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

IN THE _— |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO. 74-1435

THE ENVIRONMENTAL PROTECTION AGENCY,

and RUSSELL E. TRAIN, AS ADMINISTRATOR OF

THE ENVIRONMENTAL PROTECTION AGENCY,

UNITED STATES OF AMERICA, ____- ... PETITIONERS,

VS:

PEOPLE OF THE STATE OF CALIFORNIA, EL REL

STATE WATER RESOURCES CONTROL BOARD,

and STATE OF WASHINGTON AND ITS

DEPARTMENT OF ECOLOGY, .. -.._.. RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE COMMONWEALTH OF KENTUCKY,

STATE OF GEORGIA, STATE OF HAWAH, STATE OF

OHIO, AND COMMONWEALTH OF PENNSYLVANIA AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS.

COMMONWEALTH OF KENTUCKY STATE OF GEORGIA

ED W. HANCOCK ARTHUR K. BOLTON

Attorney General Attorney General

DAVID C. SHORT 132 Judicial Building

Assistant Attorney General Atlanta, Georgia 30334

Assistant Attorney General

Room 26, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 564-3594

COUNSEL FOR AMICI CURIAE

(Continued inside Front Cover)

a

Petition For Writ of Certiorari Filed May 14, 1975

Certiorari Granted June 23, 1975

STATE OF HAWAII, STATE OF OHIO, AND

COMMONWEALTH OF PENNSYLVANIA

———

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED ..........

INTEREST OF THE AMICI CURIAE -

{Commonwealth of Kentucky, State of Georgia,

State of Hawaii, State of Ohio, and

Commonwealth of Pennsylvania] ..............

SUMMARY OF ARGUMENTS ..............

GED. Seb ccccedceevesevceccccoesees

ARGUMENT I

THE ADMINISTRATOR OF THE ENVIRONMENTAL

PROTECTION AGENCY HAS EXCEEDED HIS AU-

THORITY UNDER THE FEDERAL WATER POLLU-

TION CONTROL ACT OF 1972 IN REFUSING TO

SUSPEND HIS ISSUANCE OF NPDES PERMITS TO

AGENCIES AND INSTRUMENTALITIES OF THE

FEDERAL GOVERNMENT DISCHARGING POLLU-

TANTS TO NAVIGABLE WATERS LOCATED WITH-

IN STATES WHOSE WATER POLLUTION CONTROL

PROGRAMS HAVE BEEN APPROVED PURSUANT

TO SECTION 402 OF THE ACT, 33 U.S.C. 51342, AND

ARE APPLICABLE TO SUCH POINT SOURCES OF

DISCHARGE PURSUANT TO SECTION 313 OF THE

oe oe eee ee... 6...

ii

TABLE OF CONTENTS

Page

ARGUMENT II

THE SUPREMACY CLAUSE OF THE UNITED

STATES CONTITUTION, ARTICLE VI, CLAUSE 2,

DOES NOT BAR THE ISSUANCE OF NPDES PER-

MITS BY THE STATES TO AGENCIES AND IN-

STRUMENTALITIES OF THE FEDERAL GOVERN-

MENT UNDER THE FEDERAL WATER POLLUTION

CONTROL ACT OF 1972 AND DOES NOT PROVIDE

A BASIS FOR THE ADMINISTRATOR’S FAILURE

TO SUSPEND HIS ISSUANCE OF NPDES PERMITS

FOR DISCHARGES INTO THE NAVIGABLE WA-

TERS OF A STATE HAVING AN APPROVED

WATER POLLUTION CONTROL PROGRAM _. .. 23-30

iit Ss. custysatueneneeian 31-33

CERTIFICATE OF SERVICE .........000008: 34-35

TABLE OF AUTHORITIES

Cases Page

Alabama v. Seeber, 502 F. 2d 1238, 1243 (1974),

Petition For Writ of Certiorari pending sub nom.

Seeber v. Alabama, No. 74-851. ..........-0000585 26

Baltimore National Bank v. State Tax Commission,

Sy Wn BT Eb ccacndeoncessceetobeses 27

California v. Davidson,

Ss We Ce Gl, BOGE) Sc dccccccccccss 14

California v. EPA, 511 F. 2d 963, 966, 967, 970, 972

(9 CA, February 13, 1975) .........---e eee 14, 27

Florida Lime and Avocado Growers, Inc. v. Paul,

Sr Ss Ee EE wasoces cecnccnctccacecce 29

Hines v. Davidowitz, 312 U.S. 52 (1941) .......... 28

Jarecki v. G. D. Searle & Co., 367 U.S. 303 (1961) .. 21

Mayo v. U.S., 319 U.S. 441, 446, 63 S.Ct. 1137, 1140,

2" § & Fe PP rriTerrTiTeTe

Nash v. Florida Industrial Commission,

See US. Bee CUED bic dS civ cdvenddetnseewes 29

Perez v. Campbell, 402 U.S. 637, 649 (1971) ...... 28

Sears Roebuck & Co. v. Stiffel Co.,

TP Ths Se CH bo ees ev envecied's 29

Steward Machine Co. v. Davis,

/ Bi Be Fey ere eveverrr rite 29

Washington Market Co. v. Hoffman,

208 U.S. 112 (1B79) 2... cccccccccccccccccees 21

Weinberger v. Hynson, Westcott & Denning, Inc.,

412 US, 609 (1973) . 1... ee eee eee e creer eens 21

iv

Statutes

Page

[Federal Water Pollution Control Act Amendments of

1972, 33 U.S.C. 1251, et seq.]

Title I — Research and Related Programs, Federal

Water Pollution Control Act Amendments of 1972,

Title 33, Sections 1251-1265, U.S.C. .......... 7

Title II — Grants For Construction of Treatment

Works, Federal Water Pollution Control Act

Amendments of 1972,

Title 33, Sections 1251-1265, U.S.C. ............ 7

Title III — Standards and Enforcement, Federal +

Water Pollution Control Act Amendments of 1972,

Title 33, Sections 1311-1328, U.S.C. ............ 8

Title IV — Permits and Licenses, Federal Water

Pollution Control Act Amendments of 1972,

Title 33, Sections 1341-1345, U.S.C. .......... 8

Section 101(a), Federal Water Pollution

Control Act Amendments of 1972,

Zee SE, Satie TsseCah, VUGs..ccccccccoccece 3

Section 101(b), Federal Water Pollution

Control Act Amendments of 1972,

Title 33, Section 1251(b), U.S.C. ......eeeeeees 3

Section 101(f), Federal Water Pollution

Control Act Amendments of 1972,

Title 33, Section 1251(f), U.S.C. ........ sseete a0

Section 301, Federal Water Pollution

Control Act Amendments of 1972,

Titie 33, Section 1311, U.S.C. ........++++++ 9, 15, 2

Vv

Statutes (Continued)

