Petitioners Brief — EPA v. California Ex Rel. State Water Resources Control Bd.

Supreme Court brief1976

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Seetlan 313 of the Federal Water Pollution

Control Act, as amended in 1972, does not

require Federal facilities to seek and obtain

State discharge permits in order to operate

II. When read in light of the statute as a

whole, the language of section 313

directing Federal facilities to comply

with State water pollution ‘‘require-

ments” means only that such facilities

must meet State standards and limita-

tions, including compliance schedules _ -

ILI. The legislative history of section 313 con-

firms that Congress did not intend to

alter the traditional Federal-State re-

lationship by requiring Federal facili-

ties to obtain State discharge permits __

(1)

590—-511--75——-1

Argument—Continued

IV. The Environmental Protection Agency,

which is charged with the administra-

tion of the act, has interpreted section

313 to mean only that Federal facilities

must meet State effluent limitations

- and this interpretation is entitled to

Page

3 great weight... -...<6ss.........- 39

Cems ccciccicctewascocccdscuccdcswcedtid 42

RODE 5 555 dcidcécdisccdBdddustctécedsocss 43

CITATIONS

Cases:

Alabama v. Seeber, 502 F. 2d 1238, certiorari

ROREREE, Gee, POGERn oncccecsccccccossss 12

Arizona v. California, 283 U.S. 423__...---- 19

California Commission v. United States, 355

Pe Gi etclncbdieiddiiesiedbsdcccdiel 19

Collins v. Yosemite Park Co., 304 U.S. 518- - - 19

Commonwealth v. Clary, 8 Mass. 72_....----.- 19

Fort Leavenworth R.R. Co. v. Lowe, 114 U.S.

GE. cebtnsedusisietctisebvcdductiieadash 19

Free v. Bland, 369 U.S. 663__........------ 19

Humble Pipe Line Co. v. Waggonner, 376 U.S.

ERG + cccullictindie dite cblienddedakdes 19

Hunt v. United States, 278 U.S. 96__.-.----- 19

Johnson v. Maryland, 254 U.S. 51__-_------ 19

Kentucky ex rel. Hancock v. Ruckelshaus,

492 F. 2d 1172, certiorari granted sub nom.

Kentucky ex rel. Hancock v. Train, No. 74-

220, certiorari granted, March 17, 1975

Pes DOG « cb ccinnsicwecdsiis 4, 12, 22, 23, 31

Mayo v. United States, 319 U.S. 441__..---~-- 19, 20

McCulloch v. Maryland, 4 Wheat. 316------- 18,19

New York Dept. of Social Services v. Dublino,

1 SY ae 40

Cases—Continued Page

Ohio v. Thomas, 173 U.S. 276_____.__._____ 19

Osborn v. Bank of United States, 9 Wheat.

ES as Ae eS tees eee 18

Pacific Coast Dairy v. Dept. of Agriculture, 318

AS Se oe ee cs ee a "19

Paul v. United States, 371 U.S, 245________- 19, 20

Red Lion Broadcasting Co. v. Federal Communi-

cations Commission, 395 U.S. 367____.___- 40

S.R.A., Inc, v. Minnesota, 327 U.S. 558____- 20

Standard Oil Co. v. California, 291 U.S. 242__ 19

Surplus Trading Co. v. Cook, 281 U.S. 647__- 19

Thomson v. Pacific Railroad, 9 Wall. 579____- 19

Udall v. Tallman, 380 U.S. 1__..__.___.___.- 40

United States v. Georgia Pub. Serv. Comm'n,

4 ERS ee 19

United States v. King, 395 U.S. 1__.._____- 20

United States v. Sharpnack, 355 U.S. 286_-_- 20

United States v. Sherwood, 312 U.S. 584____- 20

VanBrocklin v. Tennessee, 117 U.S. 151____- 19

Constitution, statutes and regulations:

United States Constitution:

Art. I, Sec. 8, cl. 17 (Plenary Powers

ERE, Se 13, 18, 19, 25

Art. VI, cl. 2 (Supremacy Clause). 13, 18, 19, 25

Act of June 30, 1948, 62 Stat. 1155_________ 4

Act of July 9, 1956, Sec. 8(f), 70 Stat. 505. __ 5

Act of Oct. 2, 1965, Sec. 5(a), 79 Stat. 907_... 4,5

Clean Air Act of 1970, 84 Stat. 1676 et seg.,

42 U.S.C. 1857 et seg.

Sec. 116, 42 U.S.C. 1857d-1_.......___- 14, 22

Sec. 118, 42 U.S.C. 1857f___ 4,12, 14, 21, 23, 31

Sec. 304, 42 U.S.C. 1857h-2

Iv Vv

Constitution, statutes and regulations—Continued Constitution, statutes and regulations—Continued

Federal Water Pollution Control Act Amend- Federal Water Pollution -Control Act

ments of 1972, 86 Stat. 816 et seqg.,33 U.S.C. page Amendments of 1972—Continued

(Supp. III) 1251 et seg_..--.---.-.------- 5 See. 306(c), 83 U.S.C. (Supp. II)

See. 101(a), 338 U.S.C. (Supp. IID) EE ee 14, 15, 26, 28, 44

BIBI, cowidccactcewessitteccdiltee 6 Sec. 306(e), 38 U.S.C. (Sup. IID)

Sec. 101(b), 83 U.S.C. (Supp. IID Pe Miccodtittbcctiiacstebidhintndisies 44

OR cities cctidstincthcuttcn 8 Sec. 307, 33 U.S.C. (Supp. III) 1317__ __8,

Sec. 104(d), 33 U.S.C. (Supp. III) 27, 32, 36

NGL: Siaticctsoci cede 6 Sec. 308, 33 U.S.C. (Supp. III) 1818... 3,27, 44

See. 105(d), 33 U.S.C. (Supp. IID Sec. 308(c), 33 U.S.C. (Supp. III) 1318(c). 14,

BED iin otic ededecctisdiidwtsses 6 15, 26, 28

See. 201-212, 338 U.S.C. (Supp. III) Sec. 313, 33 U.S.C. (Supp. IIT) 1828... passim

RDG OEED.. cin doc. disc gktectisotelus 6 Sec. 401, 83 U.S.C. (Supp. III) 1841____- 15, 32

Sec. 301, 33 U.S.C. (Supp. III) 1311__--- 8, Sec. 401(a), 33 U.S.C. (Supp. III) 1841(a). —15,

32, 35, 36 32, 33

Sec. 301-405, 33 U.S.C. (Supp. III) 1311- Sec. 401(a)(6), 383 U.S.C. (Supp. III)

TOE. J pcdbcktisdcetsockebsaieiin 6 EL eee 15

Sec. 301(a), 33 U.S.C. (Supp. IID) Sec. 402, 33 U.S.C. (Supp. III) 1342____- 3,

NR i ctabiosdcnatetiactbins 7 7,9, 11, 22, 25, 26, 32, 45

Sec. 301(b), 33 U.S.C. (Supp. IID) Sec. 402(a)(1), 38 U.S.C. (Supp. III)

RS ae eres ee 7 Pi tiidvttienccscnmiidaahon 10, 25

Sec. 302, 33 U.S.C. (Supp. IIT) 1812... _- 6, Sec. 402(b), 33 U.S.C. (Supp. IID

8, 32, 36 aE PT LIES 8, 9, 15, 25, 27, 28, 29

Sec. 308, 33 U.S.C. (Supp. III) 1313__--- 6, 36 Sec. 402(b)(3), 33 U.S.C. (Supp. III)

Sec. 308(e), 338 U.S.C. (Supp. IID) _— SET BEN oe ee 10

RE GN Exe) Re 18 Sec. 402(d), 33 U.S.C. (Supp. III)

Sec. 304(h), 33 U.S.C. (Supp. Ill) ERE Sane a Se ay )

|| REEDS ES he 8 reer ee 9 Sec. 405, 838 U.S.C. (Supp. III) 1345___- 7

Sec. 306, 33 U.S.C. (Supp. IIT) 1316__--- 3, Sec. 502(5), 383 U.S.C. (Supp. IID)

8, 26, 27, 32, 43 SLs eee meen eee 30

Sec. 306(a)(1), 33 U.S.C. (Supp. Ill) Sec. 502(11), 88 U.S.C. (Supp. IID)

190GleME) 5565-23. dt. 7, 36 es. CT 7

Sec. 306(b)(1), 338 U.S.C. (Supp. IID Sec. 502(14), 33 U.S.C. (Supp. III)

SESBRIIDD.. .ccccccccssasneiclidcass 7 ETRE NN ee 6

Sec. 306(b)(3), 33 U.S.C. (Supp. IID) Sec. 502(17), 33 U.S.C. (Supp. IID)

| ae ae 26 EAE te 7

Constitution, statutes and regulations—Continued

Federal Water Pollution Control Act.

Amenments of 1972—Continued if, game

Sec. 505, 33 U.S.C. (Supp. ILI) 1365-__-- 3,

27, 29, 31, 32, 48

Sec. 505(a), 33 U.S.C. (Supp. IID

SR ees 1 E 27, 29, 30, 48

Sec. 505(b), 33 U.S.C. (Supp. III)

Ghd oti tbadtiondoetbdbuke 27, 29, 49

Sec. 505(f), 33 U.S.C. (Supp. IIT) 1865(f)_ —15,

30, 31, 32, 50

Sec. 505(g), 33 U.S.C. (Supp. III)

a cdditicccuccedobtaiibecives 30, 50

Sec. 509, 33 U.S.C. (Supp. III) 1869__.. 3,50

Sec. 509(b), 33 U.S.C. (Supp. III) 1369

— a ee ee 10, 29, 50

Sec. 510, 33 U.S.C. (Supp. II]) 1870_--- 3,

14, 22, 23, 51

40 C.F.R.:

ee, Bes o ceseccceccaton a 9

Be, PE dcebedhvccdivibbtnowdsee 9

8 es Foes "Se 8

St, SE, cdbcrncdécckdawobese 3,9, 12,39

Be, HR sc o hc ccccodssbtvdeoss 8

Se, Tt cdcikctcbktcuadeductthedtines 8

ee Srey hn ee 8

Ee, Dnencewcheddéoustibbabentiane 8

Congressional:

S. 2770, 92d Cong., Ist Sess. (1971). 34, 35, 36, 37, 38

S. Rep. No. 92-414, 92d Cong., Ist Sess.

See | 5, 31, 34, 35, 37

‘Gon, 5 ce 37

vil

Congressional—Continued _—

H.R. 11896, 92d Cong., 2d Sess. (1971)... _- 34,

35, 36, 37, 38

H. Rep. No. 92-911, 92d Cong., 2d Sess.

NE ED ee 35

Miscellaneous:

Arnold, Effuent Limitations and NPDES:

Federal and State Implementation of the

Federal Water Pollution Controi Act Amend-

ments of 1972, 15 B.C. Indus. & Comm. L.

a 4

I-xecutive Order No. 11752, 38 Fed. Reg.

