Petition for Writ of Certiorari — Township of Woodbridge v. Township of Franklin Sewerage Authority

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Text

85-2138

No. Supreme Court, U.S.

| FILED

In The JUN 26 1988.

Supreme Court of the Anited _ SPANIOL, JR.

October Term, 1985

THE TOWNSHIP OF WOODBRIDGE,

Petitioner,

VS.

TOWNSHIP OF FRANKLIN SEWERAGE AUTHORITY, et ai.,

5 Respondents.

| PETITION FOR WRIT OF CERTIORARI TO THE UNITED

| STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

| ARTHUR W. BURGESS

F Attorney for Petitioner

1 Main Street

Z Woodbridge, New Jersey 07095

= : (201) 634-4500

ae JOSEPH R. BULMAN

Of Counsel

; |

ae | NJ (201) 257-6850eNY (212) 840-9494*PA (215) 563-5587

4 | MA (617) 542-1114*DC (202) 783-7288¢USA (800) 5 APPEAL

QUESTIONS PRESENTED FOR REVIEW

1. Whether 33 U.S.C. § 1311()(1) establishes a direct

relationship between Woodbridge Township’s obligation to

undertake the construction necessary to deliver its municipal

sewage to the Middlesex County Utilities Authority in order to

comply with the effluent limitations established by 33 U.S.C.

§ 1311, and the availability of financial assistance from the United

States. :

2. Whether the December 29, 1981 amendment to 33 U.S.C.

§ 1311€)(1) automatically extended the deadline for compliance

by Woodbridge Township with effluent limitations established

by the Clean Water Act, 33 U.S.C. § 1251, ef seg., where the

for permit modification required by 33 U.S.C. § 1311@)(1) (as

amended on December 29, 1981).

3. Whether the Court of Appeals erred in its determination

that the scope of its review under 28 U.S.C. § 1292(a)(1) precluded

consideration of the correctness of the District Court’s entry of

the December 18, 1984 injunctive order and that no evidence of

changed circumstances warranting dissolution of the injunction

had been adduced.

LIST OF PARTIES

In accordance with Supreme Court Rule 21.1(b), the following

PTA E Wr Revslee Nee eee een ene raled Rates

Court of Appeals for the Third Circuit.

TOWNSHIP OF FRANKLIN SEWERAGE, AUTHORITY—

Plaintiff; MIDDLESEX COUNTY UTILITIES AUTHORITY—

Defendant-Third Party Plaintiff; STATE OF NEW JERSEY, by

and through its Department of Environmental Protection, THE

UNITED STATES OF AMERICA, by and through its United

States Environmental Protection Agency, TOWNSHIP OF

WOODBRIDGE, a municipal corporation of the State of New

Jersey, THE CITY OF PERTH AMBOY, a municipal corporation

of the State of New Jersey, and THE BOROUGH OF

CARTERET, a municipal corporation of the State of New

jJersey—Third Party Defendants.

TABLE OF CONTENTS

Page

Questions Presented for Review.................005005 i

List of Parties eens baa e cake ondee ¢asae-s ii

INI ose sictsin oo ainia-nisccsencicnnee Gated «led iii

Tee es. 5o 3 Set. Joti, i weed... iv

rin seis caccShcasecstoesscccessses 2

SeiMMbed: Bi0), SLL wk. 02.287. cassostwA wexiildis 2

Statutory I HII ins ove ones sccckccccccces 3

I I i co ice dk ceimnerenetnecscvesesaree 3

Reasons for Granting the Writ:

I. Certiorari should be granted to settle important

questions of federal law which have not been, but

Ii. Certiorari should be granted because the Court of

Appeals below has rendered a decision in conflict with

the decisions of other federal courts of appeals on the

pais eS. FL GSE. losin 36 GD. .v x0ieiZ 0s 13

Page

Cases Cited:

Cerro Metal Products v. Marshall, 620 F. 2d 964 (3rd

CW. IG ish ec aiid i cedciieis aise bo Fe 15, 16

Fern v. Thorpe Public School, 532 F. 2d 1120 (7th Cir.

IGF) 3 Aa a BA. TARA AS 16

Franklin Township Sewerage Authority v. Middlesex County

Utilities Authority, 787 F. 2d 117 (3rd Cir. 1986)

Se TAPE ERE. BA A EIR BO 2, 12, 14, 15

Kershner v. Mazurkiewicz, 670 F. 2d 440 (3rd Cir. 1900)

Merrell-National Laboratories, Inc. v. Zenith Laboratories,

Inc., 579 F. 2d 786 (3rd Cir. 1978)................ 15

State Water Control Board v. Train, 424 F. Supp. 146,

(E.D.. Va. 1996)... 253d .4eKG dive. BA bivods.. 12, 13

State Water Control Board v. Train, 559 F. 2d 921 (4th

Cs. 1978):.0i. cseials jessie cad i se, 12, 13

United States v. City of Detroit, 720 F. 2d 443 (6th Cir.

SOPEE hos C46 PRAGA RN AARNE 80 80 ¢ On ea be TS 11, 12

. ° PRY ee “oan cae

et tae Je it eT pi tee tis eee ce bk 3e 3 EEAICN 8.5 gon Re Peas etme

Contents

Page

ee BO i aa diners Ad one tRAAA i, 3, 8, 13

chiles > as tirachons ntces 00% tah 16

We IE 665 Chicos se seed sad sens casiwcasessss 4

rp is. ¢ Bieeipp ery S ert aati i, 4, 5, 8, 9

SF See BI ones -erncens so 23, GRRE OS dane 3

53 We BAPE Lape oop o cr cncerresssseress i, 3, 10, 11, 12

Be as OED hak sc nncarscnree SS 'as. Wy Be ats Adyhd

33 U.S.C. § 1311(B){1)(b) & (C) ....... 22. ee eee. 4

ee i es cae cca np secsscceye ces vse eh 3

ES aa Sas ows 6.066 nee 4 0% 0s 004995 e Qh 3, 11

BE EL ROO ET TOP COPE EE TORE T™ 3, 5, 9, 11

1981 U.S. ew & Adm. News, pages 2629-2633

Sines is esa E hab SARS CST C4 CEERS CoBvasbemeanacee &

Note, Regulation of Noncompliant Publicly Owned

Treatment Works Under the Clean Water Act, 10 Wm.

WAMCIIEEL Lo. WOOV. SUL LASHED apo ct escce reece esces- 10, 13

61 Am. Jur. 2d ‘‘Pollution Control’’ § 148 (1986) ..... 13

Contents

APPENDIX

Appendix A—Opinion of March 28, 1986 by Third

Appendix B—Opinion of Honorable Anne E. Thompson,

U.S.D.J. (Dated October 23, 1984 and Filed on

October 24, 1984) Accompanying October 23, 1984

Order Granting Application of Third-Party Defendant

The United States of America for Partial Summary

Judgment As To Third-Party Defendant Township

Ol FICGRRINGNG. 3s oss cneaiuss dcuci pedheee uae

Appendix B—Order of Honorable Anne E. Thompson,

U.S.D.J. Granting Application of Third-Party

Defendant The United States of America for Partial

Summary Judgment As To Township of Woodbridge,

Dated October 23, 1984 and Entered on October 24,

Appendix B—Order of Honorable Anne E. Thompson,

U.S.D.J. (Dated December 10, 1984 and Entered on

December 18, 1984) Requiring the Township of

Woedieider, 2. Seay Teen ee Sven ara

s*eeeweereevevreeneeeeeoneeevw ewe eaeeee eee eeeeeeeeeeeneeeee

Appendix B—Order of June 25, 1985 of the Honorable

Anne E. Thompson, U.S.D.J. Denying Woodbridge

Township’s Motion to Dissolve Injunction and

Ordering Payment of Civil Penalties...............

“ oe dees aaa

pects Seve

Bee CEP ee OO ee PEE

2la

23a

vii

Contents

Page

Appendix B—Opinion of June 25, 1985 of the Honorable

Anne E. Thompson, U.S.D.J. Denying Woodbridge

Tow hip’s Moti eb Didadives tas sade

Ordering Payment of Civil Penalties............... 30a

Appendix C—Judgment of Third Circuit Court of Appeals

Entered on March 28, 1986 ............0-se0ee0e: 34a

Appendix D—Relevant Statutes ..............-...+--+ 36a

Be NE NE Sick ves c ese bndeWn ven ccccetvess 36a

33 U.S.C. § 1311 (with amendments).............. 45a

RR ED coe ca eo cb 6s bus ve su cine scgsis 64a

Pe ET PCG SA be hee e vib necdeceeseusecees 74a

FEET OGRE Vib bees Certeasascceusecdebes TTa

~ The | ig HF adaest

—

es at

No.

In The

Supreme Court of the United States

tet a

October Term, 1985

THE TOWNSHIP OF WOODBRIDGE,

Petitioner,

vs.

TOWNSHIP OF FRANKLIN SEWERAGE AUTHORITY, et ai.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

To the Honorable, Chief Justice and Associate Justices of the

* Supreme Court of the United States:

The Township of Woodbridge, the petitioner herein, prays

that a writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Third Circuit entered in the above-

entitled case on March 28, 1986.

The opinion of the United States Court of Appeals for the

Third Circuit is reported at 787 F. 2d 117 (3rd Cir. 1986) and

is printed in Appendix A hereto, infra, page la. The judgment

of the United States Court of Appeals for the Third Circuit is

printed in Appendix C hereto, infra, page 34a.

Printed in Appendix B hereto, infra, page 16a, are the United

States District Court for the District of New Jersey’s unreported

opinion filed on October 24, 1984 and the accompanying order

entered on October 24, 1984 granting the application of respondent

United States of America for partial summary judgment as to

the petitioner. Also printed in Appendix B hereto, infra, page

23a, is the unreported order of the District Court entered on

December 18, 1984 requiring the petitioner to deliver its municipal

sewage to the Middlesex County Utilities Authority, as well as

the District Court’s unreported opinion, filed on June 26, 1985,

and accompanying order, entered on June 26, 1985, denying the

petitioner’s motion to dissolve the District Court’s injunctive order

of December 18, 1984 (Appendix B hereto, infra, pages 28a-33a).

The judgment of the Court of Appeals affirming the judgment

of the District Court, dated March 28, 1986, was entered on March

28, 1986. The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involved 33 U.S.C. § 1288, 33 U.S.C. § 1311 and

33 U.S.C. § 1342, and the provisions of each of those statutes

are set out in the Appendix hereto, infra, pages 36a-73a.

In addition, this case involved 28 U.S.C. § 1292(a)(1) which

provides as follows:

««(a) Except as provided in subsections (c) and (4)

of this section, the courts of appeals shall have

jurisdiction of appeals from:

(1) Interlocutory Orders of the District Courts of

the United States, the United States District Court

for the District of the Canal Zone, the District

Court of Guam, and the District Court of the

Virgin Islands, or the judges thereof, granting,

continuing, modifying, refusing or dissolving

injunctions, or refusing to dissolve injunctions, or

refusing to disscive or modify injunctions except

where a direct review may be had in the Supreme

Court... .”’

The provisions cf law involved are P.L. 95-217 § 45 and

P.L. 97-117 §21(a) and the appropriate provisions of each of those

laws are set out in the Appendix hereto, infra, pages 74a-77a.

STATEMENT OF THE CASE

This action was brought by respondent Township of Franklin

Sewerage Authority in order to compel respondent Middlesex

County Utilities Authority (hereinafter referred to as MCUA) to

force additional New Jersey municipalities, including the Township

of Woodbridge, the Borough of Carteret and the City of Perth

Amboy, to deliver their municipal sewage to the MCUA’s regional

treatment facility in Sayreville, New Jersey.

The MCUA named as third party defendants in this action

the United States Environmental Protection Agency (hereinafte:

referred to as EPA or the United States), the New Jersey

Depari.nent of Environmental Protection (hereinafter referred to

as the DEP), the Townsaip of Woodbridge, the Borough of

Carteret and the City of Perth Amboy.

In turn, the United States filed a cross-claim against the

Township of Woodbridge, alleging that the Township is in

violation of the Clean Water Act, 33 U.S.C. § 1251, et seg., for

failing to connect its municipal sewerage system with the MCUA

facilities. Since the action against Woodbridge Township arose

under federal law, the District Cour: had jurisdiction over the

matter pursuant to 28 U.S.C. § 1331. :

The Township of Woodbridge is a municipality in central

New Jersey having a land area of approximately 23 square miles

and a population of approximately 100,000 people. Woodbridge

abuts two navigable waterways (i.e., the Arthur Kill at a point

on its northeasterly boundary and the Raritan River along its

southerly boundary). At each of these general locations,

Woodbridge operates a publicly owned treatment works in

Elimination Systems (hereinafter referred to as NPDES) permits

issued for those plants by the EPA.

Woodbridge Township’s NPDES permits were granted on

November 15, 1977, and they had an original expiration date of

December 31, 1981, by which date the Township was required

to comply with the sewage treatment standards set forth in 33

U.S.C. § 1311(B)(1)(b) and (C), and the permits also required

Woodbridge to tie into the MCUA as soon as the transmittal!

facilities were completed. Woodbridge Township timely applied

for and obtained, on November 29, 1978, approval for a

of the Township’s NPDES permits, as provided for

in the original enactment of 33 U.S.C. § 1311i)(1) as Pub. L.

95-217 §45.

In 1973, with a $200,000 loan from DEP, Woodbridge had

the engineering firm of Metcalf and Eddy, Inc. begin preparation

of a Facility Planning Report. The preparation of the Facility

ng Report was the first phase in the process of applying

under the Clean Water Act, 33 U.S.C. § 1251, et seq.,

aa ap aseb asta ipa akin pada

facilities with the MCUA. Following the Facility Pianning Report,

came the design phase and, after funding approval, the

construction phase.

There are also three stages of the construction necessary to

link Woodbridge with the’ MCUA. One stage entails the installation

of a sewer line from the Township’s Keasbey sewerage treatment

plant to the Township’s Hayden pumping station at an estimated

cost of $16,000,000 (for which Woodbridge Township has accepted

a $5,500,000 federal grant). Another stage of the linkage project

is the Perth Amboy interceptor phase, which involves construction

necessary to enable the City of Perth Amboy to link up with the

pumping facilities of Woodbridge Township for delivery of Perth

Amboy’s sewage to the MCUA. The cost of both the Keasbey

anc the Perth Amboy interceptor phases are relatively small

compared to the approximately $45,000,000 estimated cost of the

third stage of the linkage project, the Sewaren interceptor phase.

