12 ELR 20463 | Environmental Law Reporter | copyright © 1982 | All rights reserved


National Wildlife Federation v. Gorsuch

No. 79-0915 (D.D.C. April 29, 1982)

The court denies a stay pending appeal of its ruling, 12 ELR 20268, that dams are subject to the national pollutant discharge elimination system (NPDES) permit program. Previously, the court ordered the parties to submit proposed schedules and timetables for regulating dams under the NPDES program. Both plaintiffs and defendant Environmental Protection Agency (EPA) submitted proposed schedules and timetables, and EPA sought a stay pending appeal. The court concludes that the stay is unjustified because EPA is not likely to succeed on the merits and neither EPA nor intervenor dam operators will suffer irreparable injury if the stay is denied. The court rejects EPA's argument that it lacks resources to implement the order, noting that EPA simultaneously requested a reduction in funds from Congress. In addition, intervenors will not be subject to criminal and civil penalties for continued operation of dams since EPA does not intend to bring enforcement actions at this time. The court also rules that the public interest would be harmed by continued delay since the Federal Water Pollution Control Act requires NPDES regulation of dams. Finally, the court notes that while the 90-day time limit it initially imposed for promulgation of regulations was unreasonable, it is without power to modify that order since it is on appeal to the court of appeals. Therefore it grants a 30-day stay to permit defendants to appeal this order and/or seek a reopening of the case so that the 90-day deadline can be modified.

Counsel are listed at 12 ELR 20268.

[12 ELR 20463]

Green, J.:

Order

In response to the defendant and defendant-intervenors' motions to stay pending appeal, and the opposition of plaintiff National Wildlife Federation (NWF) thereto, this Court ordered on April 19, 1982 that the parties file detailed proposed schedules and timetables for the steps leading to compliance with the final order in this case, as well as proposed interim enforcement measures. This information was required to make the decision concerning the stay pending appeal. The Court had come to the conclusion, which was verified in the pleadings of the parties, that it would be impossible for the Environmental Protection Agency (EPA) to issue final regulations establishing effluent limitations or other performance standards for dams on a categorical, as opposed to a case-by-case basis, and subjecting existing and proposed dams to all the National Pollutant Discharge Elimination System requirements applicable to other categories of point sources within the 90 days ordered by this Court on January 29, 1982. Whether or not a stay pending appeal was justified, there was an obvious need for a modification of the injunctive relief granted as to the ordered time limit, possibly including some provision for an interim enforcement program such that dams could come into compliance with the CWA while the permit program was being developed. Such a modified final order could forestall most of the adverse consequences which defendants claim would be attendant upon a denial of a stay of the existing order. If a stay pending appeal were nevertheless found justified, the modified order could be implemented following affirmance of the decision on the merits by the Court of Appeals.

Plaintiffs NWF and State of Missouri have responded to the Order of April 19, 1982 with proposals for both interim enforcement measures and a schedule for implementation of a permanent regulatory program. It is understood that such proposals prepared by parties outside of both the federal government and the potentially regulated industries in the few days time allowed here can only be tentative and sketchy. In any case, plaintiffs have outlined an interim plan to deal with the fact that dams presently discharging pollutants without an NPDES permit are in violation of the Clean Water Act. See Milwaukee v. Illinois, 451 U.S. 304, 318 [11 ELR 20406] (1981); EPA v. California, 426 U.S. 200, 205 and n.14 [6 ELR 20563] (1976); United States v. Frezzo Brothers, 602 F.2d 1123 [9 ELR 20556] (3rd Cir. 1979), cert. denied, 444 U.S. 1074 (1980); Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1374 [8 ELR 20028] (D.C. Cir. 1977); Romero-Barcelo v. Brown, 643 F.2d 835 [11 ELR 20391] (1st Cir. 1981), rev'd on other grounds sub nom. Weinberger v. Romero-Barcelo, __ U.S. __ [12 ELR 20538] (April 27, 1982), Although clearly, EPA cannot immediately determine which of all the dams in the country require permits and what the terms of those permits should be, plaintiffs propose that rather than responding to this dilemma by taking no action at all,1 EPA commerce a program which would target problem dams for priority regulatory action. (Permits may, and must, in order to legalize pollutant discharges, be issued prior to the issuance of categorical effluent limitations. Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 709 [5 ELR 20046, 20696] (D.C. Cir. 1974); Natural Resources Defense Council, Inc. v. Costle; United States v. Frezzo Brothers, Inc.; Romero-Barcelo v. Brown).

As to new dams, under the plaintiffs' proposal, EPA would notify all federal agencies responsible for building and permitting dams that an NPDES permit may be required, and that information must be supplied to EPA so it can determine whether a permit is needed, and if so, under what conditions one should be issued. This information base would cover virtually all new dams, because of the pervasive federal participation in and regulation of dam building. As to existing dams, those most likely to cause pollution problems, the approximately 67,000 dams greater than 25 feet in height with a reservoir capacity of over 50 acre feet listed on the U.S. Army Corps of Engineers registry of dams, should be surveyed. Questionnaires could be sent to these dam operators as well as to federal and state agencies responsible for regulating water quality, for establishing and monitoring water quality standards and for managing fish and wildlife resources, with the object of learning as much as possible about the physical attributes and biological effects of each of these dams, and of identifying major information gaps requiring further research. Based on a synthesis of this information, EPA could develop a list of priority problem dams and a schedule for processing individual permits. Proposed performance standards would be fashioned into specific permit conditions for each dam following public review and comment. Plaintiffs suggest that EPA be ordered to report back to the Court by August 1, 1982 with a list of problem dams and a proposed schedule for processing individual permits.

