UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
November 1, 1976; as amended Nov. 10, 1976.
BETHLEHEM STEEL CORPORATION, PETITIONER
RUSSELL E. TRAIN, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
Petition for Review of the Order of the Administrator of the Environmental Protection Agency Dated September 30, 1975.
Before: Adams, Rosenn and Garth, Circuit Judges.
Adams, Circuit Judge.
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 parties, we have decided that the petition for review must be dismissed.
As the first step in our analysis, we must explore the problem whether this case has become moot. As noted, EPA has told the Court that, because of the stipulation between the parties, it does not contemplate bringing enforcement action against Bethlehem when the projected failure to comply with the July 1, 1977 deadline comes to pass. Since the stipulation, however, does not obviate all the adverse consequences that might be visited upon Bethlehem because of its inability to conform to the deadline date, we conclude that a live case or controversy still exists.*fn17
Two considerations shape our determination. Although EPA made clear that it had no intention to bring either a civil or a criminal action against Bethlehem, it conceded that it could not foreclose that possibility in the future. A more significant factor affecting the question of mootness, however, is the provision in section 505 of FWPCA*fn18 for citizen suits against dischargers which fail to comply with the terms of the permit. While a citizen must give the EPA advance notice of his intention to sue,*fn19 there is no authorization to block a citizen's suit under section 505 even though the agency believes that the suit should not go forward. Thus, the EPA-Bethlehem stipulation would not foreclose the possibility that a citizen could proceed with litigation seeking the imposition of sanctions because of Bethlehem's inability to comply with the statutory deadline. Accordingly, this case cannot be deemed moot and we must proceed to the merits.
At the core of Bethlehem's argument on appeal is its contention that, in spite of the legislation's explicit provision of the July 1, 1977 deadline, Congress could not possibly have intended to subject corporations to sanctions for failing to comply with time limits that proved to be unattainable. In such circumstances, it continues, Congress surely would intend for EPA to have the discretion to grant extensions to companies which were undertaking good faith compliance efforts.*fn20
Bethlehem has not based its assertions on the text of the statute. Instead, in support of its position, it has directed our attention to several aspects of the legislative history. It states that the Phase I compliance date in early drafts of the legislation was July 1, 1976, and that for Phase II, July 1, 1981. Congress, however, pushed "these dates forward because of the time consumed in completing Congressional action."*fn21 Bethlehem insists that this amendment manifests a Congressional concern for the need of industry to have adequate time to plan and consummate compliance activity. It further maintains that this sensitivity should be interpreted as permitting the Administrator to bend the July 1, 1977 requirement when discharges cannot meet that date through no fault of their own.
Bethlehem also asserts that the legislative history contains many statements indicating that Congress was attentive to the social and economic ramifications of the standards to be established under 301, 302 and 304 of FWPCA. In particular, it stresses the observations of Senator Randolph, a member of the Senate-House Conference Committee.*fn22
"The Committee does not want to impose impossible goals, nor does it intend to require expenditures so excessive that they would undermine our economy. Consequently, under the proposed legislation, controls must relate the economic and social benefits to be gained with the economic and social costs to be incurred." The draconian consequences of EPA's strict insistence on the July 1, 1977 deadline, Bethlehem submits, is inconsistent with Congressional awareness of the unwelcome economic impact of the overly zealous pursuit of environmental goals.
Although we are sympathetic to the plight of Bethlehem and similarly situated dischargers, examination of the terms of the statute, and of the legislative history of FWPCA and the case law has convinced us that July 1, 1977 was intended by Congress to be a rigid guidepost. The portions of the legislative history cited by Bethlehem speak to the economic and social consequences of the substance of guidelines established under section 301, 302 and 304. Indeed, section 304(b)(2)(B) explicitly mandates that the Administrator is to consider social and economic costs in the context of assessing the best practicable control technology available.*fn23
There are no comparable expressions of concern with the economic consequences of the July 1, 1977 date. Instead, all discussion of this date in the legislative history indicates that Congress viewed it as an inflexible target. The most important statement on the significance of the July 1, 1977 deadline was made by Senator Muskie, the principal author of FWPCA:*fn24
This does not mean that the Administrator cannot require compliance by an earlier date; it means that these limitations must be achieved no later than July 1, 1977, that they must be uniform and that they will be final upon the issuance of a permit under section 402 of the bill. This view was echoed by Representative Jones, a member of the Senate-House Conference Committee:*fn25
It is the intention of the managers that the July 1, 1977 requirements be met by phased compliance and that all point sources will be in full compliance no later than July 1, 1977.