The Sewaren interceptor phase requires that a sewer line

transversing Woodbridge Township be constructed with large pipes

(ranging to 78 inches in diameter) requiring extensive excavation

of twenty-three (23) Township streets and the fording of four

(4) streams with disastrous environmental consequences, as some

are destroyed and the flow of others is interrupted. In addition,

the Township will be required to institute condemnation

proceedings with respect to many properties in the Township, and,

since no state or federal funding has been forthcoming,

construction of the Sewaren interceptor phase will impose a

crushing fiscal burden upon Woodbridge Township, which would

be required to exceed its state-imposed debt limit by well over

$5,000,000.

Although Woodbridge Township has diligently complied over

the years with every requirement at each stage of the funding

process provided for by the Clean Water Act for the proposed

linkage of the Township with the MCUA, the federal and state

authorities responsible for approving the Township’s plans and

permit applications have consistently acted in a dilatory manner.

The dilatory conduct of those authorities, over whom Woodbridge

Township has no control, is effectively illustrated by the fact that,

although application for all of the environmental permits necessary

for the MCUA linkage project were included in the Township’s

August 1982 Step III Grant Application Package filed with the

DEP, the DEP did not respond to the Township with regard to

those applications until the fall of 1984. Similarly, inaction by

the DEP and EPA (as well as Perth Amboy and Carteret) delayed

approval of the Township’s facility plan by the DEP until 1980.

Such dilatory conduct by governmental agencies beyond the control

of Woodbridge Township, coupled with inadequate federal

. funding of the Clean Water Act’s municipal wastewater treatment

construction grants program, has drastically increased the cost

of the linkage project to Woodbridge.

Moreover, the dilatory conduct of those agencies extends to

their approval of plans and permit applications by Woodbridge

that are essential for conscruction of the linkage project with or

without federal funding.

Following the entry, on October 24, 1984, by the District

Court of an order granting partial summary judgment to the

United States on its cross-claim against Woodbridge Township,

the District Court, on motion by the United States, to compel

the Township to comply with the Clean Water Act and to tie

into the MCUA, entered an injunctive order on December 18,

1984 requiring the Township to proceed with MCUA linkage

regardless of whether federal or state funding is forthcoming and

to submit a schedule for MCUA linkage within sixty (60) days.

Due to the inability of Woodbridge Township to predict when

the necessary plans and permit applications submitted to the state

and federal environmental agencies will be acted upon, the

Township submitted a tentative compliance schedule based upon

the action the Township could take if the necessary approvals

came Sinema wEhin cortele pewtods.

On:April 45,:1985,:the United States moved fora judgment

that the Township had failed to comply with the December 18,

1984 injunction and the Township made a cross-motion to dissolve

the injunction on the grounds that, regardless of the availability

of federal or state funding for the linkage project, governmental

inaction at the state and federal levels on the permits and approvals

necessary for construction of the project had stymied the progress

of the project, and continuing governmental inaction beyond the

Township’s control prevented any prediction of MCUA

construction necessary for the formulation of a linkage schedule.

By order entered June 26, 1985, the District Court denied the

Township’s motion and granted the motion of the United States,

assessing $16,800 in penalties against Woodbridge and directing

the Township to submit a compliance schedule within a specified

time. After conferring with representatives of the DEP and EPA,

a mutually satisfactory compliance schedule was drafted and

submitted on July 22, 1985 to the District Court and the prescribed

penalties were paid by the Township.

Pursuant to 28 U.S.C. § 1292(a)(1), the Township appealed

to the United States Court cf Appeals for the Third Circuit the

District Court’s denial of the Township’s application to dissolve

the December 18, 1984 injunction, and, by judgment entered on

March 25, Aa iy ot aye Hl ia

District Court.

bk |

Casthovesk shouldbe apduted 40: settle tanbentadt abitions

gs tas it ey ig het pti

this Court.

‘en costae soeonhal tame aia aetna toes

of a municipality’s obligation to proceed with construction

Water Act, 33 U.S.C. § 1251, et seq., without federal funding

for such construction. In order to resolve that issue, this Court

is called upon to settle important questions of federal law which

have not been, but should be, settled by this Court, questions

that turn upon the construction of 33 U.S.C. $3116).

Se-Se, sappitalieediaminad- teats Ginette tianmedes 06-50

U.S.C. § 1311¢i)(1) indicates that the petitioner should not have

been held liable in this action for having failed to tie into the

had granted the only request for modification of the NPDES

permits possessed by the petitioner for its two wastewater treatment

plants required by 33 U.S.C. § 131if7{1) (as amended on

December 29, 1981). As the NPDES permits indicate, Woodbridge

applied for and obtained on November 29, 1978 approval for

a modification of the Township’s NPDES permits in accordance

with “‘Section 301(i) of the Act’’ (i.e., the original enactment of

33 U.S.C. § 13111). That modification extended to July |,

1983 Woodbridge Township’s Clean Water Act compliance

deadline. The only request for a permit modification required

by 33 U.S.C. § 1311G)\(1) (as amended on December 29, 1981)

is a request “‘within 180 days after December 27, 1977’’. See text

bend PII1Gy in Appeax'D 'tereto, infra, page 52a.

alti eada'eh enna ubeaeeldidid ts Wats ecr une

under 33° U.S.C § 1311@)(1) as it was originally enacted on

December 27, 1977 as Pub. L. 95-217 § 45 (see Appendix D,

hereto, infra, page 74a), the December 29, 1981 amendment to

33 U.S.C. § 13111) automatically extended the modified

deadline for compliance with the effluent limitations established

acerca § ee sete to:

sarahamctiddvnnateinadic* Sisnadiet eodmence

will be available from the United States and

construction can be completed, but in no event

ccc riice te 1988”’.

Tike: tdbcloenhl "tek ‘Sheil Wasik Uk aly “tecasin for pert

modification provided for in the December 29, 1981 amendment

to 33 U.S.C. § 1311@)() is the same request “‘within 180 days

after December 27, 1977” as that set forth in the original enactment

of 33 U.S.C. § 1311G)(1) on December 27, 1977. Of course, there

could be no additional requests for permit modification under

the December 29, 1981 amendment to 33 U.S.C. § 1311{i)(1} since

Se rin ensihe to

27, 1977".

With the enactment of the Clean Water Act, 33 U.S.C. §

1251, et seq. the federal government announced a program for

funding the costs to municipalities of complying with the water

quality standards established by the Clean Water Act. That offer

of funding amounted to a long-range commitment to make such

ace eth eect joer

eeippanniieae ete: ,

abidbiliahincaauaatebamtdens deeb tataienh dh the

development of elaborate water treatment plans and techniques

in order to satisfy the water quality standards-established by the

Clean Water Act understandably did so in the belief that federal

cost-sharing would be forthcoming, because such municipalities

could not implement suck plans and techniques without great fiscal

However, instead of receiving the federal grarts promised

to fund the construction necessary to bring them into compliance

with the water quality standards of .the.Clean Water Act,

municipalities such as the petitioner, which have diligently

complied over the years with the requirements at each stage of

the funding process provided for by the Clean Water Act, have

been the victims of inadequate federal funding and of grants

program delays. See Note, Regulation of Noncompliant Publicly

Owned Treatment Works Under the Clean Water Act, 10 Wm.

Mitchell L. Rev. 901, 906-907, 909-911. (1984)...

Similarly, the legislative history of the 1981 eipiaiatins to

33 U.S.C. § 1311 reflects a promise of federal funding to aid

municipalities such as the petitioner in complying with the water

quality standards established by the Clean Water Act. Morcover,

the legislative history of the 1981 amendment to 33 U.S.C. § 1311

indicates that, since enactment of the Clean Water Act, there kas

been a history, through the fault of the federal government and

its designated agents (e.g. , the DEP) of long and unnecessary delays

in the funding approval process under the Clean Water Act. These

points are documented in 1981 U.S. Code Cong. and Adm. News,

pages 2629-2633.

In addition, Pub. L. 97-117 § 21(a) (Appendix D, hereto,

infra, page 77a) provides additional support for the petitioner’s

contention that the petitioner’s obligation to proceed with MCUA

iinkage is contingent upon assurances of funding from the EPA

and its designated agent, the DEP. Pub. L. 97-117 § 2i(a)

establishes a direct relationship between compliance with the water

quality standards established by 33 U.S.C. § 1311 and funding

under the Clean Water Act. It is respectfully submitted that, in

relating the provisions.of Pub. L. 97-117 § 21(a) to. the case at

bar, it is significant that the petitioner has diligently complied

over the years with the requirements at the various stages of the

funding process for federal construction grants for wastewater

treatment projects, but inaction by the EPA and the DEP, and

inadequate funding of the construction grants program, ail totally

linkage project from going forward. Moreover, it should be noted

that the progress of the MCUA project has been thwarted by the

failure of reviewing agencies such as the EPA and the DEP over

whom the petitioner has no authority, to take action with respect

to plans and environmental permit applications for wisich approval

is required in order for the MCUA project to proceed, with or

without federal or state funding. —

Furthermore,.this view that 33 U.S.C. § 1311@ (1) was

designed to aid municipalities, such as Woodbridge Township,

which, for reasons beyond their control, were unable to compiete

‘*planned treatment works’’ in time to compiy with the deadlines

set forth in 33 U.S.C. § 1311 is also supported by Pub. L. 95-217

§ 45, the predecessor of the present 33 J.S.C. § 1311(i)(1). See

text of Pub. L..95-217§ 45 in Appendix D, hereto, infra, page 74a.

Based upon United States v. City of Detroit, 720 F.2d 443,

451 (6th Cir. 1983) and State Water Control Board v. Train, 559

F. 2d 921, 924-927 (4th Cir. 1977), the Court of Appeals

determined below that the obligation of the petitioner to‘comply

with the Clean Water Act is not conditioned upon the petitioner's

receipt of federal funds. See Franklin Township’ Sewerage

Authority v. Middlesex County Utilities Authority, 187 F. 24 117,

122 (3rd Cir. 1986), Appendix A hereto, infra, page 11a.

However, it is respectfully submitted that the Court of

distinguishable from the case at bar. Thus, there is no indication

in the United States v. City of Detroit, supra, that the defendant

in that case ever invoked 33 U.S.C. § 1311((1) in its defense

as does the petitioner in this case. Furthermore, the City of Detroit,

unlike the petitioner in the case at bar, entered into a consent

U.S.C. § 1311@)(1) in 1977, and that consent judgment apparently

barred the City of Detroit from seeking an extension of the

compliance deadline — 33 U.S.C. § psp

In addition, ni diamines euunee eenuicemde ¥. City

of Detroit, supra, at 446 and 451, cites, with virtually no

discussion, State Water Control Board v. Train, $59 F. 2d 921

(4th Cir. 1977), as authority for holding that ‘the compliance

and grant provisions of the FWPCA are not mutually dependent”’.

Both the District Court and State Water Control Board v. Train,

424 F. Supp. 146, 155-156 (E.D. Va. 1976), and the decision by

the Fourth Circuit Court of Appeals affirming the District Court

decision at 559 F. 2d 921, 927-928 (4th Cir. 1977), predated the

December 27, 1977 amendment of 33 U.S.C. § 1311 which added

33 U.S.C. § 1311@)(1) to the Clean Water Act. This is significant

because, as was discussed above, ‘§ 13T1@() makes it clear that

compliance, through the construction of ne

facilities, with the water quality standards provided for in § 1311

is related to the availability of financial assistance from the United

States. As was noted above, the December 27, 1977 amendment

which first added § 1311(i)(1) to the Clean Water Act extended

the deadline for compliance to July 1, 1983 in appropriate cases

[See 61 Am. Tak: 2d, “Pollution Control’, 5 148 ({980)], and

the December 29, 1981 amendment which established § 1311(i<1)

in its current form extended the compliance deadline to July 1,

1988 in appropriate cases. See Note, Regulation of Noncompliant

Publicly Owned Treatment Works Under the Clean Water Act,

10'Wm. Mitchell L. vag ist dia ooh (1984),

Both the District Court and Fourth Circuit decisions in State

Water Control Board v. Train, supra, are based upon the fact,

at the time of those decisions, there was no 33 U.S.C. § 1311()(1)

providing an exception to the strict compliance provisions of the

Clean Water Act. In fact, both the District Court and the Fourth

Circuit Court of Appeals said that it was the responsibility of

Congress, and not the court, to add language to the Act linking

funding with compliance with the effluent limitations provided

for in the Act, and, subsequent to the Train, supra, decisions,

Congress did just that. See Note, Regulation of Noncompliant

Publicly Owned Treatment Works Under the Clear, Water Act,

supra, fn. 58, pages 910-911,

il.

Certiorari should be granted because the Court of Appeals

below has rendered « decision in conflict with the decisions of

other federal courts of appeals on the same matters.

It is respectfully submitted that the decision of the Court

of Appeals below affirming the District Court’s denial of the

petitioner’s motion to dissolve the injunctive order of December

18, 1984, conflicts with the decisions of other federal! courts of

appeals concerning the proper disposition of appeals pursuant

to 28 U.S.C. § 1292(a)(1). In this case, the Court of Appeals did

not consider the propriety of the entry of the injunction on appeal

and affirmed the District Court’s refusal to dissolve the injunction

on the grounds that the petitioner had ‘‘failed to adduce any

evidence of changed circumstances that would warrant the

dissoiution of the December injunction’’. Franklin Township

Sewerage Authority v. Middlesex County Utilities Authority,

supe, $8 20008: 2b Agemarn Re heene, inion pene er Te.

‘As the cetkionstaniael ae den oeen.at.apentia. the

petitioner’s cross-motion to dissolve the District Court’s December

18, 1984, injunction was not merely a relitigation of matters

previously argued in the District Court for the contentions of the

petitioner on that motion transcended the issue {i.e., the focal

point of the United States motion for reconsideration/summary

judgment which ultimately resulted in the issuance of the December

18, 1984 injunction) of whether the petitioner should be compelled

to proceed with the construction necessary to link the petitioner’ s

sewage facilities with the facilities of the MCUA in the absence

of federal or state funding for that project. Since the December

18, 1984 injunction required that the petitioner submit a schedule

for linkage with the MCUA, the petitioner’s motion to dissolve

the injunction presented the petitioner for the first time in this

litigation with an occasion to point out to the District Court that

regardless of the availability of federal or state funding for the

linkage project, continuing inaction by governmental authorities

beyond the control of the petitioner prevented any prediction of

MCUA construction necessary for formulation of a linkage

schedule as required by the December 18, 1984 injunction.