Page

Section 303, Federal Water Pollution

Control Act Amendments of 1972,

oo F SEE Y ree 15

Section 303(e), Federal Water Pollution

Control Act Amendments of 1972,

Title 33, Section 1313(e), U.S.C. ............ 3

Section 304(h), Federal Water Pollution

Control Act Amendments of 1972,

Title 33, Section 1314(h), U.S.C. .............. 3

Section 313, Federal Water Pollution Control Act

Amendments of 1972, Title 33, Section 1323,

U.S.C. .... 4, 6, 7, 18, 20, 21, 23, 24, 25, 27, 28, 31

Section 401, Federal Water Pollution

Control Act Amendments of 1972,

Title 33, Section 1341, U.S.C. ................ - 22

" Section 402, Federal Water Pollution Control Act

Amendments of 1972, Title 33, Section 1342,

Gen whee a ccs 3, 4, 5, 6, 7, 8, 11, 18, 19, 23, 30

Section 402(a), Federal Water Pollution Control

Act Amendments of 1972, Title 33,

section 1342(a), U.S.C. .......... 9, 12, 21, 23, 30

Section 402(b), Federal Water Pollution Control Act

Amendments of 1972, Title 33,

Section 1342(b); U.S.C. .............. 5, 9, 12, 16, 31

Section 402(c), Federal Water Pollution Control Act

Amendments of 1972, Title 33,

~ Section 1342(c), U.S.C. ............ 10, 12, 30, ‘31

a

vi

Statutes (Continued)

Page

Section 402(d), Federal Water Pollution

Control Act Amendments of 1972,

Title 33, Section 1342(d), U.S.C. .....seeeeeees 18

Section 402(k), Federal Water Pollution

Control Act Amendments of 1972,

Title 33, Section 1342(k), U.S.C. ......eee00+ 9 22

Section 505, Federal Water Pollution

Control Act Amendments of 1972,

Title 33, Section 1365, U.S.C. ........eee0-- 21, 22

Section 505(f), Federal Water Pollution

Control Act Amendments of 1972,

Title 33, Section 1365(f), U.S.C. ...ceeeseeeeee 23

Section 510, Federal Water Pollution

Control Act Amendments of 1972,

Title 33, Section 1370, U.S.C. ........ 4, 13, 15, 20

Other References

40 C.F.R. Part 124 ......ceeeeeeeveee TETTTTTTT il

40 C.F.R. Section 124.10 ......--eeeee sccccccccce . Os

40 C.F.R. Section 124.21 .......-eeees ocegoceqoes ae

40 C.F.R. Section 124.42 ......+++. cocceccensenee!! ar

Dendy, Bill B.; Affidavit of ....... cocossccoce Oy ae

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1974

NO. 74-1435

THE ENVIRONMENTAL PROTECTION AGENCY,

and RUSSELL E. TRAIN, AS ADMINISTRATOR OF

THE ENVIRONMENTAL PROTECTION AGENCY,

UNITED STATES OF AMERICA, ____. ... PETITIONERS,

VS:

PEOPLE OF THE STATE OF CALIFORNIA, EL REL

STATE WATER RESOURCES CONTROL BOARD,

and STATE OF WASHINGTON AND ITS

DEPARTMENT OF ECOLOGY, _.. RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE COMMONWEALTH, STATE OF

GEORGIA, STATE OF HAWAII, STATE OF OHIO, AND

COMMONWEALTH OF PENNSYLVANIA AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS.

MAY IT PLEASE THE COURT:

INTEREST OF THE AMICI CURIAE

The States represented in this Amici Brief have a

common interest in the proper and effective implementa-

tion of their respective programs for the issuance of Na-

tional Pollutant Discharge Elimination System permits

2

under the Federal Water Pollution Control Act

Amendments of 1972. The States of Georgia, Ohio, and

Hawaii have developed and submitted their programs

to the Environmental Protection Agency and have been

delegated authority to issue National Pollutant Discharge

Elimination System permits subject to the same unreason-

able and unauthorized exception which prompted the States

of California and Washington to initiate this action.’ The

Commonwealth of Kentucky and the Commonwealth of

Pennsylvania have not yet been delegated such permit

issuing authority but anticipate that under current regu-

lations of the Environmental Protection Agency any fu-

ture approval of their programs would be made subject to

the same limitation.

The water pollution control programs of each State

'The State of Ohio was granted authority to issue NPDES

permits by a letter from the Regional Administrator, Region

V, Environmental Protection Agency, dated March ll,

1974; the approval of the Ohio program was published in

the Federal Register, Vol. 39, No. 13), page 26061, dated

July 16, 1974. The State of Georgia was granted authority

to issue NPDES permits by a letter from the Regional Ad-

ministrator, Region IV, Environmental Protection Agency,

dated June 28, 1974; the approval of the Georgia program

was published in the Federal Register, Vol. 39, No. 137,

page 26061, dated July 16, 1974. The State of Hawaii was

granted authority to issue NPDES permits by a letter from

the Regional Adminisrator, Region IX, Environmenal Pro-

tection Agency, dated November 28, 1974; the approval of

the Hawaii program was published in the Federal Register,

Vol. 39, No. 244, page 43759, dated December 18, 1974.

desiring to administer the National Pollutant Discharge

Elimination System permit program for the navigable

waters within their respective jurisdictions, including the

amici States as well as respondents herein, must include

at least the minimum standards and requirements specified

in the Act. In developing these programs, the States

have been, and are, required to meet all the criteria con-

tained in Section 402 of the Act, 33 U.S.C. §1342, regula-

tions promulgated by the Environmental Protection

Agency pursuant to Section 304(h), 33 U.S.C. §1314(h),

and Section 402, and the requirements of Section 303(e),

33 U.S.C. §1313(e), relating to the States’ continuing

planning process. In incorporating these measures into

the State program and in carrying out and implementing

these requirements to achieve the goals of the Act, the

States must be able to control all point source discharges

to navigable waters within their respective jurisdictions.

The objective of the Act is to restore and maintain

the chemical, physical, and biological integrity of the Na-

tion’s waters;? primary responsibility for the achievement

of this goal is vested in the States. The means selected

by the Congress for the attainment of this end is the regu-

lation of all cischargers of pollutants through the opera-

733 U.S.C. §1251(a); Section 101(a) of the Federal Water

Pollution Control Act of 1972.

33 U.S.C. §1251(b); Section 101(b) of the Federal Water

Pollution Control Act of 1972.

4

tion of the National Pollutant Discharge Elimination

System permitting process. In Section 402 of the Act,

33 U.S.C. §1342, the Congress provided for the admini-

stration of this system through the operation of State

control programs. In specifying the requirements to be

incorporated into these State programs and providing for

continuous review, the Congress has assured that these

programs will be formulated and operated in accordance

with the Act. Absent control over all sources discharging

into navigable waters subject to the State’s jurisdiction,

the Administrator could not approve the program and

the State could not effectively formulate or enforce the

standards authorized by Section 510 of the Act, 33 U.S.C.

