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

Supreme Court, U. &. |

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OCT 9 1975

IN TRE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 74-1435

TRR ExvmonMeEntTAL Protection Acency, et al.,

Petitioners,

v.

Prorte or THE SrarE or CALAroRNIA ex rel. State WATER

Resources Cox ROL. Boarp AND State oF WasHINGTON, et al.,

Respondents.

Ox Warr or CERTIORART To THE Unrrep States Court or

APPEALS FOR THE NintH Circuit

BRIEF OF STATES OF NEW YORK, FLORIDA,

AND MINNESOTA AS AMICI CURIAE

Louis J. LerKow1tTz

Attorney General of the

State of New York

Attorney for State of

New York, Amicus Curiae

2 World Trade Center

New York, New York 10047

Tel No. (212) 488-7561

Samvue.t A. HmSROwrrz

First Assistant Attorney General

Pum WEINBERG

Ricuarp G. BERGER

Assistant Attorneys General

Of Counsel

SNS ss

TABLE OF CONTENTS

PAGE

BIE Ge GO en. eee 1

Summary of Argument ........... paves oceccceeces 3

Point I—The Federal Water Pollution Control Act

does not exempt federal sources of pollutant dis-

charges from compliance with federally-approved

state permit procedures for control and abate-

ment of water pollution ........... a 5

Por II— Compliance by federal instrumentalities

which are sources of water pollution with feder-

ally-approved state discharge permit require-

ments does not violate the Supremacy Clause or

the Plenary Powers Clause of the Constitution.. 13

rr WAA 17

Taste or Cases

Alabama v. Seeber, 502 F.2d 1238, 1245 (1974), cert.

. ee 9,10

Brown v. Environmental Protection Administration,

et al., —— F. 2d ——, 8 E. R. C. 1053 (9th Cir.

r eee 14

Getty Oil v. Ruckelshaus, 342 F. Supp. 1006, 1017

(D.C. Del. 1972), mod. on other grounds 467

F. 2d 349, cert. denied 409 U.S. 11255. 16

Kentucky ex rel. Hancock v. Train, No. 74220 3,13

Mayo v. United States, 319 US. 441, 44 15

ii TABLE OF CONTENTS

PAGE

Tcherepnin v. Knight, 389 US. 332, 336 ............ 8

United States v. Republic Steel Co., 362 US. 482 6

United States v. Netfert-White Co., 390 U.S. 228, 232 8

Walla Walla v. Walla Walla Water Co., 172 US. 1,

. . CE 10

Statutes Crrep

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Federal Water Pollution Control Act, 33 U S. C.

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TABLE OF AUTHORITIES iii

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New York Environmental Conservation Law

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Water Pollution Control Act, Pub. L. 80-845, 62 Stat.

1155 (formerly 33 U.S.C. $§ 1151 et seq.) 5 1 6

1899 Rivers & Harbors Act, 30 Stat. 1152, 33 U.S.C.

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iv TABLE OF CONTENTS

PAGE

UNITED STATES CONSTITUTION

III e es 60 4, 13

anl. cdcven eee 600 000 4, 13, 16

Tenth Amendment. eee 14

OTHER Avurnoarrms

A Legislative History of the Water Pollution Control

Act Amendments of 1972, Vol. 1, 1973 Serial No.

... . „%s eee eee 14

Senate Report U nccacsceneenial bbs 9

In THE

Supreme Caurt of the Anited States

OCTOBER TERM, 1975

No. 74-1435

4

*

Tae EN WOW WrAL. Prorecrion Acency, et al.,

Petitioners,

v.

Prorln or THE Strate or CaLAronxwIA ex rel. Stare Warn

Resources Cow rROL Boarp AND State or WasHinoToy, et al.,

Respondents.

Ox Wait or Ceatiornagi To THE Untrep States Court or

APPEALS FoR THE Nintu Circuit

4

ww

BRIEF OF STATES OF NEW YORK, FLORIDA,

AND MINNESOTA AS AMICI CURIAE

Interest of Amicus

New York, as other states, has cooperated with the fed-

eral government in its efforts to abate water pollution.

Pursuant to the Federal Water Pollution Control Act

Amendments of 1972, 33 U.S.C. $1251 et seq. (the Act

or ‘‘FWPCAA’’), New York State enacted legislation de-

signed to allow it to administer its own discharge permit

system. New York Environmental Conservation Law,

2

Article 17, Titles 7 and 8. New York law specifically refers

to the federal law in defining its purpose (E.C.L. §17-

0801) and its terms (E.C.L. § 17-0807).

