# Petition — Bethlehem Steel Corp. v. Quarles

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 975

## Text

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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r ich isinsliitiinastedadnennaedaceabnbonetebehonasonsedondesseseoene 2
rere nisin... «snsastetnemnotusessbedsemendsccsssée 2
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1282%3A1. Public record. Not legal advice.