The introductory paragraph of the linkage schedule ultimately

agreed to by the petitioner, the EPA and the DEP following the

District Court’s denial of the petitioner ’s motion to dissolve the

December 18, 1984 injunction reflects the petitioner’s complete

dependence at every phase of the linkage project upon

governmental authorities beyond the petitioner's control Thus,

that paragraph states:

‘“*If Woodbridge is unable to proceed in strict

conformance with this schedule because of

circumstances beyond its control including the

failure of governmental parties to process

applications for permits which have been submitted

in a timely and complete fashion by Woodbridge,

then upon stipulation of the parties or upon goed

cause shown to the Court, the period of time

specified by the schedule shall be extended until

such time as Woodbridge is no longer prevented

from proceeding because of such circumstances.’’

It is respectfully submitted that the petitioner mace a showing

below of changed circumstances warranting the disswlution of the

injunctive order, and so the decision of the Court of Appeals

below conflicts with the holding of Merrell-National Laboratories,

Inc. v. Zenith Laboratories, Inc., $79 F. 24 786, 791 (3rd Cir.

1978).

Furthermore, contrary to the holding in Cerro Metal Products

v. Marshall, 620 F. 2d 964, 972 (3rd Cir. 1980), the Court of

Appeals below “‘woodenly applied’’ in this case the ‘‘general rule’’

that, on an appeal fromm the denial of a motion to modify or

dissolve an injunction, the appellant may not challenge the merits

of the underlying injunction. Adherence would produce the

anomalous result in this case of foreclosing appellate review of

a sparsely litigated issued (i.e., the obligation of a municipality

to proceed, without federal funding, with construction designed

to comply with Clean Water Act standards) vitally important to

municipalities throughout this country which, like the petitioner,

face financial hardship, or worse, if required to proceed with

construction without federal funding in order to comply with the

Clean Water Act. That result would be particularly anomalous

in this case since, as the Court of Appeals notes in its opinion

below, supra, 787 F. 2d at 120; Appendix A hereto, infra, page

6a, the Court of Appeals denied Woodbridge Township’s

petition, pursuant to 28 U.S.C. § 1292(b) for leave to appeal the

summary SNaren: Slane Trebet Sp Say ee eeiey OF the

December 18, 1984 injunction.

In addition, contrary to tise holding of the Court of Appeals

below, the scope of that court’s review of the December 15, 1984

injunctive order encompasses the error of law committed by the

District Court below in holding that the petitioner violated the

Clean Water Act and that compliance with the Clean Water Act

requires that the petitioner tie into the MCUA without federal

or state funding for the linkage project. See Cerro Metal Products

v. Marshall, supra, at 972, and Kershner v. Memerkirwicz, 670

F. 2d 440, 13 (3rd Cir. 1982).

Moreover, the December 18, 1984 injunction expressiy

authorized “‘any party’’ to move the District Court ‘‘to resolve

any issues relating to the schedule or implementation +f the

scheduie’”’ for MCUA linkage submitted by the petitioner. Since

that order clearly indicated the District Court’s willingness to re-

examine any aspect of the injunction, the case at bar presents

a situation analogous to that in Fern v. Thorpe Public Schooi,

532 F. 2d 1120, 1130 (7th Cir. 1976), where the lower court had

indicated that it would re-examine at a later date the matter of

continuing ar injunction, and the Court of Appeals for the Seventh

Circuit determined, on an appeal from an order of the lower court

refusing to vacate the injunction that it was proper on appeal to:

*‘Consider whether there are sufficient

infirmities in the bases of the court’s granting of

the preliminary injunction as to make it improper

for the court to have refused to vacate the

injunction.’”

17 °

Wherefore, petitioner respectfully requests that a writ of

certiorari be issued to the United States Court of Appeals for

the Third Circuit.

Respectfully submitted,

ARTHUR W. BURGESS

Aitorney for Petitioner

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art

The STATE OF NEW JERSEY, By and Through ITS

DEPARTMENT OF ENYIRONMENTAL PROTECTION, the

United States of America, By and Through its United States

Environmental Protection Agency, the Township of Woodbridge,

a municipal corporation cf the State of New Jersey, the City of

Perth Amboy, a municipal corporation of the State of New Jersey,

the Borough of Carteret, a municipal corporation of the State

of New Jersey.

Appeal of The TOWNSHIP OF WOODBRIDGE.

NO. 85-5493.

United States Court of Appeals, Third Circuit

Argued March 4, 1986.

Decided March 28, 1986.

Appeat--was: taken frota interlocutoty order ‘of the United

States Distzict Court, District of New Jersey, Anne E. Thompson,

J., dismissing township’s motion to dissolve injunction and

imposing civil sanctions for township’s alleged violations of Clean

Water Act. The Court of Appeals, Gibbons, Circuit Judge, held

Appendix A

that: (1) Court of Appeals’ review of order denying motion to

dissolve injunction was confined to propriety of denial of motion

and did not extend to propriety of entry of underlying injunction;

(2) denial of township’s motion was not abuse of discretion; (3)

township’s obligation to comply with Clean Water Act was not

conditioned upon township’s receipt of federal funds; and (4)

amendments to Clean Water Act, which extended time which

. publicly owned water treatment works had to comply with Act,

did not apply to township.

Affirmed.

F. Henry Habicht, I1, Asst. Atty. Gen., Dirk D. Snel, Bruce

J. Berger, John T. Stahr (argued), Attys., Dept. of Justice,

Washington, D.C., for U.S.; George A. Shanahan, U.S.,

E.P.A.—Region II, New York City, of counsel.

Joseph R. Bulman (argued), on brief (Arthur W. Burgess,

Director of Law, of counsel), Woodbridge, N.J., for Woodbridge

Tp.

Before GIBBONS, BECKER and ROSENN, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge:

The Township of Woodbridge apetis from an interlocutory

order entered by the district court denying its motion to dissolve

an injunction and granting the United States’ motion for the

assessment of civil sanctions. Woodbridge argues that the district

court should have granted its motion to dissolve the injunction

because it was not in violation of any federal law. The government

Appendix A

contends that we should dismiss the appeal for lack of jurisdiction,

and, alternatively, that the district court’s refusal to dissolve the

injunction was proper because Woodbridge violates sections 301(a)

and 301(b)(1)(B) of the Clean Water Act, 33 U.S.C. § 1311(a)

and (6)(1)(B) (1982). We affirm.

This appeal arises out of a cross-claim filed by the United

ae ee ee ore oe

Sewerage Authority ag Middlesex County Utilities

Aubry OACUA) eon we eaten cy td eo

Seulseuaneipl eotseion, Aomnen OFFA). The Debar S88 tc

filed apea ay against Woodbridge, Carteret, and Perth

“mavig Mae Ge yoloaa “at tae tonlay and

50:00X1) B of the Cleani Water Act. The United States also sought

r compelling them to link their sewage systems to the

MCUA system pursuant to section 208 of the Clean Water Act,

33 U.S.C. § 1288 (1982), prescribing the development of areawide

waste treatment masiagement systems. The liability of both

Carteret and Perth Amboy was resolved in favor of the United

States upon the district court’s entry of summary judgment against

Carteret and its entry of a consent judgment against Perth Amboy.

Both judgments required the municipalities to tie in with MCUA.

This appeal involves Woodbridge’s liability on the United States’

works, the Keasbey Sewage Treatment

Se ie eae pat Meseaneh Meh ana oA

plea pains ck potunag oe ng cl ny pee

In 1975, tg cof et

208 of the Clean Water Act, nt oe

numerous public officials to develop a regional

treatment pian for Middlesex County. The plan

in 1977, was certified by the Gove n 1978; and we

by the EPA in 1979. The plan calls for the abandonmen

municipal treatment facilities and the channeling of 1

flows to MCUA. |

In 1977, EPA issued Woodbridge

Sewarss,, saving, Vatieeys 6 coi : ut

sce ough eyo r

the effluent standards set by Clean Wat

§ 1311(6\(1)(B). These permits were effec

1977 until December 31, 1981. The perm

Woodbridge to tie in with MCUA s $ the

of Fae nna eaerS eted. In 1978, Woodbr

pre pice liege a een

pce pda abies apa, prise

use the Kensbey ead SUWaren [ines Sau ss Wenen 0 01 ai to

nt |

Appendix A

MCUA, provided that Woodbridge complied with a planning

Le eee Smee on me Som

i al a alla for reconsideration, stating that

it did not contest the validity of the permits. Rather, it contended

ge’s actions were in violation of the terms of

id perm: Aer alt apr nls ae

ry judgment in , holding that Woodbridge was

ting section ty fhe ln, Water hc by dcr

condary treatmer at its two sewage plants to meet the requisite

effluent, and by failing to tie into the MCUA regional

treatment facility. The court ordered the parties to submit to it

within forty-five days plans for bringing Woodbridge in

compliance with the Act.

On November 21, 1984, Woodbridge appealed the entry of

cnn? as de le i a oe ee DN Fe RS aI OREE SOLED OTA ET OTT TS DPD GENE TR Fe eee

Appendix A

partial summary judgment. The United States moved to dismiss

the appeal for lack of jurisdiction. On February 12, 1985 we

diamines Waotridans a ee ee

arate erate ase . On Decer

18, 1984, the “district court entered 2 tplllied este

premier reasienserdicecoa magneton mtg

addition, the order provided that civil penalties would be assessed

against Woodbridge if it failed to comply. pl Sts

certification, but denied its motion for a stay. This court on April

12, 1985: denied Woodbridge’s petition for leave to appeal.

On April 15, 1985 the United States filed a motion for a

judgment that Woodbridge had failed to comply with the terms

of the injunction and for the imposition of sanctions for its failure

to comply. On May 6, 1985, almost five months after the district

perirnerrnttent mre Me !

court to dissolve it. The district court denied Weodbridge’s moti

but granted the United States’ motion for sanctions, asse:

$16,800.00 in penalties against Woodbridge. ere gira

directea Woodbridge to submit a compliance schedule within a

specified time.

bn iolening Gl engienden anlest ta Anvainaidais aint

to dissolve the injunction, the court stated that it already had

Appendix A

addressed and rejected the same arguments on two prior occasions,

first when it entered summary judgment against Woodbridge, and

second when it entered the December injunction against

Woodbridge. Because Woodbridge failed to offer any new

authority or analysis supporting a contrary result, the court heid

drs gece capper geen ccionie-oceeeneqe

Racicatig'Sihck athatidesnus Riialty-Whidswe July 22, 1985.

It met with the acceptance of both the NJDEP and the EPA.

Woodbridge then filed this appeal and sought a stay of the

remainder of the district court’s order in this court. We denied

the stay on August 15, 1985.

The primary issue before us is what issues may be raised in

an appeal from the denial of a motion to dissolve an injunction.

court of appeals lacks jurisdiction. Because the denial of a motion

to dissolve an injunction comes within the language of section

1292(a)(1) of title 28 of the United States Code, which explicitly

confers jurisdiction over such interlocutory orders, the United

States’ position is without merit. See 28 U.S.C. § 1292(a)(1} (1982).

Theze can be no question that this court has jurisdiction over

Woodbridge’s interlocutory appeal. See Professional Plan

Examiners of New Jersey, Inc. v. LeFante, 750 F.2d 282, 287

(3d Cir. 1984); International Brotherhood of Teamsters, Local

249 v. Western Pennsylvania Moior Carriers Association, 660 F.2d

76, 80-81 (3d Cir. 1981); Merreil-National Laboratories, Inc. v.

Zenith Laboratories; Inc., $79 F.2d 786, 791 (3d Cir. 1978).

The crucial question thus is not appellate jurisdiction, but

Appendix A

scope of review. The prevailing law. is that appellate review of

an order denying 2 mx fe an injunction is confined

to the peopriey of he denial ofithewiodods t dom not tavend

e.g., Merrell-National, 579-F.2d at 791; LeFante, 750 F.2d at 287;

Cerro Metal Products v. Marshail, 620 F.2d 964, 972, 972 n. 18

(3d Cir. 1980); Winterland Concessions Co. v. Trela, 735 F.2d

(1977 & Supp. 1985), The rationa ¢ behind this rule is that the

appellant should not be allowed “‘to use the appealability of an

order denying modification for dissolution] of an injunction to

circumvent the time bar to appeal from the underlying injunction.”

Merrell-National, 579 F.2d at 791.

Since our review is limited to considering the correctness of

the district court’s ppg rei ort pe

that chee- Mien ‘Seomart- sh Wesiied teb-eedbia: ‘See Merrell

National, $79 F.2d at 791-92. The standard that the district court

must apply when considering a motion to dissolve an injunction

is whether the movant has made a showing that changed

circumstances warrant the discontinuation of the order. See

AG ERS EES ane ern

In this case, Woodbridge failed to adduce any evidence of

changed circumstances that would warrant the dissolution of the

December injunction. Before the district court, Woodbridge argued

that its liability under the Clean Water Act was contingent upon

its receipt of federal funds, and that the 1981 amendments to

the Act extended the grace period for non-compliance until 1988.

Reviewing these contentions, the district court found that

Woodbridge was simply repeating arguments that it had raised

ducrwiok te Aeying Us iseion to. dear, tbe Dende

injunction.

Because our scope of review is limited to determining whether

the district court abused its discretion in denying Woodbridge’s

motion to dissolve the December injunction, we cannot reach the

issue of the correctness of the district court’s entry of the December

injunction. Assuming, arguendo, however, that we were to reach

this issue, we nonetheless would affirm the district court.

Woodbridge contests the propriety of the entry of the

December injunction, arguing that its failure to tie in to the MCUA

10a

Appendix A

system is not a violation of section 301 of the Clean Water Act

assistance. fn cia aa eccioe’ Wiese lea tear lke acy

of the injunction was improper because it is discharging pollutants

pursuant to valid NPDES permits.

The language and legislative history of section 301(1) of the

Clean Water Act require the ine le conclusion that a

municipality's obligation under that section is not contingent upon

its receipt of federal financial assistance. Section 301 (i) states that

[where construction is required in order for 2

paren hepa) core Keir tragic) 7

“to achieve limitations es under . + (certain

canison We sseaplaied’ wien Mk 1Okb reowined

such subsection, or (B) the United States has failed

to make financial assistance under this chapter

available in time to achieve such limitations by the

time specified in such subsection, the owner or

_ Operator of such treatment works may request the

Administrator . . . to issue a permit pursuant to

section 1342 of this title or to modify a permit

issued prusuant to that section to extend such time

for compliance.