§1370, and made applicable to Federal facilities by Section

313 of the Act, 33 U.S.C. $1323. The unwarranted and

unauthorized refusal of the Administrator to relinquish

permitting authority over point sources operated by the

Federal government poses a serious hindrance to the ef-

fective and efticient implementation of the National Pollu-

tant Discharge Elimination System with respect to the

waters involved and thwarts State efforts to meet their

responsibilities under the Federal Water Pollution Control

Act.

Amici herein support the respondents and the Court

of Appeals For the Ninth Circuit in the position that the

refusal of the Administrator to delegate to the States au-

thority to issue National Pollutant Discharge Elimination

System permits with respect to the facilities of the Federal

government is beyond the powers, and in conflict with

BEST COPY AVAILABLE

5

the duties, of the Administrator under the Federal Water

Pollution Control Act Amendments of 1972, 33 U.S.C.

§1251, et seq.

SUMMARY OF ARGUMENTS

I. Section 402 of the Federal Water Pollution Control

Act Amendments of 1972, 33 U.S.C. §1342, establishes

the National Pollutant Discharge Elimination System

and contains the instructions of the Congress with respect

to the administration and implementation of that system.

Basic to the administration of the National Pollutant Dis-

charge Elimination System is the right of the States to

issue the NPDES permits required for discharges into

the navigable waters subject to that State’s jurisdiction.

The Congress provided in Section 402(b) of the Act that

the State could develop and submit for approval its pro-

gram for the issuance of such permits and that if the

Administrator found the program adequate he was to

suspend his own issuance of permits with respect to such

waters. The Administrator has disregarded this specific

Congressional directive and has refused to relinquish per-

mitting authority over facilities operated by the Federal

government.

This refusal cannot be supported in the Federal Water

Pollution Control Act and poses a serious hindrance to the

effective implementation of State programs. These pro-

grams are designed to control all navigable waters within

a State’s jurisdiction and cannot be implemented without

control over each source contributing to the pollution of

such waters. Since NPDES permits are specifically re-

quired by the Act and such permits are to be issued by

6

the States, the requirements imposed under State programs

are without doubt “requirements respecting control and

abatement of pollution’ within the meaning of Section

313 of the Act, 33 U.S.C. $1323. As such, they are re-

quirements with which all Federal facilities must comply

in accordance with the directives of the Congress.

II. The Supremacy Clause does not bar the State is-

suance of NPDES permits to facilities of the Federal

government and is inapposite in this action for three rea-

sons: (i) Federal facilities have been specifically sub-

jected to the requirements of State regulatory programs

in the area of water pollution control by Congressional

waiver contained in Section 313 of the Federal Water Pol-

lution Control Act Amendments of 1972, 33 U.S.C. $1323;

(ii) application of the Supremacy Clause in this action is

contrary to the purposes of the clause since the require-

ments of State water pollution control programs do not in

any wey frustrate or pose an obstacle to the application

of Federal law but rather were adopted in order to carry

out the objectives of the Federal Water Pollution Control

Act, as amended; (iii) in accordance with Section 402

of the Act, 33 U.S.C. $1342, the water pollution control

programs of the respondents have been approved and such

programs are operating under a direct, and authorized,

delegation of Federal authority and are enforceable re-

quirements of Federal law.

BEST COPY AVMLAge

7

ARGUMENT I

THE ADMINISTRATOR OF THE ENVIRONMENTAL

PROTECTION AGENCY HAS EXCEEDED HIS AU;

THORITY UNDER THE FEDERAL WATER POLLU-

TION CONTROL ACT OF 1972 IN REFUSING TO SU-

SPEND HIS ISSUANCE OF NPDES PERMITS TO

AGENCIES AND INSTRUMENTALITIES OF THE

FEDERAL GOVERNMENT DISCHARGING POLLU-

TAN7S TO NAVIGABLE WATERS LOCATED WITHIN.

STATES WHOSE WATER POLLUTION CONTROL

PROGRAMS HAVE BEEN APPROVED PURSUANT TO

SECTION 402 OF THE ACT, 33 U.S.C. §1342, AND ARE

APPLICABLE TO SUCH POINT SOURCES OF DISs-

CHARGE PURSUANT TO SECTION 313 OF THE ACT,

$3 U.S.C. §1323.

In the Federal Water Pollution Control Act Amend-

ments of 1972, the Congress enacted a comprehensive,

multi-faceted, and clearly discernible plan designed to

restore and maintain the quality of the waters of the

United States. This plan involves first, the improvement

and development of new waste water treatment and eon-

trol technology through the conduct of research and the

construction of demonstration projects for various treat-

ment methods.‘ The Act also directs the expenditure of

huge amounts of money in construction grants for needed

waste water treatment facilities throughout the Nation.’

In order to assure that technological developments and

advances were properly implemented and that construc-

‘Federal Water Pollution Control Act Amendments of 1972,

Title I — Research and Related Programs, 33 U.S.C. 1251-

1265.

‘Id. Title 11 — Grants for construction of treatment works,

$3 U.S.C. 1281-1292.

-

tion grants were used to finance only needed and properly

designed facilities, the Congress also instituted the Na-

tional Pollutant Discharge Elimination System and made

unlawful any discharge of pollutants not in conformity

with a permit issued in accordance with this system. Fed-

eral Water Pollution Control Act Amendments of 1972,

* Title IV — Permits and Licenses, 33 U.S.C. 1341-1345,

and Title 11] — Standards and Enforcement, 33 U.S.C.

1311-1328.

It is the proper administration and implementation

of this system in accordance with the directives of the

Congress, and the failure of the Administrator of the

Environmental Protection Agency to effectuate these di-

rections, which are involved in this action. The Court of

Appeals For the Ninth Circuit has correctly declared in-

valid the administrative regulation upon which the Ad-

ministrator relied in refusing to relinquish permitting

authority over point sources operated by the Federal gov-

ernment and has placed the administration of the National

Pollutant Discharge Elimination System permit program

with the respondents herein as directed in the Act and a8

intended by the Congress.

The National Pollutant Discharge Elimination Sys-

tem (hereinafter referred to as NPDES) was established

in Section 402 of the Act, 33 U.S.C. §1342, and that

Section contains the instructions of Congress with respect

to the administration and implementation of the system.

