.* The Administrator

has stipulated that through no fault of its own, Bethle-

hem cannot meet the compliance date which he has

placed in the permit for certain effluent limitations. The

text of the stipulation is set forth in Appendix E, p.

30a, infra.

The NPDES permit in question was issued to Beth-

lehem for its Bethlehem plant on December 31, 1974,

following a public hearing held on December 13, 1974.

At the hearing Bethlehem proposed a compliance sched-

ule for the completion of 22 projects involved in design-

ing, purchasing and installing facilities required to meet

the effluent limitations contained in the permit. The

total cost of the project was then estimated at $27

million.** The schedule was in phases and called for

completion of Phase I by January 1, 1979 and Phase II

by July 1, 1979. The permit which was issued, however,

required that final permit conditions be met no later

than July 1, 1977. On January 16, 1975, Bethlehem re-

*Hereinafter the Federal Water Pollution Control

Act as amended by the Federal Water Pollution Con-

trol Act Amendments of 1972, will be referred to as

“the FWPCA”,

At the present time the total cost of the project is

estimated at $40 million.

Statement of Facts.

quested an adjudicatory hearing pursuant to 40 C. F. R.

§125.36 with regard to the imposition of the July 1, 1977

compliance date. The hearing was granted and on May

29, 1975 the issue of the authority of the Administrator

to issue an NPDES permit which required achievement

of effluent standards based on best practicable control

technology at a date after July 1, 1977 was referred to

the General Counsel of EPA for decision in accordance

with the procedure set forth in 40 C.F.R. §125.36(m).

On July 24, 1975 the General Counsel issued his de-

cision in which he held that the Administrator has no

discretion to extend the date for compliance with such

effluent limitations beyond July 1, 1977 (Appendix B.,

p. 18a). On August 21, 1975 the Regional Administrator

of Region III of EPA adopted the legal decision of the

General Counsel and refused relief to Bethlehem (Ap-

pendix C, p. 22a). Bethlehem filed a timely request for

review by the Administrator in accordance with 40

C. FR. §125.36(n). On September 30, 1975 the Adminis-

trator affirmed the decision of the Regional Adminis-

trator (Appendix D, p. 25a). On December 29, 1975

Bethlehem filed its petition for review of the decision

of the Administrator in the United States Court of

Appeals for the Third Circuit. On November 1, 1976 the

Court of Appeals issued its decision, to which this peti-

tion is directed, affirming the decision of the Adminis-

trator (Appendix A, p. 1a).

As noted, Bethlehem’s permit was not issued until

December 31, 1974. The FWPCA provided in Section

304(b) that EPA would publish regulations setting

forth guidelines for effluent limitations which would

include a specification of factors for use in determining

the best measures for compliance with Section 301(b)

of the FWPCA. EPA divided the steel industry into two

Statement of Facts.

segments or phases for the purpose of promulgating

guidelines. Phase I included the facilities involved in

basic iron and steel production. Phase II included steel

finishing operations. Both Phase I and Phase II facili-

ties are included in the Bethlehem plant.* At the time

the permit in question was issued to Bethlehem, EPA

had not yet promulgated guidelines defining best prac-

ticable control technology for Phase II of the Iron and

Steel Manufacturing Point Source Category. Although

guidelines had been promulgated defining best prac-

ticable control technology for Phase I of the Iron and

Steel Manufacturing Point Source Category on June 28,

1974, they were the subject of a pending appeal to the

United States Court of Appeals for the Third Circuit

and ultimately were set aside and remanded in an opin-

ion reported as American Iron and Steel Institute v.

EPA, 526 F.2d 1027 (3rd Cir. 1975). Thus the limits

which Bethlehem is required to meet at the Bethlehem

plant were not established until December 31, 1974 in

accordance with the terms and conditions of the permit

in question.

Despite the fact that Bethlehem had consistently

indicated that it could not complete the installation of

the facilities contemplated by the permit until July 1,

1979, the permit required completion by July 1, 1977.

The parties have entered into a stipulation, attached as

Appendix E, which confirms that Bethlehem had begun

designing its control facilities during the pendency of

its permit application and that Bethlehem diligently

proceeded with the completion of final plans and the

There is no relationship between EPA’s Phase I

and Phase II guidelines and Phase I and Phase II of

Bethlehem’s control plan referred to at p. 4, supra.

The use of the same term is purely coincidental.

Statement of Facts.

initiation of construction during the pendency of its

administrative appeals. The stipulation states in para-

graph 9 that:

“9. Petitioner began designing the projected

pollution control facilities for the Bethlehem plant

during the pendency of its permit application, based

upon its expectations regarding the final limita-

tions which EPA would impose. Petitioner has dili-

gently proceeded with the completion of final plans

and the initial stages of construction despite the

pendency of its appeal of the permit as issued. No

delay in implementation of petitioner’s plans has

been occasioned by petitioner’s reluctance to pro-

ceed.”

The stipulation of the parties in this case also estab-

lishes that Bethlehem is in fact installing technology

which is, or is the equivalent to, best practicable con-

trol technology currently available. It establishes that

the installation will not be complete before July 1, 1979

and that it is through no fault on the part of Bethlehem

that the technology cannot be installed by July 1, 1977.

‘Paragraph 10 of the stipulation provides:

“10. Petitioner has prepared a detailed engi-

neering and construction analysis of the time re-

quirements for installation of the necessary pollu-

tion control equipment. (See Attachment A.) Re-

spondent has reviewed this information, and the

parties are in agreement that Petitioner cannot

physically complete all necessary facilities prior

to July 1, 1977. The earliest feasible date for com-

pletion of the facilities appears to be July 1, 1979.”*

*Attachment A has not been reproduced as a part

of Appendix E.

Reasons for Granting the Writ.

REASONS FOR GRANTING THE WRIT

The Agency and the Court below have construed

the FWPCA erroneously in a manner which works a

substantial injustice upon Bethlehem and others simi-

larly situated. The parties have stipulated that it is

through no fault on the part of Bethlehem that it can-

not accomplish the task of installing the equipment

necessary to meet the effluent limits contained in its

NPDES discharge permit by July 1, 1977. Despite this

the July 1, 1977 compliance date has been imposed upon

Bethlehem. This administrative act exposes Bethlehem

to substantial penalties. Section 309 (c) (1) of the

FWPCA, as amended, 86 Stat. 859, 33 U.S.C. §1319

(c) (1), provides that:

“Any person who willfully or negligently vio-

lates ... any permit condition . . . shall be punished

by a fine of not less than $2,500 nor more than

$25,000 per day of violation, or by imprisonment for

not more than one year or by both.”

