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05/30/79 Montgomery Environmental v. Washington Suburban


May 30, 1979




Before BAZELON, TAMM and WILKEY, Circuit Judges.



Appeal from the United States District Court for the District of Columbia. (D.C. Civil Action No. 1307-73).


Opinion for the Court filed by BAZELON, Circuit Judge.


For the second time, *fn1 we review a decision of the district court arising out of a complaint by the Montgomery Environmental Coalition . *fn2 MEC seeks to enjoin the Washington Suburban Sanitary Commission from exceeding its allotted share of the sewage treatment capacity at the Blue Plains Sewage Treatment Plant (Blue Plains). *fn3 MEC alleges that excess flows from WSSC have increased the discharge of pollutants from Blue Plains, which in turn contribute to a violation of the promulgated water quality standards for the Potomac River. Because we believe that the commencement of EPA proceedings to issue Blue Plains a National Pollution Discharge Elimination System permit vests primary jurisdiction over this issue in EPA, we affirm the order of the district court dismissing this action. I.

The long and tortured history of this litigation need be rehearsed only briefly. In 1973 MEC filed an action in district court against EPA, WSSC, the Mayor of the District of Columbia, the Governor of Maryland, the Montgomery County Executive, and several other governmental agencies. MEC alleged that WSSC was exceeding the volume of sewage allotted to it for treatment at Blue Plains, an allotment based on agreements among the affected jurisdictions. MEC alleged that, as a result of the excess sewage flows, Blue Plains was discharging raw and inadequately treated sewage into the Potomac, degrading the quality of the water in the Potomac below the water quality standards established pursuant to the Water Quality Act of 1965, P.L. 89-234, 79 Stat. 903 (the 1965 Act). *fn4

After some procedural shuffling, a hearing was held on various defendants' motion to dismiss MEC's suit. Judge Smith denied the motion to dismiss of several defendants. MEC v. Fri, 366 F. Supp. 261 (D.D.C.1973). He held that the water quality standards promulgated under the 1965 Act constituted a "floor level of quality until the stiffer effluent limitations of the 1972 Act can be implemented," and that the discharge of a pollutant that contributes to the violation of a water quality standard would violate 33 U.S.C. § 1311(a). Id. at 265. In Judge Smith's view, this violation could be abated through a citizens' suit pursuant to § 1365(a)(1), and MEC had standing to bring that suit. *fn5

MEC's suit soon became entangled with a suit filed by the State Water Control Board of Virginia, Fairfax County, and the District, all of whom also sought to limit WSSC's flows to Blue Plains pursuant to the agreements. *fn6 WSSC sought to have MEC's suit consolidated with that filed by SWCB, but Judge Smith rejected that effort. Negotiations in the SWCB suit finally led, in 1974, to a new interjurisdictional agreement for allocating the capacity of Blue Plains. This agreement was formalized in a consent decree, after the agreement received the approval of EPA.

On May 31, 1974, EPA issued a NPDES permit for Blue Plains. Pursuant to EPA rules, several parties, including MEC, filed objections to portions of the permit. On the basis of these objections, EPA set the Blue Plains NPDES permit for an adjudicatory hearing.

Following these administrative developments, several hearings were held in this case in the district court, first on MEC's motion to withdraw its request for a preliminary injunction, *fn7 and later on WSSC's motion to dismiss. Both motions were ultimately granted. *fn8

On May 10, 1976, after a timely appeal by MEC, we remanded this case to the district court to consider three questions. *fn9 No action was taken on the remand until the spring of 1978, when, at the direction of the district court, MEC filed both a memorandum addressing the remanded issues and a motion to amend its complaint, After respondents filed opposing memoranda, the district judge dismissed the complaint without leave to amend. He ruled:

(1) the instant action has been rendered moot by the consent decree in State Water Control Board, et al. v. Washington Suburban Sanitary Commission, C.A. No. 1813-73 and by the issuance of a discharge permit governing discharges from the Blue Plains Sewage Treatment Plant and related overflow points in the District of Columbia;

(2) the Environmental Protection Agency has primary jurisdiction to establish effluent limitations controlling the discharges from the Blue Plains plant and related overflow points;