The approach of the permit system is similar to that em-

ployed in other regulatory statutes; an act is declared un-

lawful and then a procedure is established through which

the prohibition may be modified and the activity controlled

9

and regulated. In the Federal Water Pollution Control

Act, Section 301, 33 U.S.C. §1311, makes unlawful the dis-

charge of any pollutant except in compliance with Sections

301, 302, 306, 307, 318, 402 and 404 of the Act. However,

Section 402(k), 33 U.S.C. §1342(k), provides that com-

pliance with a permit issued pursuant to Section 402 is

to be deemed compliance with Section 301, Section 302,

Section 306, and Section 307. The discharge of pollutants

from point sources is, therefore, unlawful except as au-

thorized in an NPDES permit. Under this system, all

point sources are required to obtain such permits, includ-

ing point sources operated by the Federal government. In-

deed, Federal dischargers have been regularly applying

for National Pollutant Discharge Elimination System

permits and even under the Administrator’s interpretation

would be expected to continue such applications and

renewals.‘

Initial permitting authority under the National Pol-

lutant Discharge Elimination System clearly rests with

the Administrator pursuant to Section 402(a), 33 U.S.C.

§1342(a). However, in keeping with the State’s respon-

sibility for the control of water pollution for all waters

within their jurisdiction, Section 402(b), 33 U.S.C.

§1342{b), provides for the development of State programs

for the issuance of National Pollutant Discharge Elimina-

tion System permits. In pertinent part, “Section 402(b)

of the Act, 33 U.S.C. §1342(b), provides:

“. , . [t]he Governor of each State desiring to ad-

minister its own permit program for discharges into

*See: Petitioners’ Brief, page 10.

10

navigable waters within its jurisdiction 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... .

The Administrator shall approve each such submitted

program unless he determines that adequate authority

does not exist.” (Emphasis Added).

This section continues by describing the elements

which must, as a minimum, be incorporated into each

State program. The Administrator’s duty is clear; if

each prescribed measure is not contained in the plan, he

should not approve the program, however, if the plan does

include all the requisite authority, he “shall approve” the

program submitted.

The instructions of the Congress with respect to the

administration of the National Pollutant Discharge Eli-

mination System are further continued in Section 402(c),

33 U.S.C. §1342(c)}, of the Act, which reads, in pertinent

part:

“(1) Not later than ninety days aiter 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 issuance of per-

mits 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 sec-

tion or does not conform to the guidelines issued under

Section 304(h) (2) of this Act.” (Emphasis Added).

Again, the Administrator’s duties are clear and his

actions are mandatory; unless he finds the State program

deficient, he “shall suspend” his own issuance of permits

11

for those navigable waters subject to the State program.

The clear and explicit instructions of the Congress

are not, however, reflected in the regulations promulgated

by the Administrator. In regulations promulated in 40

C.F.R., Part 124, the Environmental Protection Agency

set forth “State Program Elements Necessary for Partici-

pation in the National Pollutant Discharge Elimination

System.’ These regulations are, in part, inconsistent with

the Federal Water Pollution Control Act Amendments of

1972 in that they attempt to authorize a dual permitting

system which is not contemplated in the Act and also that

these regulations attempt to alter the jurisdictional base

of the Act from navigable waters to point sources of dis-

charge.

Section 402, 33 U.S.C. §1342, for instance, clearly

limits the Administrator’s alternatives to either approval

or disapproval of a submitted State program. However, it

is apparent from the provisions of 40 C.F.R. §124.10, and

particularly the accompanying comment, that the Ad-

ministrator does not acknowledge this constraint. 40

C.F.R. §124.10, and comment, read, in part, as follows:

“Prohibition of discharges into State waters:

Except as provided in §124.11, any State or interstate

program participating in the NPDES must have a

statute or regulation, enforceable in State courts,

which prohibits discharges of pollutants by any per-

son except as authorized pursuant to an NPDES

permit.

‘Published at 37 Federal Register 28390, December 2, 1972;

amended by 38 Federal Register 17999, July 5, 1973, and 38

Federal Register 19894, July 24, 1973. |

12

(Comment: ... Except as provided in §124.11, excep-

tions to the general prohibition cannot be approved.

Depending on their scope and nature, any such ex-

ceptions will either (1) constitute grounds for with-

holding approval of the entire submitted program un-

til such time as the State or interstate agency revises

or modifies its program to conform to this subpart, or

(2) constitute categories, types, or sizes of point

sources for which the Administrator will not suspend

the issuance of NPDES permits. In the latter care,

the Administrator will issue NPDES permits for

those point sources not subject to the State or inter-

state agency's authority.)” (Emphasis Added)

This regulation, if implemented in accordance with

the accompanying comment, clearly does not implement

or conform to the provisions of Section 402. The authority

to make a partial delegation is not contained in the Act

and the jurisdictional criteria stated in Section 402 is

related to navigable waters, not to point sources. These

errors are repeated throughout the regulations and the

application of these erroneous constructions effectively

precludes the efficient implementation of the State pro-

grams authorized in Section 402(b), 33 U.S.C. §1342(b).

The jurisdiction of the States under their approved

NPDES permit issuing programs is coextensive with that

of the Administrator insofar as the control of point sources

discharging to the navigable waters covered by the pro-

gram is concerned. Section 402(c), 33 U.S.C. §1342(c),

makes it perfectly clear that upon approval of the State’s

program the authority of the Administrator under Section

402(a). 33 U.S.C. §1342(a), is suspended with respect

13

to the navigable waters covered by the State program.

The requirement that each point source obtain an NPDES

permit is in no way effected by the delegation to the State

of authority to issue such permits, the only change is the

idemtty of the governmental entity implementing the pro-

gram.

Moreover, efficient implementation of any more

stringent standards contained in a State’s plan, and au-

thorized in Section 510 of the Act, 33 U.S.C. §1370, nec-

essitates that the State have control over all discharges to

navigable waters within its jurisdiction. What petitioner

suggests and advocates is that Congress intended that there

be a dual permitting system with two separate agencies

administering two separate water pollution control pro-

grams and issuing NPDES permits to separate point

sources discharging to the same navigable waters.

Coordinating such permit issuing powers creates incredible

administrative entanglements and makes it impossible for

either agency to conduct a cohesive and effective program

for any particular water. Such a program is certainly not

consistent with the streamlining of administrative proc-

esses for the implementation of the Act called for in Sec-

tion 101(f), 33 U.S.C. §1251(f£):

“It is the national policy that to the maximum extent

possible the procedures utilized for implementing this

Act shall encourage the drastic minimization of

paperwork and interagency decision procedures, and

the best use of available manpower and funds, so as

to prevent needless duplication and unnecessary de-

lays at all levels of government.”

Rather than decrease the traffic of paperwork and inter-

agency decision making, the position of petitioner can

14

only increase such burdens and the experience of Cali-

fornia with this dual system demonstrates that the imposi-

tion of more stringent State “substantive” requirements is

impaired where the State does not issue all the permits

for its waters. As shown by the Affidavit of Bill B. Dendy,

the operation of the dual system has resulted in the issuance

of NPDES permits which failed to incorporate permit

conditions relating to substantive control and discharge

standards of the California program.®

Further, the development of applicable substantive

standards is hindered under the system currently operated.

Interpreting the case of California v. Davidson, 3 E.R.C.