Section 309(c) (3) of the FWPCA, as amended, 86 Stat.

859, 33 U.S.C. §1319(c) (3), provides that:

“For the purposes of this subsection, the term

‘person’ shall mean, in addition to the definition con-

tained in Section 502(5) of this Act, any respon-

sible corporate officer.”

Section 309(d) of the FWPCA, as amended, 86 Stat.

859, 33 U.S.C. §1319(d), provides that:

“Any person who violates . . . any permit con-

dition . . and any person who violates any order

issued by the Administrator under subsection (a)

... Shall be subject to a civil penalty not to exceed

$10,000 per day of such violation.”

Reasons for Granting the Writ.

Finally Section 505 of the FWPCA, as amended, 86

Stat. 888, 33 U.S.C. §1365, provides for citizens’ suits to

enforce permit conditions or force the imposition of civil

penalties provided by the FWPCA. The risk to one in the

position of Bethlehem is great. Under the terms of the

present permit Bethlehem faces exposure to cumulative

penalties in excess of $25 million on the conservative

assumption that the failure to meet all permit limits by

July 1, 1977 results in only one permit violation each

day. If each discharge point or each effluent limitation

is regarded as the subject of a separate violation, the

exposure is much greater.

In addition, Bethlehem does not represent an iso-

lated case. The same problem faces municipal treatment

authorities as shown by State Water Control Board v.

. F. Supp. ........ , 8 ERC 1609 (E.D. Va. 1976),

appeal pending. Similar issues are posed in Republic

Steel Corp. v. Train, et al., currently pending before

the United States Court of Appeals for the Sixth Cir-

cuit at Docket No. 76-1557.

The severity of the problem is evidenced by the

fact that EPA developed a procedure known as the “En-

forcement Compliance Schedule Letter” (“ECSL”’) in an

attemi t to deal with it. BNA Environment Reporter, Cur-

rent Developments Section, Vol. 7, No. 6, p. 241 (June

11, 1976). However, as recognized by the Court below,

this procedure is by its terms inapplicable to Bethlehem

which has completed the administrative review process.

The ECSL is also inadequate to provide a complete solu-

tion to the problem raised by the Administrator’s in-

terpretation that the FWPCA bars a permit allowing

the completion of installation of best practicable con-

trol technology after July 1, 1977. It is inadequate be-

10

Reasons for Granting the Writ.

cause it provides no protection against citizens’ suits

pursuant to Section 505 of the FWPCA, as amended, 86

Stat. 888, 33 U.S.C. §1365, and because it is an exercise

of prosecutorial discretion which may not be binding

on the Agency. Moreover, the fact that under the an-

nounced CSL policy even the most trivial violation of

a permit condition acts to void the BCSL makes it of

little practical value,

Bethlehem submits that EPA's interpretation is

not consistent with the intent of Congress or the lan-

guage of the FWPCA.

It was not the purpose of the FWPCA to require

industry to cease operation, In the Senate debate on the

1972 Amendments, Senator Jennings Randolph, Chair-

man of the Senate Committee on Public Works and a

member of the Conference Committee observed:

“The committee does not want to impose im-

possible goals, nor does it intend to require expendi-

tures so execessive that they would undermine our

economy. Consequently, under the proposed legisla-

tion, controls must relate the economic and social

benefits to be gained with the economic and social

costs to be incurred.” 117 Cong. Rec, 38805 (1971),

Environmental Policy Division of the Library of

Congress, A Legislative History of the Water Pol-

lution Control Act Amendments of 1972, 93 Cong.,

Ist Sess., (Cong. Print 1973) p. 1272.

Unlike the Clean Air Act which rejected consideration

of technical and economic feasibility, Union Electric Co.

„eee . ——— 49 L. Ed. 2d 474, 96 8. Ct.

2518 (1976), the FWPCA expressly contemplates that

consideration of technical and economic feasibility will

11

Reasons for Granting the Writ.

be taken into account, e. g., Section 304(b), as amended,

86 Stat. 850, 33 U.S.C, §1314(b). Thus there is no justi-

fication for construing the FWPCA to require the ac-

complishment of impossible tasks.

Moreover, the express language of the FWPCA con-

tains the authority for EPA to impose a schedule of

compliance in a permit which requires the completion

of the installation of best practicable control technology

currently available on a date after July 1, 1977. Section

301 (b) (1) (A) of the FWPCA, as amended, 86 Stat.

844, 33 U.S.C, §1311 (b) (1) (A), requires a point source

to achieve not later than July 1, 1977 effluent limitations

which shall require the application of best practicable

control technology currently available. Effluent limita-

tion is a defined term under the FWPCA, Section 502

(11) of the FWPCA, as amended, 86 Stat. 886, 33 U.S.C.

$1362, defines effluent limitation as:

“|, any restriction established by a State or

the Administrator on quantities, rates, and concen-

trations of chemical, physical, biological, and other

constituents which are discharged from point

sources into navigable waters, the waters of the

contiguous zone or the ocean, including schedules

of compliance.”

Thus the requirement of Section 301 can be met if, on

July 1, 1977, a source is on an approved and enforceable

schedule of compliance which will require the comple-

tion of installation of best practicable control technol-

ogy as expeditiously as practicable, This realistic inter-

pretation of the FWPCA is available to resolve the ap-

parent dilemma created by the General Counsel's con-

struction of the FWPCA but it was ignored by the Court

below.

12

Reasons for Granting the Writ.

This construction of the FWPCA also avoids the

serious constitutional problem raised by the rulings be-

low, Bethlehem urges that the failure of the Agency to

adopt a liberal and reasonable interpretation of the

FWPCA is an arbitrary and capricious action and a tak-

ing of property without the due process of law guar-

anteed by the Fifth Amendment, The construction of

the FWPCA by the Agency exposes Bethlehem to the

harsh penalties of the FWPCA because of its failure to

complete a task which the Agency has stipulated can-

not be done, Congress cannot be considered to have en-

acted legislation which holds out a false promise of

adequate time for compliance with its demands but in

fact imposes the alternatives of harsh penalties or ter-

mination of operation on those who have exerted the

utmost effort to meet an unattainable deadline, This

conclusion is especially compelling in the present cir-

cumstances where a reasonable interpretation of the

FWPCA is available to avoid such a result. This Court

should rectify the situation in which Bethlehem finds

itself.