33 U.S.C. § 1311)(1).

In this section Congress made clear that the existence of either

of the two specified conditions only activates the Administrator’s

discretion to award or to modify a permit. ‘See Municipal

Wastewater Treatment Construction Grant Amendments of 1981,

lia

Appendix A

Pub.L. No. 97-117, ‘$ 21(a), 95 Stat. 1623, 1631. Nowhere did

Congress provide that the existence of cither of these conditions

automatically suspends or requires the Administrator to suspend

an operator’s obligations under the Act. Moreover, even if these

conditions exist and the Administrator has the discretion to grant

a permit or modification, the owner or operator must still ask

for one. See 33 U.S.C. § 1311(i). Thus, from the plain language

of the statute it is clear that the obligation of an operator such

as Woodbridge to comply with the Clean Water Act is not

reading accords with that of the other courts that have considered

the same issue. See United States v. City of Detroit, 720 F.2d

443, 451 (6th Cir. 1983); State Water Control Board v. Train,

559 F.2d 921, 924-27 (4th Cir. 1977). Thus if the question were

properly before us, we would hoid that funding is not 4 prerequisite

to compliance with the Act.

Woodbridge’s second argument is that it is not in violation

of the Act because it is discharging pollutants pursuant to valid

NPDES permits. The controversy over the validity of the permits

centers around their date of expiration. The Unit 2d States asserts

that the language of the Clean Water Act and the permits

themselves provide that they expired on July 1, 1983. Woodbridge

contends that by operation of the 1981 amendments to the Clean

Water Act, the permits, which were originally to expire on July

i, = rvs nese aa, sp umaoneg tram 1988.

Section 301(@) of: the Act provides that ‘‘the discharge of

any pollutant by any person shall be uniawful.’’ 33 U.S.C.

§ 1311(a). Section 301(6)(1)(B) of the Act, which was first enacted

in 1972 as part of the Federal Water Pollution Control! Act

Amendments of 1972 (FWPCAA), Federal Water Pollution

Control Act Amendments of 1972, Pub.L. No. 92-500,

12a

Appendix A

§ 301(b) 1B), 86 Stat. 816, requires publicly owned treatment

works to achieve compliance with certain effluent limitations by

July 1, 1977. 33 U.S.C. § 1311(b)(1)(B). Section 402 of the Act,

which also was enacted as part of the FWPCAA, provides,

permits to allow them to continue discharging pollutants so long

as they comply with the conditions imposed by the EPA

Administrator to achieve compliance sometime in the future. 33

U.S.C. § 1342 (1982). Under section 208 of the Act, permits issued

under section 402 cannct conflict with the requirements of any

regional wastewater treatment plan. 33 U.S.C. § 1288(e) (1982).

In October of 1977, the regional plan encompassing

Woodbridge was complete. On November 15, 1977, Woodbridge

applied for two NPDES permits. As a condition for obtaining

the permits, the EPA Administrator required Woodbridge to

convey its sewage flows to MCUA as soon as the transmittal

facilities were operable. J.A. at 685, 702. These permits, by their

own terms were due to expire on December 31, 1981.

On December 27, 1977 Congress amended the FWPCAA by

enacting the Clean Water Act of 1977, Pub.L. No. 95-217, 91

Stat. 1566. Although retaining the requirement in section

301{b)(1)(B) that publicly owned treatment works comply with

certain effluent limitations, Congress added subsection (i), entitled

**Municipal Time Extensions’’, which allows the owners of such

works to apply for NPDES permits or modifications of their

existing NPDES permits to enable them to discharge pollutants

beyond the July 1, 1977 deadline. See Pub.L. 95-217, § 45, 91

Stat. at 1584-85, codified ct 33 U.S.C. § 1311@ (1982). The statute

provides, however, that in no event can extensions be granted

beyond July 1, 1983. Id.

13a

Appendix A

To obtain an NPDES permit cr a modification of an NPDES

permit under the statute, the owner must show that it cannot meet

the compliance standards because the necessary construction can

not be completed in time, or the / federal funding has

not been made availabie and that it has been acting in good faith.

See id,; §.Rep. No. 95-370, 95th Cong., Ist Ses. 46-50, U.S. Code

Cong. & Admin. pp. 4326, 4370-4375 (1977). In addition,

the statute ‘pails tt requests for either a permit or a

modification must be filed with the Administrator within 180 days

of December 27, 1977. 33 U.S.C. § 1311@.

After discovering that it was not meeting the effluent

limitations imposed by the Act, Woodbridge, presumably within

the 180-day period specified in section 301(i), applied for a

modification of its November 1977 NPDES permits. The

modification was granied on November 29, 1978. The modification

gave Woodbridge an extension until July 1, 1983. The permits

reiterated the requirement that Woodbridge tie in with MCUA,

and they set forth a compliance schedule to encourage Woodbridge

to take certain steps towards this end within specified time periods.

The outside date for completion under the terms of both the

permits and the statute remained July 1, 1983.

On December 29, 1981 Congress amended the Clean Water

Act, primarily to eliminate federal funding for certain categories

of waste treatment facilities. See Municipal Wastewater Treatment

Construction Grant Amendments of 1981, Pub.L. No. 97-117,

95 Stat. 1623, 1631. In addition, however, section 21(a) ~f the

Amendments changed the ultimate deadline for compliance in

section 301(i) of the Act from July 1, 1983 to July 1, 1988. The

rest of section 301(i) remained unchanged, including the

requirement that any requests for NPDES permits or for extensions

of such permits be filed within 180 days of December 27, 1977.

l4a

Appendix A

In enacting section 21(a) Congress explained that the

amendment extending the deadline to July 1, 1988 was not to

construction beyond the control of the owner or

operator will make it impossible to complete

construction by July 1, 1983.

Id, The legislative history of the Municipal Wastewater Treatment

Construction Grant Amendments of 1981 provides no further

explanation of the meaning or the effect of the amendment

establishing the new July 1, 1988 deadline.

Woodbridge contends that the enactment of section 21(a)

automatically extended its permits to July 1, 1988 because its

compliance was held up by the federal govern at’s failure to

allocate sufficient funds for the linkage project. |

engnaee of scien JU, Yor b a a

sos ig wen para the

patopedarkensy seep 28 9%

pg hie meray etal by RN ag os

we reject Woodbridge’s contention that the 1981 amendments

extended its permits until July 1, 1988.

Because Woodbridge continued to discharge pollutants

1h Og Pen: OTE ee ee he oe tn eed

OLN aS ee ET | Sow Tia .

. Hi Sos are .

AAT BO TRALEE Tis

The order denying Woodbridge’s motion to dissolve the

December 18, 1984 injunction will be affirmed. Because

Woodbridge madé 80° thowing of ‘chahged circumstances, its

motion was completely without merit, and this appeal is frivolous.

The United States shall be awarded double costs. Fed.R.App.P. 38.

MIDDLESEX COUNTY UTILITIES AUTHORITY, et al.,

Elias L. Schneider, Esquire

Brigiani, Gelzer, Cohen & Schneider

603 Cranbury Road

East Brunswick, N.J. 08816

(Attorney for Township of Franklin)

18a

Appendix B

Arthur W. ome Ap

Director of Law —

Township of Woodbridge

1 Main Street

Woodbridge, N.J. 07095 ,

(tory for Township of Woodbridge

notians Sinan?

Corporation Counsel

City of Perth Amboy

214 Smith Street -

Perth Amboy, N.J. 08861 —

(Attorney for City of Perth Amboy)

Robert F. Dato, Esquire

Dato, Kracht & Gill

234 Main Street

Woodbridge, N.J. 97095

(Attorney for Borough ef-Canmey

This matter comes bafore/ititiiinesised suattnat etehiéd-gecty

defendant United States for reconsideration of this court’s order

of August 3, 1984 denying partial summary judgment as to the

liability of the Township of Woodbridge, and for leave to file

this motion out of time. ee ee

as unopposed.

This complex action can be described as one in which the

Township of Franklin and the Middlesex County Utilities

Authority (“‘MUCA”’] are attempting to compel a number of

municipalities to comply with a regional wastewater treatment

plan by connecting with the MCUA facilities. The United States’

motion reconsidered here sought to dispose of a discrete portion

allowing certain discharges. § 1342. The Act embodies an adoption

of certain timetables for the reduction or elimination of water

pollution. One of the benchmarks by which compliance with the

Act ‘is the achievement of “secondary treatment.”

§ 13 ). The Act required municipal water treatment works

to be in compliance with secondary treatment standards determined

by the EPA by. July 1, 1977. However, municipalities were allowed

to apply for time extensions under certain circumstances. The Act

initially allowed the EPA to grant extensions up to July 1, 1983.

In 1981, the Act was amended to allow the EPA to grant time

extensions, to. July .1,. 1988, at the, discretion of the EPA

aint: § 1311@q). . ,

ae i anateha Saale ik wanton for onrdal.semmary

judgment, certain facts were undisputed. The EPA had issued

permits in 1977 for Woodbridge’s water treatment plants. In 1978,

the EPA granted an extension of time to July 1, 1983, for

Woodbridge to achieve secondary treatment. The permits are

clearty conditioned upon Woodbridge’s cooperation with the

regional water treatment plan, pursuant to the requirements of

§ 1288. This plan requires that Woodbridge “‘tie-in”” with MCUA.

As of July 1, 1983, and as of the day of that hearing, Woodbridge

had noi achieved secondary treatment. The United Statemargued

at that time that, because the Act imposes strict civil liabiliry on

entities discharging pollutants and not meeting secondary treatment

adieme®

standards unless that entity is authorized to do so by the EPA,

summnaty jedgiedit: dhould ‘be grdintet

Scichehind Seieiiainid <autatans telat tame aienina to

be unresolved factual issues related to the permits. Specifically,

there were issues of fact regarding the validity of the permits,

and the availability to Woodbridge of further extensions of time

brane pce see ya ttorgpe get :

1s apenas hae mnie es ner r mide wins

of the permits—no party argues that the permits are invalid.

Further, it is now clear that Woodbridge has not been granted

an extension of time to achieve secondary treatment leveis in its

water treatment facilities. Summary judgment as to third-party

defendant Township of Woodbridge’s liability’ under the Clean

Water ‘Act will therefore’ be granted:

Tide ecsait Siesis Wuhan? pubeaal Macsla tale bitin lade

plan for bringing the Township of Woodbridge into compliance

with the Act. The parties will jointly submit, within 45 days of

the order accompanying this decision, a form of order appropriate

to that end.

October 23, 1984

TOWNSHIP OF FRANKLIN SEWERAGE AUTHORITY,

Plaintiff

MIDDLESEX COUNTY UTILITIES AUTHORITY, et al.,

Defendants

-ENTERED ON OCTOBER 24, 1984

ORDER

The United States having filed a motion for reconsideration

of this court’s August 3, 1984 order denying the United States’

motion for partial summary judgment against the Township of

Woodbridge on issues of liability and the court having considered

the moving papers and arguments of counsel and for the reasons

stated in the court’s opiriion filed even date herewith, it is on

this 23rd day of October 1984,

ORDERED that the motion for reconsideration and the

motion for partial summary judgment be and the same are hereby

granted and it is further

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DISTRICT COURT

OF NEW JERSEY

TOWNSHIP OF FRANKLIN SEWERAGE AUTHORITY,

: : Plaintiff,

MIDDLESEX COUNTY UTILITIES AUTHORITY,

Defendant-Third-Party-Plaintiff,

THE STATE OF NEW JERSEY, ET AL.,

bcandslontid Defendants.

ENTERED. ON DECEMBER 18, 1984

ORDER REQUIRING TOWNSHIP OF WOODBRIDGE TO

COMPLY WITH CLEAN WATER ACT

i ies Orden med Oceber: 34: 1984, this Court granted the

Motion for Reconsideration submitted by the Third-Party-

Act, by failing to achieve secondary treatment at those plants

as required by Section’ 301(b)(1)(B) of the Act, 33 U.S.C.

§ 1311(b)(1), and its National Pollutant Discharge Elimination

System (“‘NPDES”) permits, and by failing to tie into the

Middlesex County Utilities Authority (““MCUA”’) regional

treatment facility as required by its NPDES permits and the

Areawide Waste Treatment Management Plan developed pursuant

to Section 208 of the Act, 33 U.S.C. § 1288.

ORDER

The Court hereby ORDERS as follows:

1. Within 60 days of entry of this Order, the Township of

Woodbridge shall enter into service agreements with all parties

to this action that will be connected to or receive flow from

Woodbridge’s portion of the sewerage system, and copies of such

service agreements shall be filed with the Court and with all parties

to this action;

2. Within 60 days of the entry of this Order, the Township

of Woodbridge shall, in addition, fiie with this Court and all parties

hereto a proposed compliance schedule for the tie-in to MCUA,

beginning immediately and to be completed as expeditiously as

possible. Such schedule shall set forth in detail the steps by which

Woodbridge wiil tie in with MCUA and shall set forth the

beginning, completion, and other significant interim dates of each

25a

Appendix B

construction period necessary for compliance. Such schedule shall

in no event provide for less arnecieiqns, construction and

completion than as follows:

(a) Construction of the Interceptor Sewer from the

Keasbey Sewage Treatment Plant to the MCUA

Trunk Sewer (*‘Keasbey Interceptor’) shall begin

no later than June 30, 1985 and shall be completed

no later than December 31, 1986. :

(b). Construction to extend the Interceptor Sewer

from the Keasbey Interceptor to.the point of

connection to the proposed City of Perth Amboy

Interceptor shall begin no later than October 1,

1985 and shall be completed no later than April

1, 1987.

Mains, and the Interceptor from the Sewaren

Sewage Treatment Plant to connect to facilities

referenced in subparagraphs (a) and (b) above

(“‘Sewaren Project’’) shall begin no later than

January 31, 1986 and shail be completed no later

than June 1, 1988.

(d) Transmission of all sewage flows from the

Keasbey Interceptor to MCUA shall begin no later

than December 31, 1986, and shall continue

thereafater, and transmission of all sewage flows

from the Sewaren Project to MCUA shall begin

no later than June 30, 1988, and shail continue

thereafter; except that, in either case, if the

Appendix B

necessary construction is completed prior to the

dates specified herein, transmission of all

applicable sewage flows shali begin no later than

one month following such earlier date or dates and

shall continue thereafter.

