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U.S. Steel Corp. v. Train

ELR Citation: 7 ELR 20419
Nos. No. 76-1425, 556 F.2d 822/10 ERC 1001/(7th Cir., 05/13/1977)

The court affirms the lower court's dismissal of a suit challenging an administrative law judge's refusal to consider certain issues in a National Pollutant Discharge Elimination System (NPDES) permit proceeding and denies a petition for review of the conditions imposed by the permit on the applicant's wastewater discharges. The district court correctly determined that it had no authority to consider the validity of applicable state water quality standards in the context of a permit proceeding and that the proper forum for challenges to the Environmental Protection Agency's (EPA's) substantive and procedural regulations governing the NPDES program is the court of appeals. The court concludes that the public hearing requirements of the Administrative Procedure Act apply in NPDES permit proceedings but confirms EPA's placement of the burden of proof in such proceedings on the permit applicant. Petitioner was not entitled to challenge EPA's procedural regulations for the permit proceedings at the administrative hearing. Also, neither the administrative law judge nor the EPA Administrator had jurisdiction to consider the validity of the Indiana water quality standards upon which certain limitations in the permit were based in that forum.

Turning to the specific conditions imposed by the permit, the court upholds chemical and thermal discharge limitations adopted by the state and included in the permit, noting that §510 of the Act and the legislative history show that the states are free to force the development of new technology. The court points out that EPA has no power under §510 to question whether these limitations are more stringent than necessary to achieve the relevant water quality standards. The court also upholds EPA's determination of technology-based effluent limitations by a statistical analysis which discarded certain extreme discharge values as aberrations unrepresentative of careful operations. Nor was the agency required to grant petitioner special exemptions for surface runoff since the company offered no proof of the supposed effect of such runoff on discharges. The court affirms EPA's determination that petitioner's Gary Works was not entitled to a variance from the nationally uniform standard that wastewater recycling constitutes the best practical control technology currently available for ironmaking blast furnaces. The existence of more stringent state limitations is not one of the factors to be considered in determining whether a point source is entitled to a variance from a federal technology-based limitation. Moreover, the time available for installation of the recycling system must be measured from the date the permit was issued rather than now. The court holds further that EPA properly required United States Steel to conduct an intake monitoring program under § 316(b) of the Act and acted reasonably and within the scope of its authority under §308 in requiring monitoring at all outfalls for temperature, pH, and several pollutants. The imposition of effluent limitations and monitoring requirements on petitioner's discharges of acid wastes into a deep well was also proper; the Federal Water Pollution Control Act authorizes regulation of deep well injection in conjunction with limitations on the permittee's discharges into surface waters. Finally, the court upholds the compliance schedules set forth in the permit.

Counsel for Petitioner-Appellant
Jay A. Lipe, James Harrington
Rooks, Pitts, Fullagar & Poust
Suite 1776, 208 S. La Salle St., Chicago IL 60604
(312) 372-5600

Counsel for Respondent-Appellee
David A. Ullrich
EPA Region V
230 S. Dearborn St., Chicago IL 60604
(312) 353-5250

Barry L. Malter
Office of General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2500

Raymond W. Mushal
Pollution Control Section
Department of Justice, Washington DC 20530
(202) 737-8200

Before CUMMINGS and TONE, Circuit Judges, and CAMPBELL, Senior District Judge.*