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

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1975

No. 74-1435

——

THE ENVIRONMENTAL PROTECTION AGENCY,

et al., Petitioners

V.

PEOPLE OF THE STATE OF CALIFORNIA ex rel.

STATE WATER RESOURCES CONTROL BOARD

AND STATE OF WASHINGTON, et al., Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS

STATE OF WASHINGTON AND ITS

DEPARTMENT OF ECOLOGY

SLADE GORTON

Attorney General

CHARLES B. Rok, JR.

Senior Assistant Attorney General

CHARLES W. LEAN

Assistant Attorney General

September, 1975

Temple of Justice Olympia, Washington 98504 (206) 753-2354

STATE PRINTING PLANT ee. wasnineron

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1975

No. 74-1435

THE ENVIRONMENTAL PROTECTION AGENCY,

et al., Petitioners

v.

PEOPLE OF THE STATE OF CALIFORNIA ex rel.

STATE WATER RESOURCES CONTROL BOARD

AND STATE OF WASHINGTON, et al., Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS .-

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS

STATE OF WASHINGTON AND ITS

DEPARTMENT OF ECOLOGY

SLADE GORTON

Attorney General

CHARLES B. Rok, JR.

Senior Assistant Attorney General

CHARLES W. LEAN

Assistant Attorney General

September, 1975

Temple of Justice Olympia, Washington 98504 (206) 753-2354

Page

EI Se en ee ee 1

e aces be eduacsbeccescccci 2

Argument:

A state waste discharge 14 program, operating

as an approved part of National Pollutant Dis-

charge tion System of Section 402 of the

Federal Water Pollution Control Act, applies to all

who discharge pollutants from point sources into

waters of the United States within a state, including

, „eee 7

r ̃ ge A Elia ge a 7

A. The Federal Water Pollution Control Act

Amendments of 1972—General background. 7

B. The National Pollutant Discharge Elimina-

, ̃ T . 9

C. The “Supremacy” and “Plenary Powers”

Clauses of the United States Constitution... 11

II. Taken as a whole the Federal Water Pollution

Control Act is clear; the permit system of the

NPDES is applicable to federal facilities....... 13

A. The Cornerstone—Section 313.............. 13

B. Other Roadsigns of the Federal Water Pollu-

, ee on tween cen nous 17

1. The wording of the “Citizen Suits” pro-

vision—Section 50s 17

2. The express exemption of federal activ-

ities from certain requirements—Sections

r . 18

3. The payment of reasonable service

r eee 19

4. The “relief valve“ powers of the Presi-

dent — Section 31i)“hꝓ̃; ;; 21

III. The Use of Legislative History ................ 22

A. In light of the clarity of meaning of the

Federal Water Pollution Control Act, taken

in its entirety, it is inappropriate to resort to

legislative history to determine the intent of

Fee ne 22

iv

INDEX—(Cont.)

Page

B. Even assuming the appropriateness of ex-

amining legislative history, that history is

too blurry to be of assistance ............... 23

IV. The Environmental Protection Agency Adminis-

trator’s Interpretation of the Applicability of the

/ ¶ eoa* 25

A. The conclusion of the Administrator that

federal agencies are subject to the NPDES

e 25

B. The only error in the Environmental Protec-

tion Agency interpretation of the Federal

Water Pollution Control Act was the exclu-

sion of federal agencies from state operated

e eee 27

r d Ueeieiiomensaeseaes 32

Appendix A— Section 313 of the Federal Water Pollution

c .. . 34

Appendix B— Section 402 of the Federal Water Pollution

DME . it aemietes a4 35

CITATIONS

Table of Cases

Askew v. American Waterways Operators, Inc.,

rr ee eee ee 15

Commissioner v. Brown, 380 U.S. 563 (1965) ...... 14, 15, 17

Evans v. Cornman, 398 U.S. 419, (1970) ................. 12

Federal Maritime Commission v. Seatrain Lines,

8! RR ES RS 26

Mayo v. United States, 319 U.S. 441 (1943) .............. 12

Merrit v. Cameron, 137 U.S. 542 (1890) ................ 26

Mississippi River Fuel Corp. v. Mouton,

re 21

New York v. O'Neill, 359 U.S. 1 (195999999990 16

Red Lion Broadcasting Company v. Federal Communica-

tions Commission, 395 U.S. 367 (1968) .......... 25, 26

Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940) ......... 12

Train v. City of New York, 420 U.S. 35 (1975) .......... 8

United States v. Oregon, 366 U.S. 643 (1961) ............ 22

V

CITATIONS—(Cont. )

Page

United States v. Sharpnack, 355 U.S. 286 (1958) ...... 12, 16

United States v. Ray, 488 F.2d 15 (10th Cir. 1973) 22

Constitution, Statutes and Regulations

United States Constitution:

Art. I, Sec. 8 cl. 17 (Plenary Powers Clause) ........ 12

Art. VI, cl. 2 (Supremacy Clause) .................. 12

Federal Statutes:

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

e . veticicsicdcces 5

Federal Water Pollution Control Act Amendments of 1972,

86 Stat. 816 et seq., 33 U.S.C. (Supp III) 1251 et seq.. 1, 2

Title I and Sections 208 and 209, 33 U.S.C. (Supp. III)

Subchapter I, 1288 and 1289 ...................

Title III. 33 U.S.C. (Supp. III) 18311-1318 .......... 9

Section 101(a), 33 U.S.C. (Supp. III) 1251(a) ...... 8

Section 101 (b), 33 U.S.C. (Supp. III) 1251(b) ....11, 16

Section 201-212, 33 U.S.C. (Supp. III) 1281-1292 ...... 8

Section 301, 33 U.S.C. (Supp. III) 1311 ........... 9, 14

Section 304(h) (2), 33 U.S.C. (Supp. ITI) .... 28, 29,-30

Section 306, 33 U.S.C. (Supp. III) 1316 .......... 21, 29

Section 307(c), 33 U.S.C. (Supp. III) 1316(c) ........ 19

Section 307, 33 U.S.C. (Supp. III) 1317 ............. 21

Section 308, 33 U.S.C. (Supp. III) 1318 .............. 29

Section 308(c), 33 U.S.C. (Supp. III) 1318(c) ........ 19

Section 311 (0) (2), 33 U.S.C. 1321(o)(2) ............ 15

Section 313, 33 U.S.C. (Supp. III) 1323 ..............

.. 3, 4, 6, 7, 13, 14, 15, 17, 18, 19, 20, 21, 24, 26, 27, 30

Section 401 (a) (6), 33 U.S.C. (Supp. III) 1341(a)(6).. 18

Section 402, 33 U.S.C. (Supp. III) 1342 ..............

n, 3, 4, 6, 9, 14, 16, 18, 79, 29, 30, 31

Section 402 (a) (3), 33 U.S.C. (Supp. III) 1342 (a) (3). 30

Section 402 (b), 33 U.S.C. (Supp. III) 1342 (b))

28, 29, 30, 32

Section 402 (b) (1), 33 U.S.C. (Supp. III) 1342 (b) (1). . 19

Section 402 (b) (2), 33 U.S.C. (Supp. III) 1342 (b) (2). 19

Section 402 (e) (1), 33 U.S.C. (Supp. III) 240

vi

CITATIONS—(Cont. )

Page

Refuse Act of 1889, 33 U.S.C. 4))))))0)) cece 10

Section 402 (e) (3), 33 U.S.C. (Supp. III) 1342 (c) (3). 32

Section 402 (d), 33 U.S. C. (Supp. III) 1342 (d) 14

Section 505, 33 U.S.C. (Supp. III) 136. 4, 17

Section 505 (f), 33 U.S.C. (Supp. III) 1365(f) .... 17, 18

Federal Regulations:

40 C. F. R.:

Dreesen 27

ene, caokin 27, 28

Washington Statutes:

Boas ..... ere 9, 10, 11

Chapter 155, Laws of 197/23 10

Miscellaneous

Committee Print, A Legislative History of the Water

Pollution Control Act Amendments of 1972, 93d

Cong., Ist Sess. (1973):

Ir 7, 11, 25

Da.. dct 10, 31

Presidential Executive Order Number 11574, 35 Fed.