The 1972 Amendments prohibit the discharge of pollu-

tants into the navigable waters of the United States as

defined in the statute, 33 U.S.C. § 1311 (a), unless a permit

is obtained from the U.S. Environmental Protection

Agency (‘‘EPA’’), 33 U.S.C. §1342(a). However, the

Amendments allow the delegation of permit system powers

to any State whose laws and regulations comply with the

requirements of federal law. 33 U.S.C. §1342(b). New

York believes it will soon take over the responsibility of

—— istering the pollutant elimination system within its

rders.

New York considers it essential that it have full control

over the quality of water within its boundaries when it

takes over such responsibility under the Act. Only then

can it exercise its constitutionally protected police powers

to protect the health and welfare of its citizens. The Ad-

ministrator of the U.S. Environmental Protection Agency

proposes that the State permit program exclude all federal

sources of pollutant discharges and that they be subject to

no permit program. 40 C.F.R. 125.2(b). The New York law

which sets up a State Pollutant Discharge Elimination

System, E.C.L. Article 17, Titles 7 and 8, makes no dis-

tinctions between types of polluters; all are required to

obtain permits. If federal facilities were held to be ex-

empt from State permits, the State could not assure water

quality standard maintenance in any stream which a fed-

eral facility was polluting. Located within New York

State are Army, Navy, Coast Guard and Air Force in-

stallations, including West Point, Governor’s Island and

Griffiss Air Force Base, as well as numerous other federal

facilities. Similarly, the States of Florida and Minnesota

have many federal pollution-causing installations. Con-

trol of discharges from these sources is essential to clean

water in New York and other states.

_

New York has already filed a brief with this Court as

amicus curiae in a case which presents the same question

with reference to the federal Clean Air Act, 42 U.S.C.

§$1857f. Kentucky ex rel. Hancock v. Train, No. 74-220.

Summary of Argument

I. The Court of Appeals correctly held that federal

facilities which are sources of water pollution must comply

with state permit procedures established pursuant to the

Federal Water Pollution Control Act Amendments of 1972,

33 U.S.C. § 1251 et seq. The Act was passed by Congress

to rid the nation of a major national disgrace, the sys-

tematic pollution of our waters by both public and private

dischargers. It established a comprehensive program of

federal and state cooperation in the cleanup effort. Peti-

tioners’ argument that federal facilities which are sources

of pollutant discharges are exempt from state pollutant

discharge elimination permit requirements is contrary to

the clear wording of the Act.

Federal policy on water pollution abatement has con-

sistently recognized the States’ “primary responsibilities”

in this area, and that policy is continued in the present

Act. 33 U.S.C. 5 1251 (b). The FWPCAA requires all

dischargers of pollutants to obtain a permit delineating the

amount of pollutants they may discharge. 33 U.S.C. § 1342

(a). The Administrator of EPA must delegate his au-

thority to issue permits to any state that has a permit

program which meets the Act’s requirements. 33 U.S.C.

§ 1342(c) (1).

Petitioners claim that federal facilities are free to ignore

state administrative procedures for water quality control,

but admit that they must meet state-applied substantive

effluent limitations. But the clear language of 33 U.S.C.

§ 1323 requires that federal water polluters comply with

state “requirements respecting control aud abatement of

4

pollution to the same extent that any person is subject to

such requirements, including reasonable service charges.’’

The term “requirements’’ is used throughout the Act as a

generic term and must be given its ordinary, broad mean-

ing. It clearly does not mean just “effluent limitations,”

as petitioners argue.

In two sections of the Act (§ 1316 and § 1318) Congress

specifically prohibited the Administrator from delegating

certain of his powers over federal facilities. If Congress

had chosen to exempt federal facilities from state permits,

it would have done so in a similar manner.

In practice, it is virtually impossible for states to set

substantive effluent limitations on federal polluters with-

out the administrative procedures used in the permit

process. Exempting federal facilities from state permits

effectively exempts them from any effiuent limitations.

The language of 33 U.S.C. § 1323 which requires federal

facilities to pay “reasonable service charges” is further

evidence that Congress intended them to be subject to state

permit programs. The term “service charges’’ refers to

permit charges as well as sewer hook-up charges.

Once a state permit program is certified by the Ad-

ministrator, he caa no longer issue permits in that state.

33 U.S.C. §1342(¢e)(1). If federal facilities were exempt

from state permits as well, they would be unregulated.

