ELR Citation: ELR 20884
No(s). 76-2045 (4th Cir. Nov 8, 1978)

The court orders the Environmental Protection Agency (EPA) to grant petitioner an adjudicatory hearing on its request for an extension of the July 1, 1977, best practicable technology compliance deadlines in the national pollutant discharge elimination system (NPDES) permit issued for its Albright, West Virginia, electric power plant. Regardless of whether EPA was empowered to approve such an extension under the Federal Water Pollution Control Act Amendments of 1972, a question on which other circuits have reached different conclusions, the Agency now has that authority under §309(a)(5)(B) of the Act which was added by the 1977 amendments to the statute. Petitioner will thus be afforded an opportunity to present its justification for an extension. While expressing no opinion on whether such an extension should ultimately be granted in this case, the court instructs EPA that petitioner's failure to construct treatment facilities pending the outcome of non-frivolous judicial proceedings appealing the effluent limitations and seeking modification of the permit cannot be deemed a failure to meet the "good-faith" requirement of §309(a)(5)(B).

Counsel for Petitioner
Lawrence A. Demase, Harold R. Schmidt, Frederick W. Steinberg, Ronald S. Cusano
Rose, Schmidt, Dixon, Hasley & Whyte
9th Floor Oliver Bldg., Pittsburgh PA 15222
(412) 281-3311

Counsel for Respondents
Thomas A. Pursley III
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Lee A. Dehihns
Environmental Protection Agency, Washington DC 20460
(202) 426-4497

Joined by Field and Hall, JJ.