„.net, bes ees 10

III . 24, 25

United States EPA, The National Water Permit Pro-

en 7 7˙? A 11

Websters New World Dictionary (College Edition,

.. .... „dend 15

120 Cong. Rec. S 16644 (Sept. 16, 1974) ............ 20

ee

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1975

No. 74-1435

THE ENVIRONMENTAL PROTECTION AGENCY,

et al., Petitioners

V.

PEOPLE OF THE STATE OF CALIFORNIA ex rel.

STATE WATER RESOURCES CONTROL BOARD

AND STATE OF WASHINGTON, et al., Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS

STATE OF WASHINGTON AND ITS

DEPARTMENT OF ECOLOGY

QUESTION PRESENTED

Whether the Administrator of the Environ-

mental Protection Agency, in approving programs

submitted to him by the States of California and

Washington for inclusion as a part of the National

Pollutant Discharge Elimination System of Section

402 of the Federal Water Pollution Control Act

2

Amendments of 1972, erred in excluding federal

agencies and instrumentalities from the coverage of

the approved state programs.

SUMMARY OF ARGUMENT

I.

The Federal Water Pollution Control Act

Amendments of 1972 (hereinafter FWPCAA) es-

tablished an ambitious, expensive, many pronged

attack on water pollution in our country with an

ultimate goal of eliminating all pollution of waters

of the United States. At the heart of the Act’s pro-

gram for regulation and control of point source

waste discharges (as distinguished from non-

point”) is a national waste discharge permit system

entitled the National Pollutant Discharge Elimina-

tion System (hereinafter NPDES). This new sys-

tem contains within it a governmental decision

making mechanism whereby pollution control re-

quirements, not only in terms of required treatment

of wastes to be discharged but in terms of the time

for accomplishment of such treatment, are estab-

lished for specific discharges.

Two fundamental objectives of the new Act,

accomplished through the NPDES, are: (1) all

discharges of pollutants from point sources to waters

of the United States shall be the subject of a permit

issued pursuant to a national waste discharge permit

system; and (2) within each state there shall be

oly one permit issuing entity operating under the

national system, either the federal government or the

state, preferably the latter.

II.

The United States Environmental Protection

Agency (hereinafter E. P. A. or petitioners) contends

that federal agencies which discharge wastes to

waters of the United States are not required to

obtain permits from states operating a permit pro-

gram as a part of the NPDES. We believe this posi-

tion is clearly contrary to both the objectives and

express wording of the Federal Water Pollution

Control Act.“ Our position is based primarily on the

language of Section 313 of the FWPCAA which

mandates that every federal instrumentality shall

comply with federal, state, and local “requirements

respecting control and abatement of pollution to the

same extent as any person * * .“ Relying on

the normal and usual meaning of these words, the

permit requirements of the NPDES are “require-

ments respecting control and abatement of pollution”

within the meaning of the words as used in Section

313. Therefore federal agencies, who propose to dis-

charge pollutants, must meet NPDES requirements

established by operation of a state program just as

all other dischargers are required.

There are various indicators within the FWP-

The full text of Sections 313 and 402 of the FWPCAA are set forth

in Appendices A and B hereof.

1

CAA which provide clear roadsigns of support for our

position. First we note that federal agencies or

facilities were exempted from specific portions of

the FWPCAA; thus a strong inference arises that,

where no express exemption exists in a regulatory

program of the Act, federal facilities were intended

to be included. Further we note the powers of the

President to exempt federal facilities from most of

the pollution control and abatement requirements

described in Section 313 if he determines it to be

“in the paramount interest of the United States” to

do so. This power provides a relief valve from permit

conditions included in a state permit which threaten

national interest considerations. Thirdly, the lan-

guage of Section 313, which requires federal agencies

to pay “reasonable service charges”, was clearly in-

cluded to insure that each federal agency is

empowered to pay fees to a state for processing

applications filed in a state administered NPDES

program. And, finally, attention is directed to those

portions of section 505—the “citizens suit” section—

_ which sets forth the strongest roadsign of all by pro-

viding that a citizen may enforce a condition of a

permit issued under section 402 “including a require-

ment applicable by reason of section 313 * *.

Based on the aforementioned policy objectives,

and the specific wording of the Federal Water Pollu-

tion Control Act, when taken as a whole, a clear and

unambiguous Congressional direction is established

that federal agencies are required to obtain an

5

NPDES permit from a state whenever they dis-

charge wastes within a state which has a federally

approved permit progam.

III.

In light of the clarity of the legislative intent

derived from the FWP CAA itself, we contend it is

inappropriate to initiate the digression into legisla-

tive history suggested by petitioners. However, even

assuming the necessity of such an examination, that

endeavor will be fruitless for the total historical

record is completely blurry and inconclusive in

terms of both the Federal Water Pollution Control

Act and the Clean Air Act. As to the latter act,

the historical background of that act is suspect

as a source for developing the meaning the the

FWPCAA for the simple reason that the two acts are

different in significant respects. The most important

difference is, of course, that only the FWPCAA con-

tains a national waste discharge permit program.

IV.

In conclusion, we note the contention of the

E.P.A. that the interpretation it has given to the

NPDES through adoption of rules implementing the

system is entitled to great weight and that its in-

terpretation should be accepted by this court unless

there are “compelling reasons why it is wrong.”

Although it is not readily apparent from the

6

brief of the petitioner, we are in basic agreement

with E.P.A.’s position as to the scope of coverage of

dischargers by the NPDES. The E.P.A. has con-

cluded by formally adopted regulation that the

NPDES is generally applicable to federal agencies,

With this conclusion we agree. The only dispute we

have with the E.P.A. is its interpretation that if a

state operates a NPDES program it applies to all

discharges within a state but discharges from fed-

eral facilities. E.P.A. contends the latter discharges

are solely under the permit issuing authority of the

E. P. A. With this, we quarrel. Indeed, in the precise

sense, that is the issue to be decided in this case. The

dispute is not whether federal agencies must obtain

NPDES permits. All parties agree that federal agen-

cies are required to do so. The only dispute involves

a narrow legal issue, i.e., when a state submits a per-

mit program to E.P.A. which meets all of the criteria

necessary for approval as a part of the NPDES, may

the E.P.A. approve the state program for applica-

tion to all discharges but those of federal agencies?

We believe the words of section 402 clearly compel

a negative answer.

The interpretation of E.P.A. that federal

agencies are subject to the NPDES is, of course, in

direct conflict with the analysis of section 313 taken

in its brief. The brief states the requirement of

section 313 which federal agencies must comply with

are “substantive” requirements of state law only.

Requirements characterized by E.P.A. as “proce-

7

dural,“ ineluding permit systems (such as the

NPDES), are thus not requirements within section

313. If this analysis is sound (and we believe it is

not), the Environmental Protection Agency erred

in its formally adopted regulations when it included

federal agencies within the coverage of federally

operated NPDES programs.