3. Within 45 days of receipt of Woodbridge’s proposed

compliance schedule, all other parties shall file any objection that

they may have relating to such schedule. Thereafter, upon motion

filed by any party, this Court will schedule a hearing on the

compliance schedule to resolve any issues relating to the schedule

and implementation of the schedule. If no objections are filed,

or if objections are resolved by stipulation or by order of the

Court, the provisions of such unopposed schedule, stipulation

or order will be treated_as if set forth herein and will be enforceable

by the Court through the provisions of Paragraph 5 below or

through contempt proceedings.

4. Woodbridge’s responsibility to comply with the Clean

Water Act, its NPDES permits, and this Order is not contingent

upon the receipt of any federal or state loan or grant. Nevertheless,

any such grant or loan offered after the entry of this Order shall

be unconditionally accepted by Woodbridge within 21 days of

the time of offer.

5. In the event that Woodbridge shall fail to comply with

any of the provisions of Paragraphs 1, 2, 3, or 4 of this Order,

stipulated civil penalties of $1000 per day of failure shall be

assessed against Woodbridge.

6. Issues relating to the civil penalties to be assessed against

the Township of Woodbridge pursuant to Section 309 of the Clean

Water Act, 33 U.S.C. § 1319, if any, for past violations of the

27a

4 see?

Ac, shall be determined at ater date at «hearing 10 be scheduled

by the Court. -

December 10, 1984

DATE

APPENDIX B—ORDER OF JUNE 25, 1985 OF THE

HONORABLE ANNE E. THOMPSON, U.S.D.J. DENYING

WOODBRIDGE § MOTION TO DISSOLVE

INJUNCTION AND ORD PAYMENT OF CIVIL

are

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil No. 80-4041

TOWNSHIP OF FRANKLIN SEWERAGE AUTHORITY,

Plaintiff

MIDDLESEX COUNTY UTILITIES AUTHORITY, et al.,

Defendants

ENTERED ON JUNE 26, 1986

ORDER

This matter having come before the court on the motion of

third-party defendant Township of Woodbridge to dissolve this

court’s order of December 18, 1984, and on the motion of third-

party United States for the imposition of sanctions for the failure

of the Township of Woodbridge to comply with the order of

December 18, 1984, and the court having considered the argument

of counsel and the moving and opposing papers, and for good

cause shown, and for the reasons stated in the opinion of the

court filed even date herewith;

It is on this 25th day of June 1985,

Le oo hee hi kh

29a

onc |

ORDERED thet the motion of the Township of Woodbridge

be and ereby is denied; and iti further

waraiies

COUR ‘ike "hie tenainily Ue Weedtetion ‘yey civil

penaities pursuant to this court’s order of December 18, 1984,

in the amount of $16,800 to the Clerk of the Court within 30

cm OR eer an we anae ri

ORDERED that the Township of Woodbridge submit a

compliance schedule pursuant to this court’s order of December

18, se i gg 1985; and it is further

ORDERED that the Township of Woodbridge show cause

on July 15, 1985, why it should not be held in contempt.

s/ Anne E. Thompson _

ANNE E. THOMPSON, U.S.D.J.

TOWNSHIP OF FRANKLIN SEWERAGE AUTHORITY,

Plaintiff

MIDDLESEX COUNTY UTILITIES AUTHORITY, et al.,

Defendants

FILED ON JUNE 26, 1986

OPINION

THOMPSON, District Judge

This matter comes before the court on two motions relating

to the enforcement of a previous order of this court. On October

24, 1984, we granted the motion of the United States for partial

summary judgment as to the Township of Woodbridge’s liability

under the Clean Water Act, 33 U.S.C.§ 1251, et seg. on December

18, 1984, we entered an order requiring Woodbridge to comply

with the Act. The order required that Woodbridge, by March

4, 1985, file with the court

3la

Appendix B

a proposed compliance schedule for the tie-in to

MCUA, beginning immediately and to be

completed as expeditiously as possible. Such a

schedule shall set forth in detail the steps by which

_ Woodbridge will tie in with MCUA and shall set

forth the beginning, completion, and other

significant interim dates of each engineering study,

solicitation for bids, bid review, financing, and

construction period necessary for compliance.

The order goes on to detail certain deadlines which must be

contemplated in any such schedule. The order recites that

Woodbridge’s compliance is not dependent on its receipt of any

state or federal funding, and provides for civil penalties of $1,000

per day for failure to comply with the order.

Today Woodbridge moves for the dissolution of the December

18 order, and the United States moves for the imposition of

sanctions for Woodbridge’s failure to comply with that order.

We will deny Woodbridge’s motion. We have addressed the

issue presented—whether the obligation to comply with the Act

is contingent upon the receipt of funding from the United States-—

on two previous occasions. Woodbridge offers no new analysis

or authority which would lead the court to modify its holdings

on this issue. The specific argument advanced, that the 1981

amendment to 33 U.S.C. § 1311 allows Woodbridge to avoid

liability, has been explicitly rejected by the court. We find that

Woodbridge’s motion is without merit and borders on the abusive.

The United States’ motion is precipitated by Woodbridge’ s

failure to comply with the order. In response to the direction of

the court that it supply a detailed schedule of compliance,

32a

Appendix B

Woodbridge provides a report of Angeio Valetutto, the Township’s

municipal engineer. This report in essence opines that such a

schedule could be forthcoming. The report itself does not attempt

to comply with the order by supplying ‘‘in detail the steps by

which Woodbridge will tie in with MCUA.”’ The affidavit of Mr.

Valtutto filed in opposition tc. the motion of the United States

does not remedy Woodbridge’s failure. This affidavit certainiy

moplien eee NY weet ee

with the order.

Mr. Valtutto’s affidavit, and the argument of counsel for

Woodbridge at oral argument, failed to address salient points

raised in the affidavit of Richard Salkie submitted in objection

to the proposed compliance schedule. For example, Salkie states

that the compliance schedule fails to address the Township’s failure

to properly complete its application for permits for the Sewaren

project, although it has been notified by the Department of

Environmental Protection that additional ssbmissions aie required.

Salkie Affidavit, {4 13-19. In his affidavit in opposition to the

motion of the United States, Valtutto states that,

{ajithough both the Township and its consulting

engineers, Metcalf & Eddy, Inc. were aware that

such an addendum to the facilities plan wouid have

to be submitted to the DEP, the Township realized

that such an addendum did not require the

Township’s immediate attention, since funding

consideration by the DEP and EPA for the

Sewaren phase of the project was sometime off.

Valetutto Affidavit in Opposition to the Motion of the United

States, 4 21, Given this court’s finding that Woodbridge has an

obligatio~ to complete the MCUA project whether it receives

33a

rex “F

, o3 $

funding from the EPA or ta DES: is eersiians 06 Verano

is not responsive to the objection of the United States. We must

i the order, and that

yet, as ¢ 3¥%4 months after the deadline imposed by

the order, filed a proper compliance schedule.

Siva ACOW 3? VLE,

The EPA snd the DEP have ofsred oat Woodie

‘vs : cz

..52785 /

y not evade petica hace Raeipoed yn dao

any lack of federal funding has colored the meetings that have

taken place. We reiterate our finding that Woodbridge’s position

in this regard is without a basis in the law.

We will require that a complying schedule be filed with the

court no later than July 10, 1985. We will set down for July 15,

1985 a hearing for an order to show cause why Woodbridge should

not be heid in contempt of this court. We recommend that

Woodbridge accept the offers of the United States and the State

of New Jersey to meet to discuss such a schedule. Should the

Parties agree to a schedule, the court will consider it prior to July

15 and. if it is acceptable to the court, the hearing will not be

required. ;

As to penaities, we find that Woodbridge’s failure to comply

has extended from March 4, 1985 to the present, for a total of

112 days. The stipulated penalty is $1,000 per day; we order that

Woodbridge pay to the Clerk of the Court the amount of $16,800,

representing a penalty of $150 per day, within 30 days of this order.

TOWNSHIP OF FRANKLIN SEWERAGE AUTHORITY, a

pero fase F

vs. -

MIDDLESEX COUNTY UTILITIES AUTHORITY (formerly

the Middlesex County Sewerage Authority), a body corporate and

vs euiatial

THE STATE OF NEW JERSEY. by and through its

DEPARTMENT OF ENVIRONMENTAL PROTECTION, THE

UNITED STATES GF AMERICA, by and throught its UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY, THE

TOWNSHIP OF WOODBRIDGE, a municipal corporation of

the State of New Jersey, THE CITY OF PERTH AMBOY, a

municipal corporation of the State of New Jersey, and the

BOROUGH OF CARTERET, a municipal corporation of the

State of New Jersey—The Township of Woodbridge, Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 80-4041)

Present: GIBBONS, BECKER and ROSENN, Circuit Judges

y Petes x nt I 4 LEP ig ee: Ue pe 5, > , a dt i F same | s 5 by : : | j

Ie is further ordered and adjudged that the United tes is

double costs pursuant to Rule 38, Fed. R.App.P.,

appeal is frivolous. All of the above in accordance with the opinion

of this Court, |

ATTEST:

's/ Sally Mrvos

Clerk

March 28, 1986

Costs taxed in favor of appellee as follows:

Certified as a true copy and issued in lieu of a formal mandate

on April 21, 1986.

Test: s/ M. Elizabeth Ferguson

Chief Deputy Clerk, United States Court of Appeals,

for the Third Circuit.

APPENDIX D — RELEVANT STATUTES

33 U.S.C. § 1288:

devopment abd implementation of arewide wate Wea

management plans— _

* * ©

(2) The Administrator shall. accept any such designation,

unless, within 120 days of such designation, he finds that the

designated management agency (or agencies) does not have

adequate authority— ey

(A) to carry out appropriate portions of an areawide

waste treatment management plan —- under

subsection (b) of this section; :

(B) to manage effectively waste treatment works and

related facilities serving such area in conformance with

any plan required by subsection (b) of this section;

new works, and to operate and maintain new and existing

works as required by any plan developed pursuant to

subsection (6) of this section;

(D) to accept and utilize grants, or other funds from

any source, for waste treatment management purposes;

Se oe BI ena BAe

op NARS tk eS op PRD Be eR NI AS -

ee pe edi Ry

. ity or subdivision thereof,, which does

‘not comply with any provisions of an approved

plan under this section applicable to such area; and

(to accept for treatment industrial wastes.

(d) Conformity of works with area plan

After a waste treatment management agency having the

authority required by subsection (c) of this section has been

designated under such subsection for an area and a plan for such

area has been approved under subsection (b) of this section, the

r.shall not make any grant, for construction of a

publicly owned treatment works under section 128i(g)(1) of this

title within such area except to such designated agency and for

works in conformity with such plan.

No permit under section 1342 of this title shail be issued for

any point source which is in conflict with a plan approved pursuant

to subsection (b) of this section.

38a

Appendix D

(f) Grants

(i) The Administrator shall make grants to any agency

designated under subsection (a) of this section for payment of

the reasonable costs of developing and operating a continuing

areawide waste treatment management planning process under

subsection (b)'of this section." _

(ay Reo view iniespian-quitelaaniibaigtaltsls Dillates fon

grant is made under paragraph (1) of this subsection to an agency,

if such first grant is made before October 1, 1977, the amount

of each such grafit to such agency shall be 100 per centum of

the costs of developing and operating a

treatment management planning process under (b) of

this section, and thereafter the amount granted to such agency

shall not exceed 75 per centum of such costs in each succeeding

one-year period. in the case of any other grant made to an agezicy

under such paragraph (1) of this subsection, the amount of such

grant shall not exceed 75 per centum of the costs of developing

and operating @ continuing areawide waste treatment management

planning proce: any ee

(3y Bac bppansidae Bb Ween uals eta Wadisblhadd dna

submit to the Administrator for his approval each proposal for

which a grant is applied for under this subsection. The

Administrator shall act upon such proposal as soon as practicable

after it has been submitted, and his approval of that proposal

shall be deemed a contractual obligation of the United States for

the payment of its contribution to such proposal, subject to such

amounts as are provided in appropriation Acts. There is authorized

to be appropriated to carry out this subsection not to exceed

$50,000,000 for the fiscal year ending June 30, 1973, not to exceed

$100,000,000 for the fiscal year ending June 30, 1974, and not

39a

Appendix D

to exceed $150,000,000 per fiscal year for the fiscal years ending

June 30, 1975, Septemher 30, 1977, September 30, 1978, September

30, 1979, and September 30, 1980, and not to exceed $100,000,000

ee ee el es See 2 1981,

“(® Technical assistance by Administrator

The Administrator is authorized, upon request of the

Governor or the designated planning agency, and without

reimburscment, to consult with, and provide technical assistance

tc, any agency ¢ ed

the development of areawide waste treatment management plans

under subsection (b) of this section.

(h) Technical assistance by Secretary of the Army

(1) The Secretary of the Army, acting through the Chief of

Engineers, in cooperation with the Administrator is authorized

and directed, upon request of the Governor or the designated

planning organization, to consult with, and provide technical

assistance to, any agency designed' under subsection (a) of this

section in developing and operating a continuing areawide waste

treatment management planning process under subsection (b) of

this section.

(2). There is authorized to be appropriated te the Secretary

of the Army, to carry out this subsection, not to exceed

$50,000,000 per fiscal year for the fiscal years ending June 30,

1973 and June 30, 1974.

(i) State best management practices program

1. So in original. Probably should be ‘‘designated’’.

40a

Appendix D

(1) The Secretary of the Interior, acting through the Director

of the United States Fish and Wildlife Service, shall, upon request

of the Governor of a State, and without reimbursement, provide

technical assistance to such State in developing a statewide program

for submission to the A“ministrator under subsection (b\(4)(B)

of this section and in implementing such program after its

approval.

(2) There is authorized to be appropriated to the Secretary

of the Interior $6,000,000 to complete the National Wetlands

Inventory of the United States, by December 31, 1981, and to

provide information from such Inventory to States as it becomes

available to assist such States in the development and operation

of programs under this chapter.

(j) Agricultural cost sharing

(1) The Secretary of Agriculture, with the concurrence of

the Administrator, and acting through the Soil Conservation

Service and such other agencies of the Department of Agriculture

as the Secretary may designate, is authorized and directed to

establish and administer a program to enter into contracts, subject

to such amounts as are provided in advance by appropriation

acts, of not jess than five years nor more than ten years with

owners and operators having control of rural land for the purpose

of installing and maintaining measures incorporating best

management practices to control nonpoint source pollution for

improved water quality in those States or areas for which the

Administrator has approved a plan under subsection (b) of this

section where the practices to which the contracts apply are

certified by the management agency designated under subsection

(c\1) of this section to be consistent-with such plans and will

result in improved water quality. Such contracts may be entered

4la

Appendix D

into during the period ending not later than September 31, 1988.

