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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 828

## Text

85-2138
No. Supreme Court, U.S.
| FILED
In The JUN 26 1988.

Supreme Court of the Anited _ SPANIOL, JR.

ig

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.

ii

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

vi

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

—

n>

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.

2

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).

3

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

4

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!

5

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

6

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.

7

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

9

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

10

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.

11

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

12

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, Ԥ 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

13

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

the December 29, 1981 amendment which established § 1311(i es Ae Aare =. * dled ss
Water Act. iasgea “edited fp Pas coreeieg Shecifin
‘ ‘ Sei Thea x Cees BO Tas Gra Bete ae ek ee

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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;

(C) directly or by contract, to design and construct
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.

© Permits not. to conflict with approved plans
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,

(C) not later than July 1, 1977, any more stringent
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) 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
en

(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
ee

. 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.

72a

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

73a

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.

74a

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.

75a

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

76a

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2119%3A1. Public record. Not legal advice.