ARGUMENT

A STATE WASTE DISCHARGE PERMIT PROGRAM, OP-

ERATING AS AN APPROVED PART OF THE NATIONAL

POLLUTANT DISCHARGE ELIMINATION SYSTEM OF

SECTION 402 OF THE FEDERAL WATER POLLUTION

CONTROL ACT, APPLIES TO ALL WHO DISCHARGE

POLLUTANTS FROM POINT SOURCES INTO WATERS OF

THE UNITED STATES WITHIN A STATE, INCLUDING

FEDERAL AGENCIES '

I.

INTRODUCTION

A. The Federal Water Pollution Control Act Amend-

ments of 1972—General background

On October 18, 1972, the Federal Water Pollu-

tion Control Act Amendments of 1972 became effec-

tive. Enacted as the result of an overriding of a

presidential veto,’ the new act undoubtedly provides

for the most comprehensive, most expensive and most

ambitious attack upon a pollution problem in the

See “Message of the President of the United States“ set forth in

1 A Legislative History of the Water Pollution Control Act Amend-

ments of 1972, 137-139, Committee Print, 93d Cong., Ist Sess., (1973).

8

nation’s history. By 1985, the act’s first section pro-

vides, in part, that “it is the national goal that the

discharge of pollutants into the navigable waters be

eliminated * * *.” Section 101 (a) of the

FWPCAA; 33 U.S.C. (Supp. III) 1251(a).

To accomplish this goal, the Congress provided

three major tools in the new act. The first is a greatly

expanded and fully funded assistance program for

the financing of publicly owned waste treatment fa-

cilities.* Section 201-212 of the FWPCAA;; 33 U.S.C.

(Supp. III) 1281-1292. The second involves a sub-

stantially increased emphasis on research and plan-

ning, as well as financial assistance to aid in the

administration of state water pollution control pro-

grams. Title I and Sections 208 and 209 of FWPCAA;

33 U.S.C. (Supp. III) Subchapter I, 1288 and 1289.

The third tool relates to requirements respect-

ing control and abatement of pollution through var-

ious regulatory programs. Stated simply, and in

the most general of terms, the FWPCAA provides

that (1) regardless of the quality of the waters to

which a discharge of pollutants is proposed and (2)

even though the proposed discharge would not violate

any federal and state established receiving water

quality standards, all discharges from point sources

8The “impoundment” by the Federal Executive Branch of a

large portion of the $18,000,000,000 authorized for the program has

hampered the effectiveness of this tool. The power of the executive

branch to “impound” these funds was resolved by this Court in Train

v. City of New York, 420 U.S. 35 (1975).

9

must be provided with high levels of treatment prior

to discharge to navigable waters.“ See generally

Title III of the FWPCAA; 33 U.S.C. (Supp. III)

1311-1318. To insure that these treatment levels

(or “effluent limitations’), together with federal

and state receiving water standards and time sched-

ules for waste treatment upgrading, are complied

with, a new control and abatement requirement—

the satisfying of the provisions of the National Pol-

lutant Discharge Elimination System——was estab-

lished. Section 402 of the FWPCAA; 33 U.S.C.

(Supp. III) 1342.

B. The National Pollutant Discharge Elimination Sys-

tem

Prior to FWPCAA there was no comprehensive

federal waste discharge permit program authorized

by a federal statute. The operation of such permit

programs were exclusively the responsibility of the

various states.“ However, with the announcement

by the National Administration in 1970 of the acti-

vation of the long slumbering permit authority of

The treatment requirements of the FWPCAA are called efflu-

ent limitations.” Section 301 of the FWPCAA provides that for all

dischargers, other than publicly owned treatment works, not later

than July 1, 197, eff uent limitations are to be achieved which repre-

sent the application of the “best practicable control technology cur-

rently available.” At the same time, all publicly owned waste treat-

ment facilities must utilize “secondary treatment” and if an industrial

discharger sends its wastes through a publicly owned treatment

works, certain “pretreatment standards” must be met. Not later than

July 1, 1983, effluent requirements must be met which represent the

“best available technology economically achievable,” and for publicly

owned waste treatment facilities, which represent the application of

770 Py practicable waste treatment technology.” 33 U.S.C. (Supp.

) 1. 5

The State of Washington established a waste discharge permit

program for private sources in 1955. Wash. Rev. Code 90.48.160 et seq.

10

the “Refuse Act of 1899,“ as a waste discharge per-

mit program for private discharges of wastes to

waters of the United States, this state monopoly was

extinguished.’ As a result of this action of the fed-

eral government, a situation was created whereby

dischargers to navigable waters, in many states,

were placed in the position of obtaining permits from

both state and federal governments; a condition

with the potential for developing wasteful, duplica-

tive activities which placed unnecessary burdens on

both public and private resources.

The NPDES was undoubtedly established to

eliminate this unsatisfactory condition. 2, A Legis-

lative History of the Water Pollution Control Act

Amendments of 1972, 1488, Committee Print, 93d

Cong., Ist Sess., (1973). By creating a national“

(rather than federal“) permit system, the Congress

provided for a cooperative federal-state effort which

contemplated that, whenever possible, only one per-

mit program—a state endeaver*—would be in opera-

633 U.S.C. 407.

Presidential Executive Order Number 11574, 35 Fed. Reg. 19627.

Both the legislative and executive branches of the State of

Washington have accepted the challenge of operating a state permit

program as a part of the NPDES. The legislature responded in

early 1973 by enacting Chapter 155, Wash. Sess. Laws of 1973. Sec-

tion 1 provides in pertinent part that:

* * * the state of Washington will exercise its powers, as

fully and as effectively as possible, to retain and secure high

quality for all waters of the state. The state of Washington in

recognition of the federal government’s interest in the quality of

the navigable waters of the United States, of which certain

portions thereof are within the jurisdictional limits of this state,

proclaims a public policy of working cooperatively with the

federal government in a joint effort to extinguish the sources of

water quality degradation, while at the same time preserving

and vigorously exercising state powers to insure that present

and future standards of water quality within the state shall be

11

tion in each state.“ This approach is clearly consistent

with statement of basic state responsibilities for

water pollution control contained in that portion of

Section 101(b) of the FWPCAA which provides

that

“It is the policy of the Congress to recog-

nize, preserve, and protect the primary responsi-

bilities and rights of States to prevent, reduce,

and eliminate pollution, * * .“

The issue to be decided in this case is whether

federal agencies are subject to the NPDES when that

system is operated by a state. In terms of Washing-

ton State, which is dotted with numerous federal

facilities, must federal agencies which discharge

wastes to state waters obtain a permit from the state

for their federal irrigation projects, military bases,

atomic energy facilities and power plants?

C. The “Supremacy” and “Plenary Powers” Clauses of

the United States Constitution

As just noted, this case concerns the authority

of a state to regulate federal agency activities in-

determined by the citizenry, through and by the efforts of state

* * of the state of Washington. [Wash. Rev. Code

0.48.010

Section 4 thereof states, in part, that the Washington State Depart-

ment of Ecology is granted

Complete authority to establish and administer a compre-

hensive state point source waste discharge or pollution discharge

elimination permit program which will enable the department

to qualify for full participation in any national waste discharge

or pollution discharge elimination permit system and will allow

the department to be the sole agency issuing permits required by

such national system operating in the state of Washington. * * *

[ Wash. Rev. Code 90.48.260(1) ]

Comments of Rep. Terry during House debate on H.R. 11896,

March 27, 1972. 1 A Legislative History of the Water Pollution Con-

trol Act of 1972, p. 580, Committee Print, 93d Cong., Ist Sess., (1973).

See also the United States E.P.A. publication The National Water Per-

mit Program 6 (June 1, 1973).