1157 (N.D. Cal. 1971), the United States Court of Ap-

peals For the Ninth Circuit found that the determination

of substantive requirements applicable to any particular

source could ordinarily he accomplished only through the

administrative process. The Control strategies and ef-

fluent limitations to be applied must be tailored to the

individual source after considering the design of the

facility, the quantity and timing of its discharge, the na-

tAffidavit of Bill B. Dendy, Appendix, pp. 40-42, cites two

such NPDES permits issued by the Administrator. In dis-

cussing this Affidavit in a footnote to California v. EPA, 511

F.2d 963, 966, the Court below observed:

“(t]he Administrator is continuing to screen such state-

requested permit conditions, and apply his own notions

of ‘best practicable’ and ‘best available’ technology and

of what constitutes compliance ‘to the fullest extent pos-

sible’ in issuing permits to federal agencies, rather than

the standards suggested by the state.’ ”’

%California v. EPA, 511 F.2d 963, at 967 (9 CA, Feb. 13, 1975).

15

ture and concentration of its discharge, and the existing

state of the water into which the discharge is made. For

instance, Section 303, 33 U.S.C. $1313, authorizes, indeed

requires, the States to identify waters where the applica-

tion of the effluent standards contained in Section 301, 33

U.S.C. §1311, are not stringent enough to meet minimum

water quality standards arid requires the computation of

maximum daily pollutant loads and the permits issued

must reflect effluent limitations based on planned waste

load allocations and frequently incorporating additional

controls such as timing and rate of discharge. The al-

location of maximum daily pollutant loads among the

various dischargers on a particular stream or stream seg-

ment simply cannot be made or effectively planned without

control over each point source. The necessity that such

control rest with the States is amplified by the wide variety

of programs authorized under Section 510, 33 U.S.C.

§1370.

In addition to providing for more stringent standards

than those imposed by the Administrator, Section 510

also authorizes the State programs to be broader and to

examine different factors than those considered by the

Administrator. The standards set forth in Section 402(b),

Section 303(e)(3), and in the regulations of the Admini-

strator are the minimal requisites of State plans and form

a floor, not a ceiling, for the State program. This relation

has been recognized in the regulations of the Environ-

mental Protection Agency:

40 C.F.R. §124.21 “Application for NPDES permit.

Procedures of any State or interstate agency partici-

pating in the NPDES shall insure that every applicant.

16

for an NPDES permit complies with NPDES iiling

requirements. Such procedures and require: ents

shall include the following:

(a) Except as provided in paragraphs (b) nd

(c) (4) of this section and except as provided by the

Administrator in regulations issued under the act,

any person discharging or who proposes to discharge

pollutants shall complete, sign, and submit an NPDF'S

application short form in accordance with the instruc-

tions provided with such form.

COMMENT. Federal filing requirements for the

NPDES include the timely filing of a properly com-

pleted Refuse Act or NPDES application form. State

and interstate agencies may specify, where necessary,

additional filing requirements such as the submission

of engineering reports, plans, and specifications for

present or propose treatment or control of discharges

of pollutants. While duplication should be avoided,

the Administrator recognizes that the NPDES appli-

cation form may not by itself satisfy the needs of

every participating program.”

The Administrator expressly recognizes in this regu-

lation that this additional information may be necessary

to carry out the State program even though not necessary

to his own Section 402(a) permit issuing program. How-

ever, these additional requirements are no less a part of

the National Pollutant Discharge Elimination System un-

der Section 402(b). 33 U.S.C. §1342(b), than the re-

quirements of the Administrator’s program and as part

of the approved programs for the issuance of the permits

they are requirements with which all applicants, including

17

Federal dischargers, must comply. Recognition of State

procedures applicable to all applicants for NPDES per-

mits is also found in 40 C.F.R. $124.42:

“Application of effluent standards and limitations,

water quality standards, and other requirements.

(a) Procedures for any State or interstate program

participating in the NPDES must insure that the

terms and conditions of each issued NPDES permit

apply and insure compliance with all of the following,

whenever applicable:

(4) Any more stringent limitation, including those

(i) necessary to meet water quality standards, treat-

ment standards, or schedules of compliance, estab-

lished pursuant to any State law or regulation (under

authority preserved by section 510), or (ii) neces-

sary to meet any other Federal law or regulation, or

(iii) required to implement any applicable water qual-

ity standards; such limitations to include any legally

applicable requirements necessary to implement total

maximum daily loads established pursuant to section

303(d) and incorporated in the continuing planning

process approved under section 303(e) of the Act

and any regulations and guidelines issued pursuant

thereto.

The only limitation imposed by the Congress on the

operation of these State water pollution control programs

is that they must be at all times administered in a manner

consistent with the Act and impose standards at least as

stringent as those in the Act and the regulations of the

18

Administrator. Section 402, 33 U.S.C. §1342, contains

provisions designed to give just such assurances. Section

402(c)(2), Section 402 (c)(3), and Section 402 (d)

provide that the Administrator is to carry out a continu-

ing review of the State programs and of permits issued

or proposed under these programs and gives him authority

to withdraw his approval if the program is not admini-

stered in accordance with the Act. Again, the Administra-

tor’s alternatives are to approve or disapprove the pro-

gram; nowhere is there any authority to retain his Section

402(a) authority to issue permits for any source discharg-

ing to a navigable water subject to an approved State

program.

The applicability of the State program to all sources

of pollutant discharge is mandated by Section 402,, 33

U.S.C. §1342, and guaranteed in Section 313, 33 U.S.C.

§1323. In that section, the Congress has declared that

facilities of all branches of the Federal government shall

comply with all the “requirements respecting control and

abatement of pollution” which are imposed on any other

person discharging to the waters of any particular State

or locality. In pertinent part, Section 313, 33 U.S.C.

§1323, reads as follows:

“Each department, agency, or instrumentality, of the

executive, legislative and judicial branches of the

Federal Government (1) having 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

19

any person is subject to such requirements, including

the payment of reasonable service charges.”

From this section, it is clear that if a requirement is

a “requirement respecting control and abatement of pol-

lution” it is a requirement with which Federal facilities

shall comply. Nowhere in this section is there any basis

for a distinction between substantive and procedural re-

quirements of State law. Indeed, Section 402, 33 U.S.C.

§1342, demonstrates the Congress was concerned with the

implementation of full and complete programs of water

pollution control and was concerned that such programs

be properly administered.

The position maintained by petitioner herein totally

precludes the operation of such a program. Petitioner

suggests that facilities of the Federal government need

only comply with the substantive effluent standards and

compliance schedules promulgated by the State, and need

not apply for State operating permits. This position, how-

ever, ignores the manner by which such standards are

formulated and applied. The control strategies and ef-

fluent limitations applicable to any particular source can

only be determined by reference to the nature of the source,

its size, and location, the quality of the water into which

the discharge flows, and the type and nature of the con-

trol equipment and treatment facilities available for such

facilities. Such determinations cannot be made absent an

administrative examination of the source and its circum-

stances. It is through the operation of the control pro

gram, therefore, that the standards which petitioner claims

must be met are formulated and applied. This is particu-

larly true where more stringent standards, authorized

20

pursuant to Section 510, 33 U.S.C. $1370, are to be im-

posed or where the effluent limitations promulgated by

the Administrator pursuant to Section 301, 33 U.S.C.

