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Republic Steel Corp. v. Costle

Citation: 8 ELR 20686
No. No. 76-1557, 581 F.2d 1228/11 ERC 2041/(6th Cir., 08/21/1978) Dismissed

On remand from the Supreme Court, the Sixth Circuit Court of Appeals concludes that the Clean Water Act of 1977 effectively overruled its previous decision, 7 ELR 20509, that the Environmental Protection Agency's failure to define best practicable control technology (BPT) for iron and steel manufacturing plants, as required by § 304(b) of the Federal Water Pollution Control Act, precluded the agency from objecting to state issuance of a discharge permit which waived the July 1, 1977 statutory deadline for application of BPT. Although the 1977 amendments did not modify the requirement in § 301(b) that industrial dischargers comply with effluent limitations embodying BPT not later than July 1, 1977, Congress added a new § 309(a)(5)(B) which authorizes the EPA Administrator to grant an extension of the 1977 compliance date until as late as April 1, 1979 if the discharger has acted in good faith and has committed the resources necessary to achieve compliance with BPT at the earliest possible date. The court interprets the new statutory provision to mean that the July 1, 1977 deadline cannot be waived by the courts, but that relief via discretionary extension of the deadline by the Administrator is to constitute the sole means of waiving the 1977 deadline. The court also determines through an examination of the statutory language and legislative history that § 309(a)(5)(B) applies to cases such as this one that were pending at the time of its enactment.

Counsel for Petitioner
Eben H. Cockley, Ronald R. Janke
Jones, Day, Reavis & Pogue
1700 Union Commerce Bldg., Cleveland OH 44115
(216) 696-3939

Counsel for Respondents
Ray McDevitt, Barry L. Maller
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Thomas A. Pursley, III
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2808

Before: CELEBREZZE, LIVELY and KEITH, Circuit Judges.