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10/08/80 Montgomery Environmental v. Douglas M. Costle

October 8, 1980







Before MacKINNON, WALD and MIKVA, Circuit Judges.






Nos. 79-1183, 79-1576 1980.CDC.241

Petitions for Review of Orders of the Environmental Protection agency.


Opinion for the Court filed by Circuit Judge MIKVA.


The Montgomery Environmental Coalition and the Center for Environmental Strategy petition this court for review of a decision by the Environmental Protection Agency approving the terms of permits issued to two sewage treatment plants that discharge pollutants into the Potomac River and its tributaries. Petitioners consider the conditions of these permits too lax to protect the water quality of the Potomac, and argue that the five years of administrative hearings on their objections have been tainted by a variety of legal errors. We consolidated these petitions for argument together. In the meantime, the individual permits being challenged here have both expired, and it has become necessary to separate the claims that are now moot from those that remain live controversies.

In his final decision on one of these permit challenges, the Administrator of the EPA confessed his embarrassment at reviewing the terms of a permit on the brink of expiration, and at being unable to take account of more recent information about the conditions of the Potomac. Joint Appendix (hereinafter "J.A.") at 1101. We share to some degree his embarrassment. Courts have always preferred to decide issues of public importance on the basis of a concrete and clear-cut record, with fresh evidence of current validity. But the evidence in a case may lose some of that freshness while running an endless gauntlet of litigation, particularly when judicial review follows several layers of administrative determination. This is such a case. In these circumstances, a court may still find that a party has few other opportunities for review, and that the case is presented in such a form that the lapse of time does not impede proper judicial determination of the merits.

After careful examination, we conclude that one of the petitions in this case has become wholly moot, but that several of the claims in the other petition survive the expiration of the permit, and must be decided. Of these surviving claims, we find that some of petitioners' objections to the permit are well taken. I. BACKGROUND

A. The Federal Water Pollution Control Act

The history of the Federal Water Pollution Control Act has frequently been traced in opinions construing the statute, e. g., EPA v. State Water Resources Control Board, 426 U.S. 200, 202-09, 96 S. Ct. 2022, 2023-2026, 48 L. Ed. 2d 578 (1976); Natural Resources Defense Council, Inc. v. Train, 166 U.S. App. D.C. 312, 510 F.2d 692 (D.C.Cir.1975). As that history is relevant to the problems petitioners raise here, it is necessary to repeat some of this oft-told tale.

Pollution of our nation's waters both by industrial by-products and by accumulated human wastes has been a constant accompaniment to our growth. Legal doctrines condemning this pollution and a technological capacity to reduce it have long been available in theory, but the technology was not voluntarily implemented and the legal limitations were rarely enforced. The transformation of the conservation movement into the environmental activism of the 1960s and 1970s spurred a major reevaluation of national policies regarding the natural environment. One important part of that reevaluation was the Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 816 (hereinafter cited as "the Amending Act"; the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. II 1978) as amended, will be cited as "the Act").

The Amending Act established a new and more effective regulatory regime aimed at "restor(ing) and maintain(ing) the chemical, physical, and biological integrity of the Nation's waters." Act § 101(a). *fn1 The earlier Federal Water Pollution Control Act ("the pre-1972 Act"), first enacted in 1948, and amended on several occasions, *fn2 had relied on setting water quality goals for interstate waters, but could only enforce these goals through a cumbersome process of conference by federal and state officials, followed by a civil abatement suit against the polluter. See Federal Water Pollution Control Act Amendments of 1961 § 8, Pub.L. No. 87-88, 75 Stat. 204. The Amending Act emphasized the more powerful method of directly controlling the polluting sources. It declares a national goal of totally eliminating discharge of pollutants into our waters by 1985, and an interim goal of making water fit for fish, wildlife, and recreation wherever possible by July 1, 1983. Act § 101(a) (1, 2). In the meantime, the Act sets up a system of government-issued permits for discharge of pollutants, and proscribes the discharge of any pollutant by any person except in compliance with such a permit. Act 301(a). The permits are to specify, among other things, the precise quantities of pollutants that may be discharged; these quantities are to be reduced over time to achieve the 1983 "fishable-swimmable" and the 1985 "no discharge" goals.

Responsibility for supervising the implementation of the Act was vested in the Environmental Protection Agency , which had been created in 1970 and had inherited the Secretary of the Interior's authority under the pre-1972 Act. The Administrator of the EPA (the Administrator) has the power to issue a National Pollution Discharge Elimination System permit to any "point source" *fn3 discharging pollution into the nation's waters. The Amending Act encouraged states to take over responsibility for issuing permits by developing NPDES regulatory systems of their own, subject to the Administrator's approval and supervision.