Under such contracts the land owner or operator shall agree—

sc Oeoetememnastonagmratia bees emnorvaticn

district, where one exists, under this section for his farm,

ranch, or other land substantially in accordance with the

schedule outlined therein unless any requirement thereof

is waived or modified by the Secretary;

(ii) to forfeit all rights to further payments or grants

under the contract and refund to the United States all

payments and grants received thereunder, with interest,

upon his violation of the contract at any stage during the

time he has control of the land if the Secretary, after

considering the recommendations of the soil conservation

district, where ome exists, and the Administrator,

determines that such violation is of such a nature as to

warrant termination of the contract, or to make refunds

or accept such payment adjustments as the Secretary may

deem appropriate if he determines that the violation by

the owner or operator does not warrant termination of

the contract;

(iii) upon transfer of bis right and interest in the farm,

ranch, or other land during the contract period tc forfeit

all rights to further payments or grants under the contract

and refund to the United States all payments or grants

received thereunder, with interest, unless the transferee

of any such land agrees with the Secretary to assume ail

_ obligations of the contract;

(iv) not to adopt any practice specified by the

Secretary on the advice of the Administrator in the contract

| | ;

42a

Appendix D

as a practice which would tend to defeat the

purposes of the contract;

(v) to such additional provisions as the

Secretary determines are desirable and includes in

the contract to effectuate the purposes of the

program or to facilitate the practical administration

of the program.

(2) In return for such agreement by the landowner or operator .

the Secretary shall agree to provide technical assistance and share

the cost of carrying out those conservation practices and measures

set forth in the contract for which he determines that cost sharing

is appropriate and in the public interest and ' are approved

for cost sharing by the agency designated to implement the plan

. developed under subsection (6) of this section. The portion of

such cost (including labor) to be shared shall be that part which

the Secretary determines is necessary and appropriate to effectuate

the installation of the water quality management practices and

measures under the contract, but not to exceed 50 per centum

of the total cost of the measures set forth in the contract; except

the Secretary may increase the matching cost share where he

determines that (1) the main benefits to be derived from the

measures are related to improving offsite water quality, and (2)

the matching share requirement would place a burden on the

landowner which would probably prevent him from participating

in the program.

(3) The Secretary may terminate any contract with a

landowner or operator by mutual agreement with the owner or

operator if the Secretary determines that such termination would

be in the public interest, and may agree to such modification of

43a

Appendix D

contracts previously entered into as he may determine to be

desirable to carry out the purposes of the program or facilitate

the practical administration thereof or to accomplish equitable

treatment with respect to other conservation, land use, or water

quality programs.

(4) in providing assistance under this subsection the Secretary

will give priority to those areas and sources that have the most

significant effect upon water quality. Additional investigations

or plans may be made, where necessary, to supplement approved

water quality management plans, in order to determine priorities.

(5) The Secretary shall, where practicabie, enter into

agreements with soil conservation districts, State soil and water

conservation agencies, or State water quality agencies to administer

all or part of the program estabiished in this subsection under

regulations developed by the Secretary. Such agreements shall

provide for the submission of such reports as the Secretary deems

necessary, anid for payment by the United States of such portion

of the costs incurred in the administration of the program as the

Secretary may deem appropriate.

(6) The contracts under this subsection shall be entered into

only as areas where the management agency designated under

subsection (cl) of this section assures an adequate level of

participation by owners and operators having control of rural

land in such areas. Within such areas the local soil conservation

district, where one exists, together with the Secretary of

Agriculture, will determine the priority of assistance among

individual land owners and operators to assure that the most

critical water quality problems are addressed.

(7) The Secretary, in consultation with the Administrator and

eS ——_ ee =

44a

Appendix D

subject to section 1314({k) of this title, shall, not later than

September 30, 1978, promulgate regulations for carrying out this

subsection and for support and cooperation with other Federal

and non-Federal agencies for implementation of this subsection.

(8) This program shall not be used to authorize or finance

projects that would otherwise be eligible for assistance under the

terms of Public Law 83-566 [16 U.S.C.A. § 1001 et seq.].

(9) There are hereby authorized to be appropriated to the

Secretary of Agriculture $200,000,000 for fiscal year 1979,

$400,000,000 for fiscal year 1980, $100,000,000 for fiscal year

1981, and $100,000,000 for fiscal year 1982, to carry out this

subsection. The program authorized under this subsection shall

be in addition to, and not in substitution of, other programs in

such area authorized by this cr any other public law.

(June 30, 1948, c. 758, Title II, § 208, as added Oct. 18, 1972,

Pub.L. 92-500, § 2, 86 Stat. 839, and amended Dec. 27, 1977,

Pub.L. 95-217, §§ 4e), 31, 32, 33(a), 34, 35, 91 Stat. 1566,

1576-1579; Oct. 21, 1980, Pub.L. 96-483, § 1(d), (e), 94 Stat. 2360).

Pf ae es ye ae * =.) . ) oe

4Sa

Appendix D

33 U.S.C, § 1311 (with amendments)

SUBCHAPTER III—STANDARDS AND ENFORCEMENT

§ 1311, Effluent limitations

Illegality of pollutant discharges except in compliance with law

(a) Except ss in compliance with this section and sections

1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge

of any pollutant by any person shall be unlawful.

Timeable for achievement cf objectives

(b) In order to carry out the objective of this chapter there

shall be achieved-

(1)(A) not later than July 1, 1977, effluent limitations

for point sources, other than publicly owned treatment

works, (i) which shall require the application of the best

practicable control technology currently available as

defined by the Administrator pursuant to section 1314(b)

of this title, or (ii) in the case of a discharge iuto a publicly

owned treatment works which meets the requirements of

subparagraph (B) of this paragraph, which shall require

compliance with any applicable pretreatment requirements

and any requirements under section 1317 of this title; and

(B) for publicly owned treatment works in existence

on July 1, 1977, or approved pursuant to section 1283

of this title prior to June 30, 1974 (for which construction

must be completed within four years of approval), effluent

limitations based upon secondary treatment as defined by

46a

Appendix D

the Administrator pursuant to section 1314(d)(1) of this

title; or,

limitation, including those necessary to meet water quality

standards, treatment standards, or schedules of

compliance, established pursuant to any State law or

regulations (under authority preserved by section 1370 of

this title) or any other Federal law or regulation, or

required to implement any applicabie water quality

standard established pursuant to this chapter.

(2)(A) for pollutants identified in subparagraphs (C),

(D), and (F) of this paragraph, effluent limitations for

categories and classes of point sources, other than publicly

owned treatment works, which (i) shall require application

of the best available technology economically achievable

for such category or class, which will result in reasonable

further progress toward the national goal of eliminating

the discharge of all pollutants, as determined in accordance

with regulations issued by the Administrator pursuant to

section 1314(b)(2) of this title, which such effluent

limitations shall require the elimination of discharges of

all pollutants if the Administrator finds, on the basis of

information available to him (including information

developed pursuant to section 1325 of this title), that such

elimination is technologically and economically achievable

for a category or class of point sources as determined in

accordance with regulations issued by the Administrator

pursuant to section 1314(b){2) of this title, or (ii) in the

case of the introduction of a pollutant into a publicly

owned treatment works which meets the requirements of

subparagraph (B) of this paragraph, shail require

a 2 . . 4 ,

Pv wees = oF , Pe 2 em ee See

oe tg

47a

Appendix D

_ compliance with any applicable pretreatment requirements

Rcomsonpdrepete gasmen cay Spgs ot deme

HPA F<

(B) not later than July 1, 1983, compliance by all

publicly owned treatment works with the requirements set

forth in section 1281(g2)(A) of this title;

» (C) not later than July 1, 1984, with respect to ali

_ toxic pollutants referred to in table 1 of Committee Print

_ Numbered 95-30 of the Committee on Public Works and

‘Transportation of the House of Representatives

compliance with effluent limitations in accordance with

Beem

» (2 DBS Greer .

| --(D) for sll toxke polbutéints listed under paragraph (1)

of subsection (a) of section 1317 of this title which are

not referred to in subparagraph (C) of this paragraph

compliance with effluent limitations in accordance with

subparagraph (A) of this paragraph not later than three

a a a eee ee qenened,

er 1984, effluent limitations

for categories and classes of point sources, other than

publicly owned treatment works, which in the case of

pollutants identified pursuant to section 1314(a)(4) of this

title shall require application of the best conventional

pollutant control technology 2s determined in accordance

with regulations issued by the Administrator pursuant to

section 1314(b)(4) of this title; and

(F) for all polluants (other than those subject to

subparagraphs (C)(D), or (E) of this paragraph)

compliance with effluent limitations in accordance with

48a

Appendix D

subparagraph (A) of this paragraph not later than 3 years

after the date such limitations are established, or not iater

than July |, Pees ee ae but in no case later

than July 1, 1987.

Modification of timetable -

subsection (b(2)(A) of this section with respect to any point source

for which a permit application is filed after July 1, 1977, upon

a showing by the owner or operator of such point source

satisfactory to the Administrator that such modified requirements

(1) will represent the maximum use of technology within the

economic capability of the owner or operator; and (2) will result

in onsale, Lathes. Peers SERRE en See of the

discharge of pollutants. ss

Review and revision of aftiuent. Napestions

(dh Any’ elfingad, Nestiarion reauiced by: ereasaph (2) of

subsection (b) of this section shall be reviewed at least every five

years and, if appropriate, revised pursuant to the procedure

established under such paragraph. —

All point discharge source application of effluent limitations

(c} Effluent limitations established pursuant:to this section

or section 1312 of this titl shall be applied to all point sources

of discharge of pollutants in accordance with the provisions of

this chapter. ¥

Illegality of discharge of radiological, chemical, or biological

Appendix D

ee el nnn

ity aired ad ei ot the Sete

i pursuart 1314(aX(4) of this title, toxic

it sepieicoumnins 017) qf ie ie. ets ree

7 nt of es) from any point source upon a-showing

ee ee eee

egal ecient rail will result at a

minimum in compliance with the requirements of

subsection (b1)(A) or (C) of this section, whichever is

applicable.

(B) such modified requirements wili not result in any

additional requirements on any other point or nonpoint

source; and

attainment or maintenance of that water quality which

shall assure protection of public water supplies, and the

protection and propagation of a balanced population of

activities, in and on the water and such modification will

not result in the discharge of pollutants in quantities which

may reasonably be anticipated to pose an unacceptable

Fick, 10. dere ROD etn AA vironm:

toxicity, chronic toxicity ‘(including carcionogencity,

mutagenicity or teratogenicity), or synergistic propensities.

t because of

(2) If an owner or operator of a point source applies for

a modification under this subsection with respect to the discharge

wo such plltane onl dig she sme ie pce ath el

to apply for a modification under this, subsection. :.

Modification of secondary treatment requirements

‘(t) The Administrator, with the concurrence of the State,

may issue a permit under section 1342 of this title which modifies

the requirements of subsection (b)(1)(B) of this section with respect

to the discharge of any pollutant in an existing discharge from

a publicly owned treatment works into marine waters, if the

applicant demonstrates to the satisfaction of the Administrator

that—

(1) there is an applicable water quality standard

specific to the pollutant for which the modification is

requested, which has been identified under section

1314(aX(6) of this title;

(2) such modified requirements will not interfere with

the attainment or maintenance of that water quality which

assures protection of public water supplies and the

protection and propagation of a balanced, indigenous

population of shelifish, fish and wildlife, and allows

recreational activities, in and on the water;

Sla

. Appendix D

3) the applicant has established a system for

_ monitoring the impact of such discharge on a representative

ecuagie’ Of equuatie Weta; 'to the extent practicable;

(4) such modified requirements will not result in any

‘additional requirements on any other point or nonpoint

~% all aca pretreatment requirements for

sources introducing waste into such treatment works will

be'enforesd; ”

established a schedule of activities designed to eliminate

the entrance of toxic pollutants from nonindustrial sources

into’ such treatment works;

| Yn nad al baer ab sepeialaidathy-tndreased

discharges from the point source of the pollutant to which

the modification applies above that volume of discharge

specified in the permit;

(8) any funds available to the owner of such treatment

works under subchapter I! of this chapter will be used

to achieve the degree of effluent reduction required by

gection 1281(b)and (g)(2)(A) of this title or to carry out

the requirements of this subsection.

For the purposes of this subsection the phrase “the discharge of

any pollutant into marine waters’’ refers to a discharge into deep

waters of the territorial sea or the waters of the contiguous zone,

or into saline estuarine waters where there is strong tidal movement

and other hydrological and geological characteristics which the

$2a

Appendix D

Administrator determines necessary to allow compliance with

Darnaearrs Cf He ena one ant fomtng at oF tile te.

Mandela Wins Gahenbabilin®

(i)(1) Where construction is required in order for a planned

or existing publicity owned treatment works to achieve limitations

under subsection (b)(1)(B) or (6)(1)(C) of this section, but (A)

construction cannot be completed within the time required in such

subsection, or (B) the United States has failed to make financial

assistance under this chapter available in time to achieve such

limitations by the time specified in such subsection, the owner

or operator of such treatment works may request the Administrator

(or if appropriate the State) to issue a permit pursuant tc section

1342 of this title or to modify @ permit issyed pursuant to that

section to extend such time for compliance. Any such request

shall be filed with the Administrator (or if appropriate the State)

within 180 days after December 27, 1977. The Administrator (or

if appropriate the State) may grant such request and issue or

modify such a permit, which shall contain a schedule of compliance

for the publicly owned treatment works based on the earliest date

by which such financial assistance will be available from the United

States and construction can be compieted, but in no event later

than July 1, 1983, and shail contain such other terms and

conditions, including those necessary to carry out subsections (b)

through (g) of section 1281 of this title, section 1317 of this title,

and such interim effluent limitations applicable.to that treatment

works as the Administrator determines are necessary to carry out

the provisions of this chapter.