§1311, are inadequate to produce acceptable water quality.

Petitioner’s restrictive interpretation of the phrase

“requirements respecting control and abatement of pollu-

tion” is further undermined by the language imposing an

obligation to pay “reasonable service charges.” Petitioner’s

contention that this language contemplates only charges

for the use of public treatment works does not relate to

other language in Section 313, 33 U.S.C. §1323, and de-

prives this phrase of any operative effect whatsoever. In

discussing this language and petitioners’ contention that it

referred to charges for the use of public treatment works,

the Ninth Circuit Court of Appeals reasoned:

“Although a state’s taxing power cannot operate

within the confines of a federal enclave without the

consent of the United States, no serious contention

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 ‘properly

payable’ federal obligations.” (Citations omitted).

511 F.2d 963, at 970 (9 CA, February 13, 1975).

This interpretation of the reasonable service charge

language is in accord with the principle of statutory con-

21

struction that where possible all the language of a statute

should be given operative effect and meaning. See: Wash-

ington Market Co. v. Hoffman, 101 U.S. 112 (1879);

Jarecki v. G. D. Searle & Co. 367 U.S. 303 (1961) ; Wein-

berger v. Hynson, Westcott & Denning, Inc., 412 U.S.

609 (1973). In addition to being violate of this principle,

the interpretation advanced by petitioner appears totally

unrelated to the rest of Section 313, 33 U.S.C. §1323.

This section is concerned with requirements which must

be met by the discharger. The reference of the section is

to charges relating to the imposition of State and local

requirements, not to the operation of publicly owned treat-

ment works. Thus, even where Federal agencies discharge

through a publicly owned treatment works the charges

referred to in Section 313 are properly read as incident to

the imposition of the State or local requirements rather

than the actual treatment process employed.

In lieu of compliance with the provisions of a State’s

water pollution control program, the petitioner herein

urges that enforcement of the standards of the Act, in-

cluding any more stringent “substantive” state standards

is to be secured solely through court action pursuant to

Section 505, 33 U.S.C. §1365. This approach is not, how-

ever, adequate to perform the functions of the State pro-

gram. It does not provide any guidance in the determina-

tion and formulation of what standards should be applied

to a particular source and is totally inadequate to assure

that stringent State standards are implemented and en-

forced. Under NPDES permits issued by the Admini-

strator pursuant to his Section 402(a) powers, the facili-

ties of the Federal government could be insulated from

any enforcement of the State’s standards. Pursuant to

‘BEST COPY AVAILABLE

22

Section 402(k), 33 U.S.C. §1342(k). compliance with the

terms and conditions of a permit issued pursuant to Sec-

tion 402 is deemed compliance with the Act for purposes

of Section 505, 33 U.S.C. §1365. If, therefore, the con-

ditions imposed by the Administrator on such an NPDES

permit did not reflect the imposition of the State standards,

the discharger could, at least arguably, escape these State

programs entirely. As shown by the Affidavit of Billy

B. Dendy, (Appendix, pp. 40-42), discussed at page 14

of this Brief and in footnote 8 herein, there have been

instances where the Administrator has, indeed, failed

to incorporate State recommendations into NPDES per-

mits issued to point sources discharging to the navigable

waters of California. In these instances, the administra-

tion and enforcement of the Act falls exclusively upon

the Courts without any recourse to administrative

processes.

In addition to providing an inappropriate Section

402(k), 33 U.S.C. §1342(k), defense, the contentions of

the petitioner deny any operative effect to Section 313,

33 U.S.C. §1323. By equating the obligations imposed

in Section 313 with those specifically actionable under

Section 505, 33 U.S.C. §1365, petitioner effectively renders

Section 313 a redundant and unnecessary restatement of

Section 505 except as to the ability of the President to

exenipt complaince. Moreover, petitioner argues, based on

exemptive language contained in Section 401, 33 U.S.C.

§1341, that even Section 505 has limited application as to

Federal facilities. However, this exemption demonstrates

only that where the Congress wished to relieve the Federal

government of a compliance obligation it did so expressly

and in specific languag. No such language appears in

es ose ee See

23

Section 313, 33 U.S.C. $1323, nor is there any exemption

from State programs adopted and approved under Section.

402, 33 U.S.C. §1342. The absence of such express exemp-

tion is especially significant in light of the Section 505(f)

reference to permit conditions and Section 313 require-

ments. The judicial enforcement of such conditions nec-

essarily and inescapably implies the administrative imposi-

tion of such requirements.

Administrative imposition of permit conditions is

precisely what the Congress contemplated in Section 402

of the Act and the provisions of the State programs for

the issuance of permits are clearly “requirements respect-

ing control and abatement of pollution” within the mean-

ing of Section 313, 33 U.S.C. §1323. As stated by the

Court of Appeals for the Ninth Circuit:

“{i]t would appear that the reference to Section 313

to federal agency compliance with state ‘requirements’

was purposeful and artistic, and was meant to refer

to these requirements which state administrative

agencies might adopt under their express Section 402

authorizations.”

511 F. 2d 963, at 972 (9 CA, February 13, 1975).

24

ARGUMENT II

THE SUPREMACY CLAUSE OF THE UNITED STATES

CONSTITUTION, ARTICLE VI, CLAUSE 2, DOES NOT

BAR THE ISSUANCE OF NPDES PERMITS BY THE

STATES TO AGENCIES AND INSTRUMENTALITIES

OF THE FEDERAL GOVERNMENT UNDER THE

FEDERAL WATER POLLUTION CONTROL ACT OF

1972 AND DOES NOT PROVIDE A BASIS FOR THE

ADMINISTRATOR’S FAILURE TO SUSPEND

ISSUANCE OF NPDES PERMITS FOR DISCHARGES

INTO THE NAVIGABLE WATERS OF A STATE HAV-

ING AN APPROVED WATER POLLUTION CONTROL

PROGRAM.

There are at least three reasons why the Supremacy

Clause does not operate to preclude the State issuance of

National Pollutant Discharge Flimination System permits

under the provisions of the Federal Water Pollution Con-

trol Act of 1972. First, Section 313 of the Federal Water

Pollution Control Act, 33 U.S.C. §1323, expresses a clear

Congressional waiver and specifically subjects Federal

facilities to the requirements of State programs for the

issuance of NPDES permits and other requirements

respecting control and abatement of pollution. Second,

application of the Supremacy Clause in this action is con-

trary to the policy supporting the rule since the issuance of

NPDES permits by these States does not frustrate Fed-

eral law, the evil against which the Supremacy Clause pro-

tects. Third, the programs for the issuance of these Fed-

eral permits which were submitted by California and

Washington have been approved by the Administrator of

the Environmental Protection Agency and the Administra-

tor is mandated to delegate his authority to issue such

permits.