— /

13

Conclusion.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the United States

Court of Appeals for the Third Circuit.

Respectfully submitted,

John MeN, Cramer

Reed Smith Shaw & McClay

Counsel for Petitioner

Bethlehem Steel Corporation

Dated: January 28, 1977

APPENDIX A

UNITED STATES COURT OF APPEALS

For Tue Tuirp CEmcurr

NO. 75-2452

BETHLEHEM STEEL CORPORATION,

Petitioner

v.

RUSSELL E. TRAIN, ADMINISTRATOR OF

THE ENVIRONMENTAL PROTECTION AGENCY,

Respondent

Petition for Review of the Order of the Administrator of

the Environmental Protection Agency Dated

September 30, 1975.

Argued September 8, 1976

Before: ADAMS, ROSENN and GartH, Circuit Judges.

JOHN MCN, CRAMER

Reed Smith Shaw & McClay

Pittsburgh, Penna.

Attorneys for Petitoner

Peter R. Tyr,

Asst, Attorney General

ALFrepD T. GHIORZI,

THOMAS A, PurRSLEy III,

Attorneys, Dept. of Justice

Washington, D.C.

Ropert V. ZENER,

General Counsel

2a

Appendia A.

Barry L. MALTER

Attorney, EPA,

Washington, D.C,

JOHN BUFFINGTON,

Attorney, EPA

Philadelphia, Pa.

Attorneys for Respondent

Enn H. COCKLEY

RONALD R. JANKE

JONES, DAY, REAVIS & Pocur

Cleveland, Ohio

Of Counsel:

JAuns D. DoNOHOR

Attorneys for Amicus Curiae

Republic Steel Corporation

OPINION OF THE COURT

(Filed November 1, 1976)

ADAMS, Circuit Judge.

This case involves an important question regarding

the interpretation of the Federal Water Pollution Con-

trol 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 act.

1. 33 U.S.C, §§1251 et seq. (Supp. III 1973).

—ͤ—T—ä— —

0

Appendiz A.

I.

FWPCA encompasses a complex statutory scheme

that seeks to restore and maintain the chemical, physi-

cal 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 require-

ment of conformity by July 1, 1977 with “effluent limita-

tions for point sources . . . which shall require the ap-

plication of the best practicable control technology cur-

rently available as defined by the Administrator pursuant

to section 304 (b) of this Act.. The second provision,

section 304 (b) (1) (A).“ in turn requires the EPA to

promulgate guidelines for emissions by certain indus-

tries, 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

2. Id. 581251 (a). We are providing only a thumbnail

sketch of FWPCA. For more complete descriptions, see

American Iron & Steel Institute v. EPA, 526 F.2d 1027,

1035-42 (3d Cir. 1975); National Resources Defense

82 Inc. v. Train, 510 F.2d 692, 695-98 (D.C. Cir.

1975).

3. 33 U.S.C. §1311(b) (Supp. III 1973).

4. Id. §1314(b) (1) (A).

5. Id. §1342.

4a

Appendiæ 4.

either the EPA or the state environmental authorities.

Subsection (a) (1) of section 4026 states that the

permits are to be conditioned on conformity with all

applicable requirements of certain other statutory pro-

visions, including section 301. It is further provided that

all permits must be issued by December 31, 1974.7

Thus, the legislative structure appears to be that

the 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.® 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

6. Id. §1342(a) (1).

7. Id. §1342(k).

8. In Natural Resources Defense Council, Inc. v.

Train, 510 F.2d 692 (D.C. Cir. 1975), the United States

Court of Appeals for the District of Columbia Circuit

ruled that EPA was under a statutory obligation to

promulgate guidelines for 27 enumerated industries, in-

cluding iron and steel, and ordered EPA to issue these

guidelines as expeditiously as possible. Indeed, it should

be noted that EPA conceded that this was its nsi-

bility. See id. at 704. EPA did issue Phase I guidelines

for the iron and steel industry. However, they were set

aside by this Court in American Iron and Steel Institute

v. EPA, 526 F.2d 1027 (3d Cir. 1975). To this date, EPA

has not published revised Phase I guidelines.

5a

Appendix A.

an interim basis, before formal guidelines are promul-

gated.®

II.

On December 31, 1974, the EPA issued a permit to

Bethlehem, pursuant to its stopgap authority, containing

effluent limitations and compliance schedules, and re-

quiring 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,

something 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 by July 1, 1979.12 Bethlehem fully pursued

its administrative remedies in an attempt to win 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 has occurred subsequent

to the filing of the petition for review in the present

case, that bears heavily on the resolution of this proceed-

9. Section 402 (a) (1) of FWPCA, 33 U.S. C. 81342

(a) (1) (Supp. III 1973) authorizes the Administrator

to issue permits prior to the taking of necessary imple-

menting actions.” In such cases, the permits are prem-

ised upon adherence to “such requirements, such con-

ditions as the Administrator determines | are necessary

to carry out the provisions of this chapter.

10. See NPDES Permit Number PA 0011177.

11. See Stipulation of the Parties U 8-10, App. at

70a-71a.

12. See id. at 71a.

13. These facts have been stipulated to by EPA and

Bethlehem. See App. at 69a-71a.

6a

Appendix A.

ing. 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 an-

nounced that if a discharger did not have a final permit,

EPA would issue an Enforcement Compliance Schedule

Letter (ECSL). The ECSL would specify a program re-

quiring 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 con-

tinued 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 in-

formed 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

14. See 7 BNA Environmental Law Reporter 241-

42. (June 11, 1976).

15. 33 U.S.C. §1369(b) (1) (F) (Supp. II 1973).

7a

Appendiæ A.

“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 contem-

plate bringing enforcement action against Bethlehem

when the projected failure to comply with the July 1.

1977 deadline comes to pass. Since the stipulation, how-

ever, 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. Al-

though 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 ques-

tion 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 the permit. While

a citizen must give the EPA advance notice of his in-

16. Although the EPA granted Bethlehem a permit

in this case, Bethlehem contends that one of the condi-

tions in the permit is premised on an erroneous interpre-

tation of FWPCA. Thus, Bethlehem seeks review of

action taken in issuing a permit.

17. See Preiser v. Newkirk, 422 U.S. 395, 401

(1975).