The core of the new approach is the imposition of "effluent limitations" in the NPDES permits. These effluent limitations are technical specifications of the quantities of various polluting substances that a permittee may lawfully discharge. The limitations are designed to achieve water quality goals by forcing discharges to adopt technology for reducing the pollutant content of their effluents. Until the 1985 "no discharge" rule becomes binding, effluent limits will also reflect some measure of accommodation between water quality needs and economic feasibility. See Act § 304(b)(1), (2). This balance is expressed, in part, in the Act's phased schedule specifying the level of technology that must serve as the basis of effluent limitations. For example, private dischargers are currently judged by the "best practicable control technology currently available," but the standard is to be tightened over the next decade to "best available technology economically achievable." See Act § 301(b)(1), (2). Similarly, publicly owned treatment works are presently judged by a "secondary treatment" standard, but by July 1983 this is to be replaced by the "best practicable waste treatment technology over the life of the works." See Act § 301(b)(1), (2).

Besides this phased technology schedule, effluent limitations are also governed by a state's right to demand purer water than the national standard. The state can embody this judgment in binding "water quality standards" that must be respected in the drafting of the permit. Act 301(b)(1). The efficacy of effluent limitations is also reinforced by the Administrator's power to impose further conditions in the permit that are designed to assure compliance with those limitations. Act 402(a)(2).

B. The Seneca and Blue Plains Challenges

The Seneca Creek Wastewater Treatment Plant is a small sewage treatment plant operated by the Washington Suburban Sanitary Commission. It discharges treated sewage into Seneca Creek, a tributary of the Potomac River in Montgomery County, Maryland. The Blue Plains Sewage Treatment Plant is a huge treatment facility located on the Potomac itself, within the District of Columbia, and operated by the District of Columbia Department of Environmental Services . In the mid-1970's, the EPA issued NPDES permits to both of these plants, and petitioners challenged both of those permits. After a lengthy process of administrative review, the EPA rejected many of petitioners' claims, and they now seek judicial review of those final determinations.

The quality of the water in the Potomac River has long been a subject of alarm, and controversy over the appropriate measures for improving it animates the various technical challenges raised in this case. One major focus of this controversy is control of the discharge of "nutrients" into the river. The principal nutrients at issue are nitrogen and phosphorus compounds that provide food for many species of algae. Excessive nutrient levels degrade water quality both because the proliferation of algae is itself a nuisance and because algae respiration and subsequent death and decay use up oxygen dissolved in the river's waters. Dissolved oxygen is necessary to support other forms of aquatic life.

As originally issued on May 31, 1974, the EPA permit for Blue Plains aimed at controlling algae by removal of both phosphorus and nitrogen compounds in the treatment process. This entailed the construction of expensive denitrification facilities. Both DES and petitioners requested modification of the permit-DES sought relief from the cost of denitrification, and petitioners argued that the permit was, in various respects, not strict enough. Among other objections, petitioners argued that the Blue Plains permit did not do enough to control DES's handling of peak inflows that were beyond the capacity of the plant. They suggested a number of measures designed to prevent release of untreated sewage into the Potomac, insisting that the EPA was obliged to consider some of these measures, and that the EPA was required by law to impose others. They also opposed deletion of the denitrification requirement from the permit, on both legal and factual grounds.

Petitioners were unsuccessful in their administrative challenges. The Administrative Law Judge refused to accept evidence on several of their suggested permit conditions, relying on the opinion of the EPA General Counsel that he lacked authority to impose such conditions. The EPA also rejected their arguments in favor of denitrification, approving an experimental attempt to control algae by regulating phosphorus alone. This initial decision was issued in 1978, and petitioners sought review by the EPA Administrator. His final decision, released on May 3, 1979, essentially affirmed the earlier determinations concerning the issues contested here. Petitioners requested judicial review of the Administrator's decision, and in the meantime the challenged permit expired on June 30, 1979. The Blue Plains plant is currently operated under a replacement permit issued on July 19, 1979.

This court consolidated the Blue Plains challenge with the petition for review of the Seneca permit. That permit was issued on September 4, 1974; both the permitholder and petitioner sought modifications. After a hearing held in January 1977, the EPA rejected most of petitioners' requested changes, and allowed changes that they opposed. *fn4 An initial decision was issued in August 1978, and the Administrator declined to review it. The Seneca permit expired on October 4, 1979, while this case was pending. The EPA has not issued a replacement, however, because the authority to grant permits for the NPDES program has been transferred to the state of Maryland, as envisioned by section 402(b) of the Act. The Maryland Water Resources Administration issued the most recent Seneca permit on July 1, 1980. II. STANDING

Although the parties have not raised the issue, our jurisdiction in this case depends on the threshold question of whether the petitioners have standing to challenge the EPA's actions with respect to the Seneca and Blue Plains permits. Under section 509 of the Act, any "interested person" can seek review in the Court of Appeals of certain actions of the Administrator. *fn5 Petitioners, the Montgomery Environmental Coalition and the Center for Environmental Strategy, are groups of concerned citizens, including among their members residents of Maryland, Virginia, and the District of Columbia, who profess an interest in the preservation and enhancement of the natural environment situated along the Potomac estuary. We hold that they are "interested persons" within the meaning of section 509(b).