A A SS ee

25

The power of the Congress to waive the immunity of

the Federal government under the Supremacy Clause is

clear. As was stated in Mayo v. United States, 319 U.S.

441, 446, 63 S.Ct. 1137, 1140, 87 L.Ed. 1504, 1508 (1943):

“It lies within Congressional power to authorize

regulation, including taxation, by the state of federal

instrumentalities.”

In this case, Congress has enacted such a waiver. In

enacting Section 313, 33 U.S.C. §1323, the Congress has

declared clearly, explicitly, and most affirmatively, that

Federal facilities “shall comply” with State water pollu-

tion control requirements:

“Each department, agency, or instrumentality of

the executive, legislative, and judicial branches of

the Federal Government (1) having jurisdiction over

any property or facility, or (2) engaged in any ac-

tivity resulting, or which may result, in the discharge

or run-off of pollutants shall comply with Federal,

State, interstate, and local requirements respecting

control and abatement of pollution to the same ex-

tent 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 instrumentality in the execu-

tive branch from compliance with any such a re-

quirement 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 exemp-

tions shall be granted due to lack of appropriation

unless the President shall have specifically requested

26

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 addi-

tional 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 all exemptions from the re-

quirements of this section granted during the preced-

ing calendar year, together with his reason for grant-

ing such exemption.”

It is difficult to imagine how Congress could have made

a more affirmative declaration that the facilities of the

Federal government were subject to the requirements of

State pollution control programs than was made in this

section. The uncompromising and unlimited language em-

ployed leaves no room for discretion; if the requirement

is a “requirement respecting control and abatement of pol-

lution”, it is a requirement to which Federal facilities are

subject. Certainly, the elements of a State program for

the issuance of permits required under the Act are “re-

quirements respecting control and abatement of pollution.”

In the case of Alabama v. Seeber, 502 F. 2d 1238, 1243

(1974), the Court of Appeals For the Fifth Circuit con-

Strued substantially identical language from the Clean

Air Act Amendments of 1970 and concluded:

“The phrase ‘shall comply with . . . State. . . require-

ments respecting control and abatement of air pollu-

tion to the same extent that any person is subject to

such requirements’ effectively conveys a Congressional

‘” intent that federal facilities are to be treated equally

t

27

with private facilities in the scheme of control estab-

lished by the Act. Recognizing that in particular

instances such treatment might prove inconsistent

with the national interest, the section provides for

executive exemption from any requirements.’

Similarly, the Court below herein ruled the language of

the Section 313, 33 U.S.C. §1323, waiver was sufficiently

clear and free from ambiguity and went on to state:

“Section 313 also requires federal agencies to comply

with state pollution control requirements ‘to the same

extent that any person is subject to such require-

ments.’ Hence, the extent of the federal agency com-

pliance duty can only be gauged from the type of

program that section 402 of the Act demands that

states institute for private dischargers.” California

v. EPA, 511 F. 2d 963, at 970 (9 CA, February 13,

1975).

Further, with respect to the nature and scope of the re

quirements imposed under Section 313, the Court of Ap-

peals For the Ninth Circuit concluded:

“TI]t would appear that the reference in Section 313

to federal agency compliance with state ‘require-

ments,’ was purposeful and artistic, and was meant

to refer to those requirements which state administra-

tive agencies might adopt under their express Section

402 authorizations.’ California v. EPA, supra, at 972.

The ability of Congress to employ broad and uncom-

promising language in waiving Federal Supremacy and

subjecting Federal facilities to State regulation was also

established in Baltimore National Rank v. State Tax Com-

mission, 297 U.S. 209 (1936). The issue presented in

PD PVSSGD ET

28

that case was the power of a State to tax shares in a na-

tional bank which were held by an instrumentality of the

Federal government. The Court held that the State did

have such a power, and based its holdings on the fact that

Congress had consented to this taxation by statute. The

language of this statute indicated that “all” the shares of

a national banking association whose principal place of busi-

ness is within the limits of a State are subject to taxation

at the discretion of that State’s legislature. From this,

the Court reasoned that shares held by an agency of the

Federal government were taxable. In the instant case,

the language of Section 313, 33 U.S.C. §1323, is even

more explicit in indicating the consent of Conress to waive

any insulation that a Federal facility might possess under

the Supremacy Clause. Section 313 expressly provides

that the Federal facilities are subject to local “require-

ments” in pollution matters. This is a clear and unequivo-

cal waiver of any Federal primacy under the Supremacy

Clause.

The application cf the Supremacy Clause is also in-

appropriate in this case because the regulations which Cali-

fornia and Washington seek to impose do not in any way

act to frustrate or thwart the application of Federal law,

but rather are in furtherance of and were adopted pursuant

to Federal law. In the case of Perez v. Campbell, 402 U.S.

637 (1971), this Court quoted with approval the standard

for determining whether a State statute was in conflict

With the Supremacy Clause first enunicicated in Hines v.

Davidowitz, 312 U.S. 52 (1941):

“ ‘Tn the final analysis,’ our function is to determine

whether a challenged state statute ‘stands as an

obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.” Perez v.

Campbell, supra, at 649.

See also: Florida Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963) ; Sears, Roebuck & Co. v. Stiffel Co.,

376 U.S. 224 (1964) ; Nash v. Florida Industrial Commis-

sion, 389 U.S. 235 (1967).

Applying the Hines test to the instant case, there is

no question that these requirements do not conflict with

Federal law since it is through the application of the

State programs for the issuance of National Pollutant

Discharge Elimination System permits that the objectives

and goals of the Federal Water Pollution Control Act are

to be obtained. In fact, it was at the specific direction of

Congress that these plans were formulated and adopted.

Under these circumstances, the Supremacy Clause is

clearly not a bar to this action to secure compliance with

the programs of California and Washington for the is-

suance of National Pollutant Discharge Elimination Sys-

tem permits.

Finally, the Supremacy Clause is inapposite in this

case because the States have been delegate.’ authority to

administer the requirements of the Federal Act. The water

pollution control programs of the States have not been

adopted sua sponte in the provincial exercise of police

powers, but rather in direct response to Federal require

ments and in order to qualify for the delegation of Federal

authority to administer a Federal Act. Such a delegation

of Federal authority in the administration of a Federal

Act was upheld in Stewart Machine Co. v. Davis, 301 U.S.