12

volving water pollution control. Before proceeding

further, we point out that the United States has,

throughout this litigation, raised the Supremacy

Clause (U.S. Const., Art. VI, cl. 2) and the Plenary

Powers Clause (U.S. Const., Art. I, Sec. 8, cl. 17) as

constitutional bars to state regulation of federal

facilities. Examples are snown in the “Brief for the

Petitioners,” pp. 13 and 18-20.

The State of Washington does not contend that

it may regulate federal facilities absent congres-

sional authorization. However, nothing in the United

States Constitution prohibits such an authorization

of regulation by Congress. As stated in Mayo v.

United States, 319 U.S. 441, 446 (1943), “[I]t lies

within Congressional power to authorize regulation

buy the state of federal instrumentalities.”

Only recently this Court observed in Evans v. Corn-

man, 398 U.S. 419, 423 (1970) that “Congress has

now permitted the states to extend important aspects

of state control over federal areas.” This is true

whether the case is related to the Supremacy Clause

or the Plenary Powers Clause.“

The State of Washington contends that the

FWPCAA explicitly authorizes regulation of fed-

eral facilities by the state. In sum, this case involves

issues of statutory construction; interpretation of

10See United States v. Sharpnack, 355 U.S. 286 (1958) upholding

the constitutionality of the Federal Assimilatives Crimes Act of 1948

(18 U.S.C. § 13) which made state criminal laws applicable within

federal enclaves (in that case, an Air Force base). See also, Stewart

& Co. v. Sadrakula, 309 U.S. 94 (1940) applying state law to a

contractor constructing a post office under contract with the federal

government on federal land.

13

the FWPCAA. There are no constitutional issues

to be resolved.

The remainder of this brief discusses the re-

lationship of the NPDES to discharges of pollutants

to navigable waters from federal facilities. The

underlying issue is whether federal agencies must

comply with the requirements of the NPDES for

facilities which so discharge. The primary inquiry

is whether a state waste discharge permit-issuing

program, operating under the NPDES, applies to

federal facilities that discharge to waters of the

United States within a state.

Il.

TAKEN AS A WHOLE THE FEDERAL WATER

POLLUTION CONTROL ACT IS CLEAR; THE

PERMIT SYSTEM OF THE NPDES IS APPLIC-

ABLE TO FEDERAL FACILITIES

A. The Cornerstone—Section 313

Resolution of this case involves, in large meas-

ure, the meaning of Section 313 of the FWPCAA,

33 U.S.C. (Supp. III) 1323, which reads in part as

follows:

Each department, agency, or instrumen-

tali.y 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,

14

interstate, and local requirements respecting

control and abatement of pollution to the same

extent that any person is subject to such require-

ments, including the payment of reasonable

service charges. [Emphasis added.]

Section 301(a) of the FWPCAA, 33 U.S.C.

(Supp. III) 1311(a), prohibits any discharge of

pollutants except as in compliance with Section

402, 33 U.S.C. (Supp. III) 1342. Section 402 re-

quires an NPDES permit, which is issued by E. P. A.,

or, after approval of a state’s program by E.P.A.

pursuant to the standards of Section 402, it is issued

by the state. Permits issued by a state are subject to

review and approval by E.P.A. pursuant to Section

402(d).

The NPDES permit system is the heart of the

FWPCAA. By this we mean that, through the oper-

ation of this system, the precisely tailored require-

ments for waste treatment and, most importantly,

the timing of waste treatment upgrading, for specific

waste discharging facilities are established.

Is the NPDES a requirement respecting the

control and abatement of pollution within the mean-

ing of Section 313?

Any attempt to answer this question must begin

by using the usual or ordinary meaning of the word

“requirements.” Normally, at this point the inquiry

will end. There are some exceptions, however, as

stated in Commissioner v. Brown, 380 U.S. 563, 571

(1965) :

15

Unquestionably the courts, in interpreting

a statute, have some “scope for adopting a re-

stricted rather than a literal or usual meaning

of its words where acceptance of that meaning

would lead to absurd results * * * or

would thwart the obvious purpose of the stat-

ute.” [Citations omitted.] But it is otherwise

“where no such consequences would follow and

where * * * it appears to be consonant

with the p ofthe Act * * *” [Cita-

tion omitted“

The usual meaning of the word, requirement,“

is something that is obligatory or demanded as a con-

dition, a necessity.“ Federal law demands and ob-

ligates each person desiring to discharge wastes into

the waters of this country to secure an NPDES per-

mit. It is clearly a requirement respecting control and

abatement of pollution. Neither the statutory lan-

guage nor ordinary use of the word, requirements“

differentiates between substantive and procedural

requirements.” A normal or usual reading of Section

313 would thus appear to subject federal facilities

11Wesster’s New Wor.tp Dictionary (College Edition, 1966) de-

fines uirement” as: “1. a requiring. 2. — required; some-

thing obligatory or demanded, as a condition: as, the requirements for

college entrance. 3. something needed; a necessity; need.

12In Askew v. American Waterways Operators, Inc., 411 US.

325 (1973) the Court constructed what is now Section 311(0) (2) of

the FWPCAA (33 U.S.C.A. § 1321(0)(2)), which reads:

No in this section shall be construed as preempting any

State or tical subdivision thereof from imposing any require-

ment or liability with respect to the discharge of oil or hazardous

substance into any waters within such state. (emphasis added)

The Court faced Ir of “whether the waiver of pre-emption

by C in [ 311(0)(2)} « necerning the imposition by a

State ‘any requirement or liability’ is valid.” 411 U.S. at 343-44.

The Court answered the question in the affirmative with respect to a

Florida statute which included license provisions. See 411 U.S. at

330, note 3. (Federal facilities were not involved.) Nobody had the

imagination to suggest that “requirement” as used in that section

did not include a state-imposed licensing requirement.

16

to the NPDES permit requirements of Section 402;

and Section 402, without question, does not author-

ize withholding these facilities from the ambit of an

otherwise approvable state program.

Is this an “absurd result?” There appears to

be nothing absurd in treating federal facilities the

same as private facilities. In fact it is not even un-

usual. Congress has already voluntarily subjected

federal facilities and programs to various forms of

state and local regulation and participation.”

It is a result which “would thwart the obvious

purpose of the statute?” To the contrary, as noted

earlier, Section 101(b) of the FWPCAA, 33 U.S.C.

(Supp. III) 1251(b)) states that “[i]t is the policy

of the Congress to recognize, preserve, and protect

the primary responsibilities and rights of states to

prevent, reduce and eliminate pollution.“

This purpose would be furthered by a normal reading

of the word, “requirements.”

“Requirements respecting control and abate-

ment of pollution” as those words are ordinarily

understood, would include a permit for waste dis-

charges necessitated by the provisions of federal

and state law. Federal facilities must meet these

requirements, which include the necessity of obtain-

ing an NPDES permit. There is nothing absurd

about this result, and it furthers the stated policy

See, for example, the statutes and programs discussed in

United States v. Sharpnack, 355 U.S. 286 (1958), and New York v.

O'Neill, 359 U.S. 1 (1959).

17

of the Act. As implied by Commissioner v. Brown,

supra, at this point statutory interpretation must

stop. There is no justification for extensive journeys

into an ambiguous legislative history or into argu-

ably analogous provisions of other statutes in an

attempt to avoid the literal or usual meaning of the

words of Section 313.

B. Other Roadsigns of the Federal Water Pollution

Control Act

There are a number of indicators within the

Federal Water Pollution Control Act which support

our contention that the words of Section 313, given

their usual or ordinary meaning, require federal

agencies to satisfy the permit obtaining requirements

of the NPDES.

(1) THE WORDING OF THE “CITIZEN Surrs“

PROVISION—SECTION 505

The writers have found only one other section

of the FWPCAA which clearly indicates whether the

“requirements” of Section 313 were intended to in-

clude the NPDES permit requirement. This ref-

erence, however, appears to remove any doubt as to

the intention of Congress.