EE a eee eae ee 30, 40

Committee Print, A Legislative History of the

Water Pollution Control Act Amendments of

of 1972, 93d Cong., Ist Sess. (1973):

1 Legis. Hist, 305-307_...............- 36

SOS eee 37

jj, & fraser 35

Fo 8 Se 35

BE I aid ccm enminmadneion 35

1 Legis. Hist. 1040-1041_____.________- 84

2 Legis. Hist. 1419-1425__._....._____- 5

fo 5

foe 34

8 ae 37

2 Legis. Hist. 1497...................- 31

3 8 ER ee 35

2 Legis. Hist. 1676-1677__......______- 34

Beard, The Enduring Federalist (1959) ______- 19

Federalist, The, Nos. 43 and 44 (1961) (Madi-

ititctabitehs dectcdtitmanetcsesad 19

40 Fed. Reg. 27925, 27928. ................ 41

In the Supreme Court of the United States

OctToBeR TERM, 1975

No. 74-1435

THE ENVIRONMENTAL PROTECTION AGENCY, ET AL,,

PETITIONERS

VU.

PEOPLE OF THE STATE OF CALIFORNIA EX REL. STATE

Water Resources Controt BoaRD AND STATE OF

WASHINGTON, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINION BELOW

The opinion of the court of appeals (Pet. App.

la-29a) is reported at 511 F.2d 963.’

JURISDICTION

The opinion of the Court of Appeals (Pet. App.

35a-36a) was entered on February 13, 1975. The

petition for a writ of certiorari was filed on May 14,

*Under the Federal Water Pollution Control Act, original

jurisdiction is in the court of appeals. 33 U.S.C. (Supp. III)

1369(b) (1) (D).

590-511—75——-2

(1)

1975, and granted on June 23, 1975. The jurisdiction

of this Court rests upon 28 U.S.C. 1254(1).

Whether the Federal Water Pollution Control Act,

as amended in 1972, requires federal facilities that

discharge water pollutants to obtain state effluent

discharge permits to continue operating, or whether

the federal facilities are required to comply only with

state substantive water pollution control requirements.

STATUTES AND REGULATION INVOLVED

Section 313 of the Federal Water Pollution Con-

trol Act, as added, 86 Stat. 875, 33 U.S.C. (Supp. ITT)

1323, provides as follows:

Each department, agency, or instrumentality

of the executive, legislative, and judicial

branches of the Federal Government (1) hav-

ing jurisdiction over any property or facility,

or (2) engaged in any activity resulting, or

which may result, in the discharge or runoff

of pollutants shall comply with Federal, State,

interstate, and local requirements respecting

control and abatement of pollution to the same

extent that any person is subject to such re-

quirements, including the payment of reason-

able service charges. The President may exempt

any effluent source of any department, agency,

or instrumentality in the executive branch from

compliance with any such a requirement if he

determines it to be in the paramount interest of

the United States to do so; except that no

exemption may be granted from the require-

ments of section 306 or 307 of this Act. No such

exemptions shall be granted due to lack of ap-

propriation unless the President shall have spe-

cifically requested such appropriation as a part

of the budgetary process and the Congress shall

have failed to make available such requested

appropriation. Any exemption shall be for a

period not in excess of one year, but additional

exemptions may be granted for periods of not

to exceed one year upon the President’s making

a new determination. The President shall re-

port each January to the Congress all exemp-

tions from the requirements of this section

granted during the preceding calendar year, to-

gether with his reason for granting such ex-

emption.

Sections 306, 308, 402, 505, 509, and 510 of the

Federal Water Pollution Control Act, as added, 86

Stat. 854, 858, 880, 888, 891, and 893, 33 U.S.C. (Supp.

FIT) 1316, 1318, 1342, 1365, 1369, and 1370, in’ per-

tinent part, are reprinted in the Appendix, infra, pp.

43 to 52.

Section 125.2(b) of Title 40, C.F.R., provides as

follows:

The regulations in this part do not prescribe

policy or procedures for the issuance of per-

mits by States under programs approved by the

Administrator pursuant to section 402(b) of

the Act. Such State programs do not cover

agencies and instrumentalities of the Federal

Government and Indian activities on Indian

lands under the jurisdiction of the United

States.

STATEMENT

In our brief in Kentucky ex rel. Hancock v. Train,

No. 74-220, certiorari granted, March 17, 1975,’ we

argued that under Section 118 of the Clean Air Act,

as amended in 1970, 84 Stat. 1689, 42 U.S.C. 1857f,

federal facilities must comply with state air emission

standards or limitations, but are not required to

obtain permits from state air pollution authorities in

order to operate. Similarly, in the instant case the

issue is whether federal facilities, in order to operate,

must seek and obtain discharge permits from state

agencies under Section 313 of Federal Water Pollu-

tion Control Act, as added in 1972, 33 U.S.C. (Supp.

III) 1323—a provision derived from and virtually

identical to Section 118 of the Clean Air Act.

A. THE FEDERAL WATER POLLUTION CONTROL ACT

AMENDMENTS OF 1972

In 1948, Congress enacted a major piece of legis-

lation aimed at controlling water pollution: * the Fed-

eral Water Pollution Control Act. Under the original

Act, as revised on numerous occasions prior to 1972,*

the primary control mechanisms were state-developed

ambient water quality standards, specifying permis-

sible levels of pollution in particular bodies of water.’

* 4 copy of which we are furnishing counsel for respondents.

* Act of June 30, 1948, 62 Stat, 1155.

*See Arnold, Effiuent Limitations and NPDES: Federal and

State Implementation of the Federal Water Pollution Control

Act Amendments of 1972, 15 B. C. Indus. & Comm. LL, Rev. 767,

n. 2 (1974).

5 See’ Act of Oct. 2, 1965, Sec. 5(a), 79 Stat. 907. If the standards

set by the state were too low, the Act provided a conference pro-

cedure among state and federal representatives to establish new

standards. /bid.

When a discharge resulted in reducing the quality of

the water below this level, the state could initiate an

enforcement conference among state, federal and in-

dustry representatives.’ The federal enforcement role

was limited to interstate pollution endangering health

or welfare;‘ the federal government could commence

an abatement suit only if the conference and a subse-

quent hearing had failed to result in agreement

among the parties;* and if the pollution threatened

only the health of citizens within the discharger’s

state, the state’s Governor had to give his written con-

sent to the federal abatement suit.’ In 1971, the Senate

Committee on Public Works, reporting on the bill that

evolved into the FWPCA Amendments of 1972, found

that under the existing legislation ‘‘the national effort

to abate and control water pollution has been inade-

quate in every vital aspect” (2 Legis. Hist. 1425).

By the Federal Water Pollution Control Act

Amendments of 1972," Congress took a new approach

to the problems of abating water pollution. In order

‘“‘to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters,” the revised

Act declares that it is the national goal to eliminate

®79 Stat. 907.

' Lbid.

* Act of July 9, 1956, Sec. 8(£), 70 Stat. 505.

* bid, For a description of the operation of the Act prior

to 1972, see S. Rep. No. 92-414, 92d Cong., 1st Sess. 1-7 (1971),

reprinted in 2 Legis. Hist. 1419-1425. (“Legis. Hist.” refers to

the legislative history of the FWPCA Amendments of 1972,

compiled by the Environmental Policy Division of the Library

of Congress in two volumes (Committee Print, “A Legislative

History of the Water Pollution Centrol Act ‘Amendments of

1972,” 93a Cong., Ist Sess. (1973) ).

discharges into navigable waters by 1985." This goal

is to be achieved primarily by three methods set

forth in the new legislation. First, the Environmental

Protection Agency is required to undertake an exten-

sive program of research and demonstration of waste

treatment methods.” Second, the Act authorizes a

massive construction program for municipal waste

treatment facilities, with the federal government con-

tributing 75 percent of the cost.” The third change,

which is directly involved in this case, is the establish-

ment of a new system of standards, permits and

enforcement.”

Instead of relying upon water quality standards as

the primary control mechanism,” the revised Act

utilizes effluent limitations applicable to point sources

of pollution. The term ‘‘point source’’ is defined as

“any discernible, confined and discrete conveyance

* * * from which pollutants are or may be dis-

charged.”’ * Effluent limitations are restrictions estab-

lished on “quantities, rates, and concentrations of

chemical, physical, biological, and other constituents”

“Section 101(a) of the FWPCA Amendments of 1972, 33

U.S.C. (Supp. ITT) 1251(a).

'* Id, Sections 104(d), 105(d), 33 U.S.C. (Supp. TIT) 1254(d),

1255(d).

8 Jd. Sections 201-212, 33 U.S.C. (Supp. IIT) 1281-1292.

* Id. Sections 301-405, 33 U.S.C. (Supp. IIT) 1311-1345.

** Water quality standards under the old Act are, however,

retained: if despite effluent limitations the water quality in

: certain watering is unacceptable, more stringent limitations

can be established. /d. Sections 302, 303, 38 U.S.C. (Supp. III)

1312, 1313.

** Id. Section 502(14), 33 U.S.C. (Supp. ITI) 1362(14).

of discharges from point sources into the waters, in-

cluding compliance schedules.”

Under this new system, discharges of pollutants are

unlawful except in compliance with various provisions

of the statute, including the provision regarding

permits which will incorporate effluent limitations.”

The new Act further provides that such limitations

must require use of the “‘best practicable” control

technology by July 1, 1977,” and the “‘best available’’

technology by July 1, 1983.” New point sources, in

specified categories * must meet a standard of per-

formance reflecting ‘‘the greatest degree of effluent

reduction which the [E.P.A.] Administrator deter-

mines to be achievable through application of the best

available demonstrated control technology * * *.’’”

In order to achieve compliance with effluent limita-

tions, Section 402 of the 1972 Amendments estab-

lishes a “National Pollutant Discharge Elimination

"Id. Section 502(11), 33 U.S.C. (Supp. III) 1362(11). The

term “schedule of compliance” means “a schedule of remedial

measures including an enforceable sequence of actions or oper-

ations leading to compliance with an effluent limitation, other

limitation, prohibition, or standard.” /d. Section 502(17), 33

U.S.C. (Supp. IIT) 1362(17).