In order to determine whether petitioners are sufficiently "interested," we must explore the meaning of that word in its context. Standing to challenge government action is not normally available to everyone who professes intellectual curiosity about its outcome. A frequent starting point in analyses of standing, particularly in environmental cases, is the Supreme Court's opinion in Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). The Court discussed the doctrine of standing within the framework of section 10 of the Administrative Procedure Act, 5 U.S.C. § 702 (1976), which grants judicial review to persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The Court held that that language required the person seeking review to allege, at a minimum, an "injury in fact" to himself resulting from the challenged action. The injury could be to one's "(a)esthetic and environmental well-being," but facts must be alleged demonstrating "that the party seeking review (is) himself among the injured." 405 U.S. at 734-35, 92 S. Ct. at 1365-1366.

The Sierra Club decision is especially relevant to interpretation of section 509(b) not only because it sheds light on cognizable interests in the environment, but because it was decided while Congress was in the process of passing the Amending Act of 1972, and demonstrably influenced one of its provisions. That provision is section 505, which authorizes "citizen suits" to enforce the strictures of the Act. As finally passed, section 505 allows "citizens" to sue in the district court when a discharger is unlawfully polluting waters, or when the Administrator has failed to perform a non-discretionary duty. The term "citizen" is defined in section 505(g) as "a person or persons having an interest which is or may be adversely affected." The legislative history explicitly states that this language is meant to embody the injury in fact rule of the Administrative Procedure Act, as set forth by the Supreme Court in Sierra Club v. Morton. S. Conference Rep. No. 1236, 92d Cong., 2d Sess. 146 (1972), reprinted in (1972) U.S.Code Cong. & Admin.News 3776, 3823, 1 Legislative History of the Water Pollution Control Act Amendments of 1972 281, 329 (1973) (hereinafter cited as Legislative History). The presence of this standing provision in section 505 naturally raises the question whether the language of section 509(b), referring merely to an "interested person," is meant to be in contrast with the language of section 505(g). We conclude, however, that no such contrast is intended, and that section 509(b), like section 505(g), incorporates the Sierra Club notion of standing.

Unlike the citizen suit provision of section 505, the judicial review provision of section 509(b) attracted little attention during the course of the enactment of the 1972 Amending Act. The language of the House and Senate bills was identical, and the phrase "interested person" lay inert in section 509(b) throughout its history. The reports accompanying the bills did not elaborate on its meaning. See S.Rep. No. 414, 92nd Cong., 1st Sess. 85 (1971), reprinted in (1972) U.S.Code Cong. & Admin.News pp. 3668, 3750, 2 Legislative History 1415, 1503; H.R.Rep. No. 911, 92d Cong., 2d Sess. 136 (1972), reprinted in 1 Legislative History 753, 823. Thus, in determining the significance of the variation in wording, the most helpful portions of the legislative history are those dealing with section 505.

Originally, both the Senate and House bills applied a different measure of citizen standing than the provision ultimately adopted. The Senate bill permitted "any person" to bring a citizen suit for enforcement of the Act. S. 2770, 92d Cong., 1st Sess. § 505(a) (1971), reprinted in 2 Legislative History 1534, 1703. This grant of universal standing was "modeled on the provision enacted in the Clean Air Amendments of 1970." S.Rep. No. 414, 92d Cong., 1st Sess. 79 (1971), reprinted in 2 Legislative History 1497. The House bill limited suits to "citizens," defined as including both

(1) a citizen of the geographic area and having a direct interest which is or may be affected, and (2) any group of persons which has been actively engaged in the administrative process and has thereby shown a special interest in the geographic area in controversy.

H.R. 11896, 92d Cong., 2d Sess. § 505(g) (1972), reprinted in 1 Legislative History 893, 1077. This definition was "based upon the "private attorney general' doctrine as developed in" conservation litigation of the 1960s. H.R.Rep. No. 911, 92d Cong., 2d Sess. 134 (1972), reprinted in 1 Legislative History 753, 821. Its reference to the geographic area and to "direct" interest suggests that it was narrower than the definition ultimately adopted, as the House recognized in accepting the conferees' compromise, see 118 Cong.Rec. 33756 (1972) (remarks of Rep. Dingell), reprinted in 1 Legislative History 249, but the second clause may have been broader. The conference compromised the conflicting provisions on the basis of the Supreme Court's reading of the "adversely affected or aggrieved" language of the Administrative Procedure Act; one commentator has described the language chosen as simply "a long-winded way of saying "adversely affected.' " Currie, Judicial Review Under Federal Pollution Laws, 62 Iowa L.Rev. 1221, 1273 (1977).