(2A) Where a point source (other than a publicly owned

treatment works) will not achieve the requirements of subsections

(b)(1)(A) and (b)(1)(C) of this section and—

53a

. Appendix D

(i) if a permit issued prior to July 1, 1977, to such

2 om en ngs lal ad mad

Sit al i Gi te Sly wn

treatment works) had before July 1, 1977, a contract

(enforceable against such point source) to discharge into

a publicly owned treatment works; or

Gif) if either an application made before July 1, 1977,

for a construction grant under this chapter for a publicly

owned treatment works, or engineering or architectural

plans or working drawings made before July i, 1977, for

& publicly owned treatment works, show that such point

source was to discharge into such publicly owned treatment

works,

and such publicly owned treatment works is presently unable to

accept such discharge without construction, and in the case of

a discha-ge to an existing publicly owned treatment works, such

treatment works has an extension pursuant to paragraph (1) of

this subsection, the owner or operator of such point source may

request the Administrator (or if appropriate the State) to issue

or modify such a permit pursuant to such section 1342 of this

title to extend such time for compliance. Any such request shall

be filed with the Administrator (or if appropriate the State) within

180 days after December 27, 1977, or the filing of a request by

the appropriate publicly.owned treatment works under paragraph

(1) of this subsection, whichever is later. If the Administrator

(or if appropriate the State) finds that the owner or operator of

such point source has acted in good faith, he may grant such

request and issue or modify such a permit, which shall contain

a schedule of compliance for the point source to achieve the

S4a

Appendix D

requirements of subsections (6)(1)(A) and (C) of this section and

shall contain such other terms and conditions, including

pretreatment and interim effluent limitations and water

conservation requirements applicable to that point source, as the

Administrator determines are necessary to carry out the provisions

of this chapter.

(B) No time modification granted by the Administrator (or

if applicable the State) pursuant to paragraph (2)(A) of this

subsection shall extend beyond the earliest date practicable for

compliance or beyond the date of any extension granted to the

appropriate publicly owned treatment works pursuant to paragraph

(1) of this subsection, but in no event shall it extend beyond July

1, 1983, and no such time modification shall be granted unless

(i) the publicly owned treatment works will be in operation and

available to the point source before July 1, 1983, and will meet

the requirements of subsections (b)(1)(B) and (C) of this section

after receiving the discharge from that point source; and (ii) the

into an enforceable contract requiring the point source to discharge

into the publicly owned treatment works, the owner or Operator

of such point source to pay the costs required under section 1234

of this title, and the publicly owned treatment works to accept

the discharge from the point source; and (iii) the permit for such

point source requires that point source to meet all requirements

under section 1317(a) and (b) of this title during the period of

such time modification.

Modification procedures

(3X1) Any application filed under this section for a

modification of the provisions of—

5Sa

Appendix D

(A) subsection (6\1)(B) of this section under

subsection (h) of this section shall be filed not later than

270 days after December 27, 1977;

(B) subsection (bM2)A) of this section as it applies

to pollutants identified in subsection (b\(2)(F) of this

section shall be filed not later than 270 days after the date

of promulgation of an applicable effluent guideline under

section 1314 of this title or not later than 27C days after

ry magpoc cog 1977, whichever is later.

uitlipraneinadic we banleitiiahtis tal tdi bdbiactice

(g) of this section shall not operate to stay any requirement under

this chapter, unless in the judgment of the Administrator such

a stay or the modification sought will not result in the discharge

of pollutants in quantities which may reasonably be anticipated

to pose an unacceptable risk to human health or the environment

because of bioaccumulation, persistency in the environment, acute

toxicity, chronic toxicity (including carcinogenicty, mutagenicity,

or teratogenicity), or synergistic propensities, and that there is

a substantial likelihood that the applicant will succeed on the merits

of such application. In the case of an application filed under

subsection (g) of this section, the Administrator may condition

any stay granted under this paragraph on requiring the filing of

a bond or other appropriate security to assure timely compliance

with the requirements from which a modification is sought.

Innovative technology

(k) In the case of any facility subject to a permit under section

1342 of this title which proposes to comply with the requirements

of subsection (¢)(2)(A) of this section by replacing existing

production capacity with an innovative production process which

56a

Appendix D

will result in an effluent reduction significantly greater than that

required by the limitation otherwise applicable to such facility

and moves toward the national goal of eliminating the discharge

of all pollutants, or with the installation of an innovative control

technique that has a substantial likelihood for enabling the facility

to comply with the applicable effluent limitation by achieving a

significantly greater effluent reduction than that required by the

applicable effluent limitation and moves toward the national goa!

of eliminating the discharge of all pollutants, or by achieving the

required reduction with an innovative system that has the potential

for significantly lower costs than the systems which have been

determined by the Administrator to be economically achievable,

the Administrator (or the State with an approved program under

section 1342 of this title, in consultation with the Administrator)

may establish a date for compliance under subsection (b)(2)(A)

of this section no later than July 1, 1987, if it is also determined

that such innovative system has the potential for industrywide

application.

Toxic pollutants

(I) The Administrator may not modify any requirement of

this section as it applies to any specific pollutant which is on the

toxic pollutant list under section 1317(a\1) of this title.

June 30, 1948, c. 758, Title Ill, § 301, as added October 18, 1972,

Pub.L. 92-500, § 2, 86 Stat. 844, and amended Dec. 27, 1977,

Pub.L. 95-217, §§42-47, 53(c), 91 Stat. 1582-1586, 1590.

57a

Appendix D

SUBCHAPTER III—STANDARDS AND ENFORCEMENT

§ 1311. Effluent limitations

[See main volume for text of (a)]

(b) Timetable for achievement of objectives

In order to carry out the objective of this chapter there shall

be achieved—

[See main volume for text of (1) and (2)(A)]

(B) Repealed. Pub.L. 97-117, § 21(b), Dec. 29, 1981,

95 Stat. 1632.

[See main voiume for text of (C) to (F); (c) to (g)]

(h) Modification of secondary treatment requirements

The Administrator, with the concurrence of the State, may

issue a permit under section 1342 of this title which modifies the

requirements of subsection (b)(1)(B) of this section with respect

to the discharge of any pollutant from a publicly owned treatment

works into marine waters, if the applicant demonstrates to the

satisfaction of the Administrator that—

[See main volume for text of (1) to (6)]

(7) there will be no new or substantially increased

discharges from the point source of the pollutant to which

the modification applies above that volume of discharge

specified in the permit.

58a

Appendix D

(8) Repealed. Pub.L. 97-117, § 22(b), Dec. 29, 1981,

95 Stat. 1632.

For the purposes of this subsection the phrase “‘the discharge of

any pollutant into marine waters’’ refers to a discharge into deep

waters of the territorial sea or the waters of the contiguous zone,

or into saline estuarine waters where there is strong tidal moverneni

and other hydrological and geological characteristics which the

Administrator determines necessary to allow compliance with

paragraph (2) <f this subsection and section 1251(a)(2) of this

title. A municipality which applies secondary treatment shall be

eligible to receive a permit pursuant to this subsection which

modifies the requirements of subsection (6)(1)(B) of this section

with respect to the discharge of any pollutant from any treatment

works owned by such municipality into marine waters. No permit

issued under this subsection shall authorize the discharge of sewage

sludge into marine waters.

(1) Where construction is required in order for a planned

or existing publicly owned treatment works to achieve limitations

under subsection (b)(1)(B) or (b)(1)(C) of this section, but (A)

construction cannot be completed within the time required in such

subsection, or (B) the United States has failed to make financial

assistance under this chapter available in time to achieve such

limitations by the time specified in such subsection, the owner

or operator of such treatment works may; request the

Administrator (or if appropriate the State) to issue a permit

pursuant to section 1342 of this title or to modify a permit issued

pursuant to that section to extend such time for compliance. Any

such request shall be filed with the Administrator (or if appropriate

the State) within 180 days after December 27, 1977. The

59a

Appendix D

Administrator (or if appropriate the State) may grant such request

and issue or modify such a permit, which shali contain a schedule

of compliance for the publicly owned treatment works based on

the earliest date by which such financial assistance will be available

from the United States and construction can be completed, but

in no event later than July 1, 1988, and shall contain such other

terms and conditions, including those necessary to carry out

subsections (b) through (g) of section 1281 of this title, section

1317 of this title, and such interim effluent limitations applicable

to that treatment works as the Administrator determines are

necessary to carry out the provisions of this chapter.

[See main volume for text of (2)(A)]

(B) No time modification granted by the Administrator (or

if appropriate the State) pursuant to paragraph (2)(A) of this

subsection shall extend beyond the earliest date practicable for

compliance or beyond the date of any extension granted to the

appropriate publicly owned treatment works pursuant to paragraph

(1) of this subsection, but in no event shall it extend beyond July

1, 1988; and no such time modification shall be granted unless

(i) the publicly owned treatment works will be in operation and

available to the point source before July 1, 1988, and will meet

the requirements of subsections (b)(1)(B) and (C) of this section

after receiving the discharge from that point source; and (ii) the

point source and the publicly owned treatment works have entered

into an enforceable contract requiring the point source to discharge

into the publicly owned treatment works, the owner or operator

of such point source to pay the costs required under section 1284

of this title, and the publicly owned treatment works to accept

the discharge from the point source; and (iii) the permit for such

point source requires that point source to meet all requirements

_under section 1317(a) and (b) of this title during the period of

such time modification.

Appendix D

(j) Modification procedures

(1) Any application filed under this section for a modification

of the provisions of —

(A) subsection (6)1)(B) of this section under

subsection (h) of this section shall be filed not later that'

the 365th day which begins after December 29, 1981;

[See main volume for text of (B), (2); (k) and {l)]

(m) Modification of effluent limitation requirements for point

sources

(1) The Administrator, with the concurrence of the State,

may issue a permit under section 1342 of this title which modifies

the requirements of subsections (b)(1)A) and (b\(2)(E) of this

section, and of section 1343 of this title, with respect to effluent

limitations to the extend such limitations relate to biochemical

oxygen, demand and pH from discharges by an industrial

discharger in such State into deep waters of the territorial seas,

if the applicant demonstrates and the Administrator

(A) the facility for which modification is sought is

covered at the time of the enactment of this subsection

b; National Pollutant Discharge Elimination System

permit number CA0005894 or CA0005282;

(B) the energy and environmental costs of meeting

such requirements of subsections (b)(1)(A) and (b)(2)(E)

of this section and section 1343 of this title exceed by an

unreasonable amount the benefits to be obtained, including

the objectives of this chapter.

1. So in original. Probably should be ‘‘than’’.

6la

_ Appendix D

monitorifig the impact of such discharges on a

representative sample of aquatic biota;

@) such modified requirements wil! not result in any

additional requirements on any other point or nonpoint

source;

' () there will be no new or substantially increased

discharges from the point source of the pollutant to which

the modification applies above that volume of discharge

specified in the permit;

(F) the discharge is into waters where there is strong

characteristics which are necessary to allow compliance

with this subsection and section 1251(a)(2) of this title;

(G) the applicant accepts as a condition to the permit

a contractural obligation to use funds in the amount

required (but not less than $250,000 per year for ten years)

for research and development of water pollution control

technology, including but not limited to closed cycle

technology.

(H) the facts and circumstances present a unique

situation which, if relief is granted, will not establish a

precedent or the relaxation of the requirements of this

chapter applicable to similarly situated discharges; and

(1) no owner or operator of a facility comparable to

that of the applicant situated in the United States has

demonstrated that it would be put at a competitive

62a

Appendix D

disadvantage to the applicant. (or the parent company or

any subsidiary thereof) as a result of the issuance of a

permit under this subsection.

(2) The effluent limitations estabiished under a permit issued

under paragraph (1) shall be sufficient to implement the applicable

State water quality standards, to assure the protection of public

water supplies and protection, and propagation of a balanced,

indigenous population of shellfish, fish, fauna, wildlife, and other

aquatic organisms, and to allow recreational activities in and on

the water. In setting such limitations, the Administrator shall take

into account any seasonal variations and the need for an adequate

margin of safety, considering the lack of essential knowledge

concerning the relationship between effluent limitations and water

quality and the lack of essential knowledge of the effects of

Gischarges on beneficial uses of the receiving waters.

(3) A permit under this subsection may be issued for a period

not to exceed five years, and such a permit may be renewed for

one additional period not to exceed five years upon a

demonstration by the applicant and a finding by the Administrator

at the time of application for any such renewal that the provisions

of this subsection are met.

(4) The Administrator may terminate a permit issued under

this subsection if the Administrator determines that there has been

a decline in ambient water quality of the receiving waters during

the period of the permit even if a direct cause and effect

relationship cannot be shown; Provided, That if the effluent from

a source with a permit issued under this subsection is contributing

to a decline in ambient water quality of the receiving waters, the

Administrator shall terminate such permit.

$3a

Appendix D

(As amended Dec. 29, 1981, Pub.L. 97-117, §§ 21, 22(a)-(d), 95

Stat. 1631, 1632; Jan. 8, 1983, Pub.L..97-440, 96 Stat. 2289.)

aba

Appendix D

33 U.S.C. § 1342. National pollutant discharge elimination system

Permits for discharge of pollutants

(a(t) Except as provided in sections 1528 and 1344 of this

toes april fat Vind hadi of tel Vohdie erGhlabaaas

of pollutants, notwithstanding section 1311(a) of this title, upon

condition that such discharge will meet either all applicable

requirements under sections 1311, 1312, 1316, 1317, 1318, and

1343 of this title, or prior to the taking of necessary implementing

actions relating to all such requirements, such conditions as the

Administrator determines are necessary to carry Out the provisions

of this chapter.

(2) The Administrator shall prescribe conditions for such

permits to assure compliance with the requirements of paragraph

(1) of this subsection, including conditions on data and information

collection, reporting, and such other requirements as he deems

appropriate.

(3) The permit program of the Administrator uncer paragraph

(1) of this subsection, and permits issued thereunder, shall be

subject to the same terms, conditions, and requirements as apply

to a State permit program and permits issued thereunder under

subsection (b) of this section.

(4) All permits for discharges into the navigable waters issued

pursuant to section 407 of this title, shall be deemed to be permits

issued under this subchapter, and permits issued under this

subchapter shall be deemed to be permits issued under section

407 of this title, and shall continue in force and effect for their

term unless revoked, modified, or suspended in accordance with

the provisions of this chapter.

65a

Appendix D

(5) No permit for a discharge into the navigable waters shall

be issued sunder section 407 of this title after October 18, 1972.

Each application for a permit under section 407 of this title,

pending on Uctober 18, 1972, shall be deemed tc be an application

for a permit under this section. The Administrator shall guthorize

a State, which he determines has the capability of administering

a permit program which wiil carry out the objective of this chapter,

vo issue permits for discharges into the navigable waters within

the jurisdiction of such State. The Administrator may exercise

the authority granted him by the preceding sentence only during

the period which begins on October 18, 1972, and ends either

on the ninetieth day after the date of the first promulgaticn of

guidelines required by section 1314(h)(2) of this title, or the date

of approval by the Administrator of a permit program for such |

State under subsection (>) of this section, whichever date first

occurs, and no such authorization to a State shall extend beyond

the last day of such period. Each such permit shall be subject

to such conditions as the Administrator determines are necessary

to carry out the provisions of this chapter. No such permit shall

issue memnginieerinryetionte objects to such issuance.