** Id. Section 301(a), 33 U.S.C. (Supp. IIT) 1311(a).

* Id. Section 301(b) (1) (A), 33 U.S.C. (Supp. III) 1311(b)

(1) (A).

*° Id. Section 301(b) (2)(A), 33 U.S.C. (Supp. III) 1311(b)

(2) (A).

** Id. Section 306(b)(1)(A), 33 U.S.C. (Supp. III) 1316(b)

(1) (A).

** Id. Section 306(a)(1), 33 U.S.C. (Supp. ITI) 1316(a) (1).

* Id. Section 402, 33 U.S.C. (Supp. III) 1342; see also id.

Section 405, 33 U.S.C. (Supp. III) 1345.

System (NPDES),” which authorizes the E.P.A. to

issue permits to all point source discharges covered by

the revised Act. In accordance with comprehensive

regulations,“ E.P.A. has been administering the

NPDES and has issued more than 33,000 permits.

Such permits to discharge must contain a schedule of

compliance and are issued on condition that effluent

limitations will be met.” Each permit is for a fixed

term not to exceed five years” and, during the term,

may be terminated or modified for a violation of the

permit conditions, for misrepresentations, or if a

change in conditions ‘‘requires either a temporary or

permanent reduction or elimination of the permitted

discharge.”’ *

While the 1972 Amendments retained the basic pol-

icy that controlling water pollution is the primary re-

sponsibility of the states,* Congress provided that the

states will be allowed to issue permits under the re-

vised Act in place of the E.P.A. only if certain condi-

tions are met. Each state “desiring to administer its

own permit program” may submit to the E.P.A. its

proposed program.” A state may not issue permits

unless its permit program has been approved by

* 4) C.F.R. Part 125.

**F WPCA Amendments of 1972, Sections 301, 302, 306, 307,

33 U.S.C. (Supp. III) 1311, 1312, 1316, 1317; 40 C.F.R. 125.23,

25.94.

om 40 CER. 195295.

27 40 C.F.R. 125.22(a) (2).

** Jd. Section 101(b), 33 U.S.C. (Supp. IIT) 1251(b).

2 Jd. Section 402(b), 33 U.S.C. (Supp. IIT) 1342(b).

E.P.A.” Each state’s permit program must contain the

elements listed in Section 402(b), and, in addition, it

must comply with the guidelines established under

Section 304(h). E.P.A. retains the power to review a

state’s implementation of its permit program. The

state must transmit to the Agency copies of proposed

permits; and a permit proposed by a state cannot be

issued if the Administrator determines that it does

not conform to the guidelines and requirements of the

Act.”

In order to implement the provisions in Section 402

regarding state peruuit programs under the NPDES,

the Administrator of E.P.A. has promulgated exten-

sive regulations governing the elements that must be

present in a state program.” Section 124.2(b) of the

regulations (40 C.F.R. 124.2(b)) provides that upon

approval of the state program, ‘“‘the Administrator

shall suspend his issuance of NPDES permits as to

those point sources subject to such approved pro-

gram.” Under Section 125.2(b) of the regulations (40

C.F.R. 125.2(b)) such approved state programs ‘‘do

not cover agencies and instrumentalities of the Fed-

eral Government * * *.”

* Ibid. As of June 23, 1975, twenty-four states had received

approval from the Agency to administer their own permit pro-

grams. Those states are California, Colorado, Connecticut, Del-

aware, Georgia, Hawaii, Indiana, Kansas, Maryland, Michigan,

Minnesota, Mississippi, Missouri, Montana, Nebraska, North

Dakota, Ohio, Oregon, South Carolina, Vermont, Virginia,

Washington, Wisconsin, and Wyoming.

* Jd. Section 402(d), 33 U.S.C. (Supp. ITI) 1342(d).

40 C.F.R. 124.1-124.94.

590-511—75——_3

Thus, E.P.A. has not delegated to the states with

approved permit programs the authority to extend

those programs to federal facilities.“The Agency itself

continues to issue discharge permits to those facilities.

Within the states comprising the Ninth Circuit,

E.P.A. had issued (as of March 31, 1975) 187 NPDES

permits to federal facilities. At least forty other fed-

eral facilities have permit applications pending in

various processing stages“ where E.P.A. has issued

written draft permits, public notices or held public

hearings.“ These federal facilities include, for ex-

ample, various military installations, National Parks,

National Aeronautics and Space Administration

(NASA) installations and Veterans Administration

hospitals.

B. THE PROCEEDINGS BELOW

In August 1973, the State of California, by and

through its Water Resources Control Board, and the

State of Washington filed in the Court of Appeals for

the Ninth Circuit petitions for review under Section

509(b)(1)(D) of the 1972 Amendments (33 U.S.C.

(Supp. III) 1369(b)(1)(D))* against the E.P.A.

and its Administrator (App. 12-17, 21-28).

** E.P.A. estimates at least a six-month time lapse between

the receipt of an application and the issuance of a permit.

* Under Sections 402(a)(1) and 402(b)(3) of the FWPCA

Amendments of 1972, 33 U.S.C. (Supp. ITI) 1342(a) (1) and (b)

(3), the opportunity for public hearing must be afforded

before the issuance of a permit.

** Section 509(b)(1)(D) provides that the courts of appeals

may review the Administrator’s action “in making any deter-

mination as to a State permit program submitted under section

402(b).”

California alleged that its Governor had submitted

to E.P.A. on February 15, 1973, and April 10, 1973, a

permit program ‘“‘which the State proposed to operate

within its jurisdiction as part of the NPDES” (App.

15). The E.P.A. approved California’s program,”

by letter dated May 14, 1973, and informed the state’s

Governor that E.P.A. was suspending the issuance of

permits “under Subsection (2) of Section 402 of the

Act as to all discharges in the State of California,

other than those from agencies and instrumentalities

of the Federal government” (id. at 18). The E.P.A.’s

refusal to allow the state to apply its permit program

to federal facilities, California charged, violated Sec-

tions 402 and 313 of the Act (id. at 16).

The State of Washington made a similar contention

in its petition for review, which alleged that the

E.P.A.’s Regional Administrator advised the state on

June 12, 1973, that E.P.A. would not ‘delegate permit

issuance for federal facilities to any state” (App. 25).

On July 20, 1973, the E.P.A. Regional Administrator

rejected State’s proposed permit program because it

was “‘missing important components’ and, on the

same day, advised the State’s Department of Ecology

that E.P.A. had “‘sole authority to issue permits to

federal facilities” (ibid.). Upon the State’s resub-

mission of its program, the Administrator of the

E.P.A., on November 14, 1973, approved the program

and advised the State that E.P.A. was suspending its

issuance of NPDES permits except with respect to

federal facilities (id. at 29).

** California was the first state to receive approval of a state

permit program (App. 18).

The court of appeals held that “the 1972 amend-

ments to the Federal Water Pollution Control Act

clearly mandate a federal agency duty of full com-

pliance with all aspects of state permit programs”

(Pet. App. 28a). Therefore, the court declared invalid

40 C.F.R. 125.2(b), insofar as that provision exempted

federal facilities from State permit procedures,

and directed the Administrator to reeonsider the dis-

approved portions of the permit programs submitted

by California and Washington and to act expedi-

tiously in a manner consistent with its opinion (Pet.

App. 29a). In so holding, the court noted that the

language of Section 313, which is central to these

cases, is virtually identical to the language of Section

118 of the Clean Air Act, as amended, 42 U.S.C. 1857f

(Pet. App. 23a-24a), and explicitly recognized that

the Fifth and Sixth Circuits had arrived at conflict-

ing interpretations of Section 118 of the Clean Air

Act (Pet. App. 24a).

SUMMARY OF ARGUMENT

Section 313 of the Federal Water Pollution Con-

trol Act Amendments of 1972 directs federal agencies

and facilities to ‘‘comply with * * * State * * * and

** Alabama v. Seeber, 502 F. 2d 1238 (C.A. 5), petition for

certiorari pending, No. 74-851 (holding that federal facilities

are subject to state permit procedures); Kentucky ex rel.

Hancock v. Ruckelshaus, 497 F. 2d 1172 (C.A. 6), certiorari

granted sub nom. Kentucky ex rel. Hancock v. Train, March 17,

1975, No. 74-220 (holding that federal facilities are not subject

to state permit procedures).

~ —E

—

local requirements respecting control and abatement

of pollution * * *.”

Standing alone, Section 313 and its key word, ‘‘re-

quirements,” fail to provide a definitive answer to the

question regarding the nature and scope of the waiver

of federal immunity from state regulation intended by

Congress when it adopted that provision. Petitioners

maintain that the waiver does not extend beyond fed-

eral compliance with state effluent standards and limi-

tations, including compliance schedules. California and

Washington, on the other hand, contend that the

waiver extends beyond such state substantive stand-

ards to state administrative procedures involving state

effluent discharge permits.

Resolution of this dispute must take account of the

Supremacy Clause and the Plenary Powers Clause of

the Constitution, the effect of which is that the states

cannot regulate the federal government, its agencies,

or its activities, nor can they extend their regulations

to federal enclaves. Congress can affirmatively waive

federal immunity from state regulation but in view

of this traditional and constitutional division of

powers between the federal government and the states,

any such congressional waiver must be clear, unam-

biguous and unequivocal.

Thus, Section 313 can subject federal facilities to

state regulation through a state permit program only

insofar as Congress has actually considered the mat-

ter and decided that the states should have such regu-

latory authority over the activities of the federal

government.

Section 313 of the FWPCA is derived from Section

118 of the Clean Air Act and the surest guide to the

meaning of ‘‘requirements” in Section 313 is that the

same term, as used in the corresponding section of the

Clean Air Act, does not comprehend state permit

proced res.

Contrary to the court below, there is no reason to

read the two Acts differently. The court erred in

stating that. Section 510 of the FWPCA has no Clean

Air Act counterpart—Section 116 of the latter Act

is virtually identical to Section 510. Neither provision

aids in deciding the meaning of “requirements’’ as

used in Section 313 (or Section 118 of the Clean Air

Act) since the same term in Section 510 refers to

something other than state standards or limitations

yet all agree that ‘requirements’? under Section 313

include at least this.

