November 1, 1976; as amended Nov. 10, 1976.
Petition for Review of the Order of the Administrator of the Environmental Protection Agency Dated September 30, 1975.
Before: Adams, Rosenn and Garth, Circuit Judges.
This case involves an important question regarding the interpretation of the Federal Water Pollution Control Act (FWPCA).*fn1 We must determine whether the Environmental Protection Agency (EPA) may issue a permit which would allow dischargers to comply with effluent limitations at a time subsequent to July 1, 1977, the date set forth in the act.
FWPCA encompasses a complex statutory scheme that seeks "to restore and maintain the chemical, physical and biological integrity of the nation's waters" in order to achieve a "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985."*fn2
Three interrelated provisions form the heart of the program and are the focus of this litigation. Section 301 (b)*fn3 establishes two stages of effluent limitations. The stage relevant to our present inquiry is the requirement of conformity by July 1, 1977 with "effluent limitations for point sources . . . which shall require the application of the best practicable control technology currently available as defined by the Administrator pursuant to section 304(b) of this Act . . . ." The second provision, section 304 (b)(1)(A),*fn4 in turn requires the EPA to promulgate guidelines for emissions by certain industries, including the iron and steel industry, by October 18, 1973. The third provision, section 402,*fn5 establishes the National Pollutant discharge Elimination System (NPDES) permits as the primary means through which effluent limitations are to be enforced. All discharges of pollutants must be authorized by a permit issued by either the EPA or the state environmental authorities. Subsection (a)(1) of section 402*fn6 states that the permits are to be conditioned on conformity with all applicable requirements of certain other statutory provisions, including section 301. It is further provided that all permits must be issued by December 31, 1974.*fn7
Thus, the legislative structure appears to be that the general standards of pollution control are to be promulgated under sections 301 and 304, and that these standards are then to be implemented in particular cases through the use of section 402 permits.
The sequence of administrative action contemplated by Congress has never taken hold in the iron and steel industry. The section 304 guidelines for that industry were not established by October 18, 1973; indeed, none are in force today.*fn8 As a result, permits have been issued to iron and steel manufacturers under a clause of section 402(a)(1) that empowers the EPA to grant permits, on an interim basis, before formal guidelines are promulgated.*fn9
On December 31, 1974, the EPA issued a permit to Bethlehem, pursuant to its stopgap authority, containing effluent limitations and compliance schedules, and requiring attainment of final compliance levels by July 1, 1977.*fn10 For Bethlehem to meet this deadline it would have to complete extensive construction by April 1, 1977, something which Bethlehem has insisted is physically impossible in spite of good faith compliance efforts.*fn11 The earliest date by which it could meet the prescribed levels would be July 1, 1979.*fn12 Bethlehem fully pursued its administrative remedies in an attempt to win an extension of the compliance date. Although EPA agreed that compliance by July 1, 1977 was not feasible, it ruled at all stages that it was without power under FWPCA to grant an extension.*fn13
A significant development has occurred subsequent to the filing of the petition for review in the present case, that bears heavily on the resolution of this proceeding. On June 3, 1976, EPA circulated a memorandum which stated that, in certain instances, it would not undertake enforcement actions against dischargers for failure to meet the July 1, 1977 deadline.*fn14 Recognizing that some industrial dischargers would be unable to conform, despite good faith efforts, the agency announced that if a discharger did not have a final permit, EPA would issue an Enforcement Compliance Schedule Letter (ECSL). The ECSL would specify a program requiring final Stage I effluent limitation levels at some time after July 1, 1977. EPA was careful to note, however, that the permit issued to recipients of an ECSL would contain the July 1, 1977 compliance date. EPA has continued to insist that it is without statutory power to alter the deadline. Rather, the EPA urges that the ECSL program is merely an exercise of its prosecutorial discretion.
In a letter commenting on the impact of the ECSL scheme on the present action, and at oral argument, EPA stated that Bethlehem, having already received a final permit, is not eligible for an ECSL. However, EPA informed us that its stipulation with Bethelehem was the same effect as an ECSL and that enforcement action was, perforce, highly unlikely.
This Court has jurisdiction pursuant to section 509 (b)(1) of FWPCA,*fn15 which provides for review in the courts of appeals of action by the Administrator of EPA "in issuing or denying any permit under section 402."*fn16 After scrutinizing the contentions of the ...