Regarding development of a permanent regulatory program, plaintiffs accept the regulatory development process outlined in the affidavit of Steven Schatzow of February 25, 1982 accompanying Defendant's Motion to Stay Pending Appeal, but assert that the entire process should be completed within 30 months. The process would commence immediately, concurrent with the interim permitting program.

Defendant EPA's position is that a complete stay pending appeal should be granted, and that this Court is without jurisdiction to modify the final order in the manner sought by plaintiffs. Nevertheless EPA has supplied information in response to the Court's request. Supported by a new affidavit from Steven Schatzow, EPA's Director of the Office of Water Regulations and Standards, EPA has submitted a detailed schedule of the steps leading to the issuance of effluent limitation guidelines for dams. The entire process is estimated to require 87 months, with the issuance of final rules occurring July 26, 1989. EPA states that it does not intend to take any interim enforcement measures against dam operators (see note 1, supra), and that a requirement that dam operators monitor and report effluent levels would also be wholly inappropriate. An alternative proposal for EPA action, assuming that this Court and the Court of Appeals both deny a complete stay pending appeal, is offered. EPA would gather information about dams and their water quality effects from within the federal government. Within 120 days, EPA would complete a preliminary staff evaluation of the data, and would publish an advance notice of proposed rulemaking setting forth options for a program to regulate dams as point sources. After a 60-day comment period, EPA would have 60 days to provide this Court with a detailed schedule for regulating dams, including a final deadline for submission [12 ELR 20464] of permit applications. This entire process would consume 240 days (eight months).

Defendant intervenors who have responded to the Order of April 19 have not proposed timetables or interim measures, but argue that this Court is without jurisdiction to modify its final order to impose a timetable for compliance upon EPA because notices of appeal have already been filed. The Northwest Utility Group further argues that establishment of agency procedures for implementation of the order in this case is beyond the Court's authority, relying upon Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, Inc., 435 U.S. 519 [8 ELR 20288] (1978).

First, a complete stay pending appeal is not justified in this case. The standards for the grant of the extraordinary relief of a stay pending appeal were put forward for this Circuit in Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C. Cir. 1958), and are as follows. 1. Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? 2. Has the petitioner shown that without such relief, it will be irreparably injured? 3. Would the issuance of a stay substantially harm other parties interested in the proceedings? 4. Where lies the public interest? Id. at 925. These standards were later clarified to allow the grant of relief if the other three factors strongly favor interim relief, and the movant has made a substantial case on the merits, rather than one demonstrating a mathematical probability of success. Washington Metropolitan Transit Authority v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977). The defendants have not made a strong showing of probability of success on the merits of the appeal. After full discovery, a trial at which the parties presented witnesses and numerous exhibits, and post trial submissions by all parties, this Court granted the relief requested by the plaintiffs. There is no need to repeat the factual and legal findings in the 35-page Memorandum Opinion which supported that decision. We have been alerted to no change in the circumstances since that time, and defendants have advanced no arguments on the merits in their motions of stay pending appeal that were not before the Court when the decision of January 29, 1982 was made. Accordingly, this Court cannot conclude that defendants are likely to prevail on the merits of their appeal, and in fact concludes that such an eventuality is unlikely. Although in this Court's judgment, defendants are unlikely to succeed on the merits, there is absolutely no implication that the issues raised are frivolous, and it might be possible to conclude that a "substantial case on the merits" has been made. However, such a showing would warrant relief only if the other three factors strongly favored defendants, which they do not.

The irreparable injury alleged by EPA is that it lacks the resources to comply with the Court's order without doing major damage to work now in progress on programs that deal with basic matters of public health such as regulation of toxic substances, that in any case the regulations could not be completed in 90 days, and that permitting of individual dams before the issuance of effluent limitation guidelines would overwhelm the NPDES program. Even to begin the process of compliance with the Court's order by initiating technical and economic contracts to develop data on dams would involve a significant burden, EPA asserts. Additionally some of the intervenors have expressed the concern that under the final order in this case, all of their dams would have to either shut down immediately, or face exposure to civil and criminal penalties under the Clean Water Act until they obtain NPDES permits.

Putting aside for a moment the 90-day time limit, none of these asserted harms amount to irreparable injury. Much of EPA's argument is really an administrative infeasibility argument directed to regulating dams as point sources at all, not just pending appeal, which argument was never made during the lengthy proceedings in this case before the final judgment, and which in any case has been rejected by this Circuit in Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369 [8 ELR 20028] (D.C. Cir. 1977). As to the resources that would be required to be expended to even begin to implement the Court's Order, Virginia Petroleum Jobbers clearly states that "[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough." 259 F.2d at 925. In any case, as plaintiffs point out, EPA is representing to this Court that it does not have sufficient funds to carry out the final order in this case while requesting a reduction in the relevant appropriations from Congress. See Attachments A and B to Plaintiff's Memorandum in Opposition to Defendant's Motion for Stay Pending Appeal. Intervenors' fears that they will be subject to criminal and civil liabilities for the continued operation of their dams are belied by EPA's statement that it does not intend to bring any kind of enforcement actions against dam owners for the discharge of pollutants as defined in this case. Moreover, a court faced with such a case could fashion a remedy taking into consideration the equities of the situation. Weinberger v. Romero-Barcelo, U.S. [12 ELR 20538] (April 27, 1982).

While the issuance of a stay in this case would not particularly either harm or help particular third parties, the public interest at large lies in the denial of a stay. The findings of fact in this case established that dams cause widespread and significant water pollution problems. The public interest as embodied in the Clean Water Act, is to remedy these problems by the prohibition of the discharge of pollutants without an NPDES permit. The public interest would unquestionably be harmed by continued total inaction during a possibly lengthy appeals process. A stay of an order requiring the publication of effluent guidelines pursuant to a court-imposed timetable was denied by both the district court and the Court of Appeals in NRDC v. Train, 510 F.2d 692, 698 [5 ELR 20046, 20696] (1975).

Although defendant EPA suggests that plaintiffs "slept on their rights," since EPA has consistently treated dams as nonpoint sources since 1973, and this litigation was not brought until 1979, and plaintiffs therefore cannot now be heard to complain of a lesser additional delay, this argument is not appropriate in the context of a statutorily mandated citizen suit provision. The purpose of a citizen suit provision is to encourage participation in enforcement of the law and achievement of its goals, regardless of the direct and immediate impact on the party bringing the suit. These purposes would be frustrated if a citizen could lose rights in the litigation because he had not brought suit at the earliest possible moment. Interested individuals and organizations may not be aware of every problem in the administration of legislation, or have the resources to challenge every instance of misadministration at the time it first arises. Failure to bring suit is certainly not acquiescence. Although it appears that EPA interpreted the law to provide for designation of dams as nonpoint sources not requiring regulation under the NPDES permit program in good faith these several years, now that it has been determined that these actions violate the law, further unnecessary delay should not be permitted.

This brings us to the question of how to handle the delay in implementation of the Court's order that all agree is necessary. Through its research, the Court must (reluctantly in the context of this case) conclude that it cannotmodify its order to impose a different time for compliance upon EPA or an interim enforcement scheme without a remand from the Court of Appeals. Although FED. R. Civ. P. 62(c) authorizes the district court to "modify" an injunction pending appeal, this power may only be used to preserve the status of the case as it sits before the Court of Appeals.2 Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623 (2d Cir. 1962); New York v. Nuclear Regulatory Commission, 550 F.2d 745 [7 ELR 20203] (2d Cir. 1977); Deering Milliken, Inc. v. Federal Trade Commission, 647 F.2d 1124 (D.C. Cir. 1979).

Thus we are left with a dilemma. A total stay pending appeal is inappropriate. Yet the final order as now framed is impossible to achieve, and the Court is without power to modify that order at this point. Accordingly, the following procedure will be adopted. The stay pending appeal will be denied, but the Court will sua sponte grant a stay for 30 days to allow the parties to appeal this order and/or move the Court of Appeals for a reopening of this case to consider modification of the 90-day time limit set for compliance [12 ELR 20465] and for consideration of possible interim measures.3 If the case is remanded, this Court would entertain further filings such that it could be fully briefed on the appropriate time limits to be set, and the extent of the power of the Court to prescribe interim enforcement programs and the timing of procedural steps leading to compliance with the final order. Of course, the parties would also be encouraged to reach agreement on these issues absent a court order.

IT IS SO ORDERED.

1. EPA's position is that it should be required to take no action toward implementation of this Court's final order pending appeal, and that it "does not intend at the present time to issue compliance orders or file civil actions against operators of dams under the Clean Water Act for violations of the kinds alleged in this case." Defendant's Schedules and Timetables in Response to Order of April 19, 1982 at 5.

2. Contrary to defendants' argument, this does not necessarily mean the status quo before the decision (in this case, treating dams as nonpoint sources). Orders under Rule 62(c) may be for the purpose of preserving the post-decisional status quo. E.G. Haywood v. Clay, 456 F. Supp. 1156 (D.S.C. 1977); Flavor Corp. of America v. Kemin Industries, 503 F.2d 729 (8th Cir. 1974).

3. Such a procedure was suggested in Ideal Toy Corp. Limited stays to provide for appellate review have been granted in e.g. Lemon v. Kurtzman, 348 F. Supp. 300 (E.D. Pa. 1972), aff'd, 411 U.S. 192 (1973); Kansas City Royals Baseball Corp. v. Major League Baseball Players Assoc., 532 F.2d 615 (1976).


12 ELR 20463 | Environmental Law Reporter | copyright © 1982 | All rights reserved