Also, the fact that Section 313 refers to federal

facilities paying reasonable service charges, while Sec-

tion 118 of the Clean Air Act does not, cannot serve

to distinguish the statutes and does not lead to the

conclusion that “requirements’’ include state per-

mit procedures. The reference to reasonable service

charges means only that federal facilities must pay

their fair share of the cost of sewer service and sewer-

age treatment. | |

Moreover, Section 306(c) exempts new federal facil-

ities from state enforcement of standards, and Sec-

tion’ 308(e) denies the states the power to inspect,

monitor, or enter federal point sources. Thus, even if

states could issue permits to federal facilities, Con-

———EeE

gress did not give them the power to make those per-

mits effective. Section 402(b) allows the states to

administer their own permit program upon the deter-

mination of the E.P.A. Administrator that the state’s

program meets the conditions set forth therein. Yet

two of those conditions are that the state program in-

clude the powers specifically denied to the states with

respect to federal facilities by Sections 306(c) and

308(c). Hence, the Act itself bars the states from de-

vising acceptable permit programs to apply to federal

facilities.

As to Section 505(f), this is the Act’s mechanism

available to states (and to other parties) for the pur-

pose, inter alia, of judicially enforcing the federal

facility compliance provision. That section lists cer-

tain provisions of the FWPCA, with respect to some

of which federal installations must comply, but it does

not furnish a clear definition of the meaning of ‘‘re-

quirements” in Section 313.

Among the provisions enumerated in Section 505(f)

is the state certification requirement, which is estab-

lished by Section 401 as a prerequisite to federal per-

mitting of a discharge source. However, by Section

401(a)(6) federal facilities are exempt from the state

certification procedure, thus underscoring the con-

gressional intent that the federal government should

not be subject to state administrative procedures.

ITI

Examination of the legislative history of Section

313 reveals no congressional intent to subject federal

agencies and facilities to state permitting authority.

With respect to Section 313, the Senate, the House,

and the Conference Committee stated only that fed-

eral . .cilities were to comply with state substantive

abaten.ent standards and limitations. However,

neither the committees nor any individual member of

Congress demonstrated any intent at any time to ex-

tend federal compliance beyond that point. There

is, in short, nothing to suggest that Congress ever con-

templated that federal facilities would be required to

comply with state permit procedures and all indica-

tions are that “‘requirements” in Section 313 meant

only state standards and limitations.

Finally, the interpretation applied to Section 313

by the E.P.A., the agency charged with administering

the FWPCA, has not extended state permitting

authority to federal installations. That agency inter-

pretation should be given substantial weight in deter-

mining the meaning of the federal facilities provision

and should not be rejected unless there are compelling

reasons why it is wrong. Such reasons are wholly

absent here.

ARGUMENT

SECTION 313 OF THE FEDERAL WATER POLLUTION CONTROL

ACT, AS AMENDED IN 1972, DOES NOT REQUIRE FEDERAL

FACILITIES TO SEEK AND OBTAIN STATE DISCHARGE PER-

MITS IN ORDER TO OPERATE WITHIN THE STATE

_-- —~— 9

INTRODUCTION

The dispute in this case concerns the meaning of

the first sentence of Section 313 of the Federal Water

Pollution Control Act, as amended in 1972, 33 U.S.C.

(Supn. IIT) 1323,° which provides that:

Each department, agency, or instrumentality

of the executive, legislative, and judicial

branches of the Federal Government (1) hav-

ing jurisdiction over any property or facility,

or (2) engaged in any activity resulting, or

which may result, in the discharge or runoff

of pollutants shall comply with Federal, State,

interstate, and local requirements respecting

control and abatement of pollution to the same

extent that any person is subject to such re-

quirements, including the payment of reason-

able service charges. [Emphasis supplied. ]

Respondents argue that the language in Section

313’s first sentence—‘‘shall comply with * * * State,

* * * and local requirements respecting control and

abatement of pollution to the same extent that any

person is subject to such requirements”—means that

facilities of the executive, legislative and judicial

branches of the federal government must comply not

only with state effluent limitations and compliance

schedules, but also with state regulations demanding

that sources of discharges—including federal facili-

ties—obtain discharge permits.

** Section 313 is set out in full at pp. 2-3, supra.

590-511—-75—_4

We contend, however, that the phrase means only

that facilities of the executive, legislative and judicial

branches operating within the states must comply with

the applicable effluent limitations and compliance

schedules promulgated by the particular state pur-

suant to its E.P.A.-approved implementation plan.”

Underlying this controversy regarding the proper

interpretation of Section 313 of the Act are principles

of federalism derived in part from the Supremacy

Clause and the Plenary Powers Clause of the Consti-

tution.” As’ the court below recognized, the Supremacy

Clause bars state regulation of the federal government

and its activities and the Plenary Powers Clause pro-

hibits the extension of state regulatory power into

areas of exclusive federal legislative jurisdiction (Pet.

App. 10a).

Federal-state relationships have, from the be-

ginnmg, been governed by these principles,” the

8 See Section 303(e), 33 U.S.C. (Supp. IIT) 1313(e).

* The Supremacy Clause (Art. VI, cl. 2) reads as follows:

This Constitution, and the laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the Au-

thority of the United States, shall be the supreme Law

of the Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution or Laws

of any State to the Cont notwithstanding.

In pertinent part, the Plenary Powers Clause (Art. I, Sec.

8, cl. 17) reads as follows:

The Congress shall have Power * * * [t]o exercise ex-

clusive Legislat[ive] * * * Authority over all Places pur-

chased by the Consent of the islature of the State in

which the Same shall for the ion of Forts,

zines, Arsenals, dock-Yards, and other needful Build-

ings;

“In regard to the Supremacy Clause, the leading case is, of

course, McCulloch v. Maryland, 4 Wheat. 316. See also, ¢.g.,

Osborn v. Bank of United States, 9 Wheat. 738; Thomson v.

underlying purpose of which is to avoid even the

potential for state interference with the lawful func-

tions of the federal government.” As James Madison

stated in The Federalist No. 43,“ “The public money

expended on [federal installations], and the public

property deposited in them, require that they should

be exempt from the authority of the particular State.

Nor would it be proper for the places on which

the security of the entire Union may depend, to be in

any degree dependent on a particular member of it.’’

These considerations are no less valid today than

they were two centuries ago when the Founders em-

Pacific Railroad, 9 Wall. 579; Van Brocklin v. Tennessee, 117

U.S. 151; Ohio v. Thomas, 173 U.S. 276; Johnson v. Maryland,

254 U.S. 51; Hunt v. United States, 278 US. 96; Arizona

v. California, 283 U.S. 423; Mayo v. United States, 319

U.S. 441; California Commission v. United States, 355

U.S. 534; United States v. Georgia Pub. Serv. Commission, 371

U.S. 285. Neither the purpose of the state law or regulation

nor its importance to the state alters the effect of the Suprem-

acy Clause. See Free v. Bland, 369 U.S. 663, 666. ;

The case law relating to the Plenary Powers Clause predates

McCulloch v. Maryland, supra, by at least eight years. The

Supreme Judicial Court of Massachusetts held that the Plenary

Powers Clause prohibited state regulation of liquor sales in

the federal small arms factory at Springfield. Commonwealth

v. Clary, 8 Mass. 72.

During the years since Clary, state efforts to intrude upon

the domain which the Plenary Powers Clause entruste exclu-

sively to Congress have been consistently rejected. See, ¢.g.,

Humble Pipe Line Co. v. Waggonner, 376 U.S. 369; Pacific

Coast Dairy v. Dept. of Agriculture, 318 U.S. 285; Collins v.

Yosemite Park Co., 304 U.S. 518; Standard Oil Co. v.

California, 291 U.S. 242; Surplus Trading Co. vy. Cook, 281

U.S. 647; Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 533;

cf. Paul v. United States, 371 U.S. 245.

*? See The Federalist Nos. 43 and 44 (1961) (Madison).

*’ Beard, The Enduring Federalist (1959) p. 187.

bodied them in the Constitution. To be sure, Congress

ean decide to modify the normal federal-state rela-

tionship by affirmatively granting to the states the

power to control certain federal activities.“ But in

light of the firmly-established constitutional principles

discussed above, the Court has not readily assumed

that Congress decided to waive traditional federal im-

munity from state control. Instead, the congressional

waiver must be clear and unambiguous and it must

be unequivocal.“

It is in light of this considerable background of

constitutional law that we approach the question of

the proper interpretation of Section 313 of the Fed-

eral Water Pollution Control Act.

II,

WHEN READ IN LIGHT OF THE STATUTE AS A WHOLE, THE LAN-

GUAGE OF SECTION 313 DIRECTING FEDERAL FACILITIES TO COM-

PLY WITH STATE WATER POLLUTION “REQUIREMENTS” MEANS

ONLY THAT SUCH FACILITIES MUST MEET STATE STANDARDS AND

LIMITATIONS, INCLUDING COMPLIANCE SCHEDULES

On its face, Section 313 does not reveal a clear, un-

ambiguous, unequivocal congressional waiver of the

authority of the federal government to conduct activi-

ties inside a state without its permission, given in the

“See in regard to waiver of the Supremacy Clause, Mayo v.

United States, 319 U.S. 441, 448; and in regard to the Plenary

Powers Clause, Paul v. United States, 371 U.S. 245; United

States v. Sharpnack, 355 U.S. 286; S.R.A., Inc. v. Minnesota,

327 U.S. 558,

* See, e.g., cases cited in note 44, supra; see also United

States v. Sherwood, 312 U.S. 584, 590; United States v. King,

395 U.S. 1, 4.

form of a permit. The pertinent phrase in Section 313

provides that federal facilities must “comply with

* * * State, * * * and local requirements respecting

control and abatement of pollution’? and the single

word, which is the key to the meaning of Section 313

and at the center of this case, is ‘‘requirements.”

While federal facilities must comply with state re-

quirements, Section 313 itself is of little assistance in

determining what is meant by ‘‘requirements.” The

language following the quoted phrase—‘to the same

extent that any person is subject to such require-

ments”—does not advance the inquiry: it explains

only to what extent federal facilities must comply

with applicable state provisions but does not say

which state provisions are applicable.

Without looking further, however, we do know that

Section 313 of the FWPCA Amendments is derived

from“ and virtually identical to Section 118 of the

Clean Air Act, as amended in 1970,” and that the

operative language just quoted is the same as that in

the Clean Air Act provision, save for the FW PCA’s

deletion of the word “air’’ preceding the term “ pollu-

tion.’’ Since there is no indication that the two statutes

were intended to mean something different in regard

to state authority over federal facilities, the most cer-

tain guide to the meaning of Section 313 of the

FWPCA Amendments is that its earlier counterpart

in the Clean Air Act does not direct federal facilities

to obtain state air pollution permits, as we have

** 42 U.S.C. 1857f.

argued in our brief in Kentucky ex rel. Hancock v.

Train, No. 74-220, certiorari granted March 17, 1975.

The court of appeals in this case, however, believed

that the two statutes could properly be subject to con-

flicting interpretations because the first sentence of

Section 313 of the FWPCA Amendments ends by

stating that ‘“‘requirements” include “the payment of

reasonable service charges,’’ while Section 118 of the

Clean Air Act contains no comparable language; and

because Sections 510“ and 402“ of the FWPCA

Amendments have no Clean Air Act counterparts

(Pet. App. 24a-25a).

With respect to Section 510, the court’s statement

is not accurate. Section 510 of the FWPCA Amend-

ments not only has a counterpart in the Clean Air

Act, it was copied directly from Section 116 of that

Act. This is unmistakable when the language of Sec-

tion 116” is compared with that of Section 510: the

** 33 U.S.C. (Supp. IIT) 1370.

** 33 U.S.C. (Supp. IIT) 1342.

°° Section 116 of the Clean Air,Agt, as amended in 1970, 42

U.S.C. 1857d-1, reads as follows:

Except as otherwise provided in sections 209, 211(c)

(4), and 233 (preempting certain State regulation of

mo sources) nothing in this Act shall preclude or

deny the right of any State or political subdivision there-

of to opt or enforce (1) any standard or

limitation respecting emissions of air pollutants or (2)

any requirement respecting contro] or abatement of air

pollution; except that if an emission standard or limita-

tion is in effect under an applicable implementation

plan or under section 111 or 112, such State or political

subdivision may not adopt or enforce any emission

standard or limitation which is less stringent than the

standard or limitation under such plan or section.

*t See Appendix, infra, for the full text of Section 510.

references to the states’ right to set a more restrictive

(1) “standard or limitation” or (2) “requirement re-

specting cuntrol or abatement of pollution” are com-

mon to both siatutes. Moreover, contrary to the court

below,” the Section 510 phrase containing the word

“requirement” does not give content to the meaning of

the same word in Section 313. As used in Section 510,

the term refers to something distinct from a ‘‘stand-

ard or limitation respecting discharges of pollutants,’’

yet the one area of agreement between the parties here

is that the same word—‘‘requirements’’—as used in

Section 313 does comprehend such standards or limi-

tations.” To view the matter otherwise by looking to

Section 510 in order to define Section 313 would lead

to the untenable result that federal facilities must

comply with state permit procedures but not with state

substantive standards or limitations respecting the

discharge of pollutants.

While the court of appeals thus erred in stating

that Section 510 had no Clean Air Act counterpart

and in relying on that provision, the court did cor-

rectly point out that no clause in Section 118 of the

Clean Air Act corresponds to the ‘‘reasonable service

charges’ clause in Section 313 of the FWPCA

Amendments. The court of appeals read that language

to mean “charges incident to state permit pro-

grams,’’ a reading that supported the court’s view that

*? Pet. App. 21a—-22a.

** We made the same point in our Brief (at pp. 20-21) in

Kentucky ex rel. Hancock vy. Train, supra, with respect to

Section 116 of the Clean Air Act.

instead oe

under Section 313 federal facilities must obtain state

permits (Pet. App. 16a). There is, however, no basis

for that interpretation of the clause in either the

FWPCA or its legislative history—unless one first

assumes the court of appeals’ ultimate conclusion on

the issue of this case.

The most apparent explanation why the reasonable

service charge clause does not appear in the Clean Air

Act lies in the fact that the Air and Water Acts deal

with two different elements of the environment. Sewer

systems carry the effluent discharges associated with

water, and for that service and for the treatment of

such wastes (in sewerage treatment plants) a charge

is levied upon the user for the service received. There

is no equivalent waste discharge collection technology

for air emissions and, therefore, no equivalent serv-

ices for which charges can be levied.

While it might have been unnecessary for Congress

to direct federal facilities to pay their share of mu-

nicipal sewer system costs (Pet. App. 17a), Congress

may well have believed that those facilities should pay

only their fair share of such costs. This much is at

least indicated by the inclusion of the word ‘‘reason-

able’ in the clause: what Congress appears to have

done is to protect specifically federal agencies and

facilities against any possibility that state or local

governments might attempt, in effect, to extract from

the national treasury an unauthorized subsidy by levy-

ing upon federal installations a disproportionately

high service charge. And in this regard Congress’ ac-

tion is, of course, entirely consistent with the purposes

of the Supremacy Clause and the Plenary Powers

Clause of the Constitution and the traditional federal-

state relationship reflected therein (see pp. 18-20,

supra).

We turn now to Section 402, the third provision

relied upon by the court of appeals. As we discuss

below, analysis of Section 402, far from supporting

the court’s interpretation of “requirements” in Sec-

tion 313, leads to the conclusion that federal facilities

are not subject to state permit programs.

Section 402(b) sets out nine criteria that a proposed

state permit program must meet in order for the Ad-

ministrator to approve it and to delegate his permit-

ting authority to the state.* Congress made those cri-

teria essential to any state permit program, so essen-

tial that according to the language of the statute, the

E.P.A. Administrator cannot approve a program from

which any of the elements is missing.

The first criterion, Section 402(b) (1) (A), provides

in pertinent part (emphasis added) :

The Administrator shall approve each such sub-

mitted program wnless he determines that ade-

quate authority does not exist:

** Basically, they are the same elements Congress included in

the federal permit program (prior to a delegation of authority

to the States). See Section 402(a), 33 U.S.C. (Supp. IIT)

1342(a).

Use of the conjunctive “and”, tying subsection (b)(9) to

its eight predecessors, makes it clear that Congress did not in-

tend the nine criteria as options among which the states or

the Administrator could choose, but that each and every one

must be included in any state program before it could be ap-

proved by the Administrator.

(1) To issue permits which—(A) apply,

and insure compliance with, any applicable

requirements of sections 301, 302, 306, 307,

and 403 ; *s* #

Section 306 (33 U.S.C. (Supp. ITT) 1316) deals with

the establishment of standards of performance for new

sources. Under Section 306(b)(3), those standards

apply to new sources owned or operated by the United

States. However, Section 306(c) reads as follows:

Each State may develop and submit to the

Administrator a procedure under State law for

applying and enforcing standards of perform-

ance for new sources located in such State. If

the Administrator finds that the procedure and

the law of any State require the application

and enforcement of standards of performance

to at least the same extent as required by this

section, such State is authorized to apply and

enforce such standards of performance (except

with respect to new sources owned or operated

by the United States). [Emphasis supplied. ]

Thus, in its proposed Section 402 permit program

a state must be able to apply and enforce Section 306

standards if that program is to be approved and if

that program is to be effective, but the state’s proce-

dures for applying and enforcing those standards are

not to be employed against federal facilities.” On the

other hand, federal facilities must comply with Sec-

tion 306 standards; that is one of the two sets of

°° The court of appeals recognized the federal facility exemp-

tions in Sections 306(c) and 308(c) (infra), but did not attempt

to determine the effect of those exemptions upon other provi-

sions in the Act (Pet. App. 23a and n. 16).

standards (Section 307 being the other) from which

not even the President can exempt them, according to

Section 313. This interrelationship of provisions leads

to the quite firm conclusion that enforcement of fed-

eral compliance with Section 306 must be accomplished

by some means other than state permits.”

The second prerequisite to E.P.A. approval of a

state permit program is contained in Section 402(b)

(2)(B), which reads as follows (emphasis supplied) :

The Administrator shall approve each such sub-

mitted program unless he determines that ade-

quate authority does not exist:

* * . -_ *

To inspect, monitor, enter, and require reports

to at least the same extent as required in sec-

tion 308 of this Act; * * *

Congress thus recognized that essential to the applica-

tion and enforcement of any pollutant discharge

abatement program are the inspection, entry, and

monitoring of sources in order to insure compliance

with abatement standards. A state must be able to

monitor, inspect, and enter sources subject to its per-

mits or the permit program cannot be approved by

the Administrator.

However, the relevant provision—Section 308—

flatly denies the states the power to inspect, monitor,

* For an explanation of the means by which Federal com-

pliance with Section 306 can be assured by the states, see dis-

cussion of Section 505, 33 U.S.C. (Supp. III) 1365, infra, at

pp. 29 to 32.

Section 306 is unique in that, when it is violated, suit can be

brought under Section 505(a) without the sixty-day notice re-

quired by Section 505(b).

and enter federally owned or operated point sources.

Section 308(c), 33 U.S.C. (Supp. III) 1318(c),

provides:

If the Administrator finds that the proce-

dures and the law of any State relating to in-

spection, monitoring, and entry are applicable

to at least the same extent as those required

by this section, such State is authorized to

apply and enforce its procedures for inspec-

tion, monitoring, and entry with respect to

point sources located in such State (except

with respect to point sources owned or oper-

ated by the United States). [Emphasis sup-

plied. ]

Again, as with the relationship between Sections

402(b)(1)(A) and 306(c), Congress has specifically

identified certain functions as essential to the imple-

mentation of an effective state permit program, in-

deed so essential that without them a state’s program

cannot be approved—and yet has specifically denied

the states the power to carry out precisely those

essential functions with respect to federal facilities.

The logical conclusion, once again, is that the per-

mitting authority Congress chose to make available

to the states did not extend to federal facilities.

Indeed, the effect of the court of appeals’ holding

is to amend the FWPCA by reading out of existence

the congressional directions in Section 306(¢) and

308(c). Only by such judicial revision could the

E.P.A. ‘Administrator circumvent those provisions

and approve the Washington and California permit

programs pursuant to Section 402(b) insofar as the

states’ programs apply to federal facilities. In sum,

within the context of the FWPCA, Section 402(b)

not only fails to support the court of appeals’ conclu-

sion, but is squarely against it.”

Section 505, 33 U.S.C, (Supp. III) 1365, is the only

other provision to which the court devoted any signif-

icant attention.” However, that section affords little,

if any, support to the court of appeals’ position.

Section 505 is a rather complex multi-functional

provision. It is the only jurisdictional provision

within the Act for civil suits under the Act; it is the

sole waiver of federal immunity * from suit for civil

* The court of appeals itself acknowledged the weakness of

its own decision in the absence of those supporting bases here-

tofore discussed :

Considered in the light of Sections 402 and 510, other

sections in the Act afford added support to petitioners’

interpretation of the term “requirements” in Section 313,

though the significance of each would have been less

certain apart from these two sections, [Pet. App. 22a-

23a; emphasis supplied. }

® Section 505(a) establishes jurisdiction in federal courts,

limits that jurisdiction to civil actions, eliminates the require-

ments of a minimal amount in controversy and diversity of

citizenship, and defines standing for such an action.

The jurisdiction conferred by Section 505(a) is conditioned

specifically upon compliance with the sixty-day notice of suit

prerequisite established in Section 505(b).

Under Section 509(b), 33 U.S.C. (Supp. III), 1369(b), cer-

tain specific actions of the Administrator can be reviewed ex-

clusively in the appropriate court of appeals on petition. The

instant case focuses upon one of the types of action identified

in Section 509(b) for such treatment. Another is a challenge

to an individual permit. Section 509(b) (1) (F).

°° That waiver is limited to actions against the federal gov-

ernment or its agencies for violations of an effluent standard

or limitation (Section 505(a)(1)) and actions against the E.P.A.

Administrator for failure to perform non-discretionary functions

under the Act (Section 505(a) (2)).

relief within the Act; and it is the enforcement pro-

vision designed to be used by the states to insure com-

pliance with Section 313, inter ala.”

Section 505(f) refers, in a parenthetic clause, to

Section 313, but this only supports petitioners’ position

From the fact that by California law some substantive

limitations may be set following administrative hearings in

which a discharger may participate, the court of appeals

inferred a federal susceptibility to state administrative proce-

dures under the predecessor to Section 313, and it used that

inference as guidance in reaching its decision. (Pet. App. 9a.)

The weakness of that approach lies with the fact that there

is a marked contrast between participation in hearings and a

state permit. The latter is an instrument which may be issued

or withheld, thereby giving the states actual control over the

operations of the federal government.

As to how a state will establish those standards with which

federal facilities must comply, Section 313 is silent; it assures

only federal compliance with state standards. It is not a

guarantee that the states will not have to modify their admin-

istrative practices in order to accommodate the legal characteris-

tics of the federal government, its agencies, and its instrumen-

talities.

However, federal agencies must cooperate with the states

with respect to compliance. Executive Order 11752, Section 3

(a) (2), 38 Fed. Reg. 34793, 34794. Hence, they are required to

provide states with whatever data are needed for standard setting.

*t The enforcement mechanism of Section 505(a) is available

to the states because a “State” is a “person” (Section 502(5),

33 U.S.C. (Supp. ITI) 1362(5)), a “person” is a “citizen”

(Section 505(g), 38 U.S.C. (Supp. IIT) 1365(g)), and a citizen

can bring suit under Section 505(a).

By providing states with this enforcement procedure through

Section 505, Congress has eliminated what would otherwise ap-

pear to be a loophole left because the Act does not extend state

permitting authority to federal facilities. By Section 313, as

well as by Executive Order 11752, supra, federal facilities

are required to meet applicable substantive standards and limi-

regarding the enforcement function of Section 505.

Borrowed directly from Section 304(f) of the Clean

Air Act, as amended,” the federal facilities compliance

reference in Section 505(f) comes at the end of a list

tations. Hence, it would be redundant to impose upon them

those same requirements under the authority of a state permit.

If a federal installation fails to meet the relevant standards

or limitations, it is not a state permit which the state can

enforce to secure compliance, but rather the federal law

through civil suit.

That Section 505 was intended to be the states’ enforcement

mechanism for federa] facility compliance with Section 313 is

made abundantly clear by the legislative history concerning the

corresponding provisions in the Clean Air Act, Sections 118 and

304, 42 U.S.C. 1857f and 1857h-2, respectively, as we pointed out

in our Brief (at pp. 24-26) in Kentucky ez rel. Hancock v. Train,

supra.

The Clean Air Act’s legislative history is quite relevant to

the FWPCA with respect to the “citizen suit” provision, since

Section 505 of the FWPCA is modeled upon Section 304 of

the Clean Air Act. S. Rep. No. 92-414, 92d Cong., 1st Sess. 79

(1971) ; 2 Legis. Hist. 1497.

*? Section 304(f) of the Clean Air Act, 42 U.S.C, 1857h-2(f),

reads as follows:

(f) For purposes of this section, the term “emission

standard or limitation under this Act” means—

(1) a schedule or timetable of compliance, emis-

sion limitation, standard of performance or emission

— a , ashe ;

a control or prohibition respecting a motor

vehite fuel or fuel additive ae

which is in effect under this Act (including a require-

ment applicable by reason of section 118’ or under an

applicable implementation plan. [Emphasis supplied. ]

A comparigon of the Clean Air Act’s Section 304(f) with the

FWPCA’s Section 505(f) (see Appendix, infra) undercuts

the cotrt of appeals’ contention that the Water Act provision is

in any way substantially different in form or effect from its Air

Act counterpart (Pet. App. 25a). ,

of six categories of provisions“ (the last of which is

permits) that may be enforced by a Section 505 suit.

However, this cannot be read to mean that all six of

the enumerated categories are to be considered “‘re-

quirements’? under Section 313. As we discuss below,

category (5) refers to certificates under Section 401

(33 U.S.C. (Supp. ITI) 1341), and federal facilities

are expressly exempted from having to obtain such

certificates. (Section 401(a).) Thus, Section 505(f)

gives no guidance in regard to which of the listed

provisions are ‘‘requirements” under Section 313. To

determine this, other sections of the Act must be con-

sulted, as we have done above.

As to Section 401 itself, this provides that before

any “applicant” for a federal permit from E.P.A.

under Section 402 can operate a facility, the applicant

must first obtain from the state in which the discharge

wi!l originate a certificate that such discharge will

comply with the effluent limitations and standards

pursuant to Sections 301, 302, 306 and 307."

*8 Section 505(f) provides in full:

For purposes of this section, the term “effluent stand-

ard or limitation under this chapter” means (1) effective

July 1, 1973, an unlawful act under subsection (a) of

section 1311 of this title, (2) an effluent limitation or

other limitation under section 1311 or 1312 of this title;

(3) standard of performance under section 1316 of this

title; (4) prohibition, effluent standard or pretreatment

standards under section 1317 of this title; (5) certifica-

tion under section 1341 of this title; or (6) a permit or

condition thereof issued under section 1342 of this title,

which is in effect under this chapter (including a require-

ment applicable by reason of section 1323 of this title).

* 33 U.S.C. (Supp. IIt) 1311, 1312, 1316, 1317.

However, Congress expressly provided that no fed-

eral agency “shall be deemed to be an applicant for

the purposes of” Section 401(a); in short, unlike

other pollutant sources, federal facilities are not to

be subject to state certification procedures, compliance

with which would otherwise be a prerequisite for a

federal permit or license. See Section 401(a) (6), 33

U.S.C. (Supp. ITT) 1341(a) (6).

The specific exemption for federal facilities in Sec-

tion 401(a) is still further support for our reading of

Section 313: when Congress had the opportunity to

subject federal facilities to state control (by the

state’s withholding a certificate) it followed the

traditional course reflected in the Supremacy Clause.

Since state certification is so analogous to a state per-

mit, there is we submit no reasonable explanation why

Congress would have subjected federal facilities to

state permit procedures and yet exempted such facili-

ties from state certification procedures.

ITT.

THE LEGISLATIVE HISTORY OF SECTION 313 CONFIRMS THAT CON-

GRESS DID NOT INTEND TO ALTER THE TRADITIONAL FEDERAL-

STATE RELATIONSHIP BY REQUIRING FEDERAL FACILITIES TO

OBTAIN STATE DISCHARGE PERMITS

If there is any remaining uncertainty about the

proper interpretation of Section 313, this is removed

upon examination of the legislative history of that

provision. In regard to this evidence, the focus must

again be on the word “requirements” contained in

the first sentence of Section 313. The language of the

first sentence in both Section 313 of Senator Muskie’s

original Senate Bill, S. 2770, and in the original

House version of the bill, H.R. 11896, is nearly iden-

tical with the language of that section ultimately en-

acted into law. 2 Legis. Hist. 1676-1677 ; 1 Legis. Hist.

1040-1041.

In the Report of the Senate Committee on Public

Works accompanying S. 2770, the most pertinent

paragraphs in the brief discussion of Section 313

read as follows:”

This section, similar to one in existing law,

requires that Federal facilities meet the same

effluent limitations as private sources of pollu-

tion, unless the Federal facility is specifically

exempted by the President. The President can-

not exempt any source from requirements of

Sections 306 and 307.

This section would require every Federal

agency with control over any activity or real

property, to provide national leadership in the

control of water pollution in such operations.

* * * Lack of Federal leadership has been

detrimental to the water pollution control effort.

The Federal Government cannot expect private

industry to abate pollution if the Federal Gov-

ernment continues to pollute. This section re-

quires that Federal facilities meet all control

requirements as if they were private citizens.

The House Committee on Public Works Report on

H.R. 11896 also described the nature of the com-

*S. Rep. No. 92-414, 92d Cong., Ist Sess. 67 (1971); 2

Legis. Hist. 1485 (emphasis added).

pliance demanded of federal facilities under Sec-

tion 313:”

This section requires that Federal facilities

meet the same effluent limitations, other limi-

tations, performance standards, toxic effluent

standards and thermal discharge regulations as

private sources of pollution, unless the Federal

facility is specifically exempted by the Presi-

dent. The President cannot exempt any source

from the requirements of sections 306 and 307.”

The words and phrases used by the Committees—

“effluent limitations,” ‘“‘limitations,” ‘‘performance

standards,” and “‘effluent standards”—certainly do not

refer to, and do not suggest, en intention to submit

federal facilities to state permit procedures; rather,

all point to federal compliance with applicable sub-

stantive pollution abatement requirements. Indeed,

both Reports first describe the ‘‘requirements’’ of Sec-

tion 313 as “‘effluent limitations,” which are dealt with

in Section 301 of S. 2770 and H.R. 11896," and of the

Act, 33 U.S.C. (Supp. ITT) 1311 (‘‘Effluent Limita-

tions’’). From original bill through final Act, Section

* H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 118 (1972);

1 Legis. Hist. 805 (emphasis added).

** During the House debate on the bill, Representative Jones,

a member of the House Commitee, described section 313 as

follows (1 Legis. Hist. 361) : “Requires Felerai facilities to meet

the same effluent limitations and water quality standards as pri-

vate sources of pollution unless the facility is specifically ex-

empted by the President.” [Emphasis supplied. ]}

8 S, 2770, 92d Cong., Ist Sess. 75 (1971) ; H.R. 11896, 92d Cong.,

2d Sess. 266 (1971) ; 2 Legis. Hist. 1608 ; 1 Legis. Hist. 962.