548 (1937). In that case, the States had been delegated au-

30

thority to administer the provisions of a Federal program of

unemployment insurance established under the Social Se-

curity Act of 1935, 42 U.S.C. §501-503. Similarly, the Fed-

eral Water Pollution Control Act, 33 U.S.C. $1251, et

seq., directs that authority to issue NPDES permits is to

be delegated to the States, providing the program operated

by the States meets all listed requisites. The Administra-

tor has found that the programs operated by the respond-

ents herein do meet the requirements of Section 402 of

the Act, 33 U.S.C. §1342, and yet has refused to suspend

his own authority as directed in Section 402(c), 33 U.S.C.

§$1342(c). There can be no violation of the Supremacy

Clause where, as here, Congress has explicitly authorized

State regulation of Federal installations under a Federal

Act. Despite the fact that the control programs are em-

bodied in State law, the permits issued through the opera-

tion of these programs are Federal permits within the Na-

tional Pollutant Discharge Elimination System and are

enforceable by the Administrator and the Federal Courts

as Federal requirements.

31

CONCLUSION

The failure of the Administrator to relinquish per-

mitting authority over the Federal agencies and installa-

tions discharging pollutants to navigable waters covered

by a State water pollution control program which has been

approved pursuant to Section 402(b) of the Act, 33 U.S.C.

§1342(b), deprives that State of its primary rights and

responsibilities to prevent and reduce water pollution and

to plan the development and use of land and water re-

sources within its jurisdiction. The Administrator’s act

is contrary to both the explicit language of the Act and

the policies which underlie it. Section 402(c), of the Act,

33 U.S.C. §1342(c), requires and mandates the Admini-

strator to suspend his issuance of permits where there its

an applicable State program approved under Section

402(b). The provisions of these programs for the issuance

of NPDES permits are certainly “requirements respect-

ing control and abatement of pollution” within the mean-

ing of Section 313 of the Act, 33 U.S.C. §1323. Section

313, therefore, obligates the agencies of the Federal gov-

ernment to comply with the requirements of these pro-

grams just as if they were private citizens, and to the same

extent. Operation of a successful program to clean up

the waters of any State requires that the administering

body have contro] over every point source discharge into

those waters. It was the intent of the Congress that the

States and not the Administrator were to be primarily

responsible for achieving this goal. The Administrator’s

action thwarts the well and carefully conceived plan of

the Congress and poses an obstacle and hindrance to the

effective and efficient implementation of the Federal Water

Pollution Control Act of 1972.

32

For these and the foregoing reasons, the Judgment

of the United States Court of Appeals For the Ninth

Circuit should be affirmed.

Dated: SEPTEMBER 30 _ 1075,

Respectfully Submitted,

W. HANCOCK

ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

DAVID C. SHORT

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

DAVID D. BEALS

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

Room 26, Capitol Building

Frankfort, Kentucky 40601

Telephone: (502) 564-3594

. ARTHUR K. BOLTON

' ATTORNEY GENERAL

' STATE OF GEORGIA

132 Judicial Building

Atlanta, Georgia 30334

Telephone (404) 656-4585

|

CO ie a Re

33

RONALD Y. AMEMIYA

ATTORNEY GENERAL

STATE OF HAWAII

WILLIAM J. BROWN

ATTORNEY GENERAL

STATE OF OHIO

State Office Tower

30 East Broad Street

Columbus, Ohio 43215

Telephone (614) 466-3376

WILLIAM M. EICHBAUM

DEPUTY SECRETARY FOR

ENFORCEMENT AND GENERAL

COUNSEL PENNSYLVANIA

DEPARTMENT OF

ENVIRONMENTAL RESOURCES

614 Executive House

Post Office Box 2357

101 South Second Sreet

Harrisburg, Pennsylvania 17120

Telephone (717) 787-7060

COUNSEL FOR AMICI CURIAB

COMMONWEALTH OF KENTUCKY,

STATE OF GEORGIA, STATE OF

HAWAII, STATE OF OHIO, AND

COMMONWEALTH OF

PENNSYLVANIA

34

CERTIFICATE OF SERVICE:

The undersigned hereby certifies that the herein

BRIEF OF THE COMMONWEALTH OF KEN-

TUCKY, STATE OF GEORGIA, STATE OF

HAWAII, STATE OF OHIO, AND COMMON-

WEALTH OF PENNSYLVANIA AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS was served by

mailing three copies hereof, via United States Mail, air

mail, postage prepaid, to: Honorable Robert H. Bork,

Solicitor General, Department of Justice, Tenth and Con-

Stitution Avenue, Washington, D.C., 20530; Honorable

A. Raymond Randolph, Jr., Deputy Solicitor General, De-

partment of Justice, Tenth and Constitution Avenue,

Washington, D.C., 20530; Honorable Wallace H. John-

son, Assistant Attorney General, Land and Natural Re-

sources Division, Department of Justice, Tenth and Con-

stitution Avenue, Washington, D.C., 20530; Honorable

Edmund B. Clark, Attorney, Department of Justice, Tenth

and Constitution Avenue, Washington, D.C., 20530;

Honorable Raymond N. Zagone, Attorney, Department

of Justice, Washington, D.C., 20530; Honorable Raymond

W. Mushai, Attorney, Department of Justice, Washing-

ton, D.C., 20530; Honorable Robert V. Zener, General

Counsel, Environmental Protection Agency, Fourth and

M Streets, S. W., Washington, D.C., 20460; Honorable

Evelle J. Younger, Attorney General, State of California,

Honorable Roderick Walston, Deputy Attorney General,

State of California, Honorable Richard C. Jacobs, Deputy

Attorney General, State of California, and Honorable Carl

Boronkay, Assistant Attorney General, State of Califor-

nia, 6000 State Building, San Francisco, California, 94101;

Honorable V. Frank Mendicino, Attorney General, State

55

of Wyoming, 210 State Capitol, Cheyenne, Wyoming,

82001, and Honorable Maryland S. Kite, Special Assistant

Attorney General, State of Wyoming, Attorney General

Office, 210 State Capitol, Cheyenne, Wyoming, 82001;

Honorable Bronson C. LaFollette, Attorney General, State

of Wisconsin, Department of Justice, State Capitol, Madi-

son, Wisconsin, 53702; Honorable John J. Hill, Attorney

General. State of Texas, Supreme Court Building, Austin,

Texas, 78711; and Circuit Judge Eugene A. Wright, Cir-

cuit Judge Herbert Y. C. Choy, and Judge Burns, United

States Court of Appeals For the Ninth Circuit, San Fran-

cisco, California, 94101, and further the undersigned

hereby certifies that all parties required to be served in

this action have been served, all this the 30 day of

September, 1975.

COUNSEL FOR AMICI CURIAE

COMMONWEALTH OF KENTUCKY,

STATE OF GEORGIA, STATE OF

HAWAII, STATE OF OHIO, AND

COMMONWEALTH OF

PENNSYLVANIA

By: an *

DAVID C. SHORT

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

Yi, Poe i Rahn

DAVID D. BEALS ;

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

By: