Bethlehem Steel Corporation v. Environmental Protection Agency

No. 75-4119 (2d Cir. June 25, 1976)

ELR Digest

The court dismisses for lack of jurisdiction an industry petition for review of EPA's action in partially approving New York State's revised water quality standards, 40 C.F.R. § 120.10, 40 Fed. Reg. 13216 (Mar. 25, 1975) developed pursuant to § 303 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1313, ELR 41112. Section 509(b)(1) of the Act, 33 U.S.C. § 1369(b)(1), ELR 41127, which provides for direct court of appeals review of certain EPA actions, does not mention the approval or disapproval of state water quality standards pursuant to § 303. Petitioner seeks to surmount this obstacle by aruging that the structure of the Act, as interpreted in CPC International v. Train, 515 F.2d 1032, 5 ELR 20392 (8th Cir. 1975), demonstrates that state water quality standards are "effluent limitations" and thus subject to judicial review under § 509(b)(1)(E). The court holds this argument fallacious, noting that it has expressly rejected the Eighth Circuit's view of § 301. Hooker Chemicals & Plastics Corp. v. Train, __ F.2d __, 6 ELR 20467 (2d Cir. Apr. 28, 1976). Nor does the use of the word "approving" in § 509(b)(1)(E) refer to EPA approval of state water quality standards under § 303, since the latter provision was added to the bill in Congress after the former. Although the court finds troubling petitioner's contention that it is better on policy grounds to avoid bifurcated review of EPA actions under the FWPCA, with the courts of appeals reviewing effluent limitations and the district courts reviewing approvals of § 303 water quality standards, it holds that because of the different character and scope of the two types of actions there is some rationale for the divided review scheme. The court also notes that it must hesitate before rejecting EPA's interpretation of complex environmental legislation, Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 87 (1975), and that Congress can in any event clarify the statute through amendment if the court has misinterpreted its intent.

The full text of this opinion is available from ELR (13 pp. $1.75, ELR Order No. C-1063).

Counsel for Petitioner
David K. Floyd
Phillips, Lytle, Hitchcock, Blaine & Huber
3400 Marine Midland Center
Buffalo NY 14203
(716) 847-8400

Counsel for Respondents
Patrick A. Mulloy
Alfred T. Ghiorzi
Department of Justice
Washington DC 20530
(202) 739-2752

Steven Schatzow
Environmental Protection Agency
401 M St., SW
Washington DC 20460
(202) 755-2500

Feinberg, J., for himself, Lumbard & Waterman, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]