301 has been devoted entirely to the actual elimina-

tion of the physical discharge of pollutants into the

water; it does not speak at all of administrative

permit procedures.”

Similarly, in varying contexts, the word “standard”’

is found in several sections of the bills and of the

FWPCA. Section 303 of H.R. 11896 and of the Act,

33 U.S.C. (Supp. IIT) 1313, addressed “Water Qual-

ity Standards and Implementation Plans,” and Sec-

tion 307, 33 U.S.C. (Supp. IIT) 1317, relates to ‘‘Toxie

and Pretreatment Effluent Standards.” Each of those

sections discusses “standards”’ in the sense of numer-

ical measurements. Furthermore, Section 306(a) (1),

33 U.S.C. (Supp. ITT) 1316(a) (1) (‘‘National Stand-

ards of Performance”) defines a “standard of per-

formance” (or ‘‘performance standard,” as used in

the House Report) as a “standard for the control of

the discharge of pollutants which reflect the greatest

degree of effluent reduction * * * achievable through

application of the best available demonstrated control

technology * * *.’’ Again, the subject of the statutory

provision is numerical measurements and the tech-

nological means of attaining those quantitative levels.

® Section 302, entitled “Water Quality Related Effluent

Limitations” in the bills and in the FWPCA, also fails ever

to suggest any extension of state administrative procedures to

federal facilities. Its focus is upon the physical quality of

Getien 303 of S. 2770, dealing with “Aquaculture,” cor-

responds to Section 318 of H.R. 11896 and of the final Act. In

S. 2770 there was no section corresponding to Section 303 of

the House bill and of the final FWPCA Amendments. 1 Legis.

Hist. 305-307.

Thus, in each of the sections relating to the subject

of ‘‘standards,” the single fact most relevant to this

discussion is that none involve the administrative pro-

cedures of a permit program.

The word “control” appears several times in the

previously mentioned congressional material, and it

appears again in the Senate Committee’s explanation

of the Presidential exemption provision of Section

7,72

313" in relation to the term ‘‘requirement” :

The Committee recognizes, however, that it

may be in the paramount interest of the United

States that a plant or facility not achieve full

water pollution control within the time re-

quired.

Thus, the requirement from which a facility may be

exempted in the control of its pollution, that is, the

control of actual physical discharge; the relevant re-

quirement is not a state’s permit procedure.

Following the development of S. 2770 and H.R.

11896 in their respective Houses of Congress, a Joint

Conference Committee was convened to consider the

Senate and House versions. The Conference Report

indicates that in regard to Section 313 there were no

differences to be resolved: ™

"S. Rep. No. 92-414, supra, at 68; 2 Legis. Hist. 1486 (em-

phasis added).

"? This part of Section 313 provides in relevant part:

“* * * The President may exempt any effluent source of any de-

partment, agency, or instrumentality in the executive branch

from compliance with any such a requirement if he determines

it to be in the paramount interest of the United States to do

so * * *.” [Emphasis supplied. ]

8S. Conf. Rep. No. 92-1236, 92d Cong., 2d Sess. 135 (1972); 1

Legis. Hist. 318 (emphasis added).

Senate bill

Section 313 requires Federal facilities to meet

the same effluent limitations as other sources of

pollution, unless the facility is specifically ex-

empted by the President. The President cannot

exempt a Federal source from national per-

formance standards or toxic and pretreatment

standards.

House amendment

Section 313 requires Federal facilities to meet

the same requirements as private sources of

pollution unless specifically exempted by the

President in essentially the same manner as the

Senate bill.

Conference substitute

This section is the same as the Senate bill

and the House amendment.

If, and the Conference Committee Report states,

“effluent limitations” mean the same as “‘require-

ments,” then under Section 313 federal facilities must

meet such limitations. Neither the Conference Report

nor the preceding congressional explanations of Sec.

tion 313’s meaning, however, give any indication that

the section additionally commands compliance with

state and local permit procedures.

The command of Section 313 is thus that federal

facilities control their pollution; it is not that they

must apply for and secure state or local permits. Sec-

tion 313 orders federal facilities to do their share in

the pollution abatement effort just as every citizen

must, and this is conconant with the basic purpose of

the FWPCA Amendments to clean up the nation’s

waters. If Congress intended otherwise, if it sought to

give the states control of federal facilities through

state permit programs, it would be remarkable indeed

that Congress never mentioned this.

What Congress did say is that federal facilities

must comply with “effluent limitations,” and that com-

pliance with effluent limitations is “the same as” com-

pliance with “requirements.” * The language in Sec.

tion 313 therefore cannot be read to mean that com-

pliance with ‘‘requirements” means more than com-

plianee with effluent limitations.”

IV.

THE ENVIRONMENTAL PROTECTION AGENCY, WHICH IS CHARGED

WITH THE ADMINISTRATION OF THE ACT, HAS INTERPRETED SEC-

TION 313 TO MEAN ONLY TIIAT FEDERAL FACILITIES MUST MEET

STATE EFFLUENT LIMITATIONS AND THIS INTERPRETATION I5 EN-

TITLED TO GREAT WEIGHT

Prior to the filing of respondents’ petitions for

review, E.P.A. promulgated comprehensive regula-

tions to implement the FWPCA Amendments. Sec-

tion 125.2(b) of the regulations (40 C.F.R. 125.2(b))

provides that state permit programs approved by the

™* The court of appeals candidly admitted the weakness of its

own position in the face of the legislative history alone:

If taken in isolation, certain parts of the legislative

history would seem to indicate that the “requirements”

language of Sevtion 313 refers simply and solely to

substantive water quality standards. [Pet. App. l5a.]

7’ As the court of appeals noted, the terms “effluent limita-

tions” or “effluent standard[s]” are used “in a very precise

sense” in the major substantive abatement provisions of the

Act (Pet. App. 23a). That precision cannot be ignored, how-

ever, when the legislative history of Section 313 is con-

sidered.

E.P.A. Administrator “do not cover agencies and in-

strumentalities of the Federal government * * *.”’

As in Train v. Natural Resources Defense Council,

No. 73-1742, decided April 16, 1975, slip op. 25, this

interpretation by E.P.A. of Section 313 is entitled to

great weight; E.P.A. is “charged with the adminis-

tration of the Act” and, we submit, its interpretation

is not only reasonable, but also correct in light of

the Act as a whole and the history surrounding it.

The “construction of a statute by those charged with

its execution should be followed unless there are com-

pelling indications that it is wrong” and here there

are no such indications.”

Moreover, the Administrative Conference of the

United States has spoken to the issue in this case and

has recently recommended to the President, the Con-

*® Red Lio: Broadcasting Co. vy. Federal Communications

Commission, 395 U.S. 367, 381, quoted with approval in New

York Dept. of Social Services vy. Dublino, 418 U.S. 405, 421.

See also Udall y. Tallman, 380 U.S. 1, 16-18.

Moreover, on December 17, 1973, the President issued

Executive Order 11752, 38 Fed. Reg. 34793-34797, concerning

the prevention, control and abatement of environmental pollu-

tion at federal facilities. After stating that the FWPCA and

other statutes required federal facilities to comply with state

substantive standards and limitations regarding pollution, the

Executive Order—agreeing with the earlier interpretation of

Section 313 by E.P.A.—made clear that in “light of the

principle of Federal supremacy embodied in the Constitution,

this order is not intended, nor should it be interpreted, to re-

quire Federal facilities to comply with State or local adminis-

trative procedures with respect to pollution abatement and con-

trol.” Jd. at 34793.

gress, and the Judicial Conference of the United

States various procedures for ensuring compliance by

federal facilities with environmental quality stand-

ards.” In the view of the Administrative Conference,

the FWPCA, like the Clean Air Act, requires ‘‘agen-

cies with control over federal facilities to comply

with both federal and nonfederal pollution control

standards.” Since according to the Administrative

Conference even a decision by this Court in favor

of respondents ‘‘will leave substantial procedural

problems,” the Conference has proposed amend-

ing the FWPCA (and the Clean Air Act) to vest the

responsibility for developing procedures in a single

federal agency which ‘“‘should consider the use of

emission control permits where they are not now em-

ployed.” 40 Fed. Reg. at 27928.

In sum, in light of the wording of Section 313, the

other provisions of the FWPCA Amendments of

1972, the legislative history of that section, the

amendments as a whole, and the interpretation by

E.P.A., we submit that federal facilities are not re-

quired by Section 313 to seek and obtain state dis-

charge permits. If a contrary result is thought desir-

able, although the Administrative Conference has

proposed otherwise, this is a matter for Congress.

78 40 Fed. Reg. 27925, 27928 (July 2, 1975).

7° Td, at 27928.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed. APPENDIX

Respectfully submitted.

Section 306 of the Federal Water Pollution Control

OR Act, as added, 86 Stat. 854, 33 U.S.C. 1316, provides,

Solicitor General.

in pertinent part:

Waace H. Jounsoy, “(b)(1)(A) The Administrator shall, within

Assistant Attorney General. ninety days after the date of enactment of this

title publish (and from time to time thereafter

A, RayMonp RanpowrH, JR., shall revise) a list of categories of sources,

Deputy Solicitor General. which shall, at the minimum, include:

* * * * +.

Epmunp B. CLARK,

Raymonp N. ZaGong, ‘‘(B) As soon as practicable, but in no case

more than one year, after a category of sources

Raymonp W. MusHat, is included in a list under subparagraph (A) of

Attorneys. this paragraph, the Administrator shall —

and publish regulations establishing Federal

Ropert ZENER, standards of performance for new sources

within such category. The Administrator shall

afford interested persons an opportunity for

written comment on such proposed regulations.

After considering such comments, he shall

promulgate, within one hundred and twenty

days after publication of such proposed regula-

tions, such standards with such adjustments as

he deems appropriate. The Administrator shall,

from time to time, as technology and alterna-

tives change, revise such standards following

the procedure required by this subsection for

promulgation of such standards. Standards of

performance, or revisions thereof, shall become

effective upon promulgation. In establishing or

revising Federal standards of performance for

new sources under this section, the Administra-

tor shall take into consideration the cost of

achieving such effluent reduction, and any non-

(43)

General Counsel,

Environmental Protection Agency.

Aveaust 1975.

a Te ee ee

water quality environmental impact and energy

requirements.

“(2) The Administrator may distinguish

among classes, types, and sizes within categories

of new sources for the purpose of establishing

such standards and shall consider the type of

process employed (including whether batch or

continuous).

“*(3) The provisions of this section shall

apply to any new source owned or operated by

the United States.

