CELEBREZZE, Circuit Judge.
This case is before the Court on remand from the Supreme Court for further consideration in light of the Clean Water Act of 1977, P.L. 95-217. In our previous decision we held that the Administrator of the United States Environmental Protection Agency (EPA) had improperly vetoed issuance of a water pollution permit to petitioner Republic Steel Corporation (Republic) for its Canton, Ohio, mill. Republic Steel Corp. v. Train, 557 F.2d 91 (6th Cir. 1977) (hereinafter referred to as Republic Steel I).
The Administrator had objected to the permit, originally proposed by the Ohio Environmental Protection Agency (OEPA), on the ground that it improperly waived a July 1, 1977, statutory deadline for compliance with federal effluent standards. Under § 301(b)(1)(A)(i)
We reluctantly concluded that EPA's failure to timely define BPT precluded the Administrator from imposing a July 1, 1977, compliance deadline, since Congress had apparently established promulgation of regulations under § 304(b) as a necessary pre-condition for imposition of the deadline in § 301(b)(1)(A)(i). Our decision was designed "to relieve the discharger of the unfair consequences" of being forced to comply with the deadline in the absence of applicable standards for guidance. 557 F.2d at 97.
This Court stayed its mandate in Republic Steel I pending the EPA's petition for a writ of certiorari from the Supreme Court. Shortly after EPA filed its petition for certiorari, Congress enacted the Clean Water Act of 1977, which substantially revised FWPCA. In the wake of that enactment, the Supreme Court granted EPA's petition, vacated our judgment in Republic Steel I, and remanded the case to this Court for
We have reviewed the 1977 Act and conclude that its provisions have effectively overruled our previous decision. Although neither § 301(b)(1)(A)(i), requiring industrial dischargers to achieve BPT no later than July 1, 1977, nor § 304(b), requiring EPA to define BPT by October 18, 1973, were amended by the 1977 Act, Congress did add a new § 309(a)(5)(B)
The legislative history of this provision makes it abundantly clear that Congress intended the procedure outlined therein to be the exclusive avenue of relief from the dictates of a mandatory and unconditional July 1, 1977, deadline. The Senate Report expressly rejected the rationale of Republic Steel I:
The import of the statute is now plain: the July 1, 1977, deadline cannot be waived by the courts. To the extent that noncompliance occurs despite good faith efforts as defined in § 309(a)(5)(B), relief is available only via discretionary extension of the deadline by the Administrator.
Republic urges that mere addition of a new remedial procedure does not change the operation of the rest of the Act as we construed it in Republic Steel I. We are bound, however, to read the amendment together with the original provisions of the Act "as parts of an integrated whole." Markham v. Cabell, 326 U.S. 404, 411, 66 S.Ct. 193, 90 L.Ed. 165 (1945). The unchanged sections and the amendment must generally be given "the most harmonious, comprehensive meaning possible" so that they do not conflict. Clark v. Uebersee Finanz-Korp., 332 U.S. 480, 488, 68 S.Ct. 174, 92 L.Ed. 88 (1947). See also 1A Sutherland, Statutory Construction § 22.35 (1972). To insist on adherence to our earlier view would not only render § 309(a)(5)(B) largely meaningless, but also would defeat Congress' clearly expressed intent in enacting that section.
Moreover, the 1977 Act effectively responds to the concern we expressed in Republic Steel I that a discharger might suffer "unfair consequences" from EPA's failure to timely promulgate relevant BPT regulations. Under prior law the Administrator had no clear statutory authority to extend the July 1, 1977, deadline and a discharger could be subjected to liability without any consideration for the reasons for his noncompliance.
This does not, however, end our inquiry. We must decide whether the 1977 Act may be applied in the context of this case, which was pending before the Supreme Court at the time the new law took effect.
The general rule is that "a court is to apply the law in effect at the time of its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). This principle applies with full force to an appellate court in reconsidering a decision that has been vacated and remanded by the Supreme Court in light of an intervening change in the law. See Fruehauf Corp. v. Internal Revenue Service, 566 F.2d 574, 577-79 (6th Cir. 1977).
The Clean Water Act of 1977 contains no "statutory direction or legislative history" militating against application of § 309(a)(5)(B) to pending cases.
Nor do we think that application of current law would result in manifest injustice. If Republic has made good faith efforts at compliance with the law that have been delayed only by EPA's failure to timely promulgate BPT standards, then the company will be eligible for an extension under § 309(a)(5)(B).
The situation might be different if Republic could claim that its noncompliance was induced by administrative or judicial construction of § 301(b)(1)(A)(i) to the effect that the July 1, 1977, deadline was waived by EPA's failure to promulgate BPT guidelines. See generally United States v. Pennsylvania Ind. Chem. Corp., 411 U.S. 655, 670-75, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973). But in the years following enactment of FWPCA, EPA consistently took the official position that the statutory compliance date was absolute and that it was not waived by the absence of BPT guidelines.
In any event, Republic does not seriously claim that its noncompliance with the July 1, 1977, deadline is the result of an honest belief that the deadline was invalid. Rather the company maintains that it was unable to meet the deadline despite good faith efforts, because of the absence of BPT guidelines from EPA. If this is true, then the new § 309(a)(5)(B) procedure can provide any justified relief.
The petition for review is dismissed.
S.Rep. 95-370, 95th Cong., 1st Session, 1977 U.S.Code Cong. & Admin.News, pp. 4326, 4386 (emphasis supplied).
The Ninth Circuit recently held that the Administrator could not veto a proposed permit for failure to require attainment of BPT by the discharger, where the Administrator had not yet promulgated applicable BPT guidelines. Washington v. EPA, 573 F.2d 583, 589-92 (9th Cir. 1978). The case is distinguishable in that here the Administrator did not object to the substantive effluent limitations in the proposed permit for the Canton mill — the objection related solely to the compliance schedule. In any event, the Ninth Circuit holding failed to consider the possible impact of the 1977 Act on the Administrator's veto power under § 402(d)(2)(B).
H.R.Rep. No. 95-830, 95th Cong., 1st Sess., reprinted in 1977 U.S.Code Cong. & Admin.News, pp. 4424, 4464.
This language has no application to the instant case, since there are no "existing" administrative or court orders providing for attainment dates beyond April 1, 1979, for the Canton mill.