Section 505 (33 U.S.C. (Supp. III) 1365) au-

thorizes citizen suits. These include suits against the

United States for an alleged violation of “an effluent

standard or limitation under this chapter.” This

critical phrase is then defined in Section 505(f) :

18

For purposes of this section, the term

“effluent standard or limitation under this

chapter” means * * * (6) a permit or

condition thereof issued under section 402 of

this Act, which is in effect under this Act (in-

cluding a requirement applicable by reason of

section 313 of this Act). | Emphasis added.]

A more clear statement of Congressional intent could

hardly be imaginable. Citizens may bring suit to

enforce permits issued under Section 402; and these

include permits and conditions thereof applicable

because of Section 313. Congress therefore under-

stood that Section 313 requires federal facilities to

obtain NPDES permits pursuant to Section 402. No

other interpretation of Section 505(f) is plausible.

(2) THE EXPRESS EXEMPTION OF FEDERAL

ACTIVITIES FROM CERTAIN REQUIREMENTS

—SECTIONS 306, 308 AND 401

We next note that if the authors of the FWPCAA

had desired to exempt the Federal Government from

the requirements of the NPDES, they would have

done so expressly, especially in light of the broad, all

inclusive, mandatory wording of Section 313. That the

authors knew how to write and insert such “exempt-

ing“ language is clear from the inclusion of language

so stating in the same title of the FWPCAA that cre-

ated the NPDES. We refer to the wording of Section

401(a)(6) which provides:

No Federal agency shall be deemed to be

an applicant for the purposes of this subsection.

Other examples of express exemptions in the Act

19

are found in Sections 306(c) and 308(c) which

exempt federal facilities from certain state pro-

grams. In addition we point out that Section 402,

which creates the NPDES permit program, contains

no exemption of federal facilities. This alone creates

a strong inference that no exemption was intended.“

() THE PAYMENT OF REASONABLE SERVICE

CHARGES

Attention is next called to the last seven words

of the first sentence of Section 313—“including the

payment of reasonable service charges.” This grant

of payment power relating to satisfaction of water

pollution control and abatement requirements fits

comfortably into the concept that if there is a service

fee or charge involved in the processing of a federal

agency application for a NPDES permit (under a

state operated program), there will be no concern

over a federal agency’s authority to make the pay-

14Petitioners contend that a state-operated NPDES does not

apply to federal facilities because a cannot be developed by

a state which covers federal facili and satisfies all the criteria

306 and 308, among others. The fact that uirements for state

enforcement of new source performance and state monitor-

ing, entry and inspection procedures may not yi +-y~ to federal

ty to insure com-

pliance with the “applicable requirements” of the Act. Sections 306

Age

failure toa a state program applying to federal facilities. Like-

wise, the Environmental Protection Agency’s contention in this re-

gard does not detract from the other clear indicators in the Act

intention to cover federal facilities in

evidencing a

— ES programs.

20

ment. This, we believe, describes accurately the in-

tention of Congress as to the inclusion of the seven

words.“

E. P. A. contends, however, that “reasonable

service charges” refer only to utility user-chargers.

(Brief for the Petitioners, pp. 23-24.) The Court of

Appeals discussed this contention in its opinion with

this persuasive analysis:

Respondents contend that these “reasonable

service charges” refer to those for state and

local sewage treatment hookups. We disagree.

Although the legislative history of Section 313

is silent regarding the meaning of the reason-

able service charges” language, it seems the

better interpretation is to read it as referring

to charges incident to state permit programs.

Even if we were to read the word “require-

ments” in Section 313 to mean “effluent stand-

ards and limitations,” as respondents contend

we should, interpreting the reasonable service

charge” language to refer to municipal waste

disposal charges would create a non sequitur.

Moreover, interpreting “reasonable service

charges” to refer to charges associated with

state permit programs would be in accord with

the canon of statutory construction that, where

language in a statute can be given two possible

interpretations, that interpretation should be

chosen which does not render the language

15Our construction of the “reasonable service charges” phrase is

supported by a statement of Senator Howard Baker, 2 member of

ooth the Senate Committee on Public Works and the “Conference

Committee,” which drafted the act. Senator Baker stated:

“It is my recollection that the language on payment of such

charges was intended to authorize Federal agencies’ compliance

with such requirements even if, for example, this meant that an

agency had to pay a charge or fee to a State as part of a require-

ment that the agency obtain a State effluent permit under section

402 of the act.” 120 Cong. Rec. S 16644 (Sept. 16, 1974).

*

—

— —

21

meaningless. Although a state's taxing power

cannot operate within the confines of a federal

enclave without the consent of the United

States, Mississippi River Fuel Corp. v. Mouton,

390 F.2d 34, 35 (5th Cir. 1968), no serious con-

tention has ever been made that subordinate

governmental bodies must supply public utility

services to federal agencies free of normal user

charges. Hence, there would be no need for

Congress to explicitly direct federal agencies to

pay their full share of municipal sewer system

costs. On the other hand, any permit program

charges might be sufficiently in the nature of a

tax that specific federal consent would be re-

quired before they could be certified as “prop-

erly payable” federal obligations.

(4) THE “RELIEF VALVE” POWERS OF THE

PRESIDENT — SECTION 313

A fourth indicator is the power provided to the

President in Section 313 to:

* * * exempt any effluent source of ary

department, agency, or instrumentality in the

executive branch 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 requirements of sections 306 and 307

#16

With the inclusion of this provision, Congress

has empowered the President with sufficient powers

to protect the national interest arising from the

various requirements of the Federal Water Pollution

Control Act and other pollution control laws, includ-

ing those developed by a state operated NPDES per-

16Section 306 relates to standards of treatment for new pollutant

discharge sources while Section 307 pertains to effluent ards for

“toxic” pollutants.

22

mit program and incorporated in a state NPDES

permit. In a real sense, then, the Congress has con-

sidered the possibility of excluding federal agencies

from state NPDES programs and concluded that a

federal discharger should be relieved from such

NPDES requirements upon a determination of the

President.

III.

THE USE OF LEGISLATIVE HISTORY

A. In Light of the Clarity of Meaning of the Federal

Water Pollution Control Act, Taken in its Entirety,

It Is Inappropriate to Resort to Legislative History

to Determine the Intent of Congress

A basic rule of statutory construction is that

statutes are to be construed in a manner which effec-

tuates the intent of the enacting body and that in con-

struing a statute the first examination should be to

the language of the statute. If the language and the

purpose of a statute appears with reasonable cer-

tainty, there is no need to resort to other rules of con-

struction to ascertain its meaning. United States v.

Ray, 488 F.2d 15 (10th Cir. 1973). A closely related

rule directs courts to give effect to unambiguous

statute in accordance with its plain and obvious

meaning. Resort to legislative history should not be

used to change the meaning of clear and unequivocal

statutes. United States v. Oregon, 366 U.S. 643

(1961).

23

Based upon our previous evaluation that the

provisions of the Federal Water Pollution Control

Act, taken together, are clear with regard to the

applicability of state operated NPDES permit pro-

grams to federal facilities, it is unnecessary, indeed

inappropriate, to examine legislative history.

B. Even Assuming the Appropriateness of Examining

Legislative History, That History Is Too Blurry To

Be of Assistance

The petitioners’ brief devotes almost one-third

of its argument to the proposition that the legislative

history is decisive of Congressional intent. Brief

for the Petitioners pp. 33-39. The United States

places particular emphasis on the words “effluent

limitations,” “limitations,” performance stand-

ards,” and “effluent standards,” which in some cases

appear to have been used interchangeably. From the

use of these words, the United States has concluded

Congress did not intend to “submit federal facilities

to state procedures; all point to federal compliance

with applicable substantive pollution abatement re-

quirements.” Brief for the Petitioners, p. 35.