Even if the Administrator were to attempt to continue to

issue permits to federal facilities in a certified state, the

states would be precluded from setting more stringent

limitations than those required by the Act for federal facil-

ities. This would violate 33 U.S.C. 4 1320, which specifically

says that states are not preempted from setting more

stringent standards.

II. Petitioners argue that subjecting federal facilities to

state permit procedures would violate the Supremacy

Clause and the Plenary Powers Clause of the Constitution.

On the contrary, the thrust of the Act as a whole is to

expand federal authority into areas which were formerly

the domain of the states. States are preempted from

issuing discharge permits with less stringent requirements

than those of the Act. 33 U.S.C. § 1370. Delegation of per-

mit authority from the Administrator can only be made

if a state has an approvable program to control water

pollution. 33 U.S.C. § 1342. Even after certification of a

state permit program, much of the standard-setting author-

ity remains with the Administrator. Congress, recognizing

this, gave the states the primary responsibility for en-

forcement of the Act, including the enforcement against

federal enclaves.

Congress fully protected federal facilities from the im-

position of any unreasonable state requirements. Section

1323 allows the President to exempt any facilities from the

requirements of the Act “if he determines it to be in the

paramount interest of the United States to do so.”

Congress has specifically authorized state regulation of

federal facilities in 33 U.S.C. 4 1323, meeting the test de-

seribed in Mayo v. United States, 319 U.S. 441, 448, that

Congress ‘affirmatively declare“ a federal instrumentality

subject to state regulation. Since violation of a state per-

mit program is a violation of federal as well as state law,

the Supremacy Clause does not absolve federal facilities

from compliance.

POINT I

The Federal Water Pollution Control Act does not

exempt federal sources of pollutant discharges from

compliance with federally-approved state permit pro-

cedures for control and abatement of water pollution.

In 1972, Congress enacted the Federal Water Pollution

Control Act Amendments, 33 U.S.C. 5 1251 et seq., eul-

minating years of endeavor in designing environmental

legislation to meet the awesome problems of contamination

of our nation’s waterways. The Act established a system

of federal-state cooperation with the goal of elimination

of pollutant discharges into the waters of the United States

by 1985. 33 U.S.C. § 1215(a)(1).

Petitioners here maintain that despite the clear man-

date of the FWPCAA, federal facilities need not comply

with state permit procedures for the discharge of pollutants

into state waters, even though those same facilities con-

cededly must meet state-applied effluent discharge limita-

tions. The fallacy of this argument is evident not only

on its face but from examination of the Act as a whole.

Federal efforts towards controlling water pollution date

back to the 1899 Rivers and Harbors Act, 30 Stat. 1151,

1152, 33 U.S.C. §§ 401 et seq., which originally was applied

to obstructions to navigation and was later applied to dis-

charge of pollutants. United States v. Republic Steel Co.,

362 U.S. 482. In 1948, the Water Pollution Control Act,

62 Stat. 1155 (formerly 33 U.S.C. & 1151 et seq.) was

enacted, declaring (§ 1)

“the policy of Congress to recognize, preserve and pro-

tect the primary responsibility of the states in con-

trolling water pollution.“

This policy has been preserved through successive amend-

ments of the 1948 Act into its present form. See 33 U.S.C.

§ 1251(b). While it has been the trend of federal legisla-

tion to progressively involve the federal government more

deeply in pollution control, in the 1972 Amendments Con-

gress continued to rely upon the states as the primary

agents in the fight to clean our waters.

The Act sets up a National Pollutant Discharge Elimina-

tion System (“NPDES”) which requires every person!“

The term person is defined in 33 U.S.C. § 1362(5) to mean

an individual, corporation, partnership, association, state, munic-

ipality, commission, or political subdivision of a State, or any in-

terstate body.” In 33 U.S.C. § 1323 each federal facility is re-

quired to comply with “Federal, State, interstate and local re-

quirements respecting control and abatement of pollution to the

same extent that any person is subject to such requirements

7

who discharges pollutants into any navigable body of water

to obtain a permit. 33 U.S.C. 55 1311, 1342(a)(1). The

NPDES permit must contain effluent limitations“ required

by 5 1311 for point sources,’ which will allow the attain-

ment or maintenance of applicable water quality standards

by July 1, 1977. 33 U.S.C. 5 1312. In most cases, water

quality standards will be those already set by states (33

U.S.C. § 1313), so long as they conform to the requirements

of the Act of “protection of public water supplies, agricul-

tural and industrial uses, and the protection and propaga-

tion of a balanced population of shellfish, fish and wildlife,

and to allow recreational activities in and on the water.