18. Id. § 1365.

8a

Appendix A.

tention to sue,!9 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 pos-

sibility that a citizen could proceed with litigation seek-

ing the imposition of sanctions because of Bethlehem’s

inability to comply with the statutory deadline. Ac-

cordingly, this case cannot be deemed moot and we

must proceed to the merits.

IV.

At the core of Bethlehem’s argument on appeal is

its contention that, in spite of the legislation’s explicit

provision of the July 1, 1977 deadline, Congress could

not possibly have intended to subject corporations to

sanctions for failing to comply with time limits that

proved to be unattainable. In such circumstances, it

continues, Congress surely would intend for EPA to

have the discretion to grant extensions to companies

which were undertaking good faith compliance ef-

forts.20

19. 33 U.S.C. § 1365 (b) provides that no citizen’s

suit may be filed unless the putative plaintiff has given

the administrator at least 60 days’ notice of his inten-

tion to sue.

20. In a similar vein, Republic Steel Corporation,

as amicus, argues that the EPA’s failure to issue guide-

lines for the iron and steel industry pursuant to the

statutory mandate, see note 8 supra, is another factor

that should lead us to hold that July 1, 1977 is not an

absolutely rigid deadline. Republic maintains that by

requiring that all guidelines be promulgated by October

18, 1973, and all permits issued by December 31, 1974,

Congress indicated that dischargers were to be granted

a minimum amount of “lead time” for planning and

executing compliance strategies. EPA’s tardiness, Re-

9a

Appendix A.

Bethlehem has not based its assertions on the text

of the statute. Instead, in support of its position, it has

directed our attention to several aspects of the legis-

lative history. It states that the Phase I compliance

date in early drafts of the legislation was July 1, 1976,

and that for Phase II, July 1, 1981. Congress, however,

pushed “these dates forward because of the time con-

sumed in completing Congressional action.“ 21 Bethle-

hem insists that this amendment manifests a Congres-

sional concern for the need of industry to have adequate

time to plan and consummate compliance activity. It

further maintains that this sensitivity should be in-

terpreted as permitting the Administrator to bend the

July 1, 1977 requirement when dischargers cannot meet

that date through no fault of their own.

Bethlehem also asserts that the legislative history

contains many statements indicating that Congress was

public asserts, thus entitles it to a reprieve from the

July 1, 1977 deadline. It should be mentioned, however,

thet Bethlehem did receive its permit on December 31,

1974, the last day of the allowable period for permit

issuance. Bethlehem has also brought EPA’s delay in

promulgating guidelines to our attention, urging that

it buttresses its assertion that Congress wrote many

unrealistic compliance dates into FWPCA. It also sub-

mits that when EPA’s action was challenged, the courts

granted the agency a measure of relief. See Reply Brief

at 6. We note, however, that the D. C. Circuit, in Na-

tional Resources Defense Council, see note 8 supra, ruled

that EPA’s failure to issue iron and steel guidelines

pursuant to the Congressional timetable was improper.

21. See Environmental Policy Division of the

Library of Congress, A Legislative History of the Water

Poliution Control Act Amendments of 1972, 93d Cong.,

Ist Sess., (Comm. Print 1973) at 237. [Hereinafter cited

as Legis. Hist.]

10a

Appendia A.

attentive to the social and economic ramifications of the

standards to be established under 301, 302 and 304 of

FWPCA. In particular, it stresses the observations of

Senator Randolph, a member of the Senate-House Con-

ference Committee. 22

The Committee does not want to impose impossible

goals, nor does it intend to require expenditures so

excessive that they would undermine our economy.

Consequently, under the proposed legislation, con-

trols must relate the economic and social benefits

to be gained with the economic and social costs

to be incurred.“

The draconian consequences of EPA's strict insistence

on the July 1, 1977 deadline, Bethlehem submits, is

inconsistent with Congressional awareness of the un-

welcome economic impact of the overly zealous pursuit

of environmental goals.

Although we are sympathetic to the plight of Beth-

lehem and similarly situated dischargers, examination

of the terms of the tatuse, ond of the lepislative his-

tory of FWPCA and the case law haz convinced us that

July 1, 1977 was intended by Congress to be a rigid

guidepost. The port ons of the legislative history cited

by Bethlehem spea'« to the economic and social conse-

quences of the substance of guidelines established un-

der sections 301, 302 and 304. Indeed, section 304 (b) (2)

(B) explicitly mandates that the Administrator is to

consider social and economic costs in the context of

22. Id. at 1272. See also id. at 350 (remarks of

Representative Blatnik; id. at 244, 352 (remarks of

Representative Harsha).

lla

Appendia A.

assessing the best practicable control technology avail-

able. 23

There are no comparable expressions of concern

with the economic consequences of the July 1, 1977 date.

Instead, all discussion of this date in the legislative

history indicates that Congress viewed it as an inflex-

ible target. The most important statement on the signi-

ficance of the July 1, 1977 deadline was made by

Senator Muskie, the principal author of FWPCA:?4

This does not mean that the Administrator cannot

require compliance by an earlier date; it means that

these limitations must be achieved no later than

July 1, 1977, that they must be uniform and that

they will be final upon the issuance of a permit

under section 402 of the bill.

This view was echoed by Representative Jones, a mem-

ber of the Senate-House Conference Committee :25

It is the intention of the managers that the July 1,

1977 requirements be met by phased compliance

and that all point sources will be in full compliance

no later than July 1, 1977.

The import of these statements is reinforced by a

further portion of the legislative history. H.R. 11896,

the House version of the bill that ultimately became

23. See 33 U.S.C. § 1814(b)(i)(B) (Supp. III

1973) (stating that Administrator shall consider, inter

alia, total cost of application of technology in relation

to the effluent reduction benefits to be achieved from

such application.”

24. See Legis. Hist. at 162.

25. See id. at 231. See also id. at 1278 (remarks of

Senator Bentsen).

12a

Appendia 4.

FWPCA, contained a provision authorizing EPA to ex-

tend the compliance deadline in cases where there was

a showing of hardship upon the discharger.26 The

Senate bill, however, contained no comparable clause.