Thus, the divergence between the language used in section 505(g) and the language of section 509(b) reflects the fact that both of the original bills contained citizen suit provisions that differed from their judicial review provisions: the House bill had a generally stricter, and the Senate bill a broader, grant of citizen standing than the review standard, and they were compromised somewhere in the middle without reference to the language of section 509(b). The judicial review provisions did not differ, and were not changed. Under those circumstances, the variation in wording between section 509(b)"s "interested person" and section 505(g)"s "persons having an interest which is or may be adversely affected" appears to be of no significance at all. Both of these provisions incorporate the injury in fact rule for standing set out in Sierra Club v. Morton.

Some measure of support for this interpretation may be seen in the use of the words "interested person" in the EPA's regulations implementing the public hearing process for NPDES permits. The current regulations allow requests for evidentiary hearings by "any interested person," and require a description of "the nature and scope of the interest of the requester," 45 Fed.Reg. 33484, 33498-99 (1980) (to be codified in 40 C.F.R. § 124.74). The regulations in force at the time of the original Blue Plains and Seneca permit hearings were even more explicit, requiring specification of "the interest of the requestor which is affected by the proposed issuance, denial or modification of the permit." 40 C.F.R. § 125.36(b)(2)(ii) (1975), 38 Fed.Reg. 27081 (1974). The regulations further allow a person who has identified his interests to be joined as an additional party, and grant parties the right to appeal to the Administrator. 45 Fed.Reg. 33484, 33500, 33503-04 (1980) (to be codified in 40 C.F.R. §§ 124.79(a), 124.91(a)(1)). As the regulations point out, appeal to the Administrator is "a prerequisite to the seeking of judicial review." Id. at 33504 (to be codified in 40 C.F.R. § 124.91(e)). The regulations thus envision the term "interested person" as calling for the identification of an interest affected by the agency's action.

We conclude that, as Professor Currie has argued, the standing requirements of section 505 and section 509(b) are the same despite slight differences in the wording. See Currie (supra) 62 Iowa L.Rev. at 1274. This requirement is the injury in fact standard of Sierra Club, and it is easily met by petitioners. Their members include residents of Maryland, Virginia, and the District of Columbia, by whose shores the Potomac River flows. We may take judicial notice of the fact that that river can be seen and smelt from those shores, and even that, as an important source of drinking water, it can be tasted. In E. I. du Pont de Nemours & Co. v. Train, 541 F.2d 1018, 1036 (4th Cir. 1976), modified, 430 U.S. 112, 97 S. Ct. 965, 51 L. Ed. 2d 204 (1977), the Fourth Circuit, without lengthy discussion, granted standing under section 509(b) to a "purchaser and user of sodium metal" who challenged EPA limits on pollution by sodium producers. Petitioners' members are users of the Potomac River, and their standing to challenge the Blue Plains and Seneca permits is clear. III. MOOTNESS

The EPA raises another threshold question, mootness, in both the Seneca and Blue Plains cases. The petitioners have invoked this court's jurisdiction under section 509(b) of the Act, which provides review in the Court of Appeals of specified actions of the Administrator, including approval of effluent limitations and issuing of permits. Both of the permits whose terms petitioners challenged in the administrative hearings have now expired. The EPA therefore urges that both these cases have become moot and must be dismissed.

The doctrine of mootness concerns both the constitutional limitation of federal court jurisdiction to actual cases and controversies, and the exercise of a court's discretion in matters of remedy and judicial administration. See Chamber of Commerce v. United States Department of Energy, 200 U.S. App. D.C. 236, 627 F.2d 289 at 291-292 (D.C.Cir. 1980). It has long been held "that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404, 30 L. Ed. 2d 413 (1971) (per curiam). But a case or controversy may continue to exist where "the challenged government activity is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties." Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S. Ct. 1694, 1698, 40 L. Ed. 2d 1 (1974).

In particular, a controversy concerning an initial permit may simply continue in the context of succeeding permits. In earlier actions against the EPA, the Sixth Circuit has rejected mootness claims upon a finding of a "subsisting controversy between the petitioner and EPA over the authority of the Administrator of that agency." See Northern Ohio Lung Ass'n v. EPA, 572 F.2d 1143, 1147 (6th Cir. 1978); Big Rivers Electric Corp. v. EPA, 523 F.2d 16, 19 (6th Cir. 1975), cert. denied, 425 U.S. 934, 96 S. Ct. 1663, 48 L. Ed. 2d 175 (1976). Similarly, this court has held that, merely by withdrawing his grant of an exemption from the effective date of a motor vehicle safety standard, the Secretary of ...

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