. . . 33 U.S. C. $1312(a).

The Administrator is required to delegate his powers to

issue permits to any state that has adequate authority to

conduct its own permit system, 33 U.S.C. 5 1342 (b), and

that has approved water quality standards. 33 U.S.C.

§ 1313. Thus, both ambient“ water quality and point

source standards will ultimately be under state control.

The sole question before this Court involves the division

of authority under the Act between the states and federal

government with respect to federal facilities. Petitioners

here claim that even after permit program (NPDES) pow-

ers of the Administrator have been delegated to the states,

federal facilities need not comply with what they term

“administrative” state permit procedures. Petitioners at

the same time admit that federal facilities must comply

with state applied point source effluent limitations.‘

2 An ‘‘effluent limitation is a restriction in the discharge of

pollutants from a point source. 33 U.S.C. § 1362(1).

A point source is any ‘‘discernible, confined and discrete’’

source from which pollutants may be discharged. 33 U.S.C. § 1362

(4).

*40 C.F.R. 125.2 (b), a regulation of the Administrator pur-

suant to the FWPCAA, imposes this interpretation of the Act on

states seeking approval of their permit programs.

Central to this question is 33 U.S.C. 4 1323, which states:

“Each department, agency, or instrumentality of the

executive, legislative, and judicial branches of the Fed-

eral Government (1) having jurisdiction over any

property or facility, or (2) engaged in any activity

resulting, or which may result in the discharge or run-

off of pollutants shall comply with Federal, State, in-

terstate, and local requirements respecting control and

abatement of pollution to the 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 instrumentality in the executive branch from com-

pliance 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 1316 or 1317 of this

title. No such exemptions shall be granted due to lack

of appropriation unless the President shall have spe-

cifically requested such appropriation as a part of the

budgetary process and the Congress shall have failed

to make available such requested appropriation. * * *”

Congress has here declared, in as clear language as pos-

sible, that federal facilities are not above the law, and that

they must comply “with Federal, State, interstate and local

requirements respecting control and abatement of pollution

to the same extent that any person is subject to such re-

quirements, including the payment of reasonable service

charges. This court should give this statute enacted for

the protection of the public health a generous construc-

tion consistent with its plain and clearly-expressed mean-

ing. United States v. Neifert-White Co., 390 U.S. 228, 232;

Tcherepnin v. Knight, 389 U.S. 332, 336.

Congress specifically expressed dismay at the failure of

the Federal government to lead the effort in pollution

<=

abatement. Accordingly, Federal compliance with the new

Act was strongly spelled out.

“Evidence received in hearings [on the FWPCAA]

disclosed many incidents of flagrant violations of air

and water pollution requirements by Federal facilities

and activities. Lack of Federal leadership has been

detrimental to the water pollution control effort. The

Federal Government cannot expect private industry to

abate pollution if the Federal Government continues

to pollute. This section requires that Federal facili-

ties meet all ontrol requirements as if they were pri-

vate citizens.” Senate Report No. 92-414, p. 66 (em-

phasis added)

Beyond the clear language of § 1323, petitioners’ inter-

pretation of the Act does not comport with its terms or

overall design. They argue that the term “requirements”

refers only to effluent limitations and not to administrative

procedures such as state permits. This procedure-sub-

stan, dichotomy which petitioners seek to employ has

beer. denounced as a “semantical red herring” in reference

to the almost identical language in the Clean Air Act. 42

U.S.C. §1847f. Alabama v. Seeber, 502 F. 2d 1238, 1245

(1974), cert. pending No. 74-851. The term “requirements”

is used throughout the Act to refer to both effluent limita-

tions and administrative procedures. It is clearly not a

term of art—nowhere is it defined in the Act. Rather,

it is a generic term, to be given its ordinary meaning. If

Congress had wanted to restrict its meaning, it would have

referred to “effluent limitations.“ In 8 1342(b), the sec-

tion dealing with state permit systems, “requirements” is

used in reference to 44 1311 and 1312 which deal with ef-

fluent limitations [33 U.S.C. § 1342(b)(1)(A)] ; and also in

reference vo § 1318 of the statute, which deals with inspec-

tion, monitoring aud entry [33 U.S.C. §1342(b)(2)]. In

* Defined in 33 U.S.C. § 1362(11).