(3) there is no basis for the Court to retain jurisdiction over this action pending completion of the administrative proceeding at EPA regarding the permit because no relief could be granted based solely upon allegations of violations of water quality standards as to discharge sources covered by a permit;

(4) all claims with respect to discharges within this District having been disposed of, there is no basis for the assumption by this Court of ancillary jurisdiction with respect to discharge points located outside this District;

(5) this Court is not the proper forum for the resolution of claims regarding discharge sources located outside the District under 33 U.S.C. § 1365(c)(1) (Supp. V, 1975);

(6) the Water Resources Administration, Department of Natural Resources, State of Maryland has primary jurisdiction to issue National Pollutant Discharge Elimination System permits with respect to discharge sources located within that state and to establish effluent limitations with respect thereto;

(7) in view of Bethlehem Steel Corp. v. EPA, 538 F.2d 513 (2d Cir. 1976), the Court lacks subject matter jurisdiction over claims based upon allegations of violations of water quality standards.

MEC appeals from that decision. II.

The doctrine of primary jurisdiction has developed to guide courts in determining how to proceed when some or all of the issues in the litigation are concurrently cognizable before an administrative agency. *fn10 Permitting an agency to resolve these issues in the first instance may serve one or both of two important interests: allowing the agency to bring its expertise to bear before the court reaches a final decision, *fn11 or, in some cases, avoiding the need for a final decision by the courts altogether. *fn12

This case provides a particularly appropriate occasion for yielding primary jurisdiction to the expert agency. The NPDES proceeding is currently pending before the administrator of EPA. *fn13 The principal issue in that proceeding is the appropriate level and quality of discharge from Blue Plains, the same discharge which MEC seeks to abate in this action. *fn14 Perforce many of the technical questions relevant to this case are also central to the permit proceeding. Presumably the permit proceeding will be deeply concerned with the effect of Blue Plains' discharge on the water quality of the Potomac. Thus, the determinations made in that administrative proceeding are likely to be highly relevant to MEC's complaint in district court.

Even more important, the resolution of the administrative proceeding may make unnecessary any decision in this case. In the first place, MEC may gain a substantial measure or all of the relief it seeks through limitations included in the permit. Even if MEC is unsuccessful before the administrator of EPA, it will have the right to petition this court for review of the permit ultimately granted by EPA. *fn15 Second, the appellees have raised a substantial argument that the issuance of the permit will insulate them from all actions based on any discharge which conforms with the terms of the permit. *fn16 In view of the likelihood that the permit will be issued in the near future, any relief that this court could grant MEC might be mooted by the issuance of the permit.

Thus, orderly administration and appropriate regard for Congress' clear intention to give EPA a substantial initial role in determining the appropriate levels of discharges dictate that the federal courts withhold jurisdiction until EPA completes the pending administrative proceeding. III.

The only remaining issue for our consideration is whether the instant action should be dismissed (the decision of the district court), or whether instead it should be stayed pending the conclusion of the permit proceeding. Normally, where a court refrains from exercising jurisdiction on primary jurisdiction grounds, judicial proceedings are simply stayed until the administrative agency has had an opportunity to consider the issues. However, dismissal may be warranted in some cases, particularly where no party is prejudiced thereby. See United States v. Michigan National Corp., 419 U.S. 1, 4-5, 95 S. Ct. 10, 42 L. Ed. 2d 1 (1974).

We believe that this is a case in which dismissal rather than a stay of the action is appropriate. This litigation began six years ago and lay dormant for nearly two years after our first decision. Much has happened in the interim, and plaintiffs themselves have recognized a need to renovate their pleadings substantially. *fn17 Moreover, the issuance of the NPDES permit may lead these plaintiffs to seek direct review of that decision in this court, thus further complicating the procedural posture of the case if it is left lingering before the district court. Since the relief plaintiffs seek is primarily prospective, they will be free, if they so desire, to seek further judicial relief after the Administrator's decision. *fn18 Under these circumstances, we must agree with the district court that litigation must come to an end at some time, and that this case has reached that time.

In view of our disposition of this case, we find it unnecessary to decide any of the other issues raised on this appeal.

So ordered.

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