Sine pédehlt peaprenie

(b) At any. time after the promulgation of the guidelines

required by subsection (h)(2) of section 1314 of this title, the

Governor of each State desiring to administer its own permit

program for discharges into navigable wateis within its jurisdiction

may submit to the Administrator a full and complete description

of the program: it proposes to establish and administer under State

law or under an interstate compact. In addition, such State shall

submit a statement from the attorney general (or the attorney

for those State water pollution control agencies which have

independent legal counsel), or from the chief lega! officer in the

Appendix D

case of an interstate agency, that the laws of such State, or the

interstate compact, as the case may be, provide adequate authority

to carry out the described program. The Administrator shall

approve each such submitted program unless he determines that

adequate authority does not exist:

(1) To issue permits which—

(A) apply, and insure compliance with, any applicable

requirements of sections 1311, 1312, te 1317, and 1343

(B) are for fixed terms not enceeding five years; and

as eniohee-amgungpnntnsale soe weet eaten lamar

but not limited to, the following:

(i) violation of any condition of the permit;

(ii) obtaining a permit by misrepresentation, or

failure to disclose fully all relevant facts;

(iii) change in any condition that requires either

a temporary or permanent reduction or elimination

of the permitted discharge;

(D) control the disposal of pollutants into wells;

(2)(A) To issue permits which apply, and insure compliance

with, all applicable requirements of section 1318 of this title, or

(B) To inspect, monitor, enter, and require reports to at least

the same extend as required in section 1318 of this title;

67a

Appendix D

(3) To insure that the public, and any other State the waters

of which may be affected, receive notice of each application for

a permit and to provide an opportunity for public hearing before

a ruling + ecaad ‘such ere

ene Ueland tea Maddala int lien aed ot eich

. cotew ein nena hi eabaninincia edits eae,

whose waters may be affected by the issuance of a permit may

submit written recommendations to the permitting State (and the

Administrator) with respect to any permit application and, if any

part of such written recommendations are not accepted by the

permitting Staté, that the permitting State will notify such affected

State (and the Administrator) in writing of its failure to so accept

such recommendations 0 mn wkh its reasons for so doing;

seh Te alanis iriadalt i Genoa it in the judgment

of the Secretary of the Army acting through the Chief of Engineers,

after consultation with the Secretary of the department in which

the Coast Guard is operating, anchorage and navigation of any

of the ps tages waters would be prey eccneid impaired thereby;

(1) is daleda vealaae OF Chin piacite'6n tek petiak prdigrem,

including civil and criminal penalties and other ways and means

of enforcement;

(8) To insure that any permit for a discharge from a publicly

owned treatment works includes ccnditions to require the

identification in terms of character and volume of pollutants of

any significant source introducing pollutants subject to

pretreatment standards under section 1317(b) of thi **"e into such

works and a program to assure compliance with such pretreatment

68a

Appendix D

standards by each such source, in addition to adequate notice

to the permitting agency of (A) new introductions into such works

of pollutants from any source which would be a new source as

defined in section 1316 of this title if such source were discharging

pollutants, (B) new introductions of pollutants into such works

from a source which would be subject to section 1311 of this title

if it were discharging such pollutants, or (C) a substantial change

in volume or character of pollutants being introduced into such

works by a source introducing pollutants into such works at the

time of issuance of the permit. Such notice shall include

information on the quality and quantity of effluent to be

introduced into such treatment works and any anticipated impact

of such change in the quantity or quality of effluent to be

discharged from such publicly owned treatment works; and

(9) To insure that any industrial user of any publicly owned

treatment works will comply with sections 1284(b), 1317, and 1318

of this title.

Suspension of federal program upon submission of State program;

withdrawal of approval of State program

(c)(1) Not later than ninety days after the date on which a

State has submitted a program (or revision thereof) pursuant to

subsection (b) of this section, the Administrator shall suspend

the issuance of permits under subsection (a) of this section as

to those navigable waters subject to such program unless he

determines that the State permit program does not meet the

requirements of subsection (b) of this section or does not conform

to the guidelines issued under section 1314(h)(2) of this title. If

the Administrator so determines, he shall notify the State of any

revisions or modifications necessary to conform to such

requirements or guidelines.

69a

Appendix D

(2) Any State permit program under this section shall at all

times be in accordance with this section and guidelines promulgated

pursuant to section 1314(h)(Z) of this title.

(3) Whenever the Administrator determines after public

hearing that a State is not administering a program approved under

this section in accordance with requirements of this section, he

shall so notify the State and, if appropriate corrective action is

not taken within a reasonable time, not to exceed ninety days,

the Administrator shall withdraw approval of such program. The

Administrator shall not withdraw approval of any such program

unless he shall first have notified the State, and made public, in

writing, the reasons for such withdrawal.

Notification of Administrator

(d)(1) Each State shall transmit to the Administrator a copy

of each permit application received by such State and provide

notice to the Administrator of every action related to the

consideration of such permit application, including each permit

proposed to be issued by such State.

(2) No permit shall issue (A) if the Administrator within ninety

days of the date of his notification under subsection (b)(5) of

this section objects in writing to the issuance of such permit, or

(B) if the Administrator within ninety days of the date of

transmittal of the proposed permit by the State objects in writing

to the issuance of such permit as being outside the guidelines and

requirements of this chapter. Whenever the Administrator objects

to the issuance of a permit under this paragraph such written

objection shall contain a statement of the reasons for such

objection and the effluent limitations and conditions which such

permit would include if it were issued by the Administrator.

70a

Appendix D

(3) The Administrator may, as to any permit application,

waive paragraph (2) of this subsection.

(4) In amy case where, after December 27, 1977, the

Administrator, pursuant to paragraph (2) of this subsection,

objects to the issuance of a permit, on request of the State, a

public hearing shall be held by the Administrator on such

objection. If the State does not resubmit such permit revised to

meet such objection within 30 days after completion of the hearing,

or, if no hearing is requested within 90 days after the date of

such objection, the Administrator may issue the permit pursuant

to subsection (a) of this section for such source in accordance

with the guidelines and requirements of this chapter.

Waiver of notification requirement

(ec) In accordance with guidelines promulgated pursuant to

subsection (h)(2) of section 1314 of this title, the Administrator

is authorized to waive the requirements of subsection (d) of this

section at the time he epproves a program pursuant to subsection

(b) of this section for any category (including any class, type,

or size within such category) of point sources within the State

submitting such program.

Point source categories

{f) The Administrator shall promulgate regulations

establishing categories of point sources which he determines shall

not be subject to the requirements of subsection (d) of this section

in any State with a program a~proved pursuant to subsection (b)

of this section. The Administrator may distinguish among classes,

types, and sizes within any category of point sources.

Tila

Appendix D

Other regulations for safe transportation, handling, carriage.

storage, and stowage of pollutants

hey atermh eines nater se: cRetie fot Soe, Siocoree

a the navigabie waters from 2 vessel or other

floating ‘shall be subject to any applicable by the Secretary

of the department in which the Coast Guard is operating,

establishing specifications of safe transportation, handling,

carriage, storage, and stowage of pollutants.

Violation of permit conditions; restriction or prohibition upon

introduction of pollutant by source not previously utilizing

treatment works

(h) In the event any condition of a permit for discharges from

a treatment works (as defined in section 1292 of this title) which

is publicly owned is violated, a State with a program approved

under subsection (b) of this section or the Administrator, where

no State program is approved or where the Admiristrator

determines pursuant to section 1319(a) of this title that a State

with an approved program has not commenced appropriate

enforcement action with respect to such permit, may proceed in

a court of competent jurisdiction to restrict or prohibit the

introduction of any pollutant into such treatment works by a

source not utilizing such treatment works prior to the finding that

such condition was violated.

()) Nothing in this section shall be construed to limit the

authority of the Administrator to take action pursuant to section

1319 of this title.

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Appendix D

Public information

(j) A copy of each permit application and each permit issued

under this section shall be available to the public. Such permit

application or permit, or portion thereof, shall further be available

on request for the purpose of reproduction.

Compliance with permits

(k) Compliance with a permit issued pursuant to this section

shall be deemed compliance, for purposes of sections 1319 and

1365 of this title, with sections 1311, 1312, 1317, and 1343 of

this title, except any standard imposed under section 1317 of this

title for a toxic pollutant injurious to human health. Until

‘December 31, i974, in any case where a permit for discharge has

been applied for pursuant to this section, but final administrative

disposition of such application has not been made, such discharge

shall not be a violation of (1) section 1311, 1316, or 1342 of this

title, or (2) section 407 of this title, unless the Administrator or

other plaintiff proves that final administrative disposition of such

application has not been made because of the failure of the

applicant to furnish information reasonably required or requested

in order to process the application. For the 180-day period

beginning on October 18, 1972, in the case of any point source

discharging any pollutant or combination of pollutanis

immediately prior to such date which source is not subject to

section 407 of this title, the discharge by such source shall not

be a violation of this chapter if such a source applies for a permit

for discharge pursuant to this section within such 180-day period.

Irrigation return flows

(1) The Administrator shall not require a permit under this

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Appendix D

section for discharges composed entirely of return flows from

irrigated agriculture, nor shall the Administrator directly or

indirectly, require any State to require such a permit.

June 30, 1948, c. 758, Title TV, § 402, as added Oct. 18, 1972,

Pub.L. 92-500, § 2, 86 Stat. 880, and amended Dec. 27, 1977,

Pub.L. 95-217, §§ 33(c), 54(c)(1), 65, 66;, 91 Stat. 1577, 1591,

1599, 1600.

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Appendix D

P.L. 95-217 § 45

MUNICIPAL TIME EXTENSIONS

Sec. 45. Section 301 of the Federal Water Pollution Control

Act is amended by adding at the end thereof the following new

subsection:

**(i)(1) Where construction is required in order for a planned

or existing publicly owned treatment works to achieve limitations

under subsection (b){1)(B) or (b)(1)(C) of this section, but (A)

construction cannot be compieted within the time required in such

subsection, or (B) the United States has failed to make financial

assistance under this Act available in time to achieve such

limitations by the time specified in such subsection, the owner

or operator of such treatment works may request the Administrator

(or if appropriate the State) to issue a permit pursuant to section

402 of this Act or to modify a permit issued pursuant to that

section to extend such time for compliance. Any such request

shall be filed with the Administrator (or if appropriate the State)

within 180 days after the date of enactment of this subsection.

The Administrator (or if appropriate the State) may grant such

request and issue or modify such a permit, which shall contain

a schedule of compliance for the publicly owned treatment works

based on the earliest date by which such financial assistance will

be available from the United States and construction can be

completed, but in no event later than July 1, 1983, and shaii

to carry out subsections (b) through (g) of section 201 of this

Act, section 307 of this Act, and such interim effluent limitations

applicable to that treatment works as the Administrator determines

are necessary to carry out the provisions of this Act.

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Appendix D

**(2)(A) Where a point source (other than a publicly owned

treatment works) will not achieve the requirements of subsections

(b)(1MA) and (6)(1)(C) of this section and—

**(i) if a permit issued prior to July 1, 1977, to such

point source is based upon a discharge into a publicly

owned treatment works; or

“*Gi) if such point source (other than a publicly owned

treatment works) had before July 1, 1977, a contract

(enforceable against such point source) to discharge into

a publicly owned treatment works; or

“*(iii) if either an application made before July 1, 1977,

for a construction grant under this Act for a publicly

owned treatment works, or engineering or architectural

plans or working drawings made before July 1, 1977, for

a publicly owned treatment works, show that such point

source was to discharge into such publicly owned treatment

works,

and such publicly owned treatment works is presently unable to

accept such discharge without construction, and in the case of

a discharge to an existing publicly owned treatment works, such

treatment works has an extension pursuant to paragraph (1) of

this subsection, the owner or operator of such point source may

request the Administrator (or if appropriate the State) to issue

or modify such a permit pursuant to such section 402 to extend

such time for compliance. Any such request shall be filed with

the Administrator (or if appropriate the State) within i80 days

after the date of enactment of this subsection or the filing of a

request by the appropriate publicly owned treatment works under

paragraph (1) of this subsection, whichever is later. If the

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Appendix D

Administrator (or if appropriate the State) finds that the owner

or operator of such point source has acted in good faith, he may

grant such request and issue or modify such a permit, which shall

contain a schedule of compliance for the point source to achieve

the requirements of subsections (b)(1){A) and (C) of this section

and shall contain such other terms and conditions, including

pretreatment and interim effluent limitations and water

conservation requirements applicable to that point source, as the

Administrator determines are necessary to carry out the provisions

of this Act.

**(B) No time modification granted by the Administrator (or

if appropriate the State) pursuant to paragraph (2)(A) of this

subsection shall extend beyond the earliest date practicable for

compliance or beyond the date of any extension granted to the

appropriate publicly owned treatment works pursuant to paragraph

(1) of this subsection but in no event skall it extend beyond July

1, 1983; and no such time modification shall be granted unless

(i) the publicly owned treatment works will be in operation and

available to the point source before July 1, 1983, and will meet

the requirements of subsections (b)(!)(B) and (C) of this section

after receiving the discharge from that point source; and (ii) the

point source and the publicly owned treatment works have entered

into an enforceable contract requiring the point source to discharge

into the publicly owned treatment works, the owner or operator

of such point source to pay the costs required under section 204

of this Act, and the publicly owned treatment works to accept

the discharge from the point source; and (iii) the permit for such

point source requires that point source to meet all requirements

under section 307(a) and (b) during the period of such time

modification.”” -

Appendix D

P.L. 95-117 § 21(a)

MUNICIPAL COMPLIANCE DEADLINE

Sec. 21. (a) Section 301(i) of the Federal Water Pollution

Control Act is amended by striking out “‘July 1, 1983,” each place |

it appears and inserting in lieu thereof ‘“‘July 1, 1988’’. The

amendment made by this subsection shall not be interpreted or

applied to extend the date for compliance with section 301(b)(i)(B)

or (C) of the Federal Water Pollution Control Act beyond

schedules for compliance in effect as of the date of enactment

of this Act, except in cases where reductions in the amount of

financial assistance under this Act or changed conditions affecting

the rate of construction beyond the control of the owner or

operator will make it impossible to complete construction by July

1, 1983.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.