10

§ 1314(h), ‘‘requirements’’ is used to describe forms for the

gathering of “information from owners and operators of

point sources of discharge’’ subject to state permit proce-

dures. In light of the generalized usage of the term

throughout the Act, petitioners’ assertion that “require-

ments” in § 1323 means only “effluent limitations” is il-

logical and totally unwarranted by any language of the Act

or its intent.

In several sections of the Act, Congress expressly pro-

hibited the Administrator from delegating his authority to

regulate federal facilities. In 4 1316, new federal facilities

are exempted from state-applied new source standards of

performance, and in 5 1318 all federal facilities are ex-

empted from state inspection, monitoring and entry re-

quirements. Petitioners point out these specific exceptions

in support of their argument, maintaining that states are

barred from devising acceptable permit programs for fed-

eral facilities under & 1342(b) (Pet. Brief pp. 27-28). Quite

to the contrary, the doctrine of expressio unius est exclusio

alterius applies. Walla Walla v. Walla Walla Water Co.,

172 U.S. 1, 22. These exceptions show that Congress specif-

ically exempted federal facilities where it sought to do so,

and it therefore must be taken that if Congress had also

desired to exempt them from state permit procedures, it

would have done so. See Alabama v. Seeber, supra, 502 F.

2d at 1244. And merely because states are precluded from

the right to inspect, monitor or enter federal point sources,

it does not follow that states may not subject them to their

permit procedures. Such a suggestion would run counter

to the very purpose of a pollutant discharge elimination

system.

The employment of a permit system drastically eases

the administrative burden upon a regulatory agency. All

dischargers of pollutants are thereby required to come for-

ward with data showing what their effluents contain and

how much, what their processes are, and what technology

is available to reduce or eliminate effluents. From all this

— —

ll

data, as well as water quality standards, the permit agency

can decide what effluent limitations shall apply to a par-

ticular point source. Without such an obligation on pol-

luters, it would be virtually impossible to apply effluent

limitations. What petitioners in essence are arguing, sub

silentio, is fur federal sources to be exempt from effluent

limitations as well. All the specific exemptions of 5 1316

and 1318 mean is that once a state sets effluent limitations

for a federal source, only the federal EPA can enter to in-

spect and monitor the facility. Significantly, federal facili-

ties are not exempted from the requirements of § 1318 to

report their discharges, maintain records of them which

are correlated to effluent limitations ( applied by states)

and to make these reports public. 33 U.S.C. § 1318(a)(A)

and §1318(b). Thus state or public enforcement against

federal facilities was not intended by Congress to be

precluded.

The language of $1323 also subjects federal facilities

to state or local service charges. Petitioners here offer

& narrow reading of this term, to mean sewer system user

charges. However, as the court below found in rejecting

this contention, sewer charges may presently be levied by

a local government on a federal facility. 511 F. 2d 969,

970. Also, assuming for argument that “requirements” in

§ 1323 only meant effluent limitations, the phrase ‘‘inelud-

ing reasonable service charges’’ would be a non sequitur.

Id. There are no charges for effluent limitations. Since

the cost of processing a permit application is quite high,

Congress most likely intended for states to be reimbursed

for such costs by federal facilities in permit application

charges. The term ‘‘service charges“ is nowhere else used

in the statute and it should be given its broad, generic

meaning, consistent with the clearly-expressed need to

purify the Nation’s waterways, so as to include both sewer

charges and permit charges.

Denying states the power to issue permits to federal

facilities would leave them totally unregulated, an event

12

clearly obnoxious to the intent of Congress. Section 1342

(e) (J) of the statute provides that within ninety days after

a state submits an approvable permit system program to

the Administrator, he shall suspend the issuance of per-

mits under subsection (a) of this section (NPDES per-

mits) ....’’ 33 U.S.C. 5 1342 (e) (1). In other words, the

Administrator could no longer issue permits within the

boundaries of the state. Accordingly, if the states were

unable to issue a permit to federal facilities, no efuent

limitations whatever could be imposed upon their dis-

charges. Even petitioners concede (Pet. Brief p. 18) that

such an eventuality would be inconsistent with the Act.

Petitioners’ argument assumes that somehow the states

would apply effluent limitations to federal facilities and

those would be made effective by NPDES permits issued

by the Administrator. We have already shown why this

hypothetical process is not practicable; legally it would

be impossible. Under § 1370 of the Act, states may enforce

(A) any standard or limitation respecting discharges of

pollutants, or (B) any requirement respecting control and

abatement of pollution“ so long as it is at least as

stringent as those required by this Act. Thus a state may

choose to enforce more stringent requirements on polluters

than the Administrator would require, but without permit

authority, would be unable to effectuate those stricter

standards against federal facilities. As the court below

indicated,

some federal agencies may in fact be refusing in

certain instances to comply with water quality stand-

ards established by state administrative boards.“ App.