When the final version of the legislation emerged from

the Conference Committee, it provided no authority

for extension of the deadline for any reason whatsoever,

and FWPCA as enacted also lacks such a mandate. The

failure of a conference committee to include a portion

of a bill proposed in one House is not a conclusive in-

26. Section 301(b) (3) of H.R. 11896 provided:

The Administrator may extend for any point

source the dates prescribed in subparagraphs

(A) and (B) of paragraph (1) of this Sub-

section, No extension or extensions of such date

shall exceed a total of two years from the date

rescribed in such sub aph. Public hear-

ngs must be held by the Administrator in con-

nection with any such extension prior to grant-

ing such extension. No extension shall be

211 unless the Administrator determines

hat it is not possible either physically or legal-

ly to complete the necessary construction with-

in the statutory time limit.

Administration officials 1 supported the inclusion

of such a Russell E. Train, then Chairman of

the Council on Environmental Quality, stated that:

It is our view that a 1976 [later amended to

1977] deadline toward achieving best practic-

able treatment is a reasonable deadline, and

the extension we suggest of 2 years is simp!

designed to recognize that there can be hard.

ship cases that will exist at the termination

of that period of time.

Legis. Hist. at 1175.

13a

Appendia A.

dicium of legislative intent.27 But here, in light of the

other segments of the legislative history, it leads to the

conclusion that Congress did not authorize the EPA to

deviate from the July 1, 1977 deadline for attainment

of Phase I compliance levels.

We are aware that our interpretation of FWPCA

may work a hardship on Bethlehem, which is doing

everything within its powers to achieve the required

levels of effluent limitation as expeditiously as possible.

However, the cases in general, and in the environmental

field in particular, teach that the appropriate body from

which to seek relief in situations such as the present

one is the Congress.28 Two recent decisions interpreting

ecology statutes will illustrate this proposition.

The Supreme Court examined a comparable prob-

lem in Union Electric Co. v. EPA, 29 a case which arose

under the Clean Air Act. In Union Electric, the Court

held that the EPA may not reject a state implementa-

tion plan on the grounds of economic and technological

27. See Gemsco, Inc. v. Walling, 324 U.S. 244, 264-

65. But cf. Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 609 (1952) (Frankfurter, J., concurring)

(“It is one thing to draw an intention of Congress from

general language and to say that Congress would have

explicitly written what is inferred, where Congress has

not addressed itself to a specific situation. It is quite

im ible, however, when Congress did specifically

address itself to a problem . . to find secreted in the

interstices of legislation the very grant of power which

Congress consciously withheld.” )

28. See, e.g., In re I. J. Knight Realty Corp., 501

F.2d 62, 67 (3d Cir. 1974); Mathey v. United States

491 F.2d 481, 487 (3d Cir. 1974).

29. 44 U.S.L.W. 5060 (1976).

14a

Appendia A.

infeasibility.2° The Court acknowledged that harsh con-

sequences could ensue under such an interpretation, but

stated that this was a risk that Congress had opted to

take, and that it was not for the Courts to upset that

Congressional decision. 31 Union Electric appears to in-

dicate that the Supreme Court is willing to construe en-

vironmental statutes in a manner that may impose

major burdens on polluters, and if the plain language

of the applicable legislation so indicates, relief from

such hardships must flow from Congress. 2

The decision in State Water Control Board v.

Train, 8 reflects an approach similar to that taken in

Union Electric in the context of a factual situation

closely resembling the one in this case. Section 301(b)

(1) of FWPCA4* requires that publicly-owned sewage

treatment plants must comply with certain effluent limi-

tations by July 1, 1977. The Act®5 states that the federal

government will provide 75% of all funding required

for construction of municipal treatment facilities. For

a variety of reasons much of the funding was not made

available to local governments, This resulted in many

30. Id. at 5065.

31. Id. at 5066. See also id. at 5067 (Powell, J.,

concurring).

32. See also City of Santa Rosa v. EPA, 534 F.2d

150 (9th Cir, 1976), where the Ninth Circuit upheld

EPA gas rationing regulations in spite of the severe

economic and social displacement that would be im-

posed upon certain areas of California. The Court ex-

pressed serious concern about the consequences of the

regulations, but stated that any ameliorative action

would have to come from Congress. Id. at 155.

33. 8 E. R. C. 1609 (E.D. Va. 1976).

34. 33 U.S.C. (1311 (b) (1) (Supp. III 1973).

35. Id. § 1282.

15a

Appendia A.

publicly-owned treatment plants being unable to meet

the July 1, 1977 deadline, The Virginia State Water Con-

trol Board brought suit for a judgment declaring that

the affected sewage treatment plants did not have to

meet the compliance date. The Board urged that Con-

gress must have intended to link compliance with the

deadline to the availability of the federal funds.

Judge Mehrige’s opinion expressed sympathy for

the predicament in which the municipalities had been

placed by the federal government's failure to meet its

statutory responsibility. But he ruled that there was

no warrant in the legislation for granting an extension

of the compliance date.*® The proper organ of govern-

ment to extricate the local governments from their dif-

ficulties, Judge Mehrige stated, was not the courts, but

Congress.

Accordingly, on the basis of the legislative history

and the adjudicated cases, we hold that the EPA is with-

out authority to grant an extension, in NPDES permits,

of the July 1, 1977 date. 37

36. 8 E. R. C. at 1612, 1616, 1617.

37. The final report of the National Commission

on Water Quality specifically recommends that the

Congress authorize extensions of the July 1, 1977 dead-

— Ia appropriate cases. Report to the Congress by the

National ommission on Water Quality, March 18, 1976,

at 15.

16a

Appendia 4.

V.

Bethlehem has also asserted that if FWPCA is con-

strued to require compliance by July 1, 1977, the Act,

then, deprives it of the due process of law guaranteed

by the fifth amendment. It would appear, however, that

the federal government's power over interstate com-

merce is sufficiently broad to encompass this effort to

confront the pressing problem of improving the quality

of our nation’s waters.

We have examined the other contentions raised by

Bethlehem and the amicus and find them to be without

merit, The petition for review will therefore be dismissed.

TO THE CLERK:

Kindly file the foregoing opinion.

ARLIN M. ADAMS

Circuit Judge

DATED:

17a

Judgment.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 75-2452

BETHLEHEM STEEL CORPORATION,

Petitioner

v.

RUSSELL E. TRAIN, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY,

Respondent

ON PETITION FOR REVIEW OF THE ORDER OF

THE ADMINISTRATOR OF THE ENVIRONMENTAL

PROTECTION AGENCY

Present: ADAMS, ROSENN and GARTH, Circuit Judges

Judgment

This cause came on to be heard on the certified index

to the record from the Administrator of the Environ-

mental Protection Agency and was argued by counsel.