We have examined the various Congressional

reports containing the discussions of Section 313

upon which the Federal government relies so heavily.

These materials are very brief and can be read in

five minutes. Most importantly, contrary to the as-

sertion of petitioners, they are of no real help. The

24

very materials which are quoted by E.P.A. in its

opening brief, pp. 34-38, as significant are either

far too ambiguous or imprecise to be relied upon to

decide this case. For example, two paragraphs of the

Report of the Senate Committee on Public Works

accompanying S.2770 which discuss section 313 have

been quoted in the Petitioners’ Brief at page 34. The

first paragraph reads in part:

This section, similar to one in existing law

requires that Federal facilities meet the same

e fluent limitations as private sources of pollu-

tion.

The emphasis was supplied by the petitioners. Yet

in the second quoted paragraph, Section 313 is

described as follows:

“This section requires that federal facilities

meet all control requirements as if they were

private citizens.”

The petitioners did not emphasize any of these words.

E.P.A. also quotes in its opening brief, at page

38, the following portion of the Conference Report

accompanying 8.2770 (now FWPCAA) as helpful to

its position :

Senate Bill

Section 313 requires Federal facilities to

meet the same effluent limitations as other

sources of pollution, unless the facility is spe-

cifically exempted by the President. The Presi-

dent cannot exempt a Federal source from

national performance standards or toxic and

pretreatment standards.

House Amendment

Section 313 requires Federal facilities to

25

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. 1 A Legislative

Hist of the Water Pollution Control Act

— 8 A of 1972, 318, Committee Print,

93d Cong., Ist Sess., (1973)

Contrary to the views of E. P. A., we have

struggled with these descriptions and submit that

they are so ambiguous as to be of no help to the

court.“

IV.

THE ENVIRONMENTAL PROTECTION

AGENCY ADMINISTRATOR’S INTERPRETA-

TION OF THE APPLICABILITY

OF THE NPDES

A. The Conclusion of the Administrator That Federal

Agencies Are Subject to the NPDES Is Correct

The E. P. A. raises the rule of statutory construc-

tion that the interpretation given to an ambiguous

statute by those charged with its execution is entitled

to great weight. Red Lion Broadcasting Company v.

17The National Administration followed the FWPCAA closely

during its journey through Congress. 1 A Legislative History of the

Water Pollution Control Act Amendments of 1972, 143, Committee

Print, 93d Cong., Ist Sess., (1973) contains a letter, dated October

11, 1972, the Administration’s chief spokesman with regard to the

FWPCAA, William Ruckelshaus, Administrator of the Environmental

Protection Agency, wrote to the Office of Management and Budget

26

Federal Communications Commission, 395 U.S. 367,

381 (1969). Reliance on this rule is appropriate only

when a statute is ambiguous. We, as stated earlier,

contend the statute is reasonably clear on its face;

therefore, the rule is inapplicable here. Likewise,

the rule is usually applied when an administrative

interpretation has been in effect for a significant

period of time. Merrit v. Cameron, 137 U.S. 542, 552

(1890). The interpretive regulation provided by

E. P. A., that a state operated NPDES does not apply

to federal agencies, has been in effect only for a

very short period. In any event, this court is not

in any sense bound by administrative interpretation

and this court should support E.P.A.’s interpretation

only if it is supported by the statute upon which

it is based. Federal Maritime Commission v. Sea-

train Lines, 411 U.S. 726 (1973)

Most importantly, the State of Washington is in

agreement with E.P.A. ona crucial, perhaps decisive,

issue in this case. We agree with conclusion of E.P.A.

that the NPDES applies to federal facilities gener-

ally.“ E.P.A.’s administrative stance in reaching this

recommending presidential approval of the bill. Page 146 thereof

contains the following discussion of Section 313 by Mr. Ruckelshaus:

The law would be changed to require Federal facilities to com-

ply with all Federal, State, interstate, and local requirements

respecting water pollution control. The President may exempt

facilities where he determines it is in the paramount interest

of the United States. No exemptions are permitted with respect

to toxic substances, pretreatment requirements, and new source

performance requirements.

18At page 10 of its opening brief, E.P.A. describes its activities

in the geographic area covered by the Ninth Circuit Court of Appeals.

One hundred eighty-seven NPDES permits have been issued for that

area by E.P.A. as of March 31, 1975 and 40 applications for permits

for other federal agency discharges were being considered by E.P.A.

27

conclusion” is, quite obviously, inconsistent with the

contention E.P.A. submitted to this court that the

word “requirements” as used in Section 313 refers

only to substantive requirements; and that proce-

dural requirements, such as a state NPDES operated

program, fall outside its scope. See Brief for the

Petitioner, pp. 16, 38.

The actions of E.P.A. speak louder than their

words to this court on this point. E.P.A. is correct in

interpreting “requirements” to include the NPDES

permit program. The meaning of the word “require-

ments” is constant. If “requirements” includes

NPDES permits when E.P.A. is administering the

program, then the same is true when the state is ad-

ministering it.

B. The Only Error in the Environmental Protection

Agency Interpretation of the Federal Water Pollu-

tion Control Act Was tle Exclusion of Federal

Agencies from State Operated NPDES Programs

The issue to be resolved in this case is narrow.

The State’s single dispute with E.P.A. relates to the

federal agency’s conclusion pertaining to the NPDES

contained in the regulation of the agency which

states, at 40 C.F.R. 125.2(b):

The regulations in this part do not prescribe

1940 C.F.R. 125.2 (a) (2), a regulation interpreting and implement-

ing the NPDES, the E.P.A. provided:

The regulations in this part also prescribe the policy and

procedures to be followed in connection with permits authorizing

discharges into the navigable waters, the waters of the contiguous

zone, and the oceans from any agency or instrumentality of the

Federal Government, and from any Indian activity on Indian

lands. (Emphasis supplied.)

28

licy or procedures for the issuance of permits

y States under programs approved by the Ad-

ministrator pursuant to section 402(b) of this

Act. Such State programs do not cover agencies

and instrumentalities of the Federal Govern-

ment and Indian activities on Indian lands

under the jurisdiction of the United States.

(Emphasis supplied. )

The refusal of the E.P.A. to consider federal

facilities for inclusion in a permit program operated

by the State of Washington is a specific application

of the conclusion of 40 C.F.R. 125.2(b). The con-

clusion of the regulation is without statutory sup-

port.

The controlling statute is Section 402 of

FWPCAA. It provides, in part:

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 vy my to administer its own permit

program for discharges into navigable waters

within its jurisdiction may submit to the Ad-

ministrator a full and complete description of

the program it proposes to establish and admin-

ister under State law or under an interstate

compact. In addition, such State shall submit a

statement from the attorney general (or the

attorney for those State water pollution control

agencies which have independent legal counsel),

or from the chief legal officer in the case of an

interstate agency, that 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

approve each such submitted program unless

he determines that adequate authority does not

quirements which state programs must meet. ]

exist: * * * [There follows a list of re-

fc) (2) Not later than ninety days after the

te on which a State has submitted a program

(or revision thereof) pursuant to subsection (b)

of this section, the inistrator shall

the issuance of permits under subsection (a)

of this section as to those navigable waters sub-

ject to such program unless he determines that

the State permit program does not meet the

requirements of subsection (b) of this section

or does not conform to the guidelines issued

under section 304(h)(2) of this Act. If the

Administrator so determines, he shall notify the

State of any revisions or modifications neces-

sary to conform to such requirements or

guidelines. (Emphasis supplied.)