The import of these statements is reinforced by a further portion of the legislative history. H.R. 11896, the House version of the bill that ultimately became FPWCA, contained a provision authorizing EPA to extend the compliance deadline in cases where there was a showing of hardship upon the discharger.*fn26 The Senate bill, however, contained no comparable clause. When the final version of the legislation emerged from the Conference Committee, it provided no authority for extension of the deadline for any reason whatsoever, and FWPCA as enacted also lacks such a mandate. The failure of a conference committee to include a portion of a bill proposed in one House is not a conclusive indicium of legislative intent.*fn27 But here, in light of the other segments of the legislative history, it leads to the conclusion that Congress did not authorize the EPA to deviate from the July 1, 1977 deadline for attainment of Phase I compliance levels.
We are aware that our interpretation of FWPCA may work a hardship on Bethlehem, which is doing everything within its power to achieve the required levels of effluent limitation as expeditiously as possible. However, the cases in general, and in the environmental field in particular, teach that the appropriate body from which to seek relief in situations such as the present one is the Congress.*fn28 Two recent decisions interpreting ecology statutes will illustrate this proposition.
The Supreme Court examined a comparable problem in Union Electric Co. v. EPA,*fn29 a case which arose under the Clean Air Act. In Union Electric, the Court held that the EPA may not reject a state implementation plan on the grounds of economic and technological infeasibility.*fn30 The Court acknowledge that harsh consequences could ensue under such an interpretation, but stated that this was a risk that Congress had opted to take, and that it was not for the courts to upset that Congressional decision.*fn31 Union Electric appears to indicate that the Supreme Court is willing to construe environmental statutes in a manner that may impose major burdens on polluters, and if the plain language of the applicable legislation so indicates, relief from such hardships must flow from Congress.*fn32
The decision in State Water Control Board v. Train,*fn33 reflects an approach similar to that taken in Union Electric in the context of a factual situation closely resembling the one in this case.
Section 301(b)(1) of FWPCA*fn34 requires that publicly owned sewage treatment plants must comply with certain effluent limitations by July 1, 1977. The Act*fn35 states that the federal government will provide 75% of all funding required for construction of municipal treatment facilities. For a variety of reasons much of the funding was not made available to local governments. This resulted in many publicly-owned treatment plants being unable to meet the July 1, 1977 deadline. The Virginia State Water Control Board brought suit for a judgment declaring that the affected sewage treatment plants did not have to meet the compliance date. The Board urged that Congress must have intended to link compliance with the deadline to the availability of the federal funds.
Judge Mehrige's opinion expressed sympathy for the predicament in which the municipalities had been placed by the federal government's failure to meet its statutory responsibility. But he ruled that there was no warrant in the legislation for granting an extension of the compliance date.*fn36 The proper organ of government to extricate the local governments from their difficulties, Judge Mehrige stated, was not the courts, but Congress.
Accordingly, on the basis of the legislative history and the adjudicated cases, we hold that the EPA is without authority to grant an extension, in NPDES permits, of the July 1, 1977 date.*fn37
Bethlehem has also asserted that if FWPCA is construed to require compliance by July 1, 1977, the Act, then, deprives it of the due process of law guaranteed by the fifth amendment. It would appear, however, that the federal government's police power is sufficiently broad to encompass this effort to confront the pressing problem of improving the quality of our nation's waters.
We have examined the other contentions raised by Bethlehem and the amicus and find them to be without merit. The petition for review will therefore be dismissed.