“(e) Each State may develop and submit to

the Administrator a procedure under State law

for applying and enforcing standards of per-

formance for new sources located in such State.

If the Administrator finds that the procedure

and the law of any State require the applica-

tion and enforcement of standards of hn: nad

ance to at least the same extent as required by

this section, such State is authorized to apply

and enforce such standards of performance (ex-

cept with respect to new sources owned or oper-

ated by the United States).

* * * * *

‘‘(e) After the effective date of standards of

performance promulgated under this section, it

shall be unlawful for any owner or operator of

any new source to operate such source in vi-

olation of any standard of performance appli-

eable to such source.

Section 308 of the Act, as added, 86 Stat. 858, 33

U.S.C. 1318, provides, in pertinent part:

“(e) Each State may develop and submit to

the Administrator procedures under State law

for inspection, monitoring, and entry with re-

spect to point sources located in such State. If

the Administrator finds that the procedures

and the law of any State relating to inspection,

monitoring, and entry are ayyplicable to at least

the same extent as those required by this sec-

tion, such State is authorized to apply and en-

force its procedures for inspection, monitoring,

and entry with respect to point sources located

in such State (except with respect to point

sources owned or operated by the United

States).

Section 402 of the Act, as added, 86 Stat. 880, 33

U.S.C. 1342, provides in pertinent part:

“(b) At any time after the promulgation of

the guidelines required by subsection (h) (2) of

section 304 of this Act, the Governor of each

State desiri administer its own permit pro-

gram for discharges into navigable waters with-

in its jurisdiction may submit to the Adminis-

trator a full and Loy a of the

rogram it proposes to blish and administer

adit State law or under an interstate com-

pact. In addition, such State shall submit a

statement from attorney general (or the

attorney for those State water pollution con-

trol agencies which have independent legal coun-

sel), or from the chief | officer in the case of

an interstate agency, t the laws of such

State, or the interstate compact, as the case may

be, provide adequate authority to carry out the

described program. The Administrator shall >

— each such submitted program unless he

mee es that adequate authority does not

exist:

“(1) To issue permits which—

“(A) apply, and insure compliance with,

an or requirements of sections 301,

, 307, and 403 ;

“(B) are for fixed terms not exceeding

five years;

“(C) can be terminated or modified for

cause including, but not limited to, the

following:

“(i) violation of any condition of the

permit ;

‘“‘(ii) obtaining a permit by misrep-

resentation, or failure to disclose fully

all relevant facts;

“(iii) change in any condition that

requires either a temporary or perma-

nent reduction or elimination of the

— discharge ;

“(D) control the disposal of pollutants

into wells; |

**(2)(A) To issue permits which apply, and

insure compliance with, all applicable require-

ments of section 308 of this Act,or

‘“*(B) To inspect, monitor, enter, and require

reports to at least the same extent as required

in section 308 of this Act;

‘**(3) To insure that the public, and any other

State the waters of which may be affected,

receive notice of each application for a permit

and to provide an opportunity for public hear-

ing before a ruling on each such application;

“*(4) To insure that the Administrator re-

ceives notice of each application (including a

copy thereof) for a aged

‘“*(5) To insure that any State (other than

the permitting State), whose waters may be

affected by the issuance of a permit may submit

written recommendations to the permitting

State (and the Administrator) with respect to

any permit application and, if any part of such

written recommendations are not accepted by

the permitting State, that the permitting State

will notify such affected State (and the Ad-

ministrator) in writing of its failure to so ac-

cept such recommendations together with its

reasons for so doing; —

**(6) To insure that no permit will be issued

if, in the judgment of the Secretary of the

Army acting through the Chief of Engineers,

after consultation with the Secretary of the

department in which the Coast ard is

operating, anchorage and navigation of any of

the navigable waters. would be substantially im-

7) tg gps SE |

“(7) To abate violations of the permit or

the permit program, including civil and crimi-

nal penalties and other ways and. means of

enforcement ; |

(8) To insure that any permit for a dis-

charge from a publicly owned treatment works

includes conditions to require adequate notice

to the permitting agency of (A) new introduc-

tions into such works of pollutants from any

source which would be a new source as defined

in section 306 if such source were discharging

pollutants, (B) new introductions of pollutants

into such works from a source which would be

subject to section 301 if it were discharging

such pollutants, or (C) a substantial change in

volume or character of pollutants being intro-

duced into such works by a source introducing

pollutants into such works at the time of is-

suance of the permit. Such notice shall include

information on the quality and quantity

of effluent to be introduced into such treatment

works and any anticipated impact of such

change in the quantity or quality of effluent to

be discharged from such publicly owned treat-

ment works; and

(9) To insure that any industrial user of

any publicly owned treatment works will com-

ply with sections 204(b), 307, and 308.

* * * * *

‘*(d)(1) Each State shall transmit to the Ad-

ministrator a copy of each permit application

received by such State and provide notice to

the Administrator of every action related to the

consideration of such permit application, 1n-

eluding each permit proposed to be issued by

such State. ¥

“(2) No permit shall issue (A) if the Ad-

ministrator within ninety days of the date of

his notification under subsection (b)(5) of this

section objects in writing to the issuance of

such »ermit, or (B) if the Administrator within

ninety days of the date of transmittal of the

proposed permit by the State objects in writ-

i to the issuance o* such permit as bein ng out-

= e the guidelines and requirements of this

“*(3) The Administrator may, as to any per-

mit application, waive paragraph (2) of this

subsection.

Section 505 of the Act, as added, 86 Stat, 888, 33

U.S.C. (Supp. III) 1365, provides in pertinent part:

(a) Except as provided in subsection (b) of

this section, any citizen may commence a civil

action on his own behalf—

(agains against any person (including (i)

the United States, and (ii) hy! other gov-

ernmental instrumentality or agency to the

extent permitted by the eleventh amend-

ment to the € Constitution) who is alleged to

be in violation of (A) an effluent standard

or limitation under this Act or (B) an

order issued by the Administrator or a

State with camel to such a standard or

limitation, or

(2) t the Administrator where

there is alleged a failure of the Administra-

tor to — any act or duty under this

Act which is not discretionary with the

Administrator.

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the ies, to enforce such an

effluent standard or limitation, or such an order,

or to order the Administrator to perform such

act or duty, as the case may be, and to apply

sae ap propriate civil penalties under section

(d) of this Act.

(b) No action may he eommenced—

(1) under subsection (a) (1) of this sec-

any

rior to sixty days after the

has given notice of the alleged

PSlation (i) to the Administrator, (ii)

to the State in which the alleged viola-

tion occurs, and (iii) to any alleged

violator of the standard, limitation, or

order, or

(B) if the Administrator or State

has commenced and is diligently prose-

cuting a civil or criminal action in a

ragg of the United States, or a State

pag ee compliance with the stand-

imitation, or order, but in any

ne action in a court of the United

States any citizen may intervene as a

matter of right.

(2) under subsection (a)(2) of this sec-

tion prior to sixty days after the plaintiff

has given notice of such action to the Ad-

ministrator,

except that such action may be brough immedi-

ately after such notification in the case of an ac-

tion under this section respecting a violation of

sections 306 and 307(a) of this Act. Notice

under this subsection li be given in such

manner as the Administrator shall prescribe by

tion.

_(e)(1) Any action respecting a violation by a

source of fda com t standard or limi-

tation or an order réspecting such standard or

limitation may be eonght under this section

only in the judicial district i in which such source

is located.

(2) In such action under this section, the Ad-

ministrator, if not a party, may intervene as a

matter of right.

* * * * *

(f) For purposes of this section, the term

“effluent standard or limitation under this Act”

means (1) effective July 1, 1973, an unlawful

act under subsection (a) of section 301 of this

Act; (2) an effluent limitation or other limita-

tion under section 301 or 302 of this Act; (3)

standard of performance under section 306 of

this Act; (4) prohibition, effluent standard or

pretreatment standards under section 307 of this

Act; (5) certification under section 401 of this

Act; or (6) a permit or condition thereof is-

sued under section 402 of this Act, which is in

effect under this Act (including a requirement

applicable by reason of section 313 of this Act).

(g) For the purposes of this section the term

‘citizen’? means a person or persons having an

interest which is or may be adversely affected.

(h) A Governor of a State may commence a

civil action under subsection (a), without regard

to the limitations of subsection (b) of this sec-

tion, against the Administrator where there is

alleged a failure of the Administrator to en-

force an effluent standard or limitation under

this Act the violation of which is oceurring in

another State and is causing an adverse effect

on the public health or welfare in his State, or

is causing a violation of any water quality re-

quirement in his State.

Section 509(b) of the Act, as added, 86 Stat. 892,

33 U.S.C. (Supp. ITT) 1369(b), provides:

(1) Review of the Administrator’s action

(A) in promulgating any standard of perform-

ance under section 306, (B) in making any de-

termination pursuant to section 306(b)(1)(C),

hibition, or treatment standard under section

307, (D) in making any determination as to a

State permit program submitted under section

402(b), (2) in approving or promulgating any

effluent limitation or other limitation under sec-

tion 301, 302, or 306, and (F) im issuing or

denying any permit under section 402, may be

had by any interested person in the Circuit

Court of Appeals of the United States for the

Federal judicial district in which such person

resides or transacts such business upon appli-

eation by such person. Any such application

shall be made within ninety days from the date

of such determination, approval, promulgation,

issuance or denial, or after such date only if

such application is based solely on grounds

which arose after such ninetieth day.

(2) Action of the Administrator with respect

to which review could have been obtained under

ph (1) of this subsection shall not be

subject to judicial review in any civil or crimi-

nal proceeding for enforcement.

Section 510 of the Act, as added, 86 Stat. 893, 33

U.S.C. (Supp. IIIT) 1370, provides:

Except as ye provided in this Act,

nothing in this Act shall (1) preclude or deny

the t of any State or political subdivision

thereof or interstate agency to adopt or enforce

(A) any standard or limitation respecting dis-

charges of pollutants, or (B) any requirement

g control or abatement or pollution,

except that if an effluent limitation, or other

limitation, effluent standard, prohibition, pre-

treatment standard, or standard of perform-

ance is in effect under this Act, such State or

political subdivision or interstate agency may

not adopt or enforce any effluent limitation, or

other limitation, effluent standard, prohibition,

retreatment standard, or standard of per-

ormance which is less stringent than the effi-

uent limitation, or other limitation, effluent

States with respect to the waters (including

boundary waters) of such States.

U.S GOVERNMENT PRINTING OFFICE: ters

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.