Section 402, although lengthy, is straight for-

ward. Simply stated it establishes a national system

of permit programs. A permit program is to be

administered by E.P.A. in every state except in those

states whose governors submit approvable pro-

grams under section 402(b). In each state with an

approvable program, the state is the sole administra-

tor of the NPDES permit program. As noted by the

emphasized words of the quoted portion of section

402, the administrator is directed “to suspend“ the

issuance of permits as to those navigs e waters“

covered by the program.

The permit programs of NPDES operated within

the various states, whether administered by a state

or E. P. A., have the same general coverage. With pos-

sibly limited exceptions,” there are no distinctions in

2The exceptions are contained in Sections 306 and

308 of the See the discussion in Footnote 14.

30

state or federal NPDES permit programs because of

the nature of the discharge, the nature of the dis-

charger, or the nature of the permit program admin-

istrator. In the words of Section 402(a) (3):

The permit p of the Administrator

under paragraph (5 of this subsection, and

permits issued thereunder, shall be subject to

the — 2 conditions, and 2 —

as apply to a State permit program an permits

issued thereunder under subsection (b) of this

section. (Emphasis supplied.)

This language is consistent with the mandate

of section 313 that federal agencies shall comply to

the same extent as a private person * * .

Further, we note that E.P.A. cannot approve a

state program for operation under the NPDES unless

the program meets all of the applicable requirements

of Section 402(b). Once a state program satisfies

such requirements, no provision of Section 402

authorizes E.P.A. to approve only a portion of a

state program and disapprove the remainder. It is

an all or nothing mandate. Section 402 (e) (1) pro-

vides clear direction to E.P.A. on this point. If a

state program does not meet the requirements of

Section 402(b) or the guidelines issued under Sec-

tion 304(h) (2), E.P.A. “shall notify the State of any

revisions or modifications necessary to conform to

such requirements or guidelines.” Implicitly E.P.A.

does not have authority to approve until a program

is fully approvable.

The following discussion of E.P.A. relationships

31

with the states under the NPDES, contained in the

Report of the Senate Committee on Public Works ac-

companying 8 2770, 2 A Legislative History of the

Water Pollution Control Act Amendments of 1972,

1489, Committee Print, 93d Cong., Ist Sess., (1973),

is instructive :

It is expected that the States will play a

major role in the administration of this pro-

gram.

The Committee believes that, after a transi-

tion period during which the State program

and capability will be upgraded, the program

should be administered by those States with

programs which meet the requirements of this

Act.

Therefore, the bill provides that after a

State submits a p which meets the cri-

teria established by the Administrator pursu-

ant to regulations, the Administrator shall

his activity in such State under the

F permit program. * (Emphasis

supplied. )

Quite clearly, the Senate Public Works Commit-

tee, the primary developer of the NPDES, contem-

plated that E.P.A. would withdraw completely from

the permit issuing activity under the NPDES after

an approved state program became operable. This, of

course, is completely consistent with the express

wording of section 402, emphasized on page 29

hereof; namely “the administrator shall suspend the

issuance of permits as to those navigable

waters subject to such program.

The determination by E. P. A. to refuse to approve

portions of state programs covering discharges from

federal facilities and to retain permit issuing author-

ity for those facilities flies in the face of legislative

history. More importantly, that action violates the

statutory grading instructions given to E.P.A. for

state submitted programs, as well as the policy in

NPDES of providing for only one government oper-

ating a permit program in any state.”

CONCLUSION

Based on the clear meaning of the Federal

Water Pollution Control Act, taken as a whole, two

conclusions can be drawn which are decisive in this

case:

1. Federal agencies are subject to the permit

requirements of the National Pollutant Dis-

charge Elimination System; and

2. When the Environmental Protection 1

approves a permit be my submitted by a

state, pursuant to ion 402(b), asa

of the National Pollutant Discharge Elim-

ination System, all NPDES permit-issuing

powers of the Environmental Protection

Agency are suspended for the state, and the

total responsibility for issuance of such per-

21A further indication that E.P.A.’s approval powers pertaining

to a “total” program is the nature of E.P.A.’s withdrawal of approval

powers contained in Section 402(c)(3). This subsection clearly pro-

vides that if E.P.A. withdraws approval of a state program, it does

so by withdrawing approval of the state program in its entirety. This,

of course, emphasizes the policy that only one government shall

operate an NPDES permit program within a state.

33

mits, including those ired for federal

facilities, are vested in state.

Therefore, the decision below should be affirmed.

Respectfully submitted,

SLADE GORTON

Attorney General

CHARLES B. ROE, JR.

Senior Assistant Attorney General

CHARLES W. LEAN

Assistant Attorney General

September, 1975

34

APPENDIX A

SECTION 313—FEDERAL WATER POLLUTION

CONTROL ACT

“Sec. 313. Each department, agency, or instru-

mentality of the executive, legislative, and judicial

branches of the Federal Government (1) having jur-

isdiction over any property or facility, or (2) en-

gaged in any activity resulting, or which may result,

in the discharge or runoff of pollutants shall comply

with Federal, State, interstate, and local require-

ments respecting control and abatement of pollution

to the same extent that any person is subject to such

requirements, including the payment of reasonable

service charges. The President may exempt any

effluent source of any department, agency, or instru-

mentality 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 requirements of section 306 or 307 of this

Act. No such exemptions shall be granted due to

lack of appropriation unless the President shall have

specifically requested such appropriation as a part

of the budgetary process and the Congress shall have

failed to make available such requested appropria-

tion. 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 report each January to the Congress

ee ——

35

all exemptions from the requirements of this section

granted during the preceding calendar year, together

with his reason for granting such exemption.

APPENDIX B

SECTION 402—FEDERAL WATER POLLUTION

CONTROL ACT

“Src. 402. (a) (1) Except as provided in sec-

tions 318 and 404 of this Act, the Administrator may,

after opportunity for public hearing, issue a permit

for the discharge of any pollutant, or combination of

pollutants, notwithstanding section 301(a), upon

condition that such discharge will meet either all

applicable requirements under sections 301, 302, 306,

307, 308, and 403 of this Act, or prior to the taking

of necessary implementing actions relating to all

such requirements, such conditions as the Admin-

istrator determines are necessary to carry out the

provisions of this Act.

“(2) The Administrator shall prescribe con-

ditions for such permits to assure compliance with

the requirements of paragraph (1) of this subsec-

tion, including conditions on data and information

collection, reporting, and such other requirements

as he deems appropriate.

“(3) The permit program of the Administrator

under paragraph (1) of this subsection, and permits

issued thereunder, shall be subject to the same terms,

36

conditions, and requirements as apply to a State

permit program and permits issued thereunder under

subsection (b) of this section.

“(4) All permits for discharges into the navi-

gable waters issued pursuant to section 13 of the

Act of March 3, 1899, shall be deemed to be permits

issued under this title, and permits issued under this

title shall be deemed to be permits issued under sec-

tion 13 of the Act of March 3, 1899, and shall con-

tinue in force and effect for their term unless revoked,

modified, or suspended in accordance with the pro-

visions of this Act.

“(5) No permit for a discharge into the navi-

gable waters shall be issued under section 13 of the

Act of March 3, 1899, after the date of enactments

of this title. Each application for a permit under

section 13 of the Act of March 3, 1899, pending on

the date of enactment of this Act shall be deemed

to be an application for a permit under this section.