On consideration whereof, it is now here ordered

and adjudged by this Court that the petition for review

be, and the same is hereby dismissed. Costs taxed against

the petitioner.

ATTEST:

THOMAS P. QUINN

Clerk

November 1, 1976

18a

Appendiz B.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C. 20460

Decision of the General Counsel on Matters of Law

Pursuant to 40 CFR §125.36(m)

No. 26

In the matter of National Pollutant Discharge Elimi-

nation System for Bethlehem Steel Corporation, Bethle-

hem, Pennsylvania (PA 0011177), the Presiding Officer

has certified one issue of law to the General Counsel for

decision pursuant to 40 CFR §125.36(m) (39 FR 27078,

July 24, 1974). The parties, having had the opportunity

to provide written briefs in support of their respective

positions, present the following issue:

IssuE OF LAW No. I

Question Presented

“May the Environmental Protection Agency estab-

lish an effective date for final permit conditions later

than July 1, 1977, where final permit conditions are based

upon the best practicable control technology currently

available and on water quality standards?”

Conclusion

Section 301, subsections (b) (1) (A) and (b) (1) (C)

of the Federal Water Pollution Control Act, as amended

(the “Act”), while representing an interim step in the

achievement of the goals of the Act set forth in section

101, clearly requires the achievement, by July 1, 1977,

of effluent reductions based on the more stringent re-

quirements of either section 301 (b) (1) (A) or section

301(b)(1)(C) of the Act. The Administrator has no

discretion to extend the date of compliance.

—— —

19a

Appendiæ B.

Discussion

The applicant urges that the requirements of section

301 (0) (1) (A) and (C) are merely interim steps in

achieving the ultimate goals of the Act set forth in

section 101, and that in view of the Administrator's

delay in the implementation of certain provisions of the

Act i, the “Act does not arbitrarily establish July 1, 1977

as the compliance date for all sources or the Act is an

unconstitutional deprivation of due process.” (Brief of

Bethlehem Steel, page 8). The applicant does not state

which conditions in its permit derive from effluent regu-

lations promulgated pursuant to sections 301 and 304,

which from water quality or other considerations of

301 (b) (1) (C), or which have been derived ad hoc

pursuant to section 402(a) (1).

The gravamen of the applicant’s complaint here is

that due to administrative delays, it will be unable to

achieve the effluent reductions required by section 301,

as implemented in the permit, by July 1, 1977 and that

it should therefore be permitted to achieve the required

effluent reductions in 1978 or 1979. I cannot agree with

this conclusion.

First, the Agency has promulgated effluent regu-

lations applicable to a portion of the applicant’s dis-

charge. 40 CFR §420.40 et seq.2 These regulations set

1. The delay alluded to concerns the promulgation

of the “Phase II” effluent regulations for the Iron & Steel

Manufacturing Point source category.

2. The “Phase I” Iron & Steel regulations were

promulgated on June 28, 1974 (39 Fed Reg 24114). A

plicant has challenged these regulations in the U.S.

Court of Appeals for the Third Circuit and has requested

that the Court stay their ge Bethlehem Steel

Corporation et al v. EPA, No. 74-1642.

20a

Appendiz B.

forth, as of the date of their promulgation, a definition

of the reductions in discharge which must be achieved

by July 1, 1977 in order to constitute the “best practi-

cable control technology.” The permit applicant here

does not appear to be challenging the promulgated reg-

ulation applicable to its discharge but only the date by

which it must be met. The regulation, however, merely

defines, for particular industrial subcategories what

Congress has directed to be achieved by that date. Thus,

insofar as this question relates to the achievability of

the effluent regulations by July 1, 1977, the argument

must be viewed as a challenge to the regulation itself

rather than the date by which it is to be achieved. Getty

Oil Company v. Ruckleshaus, 467 F.2d 349 (3rd Cir.

1972), cert den. 93 S. Ct. 937 (1973). We have previously

held that this proceeding is not available as a forum to

challenge promulgated effluent regulations. See Opin-

ions of the General Counsel Numbers 3 (March 6, 1975)

and 23 (July 3, 1975).

With respect to those portions of the permit which

may have been derived from requirements imposed pur-

suant to section 301(b) (1) (C), Opinions of the General

Counsel Numbers 13 (May 19, 1975) and 14 (May 21,

1975) conclude that EPA is required to include condi-

tions in its permits requiring compliance with section

301(b) (1) (C) by July 1, 1977.

To the extent portions of the permit neither have

been derived from effluent regulations promulgated pur-

suant to sections 301 and 304 nor required pursuant to

section 301(b) (1) (C), Opinions of the General Counsel

Numbers 1, (September 5, 1974) and 3 (March 6, 1975),

conclude that in issuing permits prior to the promulga-

tion of effluent regulations pursuant to section 304, a

— j ́ ⁊̃́ ;. rene teed

21

Appendiæ B.

determination of what constitutes best practicable con-

trol technology is a factual issue to be resolved in the

administrative process pursuant to section 402 (a) (1).

Thus, section 301 compels that its substantive re-

quirements be achieved by July 1, 1977. This is the clear

language and meaning of the statute. “If the language

admits of not more than one meaning, the duty of in-

terpretation does not arise Caminetti v. United

States, 242 U.S. 470, 485 (1917). There is, accordingly,

no need to refer to the legislative history.

ROBERT V. ZENER

General Counsel

Dated: July 24, 1975

Appendiæ C.

APPENDIX C

_ UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

REGION III

Curtis Building

6th and Walnut Streets

Philadelphia, Pennsylvania 19106

DECISION OF THE REGIONAL ADMINISTRATOR

IN THE MATTER OF: .

National Pollutant Discharge Permit

Elimination System Number:

Permit for: PA 0011177

Bethlehem Steel Corporation Docket

Bethlehem Plant Number:

701 E. Third Street PA-AH-0058

Bethlehem, Pennsylvania 18016

FINDINGS OF FACT

1. In a letter dated January 16, 1975, and signed

by H. F. Miller, General Manager, Bethlehem Plant,

Bethlehem Steel Corporation (the “permittee”) re-

quested an adjudicatory hearing to consider the terms

and conditions of a National Pollutant Discharge Elimi-

nation System permit which had been issued on Decem-

ber 31, 1974, to the permittee for a discharge at its

Bethlehem plant.

2. The only issue raised by this request for an ad-

judicatory hearing was:

May the Environmental Protection Agency es-

tablish an effective date for final permit conditions

23a

Appendix C.

later than July 1, 1977, where final permit condi-

tions are based upon the best practicable control

technology currently available and on water quality

standards?

3. On May 29, 1975, the question at issue was sub-

mitted to the General Counsel of the Environmental Pro-

tection Agency for decision, pursuant to 40 CFR $125.36

(m) (3).

4. On July 24, 1975, a decision on the issue of law

was issued by Robert V. Zener, General Counsel.

5. No factual or legal question remains to be re-

solved in this matter.

CONCLUSION OF LAW

The Environmental Protection Agency does not

have the statutory authority to establish an effective

date for final permit conditions later than July 1, 1977,

where final permit conditions are based upon the best

practicable control technology currently available and

on water quality standards.

Appendiz C.

ORDER

1. Insofar as the permittee’s letter of January 16,

1975, constitutes a request that the Regional Adminis-

trator modify the subject permit, the request is denied.

2. The permittee’s request for an adjudicatory

hearing is dismissed.

N 3. The subject permit will take effect as originally

issued ten days from the date of this decision, unless

the permittee submits a petition for the Administrator's

review of this decision within that time period, pur-

suant to 40 CFR 5125.36 (m)

Dated: August 15, 1975

DANIEL J. SN ER, III

Regional Administrator

—

Appendiæ D.

APPENDIX D

BEFORE THE ADMINISTRATOR

U. S. ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D. C.

IN THE MATTER OF:

National Pollutant Discharge

Elimination System

Permit For Docket No.

Bethlehem, Pennsylvania Plant § { PA-AH-0058

(Permit No. PA 0011177)

Bethlehem Steel Corporation,

Permittee.

1 Decision of the Administrator

On September 3, 1975, Bethlehem Steel Corporation

(“Permittee”) filed a petition for review of a decision

issued on August 21, 1975, by the Regional Administra-

tor, Region III in the above-captioned proceeding.

The petition recites that on December 31, 1974, the

Regional Administrator, Region III, issued a National

Pollutant Discharge Elimination System (NPDES) per-

mit for Permittee’s Bethlehem, Pennsylvania plant, fol-

lowing a public hearing held on December 13, 1974. At

the hearing, Permittee proposed a compliance schedule

for the completion of some 22 projects involved in de-

signing, purchasing and installing facilities required to

meet the permit effluent limitations, which called for the

completion of Phase I by January 1, 1979, and Phase II

by July 1, 1979. The permit issued on December 31, 1974,

however, requires that final permit conditions be met

no later than July 1, 1977.

Appendix D.

On January 16, 1975, Permittee requested an adju-

dicatory hearing on the following issue:

“May the Environmental Protection Agency es-

tablish an effective date for final permit conditions

later than July 1, 1977 where final permit conditions

are based upon the best practicable control tech-

nology currently available and on water quality

standards.”

On May 29, 1975, the foregoing question was re-

ferred to the General Counsel of EPA as a certified

issue of law, pursuant to 40 CFR 125.36(m) (3). The

General Counsel concluded, in a decision issued on J uly

24, 1975, that Section 301 of the Federal Water Pollution

Control Act, as amended (the Act“):

. . . Clearly requires the achievement, by July 1,

1977, of effluent reductions based on the more strin-

gent requirements of either section 301(b) (1) (A)

or 301(b)(1)(C) of the Act. The Administrator

has no discretion to extend the date of compliance.“

5 The August 21, 1975, decision of the Regional Ad-

ministrator, Region III, adopted the conclusion of law

decided by the General Counsel and found no factual

or legal question remaining to be resolved in this pro-

ceeding. Accordingly, permittee’s requests to modify

the permit and/or convene an adjudicatory hearing were

denied. The subject petition for review of the Regional

Administrator’s decision was filed thereafter within

the prescribed 10 day period.

Permittee takes exception to the conclusion of the

General Counsel (on the same grounds argued in its

brief submitted to the Office of General Counsel in con-

nection with the issuance of the General Counsel’s deci-

—— ͤ ͤ 2 — —

27a

Appendix D.

sion) in the following particulars: (1) the General Coun-

sel's decision addresses the “issue” of whether the efflu-

ent limitations in the permit were based on effluent

guidelines, proposed guidelines, or water quality stand-

ards, which Permittee states is not relevant to the issue

in controversy, i.e., whether the Administrator may ex-

tend the July 1, 1977, compliance date contained in the

Act; (2) the General Counsel’s decision suggests that

- Permittee is challenging the effluent guidelines and the

dates for compliance set forth therein, rather than the

compliance date of July 1, 1977, as set forth in the Act,

which they contend is properly reviewable in an adju-

dicatory hearing since “the compliance date is a con-

dition in the permit as a consequence of the Act and

not as a consequence of regulations ..; and (3) the

General Counsel’s decision does not contain an analysis

of the legislative history of the Act to determine wheth-

er Congress intended that the Administrator have dis-

cretion to extend compliance dates for final compliance

beyond July 1, 1977. In summary, Permittee contends

that the July 1, 1977, compliance date set forth in the

Act “is merely an interim date set by Congress for

achieving the ultimate objectives and goals by 1983 and

1985,” and, as such, may be extended by the Administra-

tor upon a proper showing of inability to comply by

that date.

I have examined the language of the Act, as well

as its legislative history, and am unable to find any basis

to disagree with the conclusion of the General Counsel

that, as a matter of law, the Administrator does not

have authority or discretion under the Act to extend the

July 1, 1977, deadline. The fact that the General Coun-

sel’s decision may have addressed other issues which

Permittee does not consider relevant to the central issue

28a

Appendix D.

raised, does not alter the fact that the central issue—

the mandatory July 1, 1977, deadline—also was decided.

That issue being the only matter for which review

has been requested by the Permittee, I see no need to

prolong this proceeding by requesting additional briefs

and argument on possible varying interpretations of the

Act which might be offered.

Accordingly, the Decision and Order of the Region-

al Administrator, Region III, which relied upon the

aforementioned decision of the General Counsel, is here-

by affirmed and the subject permit, as originally issued,

shall take effect immediately with the issuance of this

decision.

RUSSELL E. TRAIN

Dated: September 30, 1975

ee le —

Certificate.