The Administrator shall authorize a State, which he

determines has the capability of administering a

permit program which will carry out the objective

of this Act, to issue permits for discharges into the

navigable waters within the jurisdiction of such

State. The Administrator may exercise the author-

ity granted him by the preceding sentence only dur-

ing the period which begins on the date of enactment

of this Act and ends either on the ninetieth day after

the date of the first promulgation of guidelines re-

quired by section 304 (h) (2) of this Act, or the date

— —

37

of approval by the Administrator of a permit pro-

gram for such State under subsection (b) of this

section, whichever date first occurs, and no such

authorization to a State shall extend beyond the last

day of such period. Each such permit shall be subject

to such conditions as the Administrator determines

are necessary to carry out the provisions of this Act.

No such permit shall issue if the Administrator ob-

jects to such issuance.

“(b) At any time after the promulgation of

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

tion 304 of this Act, the Governor of each State

desiring to administer its own permit program for

discharges into navigable waters within its juris-

diction may submit to the Administrator a full and

complete description of the program it proposes to

establish and administer under State law or under

an interstate compact. In addition, such State shall

submit a statement from the attorney general (or

the attorney for those State water pollution control

agencies which have independent legal counsel), or

from the chief legal officer in the case of an inter-

state agency, that the laws of such State, or the

interstate compact, as the case may be, provide ade-

quate authority to carry out the described program.

The Administrator shall approve each such submit-

ted program unless he determines that adequate

authority does not exist:

“(1) To issue permits which—

“(A) apply, and insure compliance with,

38

any —— requirements of sections 301,

302, 306, 307, and 403;

“(B) are for fixed terms not exceeding

five years; and

“(C) can be terminated or modified for

cause including, but not limited to, the follow-

ing:

“(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

—— either a temporary or permanent

reduction or elimination of the permitted

discharge;

“(D) control the disposal of pollutants

into wells;

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

insure compliance with, all applicable requirements

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 pro-

vide an opportunity for public hearing before a rul-

ing on each such application;

“(4) To insure that the Administrator receives

notice of each application (including a copy thereof )

for a permit;

“(5) To insure that any State (other than the

39

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 applica-

tion and, if any part of such written recommenda-

tions are not accepted by the permitting State, that

the permitting State will notify such affected State

(and the Administrator) in writing of its failure

to so accept 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 con-

sultation with the Secretary of the department in

which the Coast Guard is operating, anchorage and

navigation of any of the navigable waters would be

substantially impaired thereby;

(67) To abate violations of the permit or the

permit program, including civil and criminal pen-

alties and other ways and means of enforcement;

(8) To insure that any permit for a discharge

from a publicly owned treatment works includes

conditions to require adequate notice to the permit-

ting agency of (A) new introductions into such

work of pollutants from any source which would

be a new source as defined in section 306 if such

source were discharging pollutants, (B) new intro-

ductions of pollutants into such works from a source

which would be subject to section 301 if it were dis-

charging such pollutants, or (C) a substantial

40

change in volume or character of pollutants being

introduced into such works by a source introducing

pollutants into such works at the time of issuance

of the permit. Such notice shall include information

on the quality and quantity of effluent to be intro-

duced into such treatment works and any antici-

pated impact of such change in the quantity or

quality of effluent to be discharged from such pub-

licly owned treatment works; and

“(9) To insure that any industrial user of any

publicly owned treatment works will comply with

sections 204(b), 307, and 308.

„(e) (1) Not later than ninety days after the

date on which a State has submitted a program (or

revision thereof) pursuant to subsection (b) of this

section, the Administrator shall suspend the issu-

ance of permits under subsection (a) of this section

as to those navigable waters subject to such program

unless he determines that the State permit program

does not meet the requirements of subsection (b) of

this section or does not conform to the guidelines

issued under section 304(h) (2) of this Act. If the

Administrator so determines, he shall notify the

State of any revisions or modifications necessary to

conform to such requirements or guidelines.

“(2) Any State permit program under this

section shall at all times be in accordance with this

section and guidelines promulgated pursuant to sec-

tion 304(h) (2) of this Act.

41

“(3) Whenever the Administrator determines

after public hearing that a State is not administer-

ing a program approved under this section in ac-

cordance with requirements of this section, he shall

so notify the State and, if appropriate corrective ac-

tion is not taken within a reasonable time, not to

exceed ninety days, the Administrator shall with-

draw approval of such program. The Administrator

shall not withdraw approval of any such program

unless he shall first have notified the State, and

made public, in writing, the reasons for such with-

drawal.

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

ministrator a copy of each permit application re-

ceived by such State and provide notice to the

Administrator of every action related to the con-

sideration of such permit application, including each

permit proposed to be issued by such State.

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

istrator within ninety days of the date of his noti-

fication under subsection (b)(5) of this section

objects in writing to the issuance of such permit, or

(B) if the Administrator within ninety days of the

date of transmittal of the proposed permit by the

State objects in writing to the issuance of such per-

mit as being outside the guidelines and requirements

of this Act.

(3) The Administrator may, as to any permit

application, waive paragraph (2) of this subsection.

42

“(e) In accordance with guidelines promul-

gated pursuant to subsection (h) (2) of section 304

of this Act, the Administrator is authorized to waive

the requirements of subsection (d) of this section

at the time he approves a program pursuant to sub-

section (b) of this section for any category (includ-

ing any class, type, or size within such category) of

point sources within the State submitting such pro-

gram.

“(f) The Administrator shall promulgate reg-

ulations establishing categories of point sources

which he determines shall not be subject to the re-

quirements of subsection (d) of this section in any

State with a program approved pursuant to sub-

section (b) of this section. The Administrator may

distinguish among classes, types, and sizes within

any category of point sources.

“(g) Any permit issued under this section for

the discharge of pollutants into the navigable waters

from a vessel or other floating craft shall be subject

to any applicable regulations promulgated by the

Secretary of the department in which the Coast

Guard is operating, establishing specifications for

safe trans, ortation, handling, carriage, storage, and

stowage of pollutants.

“(h) In the event any condition of a permit

for discharges from a treatment works (as defined

in section 212 of this Act) which is publicly owned

is violated, a State with a program approved under

43

subsection (b) of this section or the Administrator,

where no State program is approved, may proceed

in a court of competent jurisdiction to restrict or

prohibit the introduction of any pollutant into such

treatment works by a source not utilizing such treat-

ment works prior to the finding that such condition

was violated.

“(i) Nothing in this section shall be construed

to limit the authority of the Administrator to take

action pursuant to section 309 of this Act.

“(j) Acopy of each permit application and each

permit issued under this section shall be available

to the public. Such permit application or permit, or

portion thereof, shall further be available on request

for the purpose of reproduction.

„(K) Compliance with a permit issued pur-

suant to this section shall be deemed compliance, for

purposes of sections 309 and 505, with sections 301,

302, 306, 307, and 403, except any standard imposed

under section 307 for a toxic pollutant injurious to

human health. Until December 31, 1974, in any case

where a permit for discharge has been applied for

pursuant to this section, but final administrative

disposition of such application has not been made,

such discharge shall not be a violation of (1) section

301, 306, or 402 of this Act, or (2) section 13 of the

Act of March 3, 1899, unless the Administrator

or other plaintiff proves that final administrative

disposition of such application has not been made

44

because of the failure of the applicant to furnish

information reasonably required or requested in or-

der to process the application. For the 180-day pe-

riod beginning on the date of enactment of the

Federal Water Pollution Control Act Amendments

of 1972, in the case of any point source discharging

any pollutant or combination of pollutants imme-

diately prior to such date of enactment which source

is not subject to section 13 of the Act of March 8,

1899, the discharge by such source shall not be a

violation of this Act if such a source applies for a

permit for discharge pursuant to this section within

such 180-day period.