CERTIFICATE

The foregoing is a true and correct copy of a

Decision of the Administrator, dated September 30,

1975, deposited in the U.S. Mail, certified mail, at Wash-

ington, D.C., addressed to the following:

Daniel J. Snyder, II

Regional Administrator

U.S. Environmental Protection Agency

Region III

6th and Walnut Streets

Philadelphia, Pennsylvania 19106

John V. Buffington, Esq.

Enforcement Division

U.S. Environmental Protection Agency

Region HI

6th and Walnut Streets

Philadelphia, Pennsylvania 19106

Brent W. Robbins, Esq.

Law Department

Bethlehem Steel Corporation

Bethlehem, Pennsylvania 18016

H. F. Miller

General Manager

Bethlehem Steel Plant

Bethlehem, Pennsylvania 18016

MICHAEL K. GLENN

Chief Judicial Officer

Dated: October 1, 1975

Appendix E.

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Bethlehem Steel Corporation

v.

Russell E. Train, Administrator, ‘

United States Environmental

Protection Agency

Civil No.

75-2452

Factual Stipulation

1. The petitioner, Bethlehem Steel Corporation, has

brought this action for review of the decision of the

Administrator of the United States Environmental Pro-

tection Agency, with regard to the issuance of National

Pollutant Discharge Elimination System Permit No.

PA 0011177.

2. The respondent, U.S. Environmental Protection

Agency, believes the administrative record to be de-

ficient, in that it contains no findings by the Agency as

to the following:

a) Whether petitioner is in fact installing pol-

lution control equipment utilizing the best

practicable control technology currently

available;

b) Whether petitioner is installing such

equipment as expeditiously as possible;

) Whether petitioner can be expected to com-

plete the installation of such equipment by

July 1, 1977, as required by NPDES Permit

Number PA 0011177; and

hn lt

le es

31a

Appendiæ E.

d) If petitioner cannot, in fact, complete the

required facilities by July 1, 1977, whether

any of the delay is the result of negligence

or willful delays on the part of the peti-

tioner.

3. In order to clarify the record on these factual

matters, respondent has carefully reviewed petitioner’s

planned pollution control equipment, information pre-

pared by petitioner regarding the various steps required

for the installation of the equipment and the time re-

quired for each step, and the history of petitioner’s

efforts to comply with the Federal Water Pollution Con-

trol Act from the date of passage of the 1972 Amend-

ments to the date of this stipulation. This stipulation

has been prepared for the purpose of eliminating possible

factual issues.

4. No final Effluent Limitation Guidelines have

been issued for Phase II of the Steel industry. The final

effluent limitations included in the permit reflect Phase

I Guidelines (40 CFR §420.10 et seq., 39 Fed. Reg. 24114),

which have been remanded to EPA for further considera-

tion (American Iron and Steel Institute, et al v. EPA,

No. 74-1640, 3d Cir., Nov. 7, 1975), for those parts of

the permit covered by the Guidelines. For those parts of

the permit not covered by the Guidelines, the permit

reflects the best engineering judgment of the staff of the

Environmental Protecticn Agency regarding the levels

of treatment achievable utilizing the best practicable

control technology currently available for those parts

of the Bethlehem plant not covered by Phase I Guide-

lines.

5. Petitioner has already completed installation of,

and has in operation, (1) a bio-oxidation treatment

32a

Appendix E.

facility and firal cooler recirculation facility, on coke

oven waste waters and (2) recirculated blast furnace

waste water treatment facilities, which represent the

best practicable control technology currently available.

In addition, Petitioner has completed installation of

various secondary scale pits and other clarification de-

vices on mills’ wastewaters.

6. Petitioner is in the process of installing an

ammonia distillation system for coke oven wastes, which

is designed to achieve compliance with effluent limita-

tions specified in Phase I steel industry Guidelines. This

is the only equipment remaining to be completed for

those parts of the plant covered by Phase I Guidelines.

Accordingly, for those parts of the plant covered by

Phase I Guidelines, petitioner has installed or is in-

stalling pollution control equipment utilizing the best

practicable control technology currently available, or

the equivalent in terms of pollutant reduction. (See

Attachment A.)

7. Petitioner's plans for treatment of the effluent

from processes in the Bethlehem plant which are not

covered by Phase I Guidelines are as follows: the efflu-

ents from all scale pits in the plant for which additional

treatment is required will be combined and pumped to

deep bed filtration units which are to be constructed.

The filtered water will then be either discharged or re-

turned to the existing pump house for re-use in the plant.

8. Petitioner and respondent agree that the treat-

ment plan outlined in paragraph 7 constitutes the best

practicable control technology currently available for the

effluent from waste sources at the Bethlehem Plant which

will be covered by Phase II Guidelines.

— —

—

~~ —— — — — ee

33a

Appendix E.

9. Petitioner began designing the projected pollu-

tion control facilities for the Bethlehem plant during the

pendency of its permit application, based upon its ex-

pectations regarding the final limitations which EPA

would impose. Petitioner has diligently proceeded with

the completion of final plans and the initial stages of

construction despite the pendency of its appeal of the

permit as issued. No delay in implementation of peti-

tioner’s plans has been occasioned by petitioner’s re-

luctance to proceed.

10. Petitioner has prepared a detailed engineering

and construction analysis of the time requirements for

installation of the necessary pollution control equip-

ment. (See Attachment A.) Respondent has reviewed

this information, and the parties are in agreement that

Petitioner cannot physically complete all necessary

facilities prior to July 1, 1977. The earliest feasible date

for completion of the facilities appears to be July 1,

1979.

Appendiz E.

IN WITNESS WHEREOF, the parties hereto have here-

unto set their hands and seals.

Dated: February 23, 1976

BETHLEHEM STEEL

CORPORATION,

Petitioner

By John McN. Cramer,

Esquire

Reed, Smith, Shaw &

McClay

Union Trust Building

Pittsburgh, Penn-

sylvania 15230

Attorney for Petitioner

UNITED STATES OF

AMERICA, Respondent

By Thomas Pursley,

Esquire

United States Depart-

ment of Justice

Washington, D. C. 20530

Ray McDevitt, Esquire

United States Environ-

mental Protection

Agency

401 M Street, S.W.

Washington, D. C. 20460

John V. Buffington,

Esquire

United States Environ-

mental Protection

Agency

Region III

6th and Walnut Streets

Philadelphia, Pennsyl-

vania 19106

Attorneys for

Respondent