A, pp. 7a-8a, see n. 2.

**. . « [T]he practical effect of reading Section 313

(51323) so as to compel only ‘substantive’ federal

agency compliance would be to render state permit

programs ineffectual as to those dischargers, both sub-

stantively and procedurally.“ App. A, pp. 26a-27a.

13

The Court of Appeals’ determination below draws

much support from the Clean Air Act Amendments of

1970, 42 U.S.C. § 1857, which were the precursor, in de-

sign, of the FWPCAA. The Clean Air Act contains a

section exactly analogous to the provision now in question

in the Water Act (Compare 33 U.S.C. § 1323 (Water

Act), and 42 U.S.C. & 1857f (Air Act) ], which is also before

this Court for final determination of its meaning. Ken-

tucky ex rel. Hancock v. Train, No. 74-220. Both Acts

create a federal system for the control of pollution and

place the heavy burden of enforcement mainly upon the

States. While the Acts have some significant differences,

a reading of one will assist the Court in interpreting the

other. See Brief of the Attorney General of the State of

New York as Amicus Curiae in No. 74-220.

POINT Il

Compliance by federal instrumentalities which are

sources of water pollution with federally-approved

state discharge permit requirements does not violate

the Supremacy Clause or the Plenary Powers Clause

of the Constitution.

The petitioners in their brief recite in sober terms the

supposed violence which would be done to our federal sys-

tem of government if states were allowed permit authority

over the discharge of pollutants from federal enclaves,

They cite the Supremacy Clause (Art. VI, cl. 2) and the

Plenary Powers Clause (Art. I, § 8, el. 17) and numerous

court decisions as evidence of the long tradition of federal

immunity from state control.

In fact, the gloss of state intrusion into the federal

prerogative which petitioners urge is no more than an il-

lusion. Actually, the Act is an example of ‘‘new federal-

ist“ legislation, which extends federal authority into areas

traditionally of state concern. While the Act’s preamble

14

states that water pollution is primarily a state concern, 33

U.S.C. F 1251(b), the thrust of the Act is to create a Fed-

eral system for controlling water pollution until a state per-

mit program, devised according to the Act, is approved by

the Administrator of EPA. 33 U.S.C. § 1342. Even under

an approved state program, the quality of waters within a

state must meet federally-approved standards, 33 U.S.C.

§ 1313(a)(2), and point sources are required to utilize fed-

erally-specified control technology. 33 U.S.C. §1314(b).

States are preempted from setting less stringent standards

than those required by the Act. 33 U.S.C. § 1370.

The legislative history of the Amendments makes clear

that many Congressmen were sensitive to the extension of

the federal domain to areas formeriy regulated by the

states. See the remarks of Reps. Blatnik (pp. 335-356),

Jones (pp. 358-359) and Kluczynski (p. 363) in A Legisla-

tive History of the Water Pollution Control Act Amend-

ments of 1972,“ Vol. 1, 1973, Serial No. 93-1. The states

were given the major administrative burden under the Act

because Congress recognized the importance of state and

local involvement to the achievement of the Act’s goals.

States were given the primary responsibility for enforce-

ment of the Act, including enforcement against federal en.

claves. See Brown v. Environmental Protection Adminis-

tration, et al., —— F. 2d ——, 8 E.R.C. 1053 (9th Cir.

1975), concluding that the Clean Air Act Amendments of

1970, the precursor in form to the FWPCA Amendments,

would violate 10th Amendment principles if interpreted to

impose sanctions upon a non-complying state. The provi-

sion interpreted, 42 U.S.C. § 1857e-S(a) (2), in the Clean

Air Act is the analogue of 33 U.S.C. §1319(a)(2) in the

FWPCAA.

Nor can the spectre of unreasonable state permit require-

ments forcing the closing of a federal facility be realisti-

cally raised here. Section 1323 of the FWPCAA specifi-

cally allows the President to exempt any federal effluent

—

15

source from compliance with state requirements “if he de-

termines it to be in the paramount interest of the United

States to do so.” This provision is intended to be used in

extraordinary circumstances, however, and the President

may only exempt a source for one year at a time. Certainly

most federal sources will be required to comply, as they

should be. Their efforts to meet state-determined effluent

limitations will surely be more burdensome than compli-

ance with state administrative regulations. Thus the ar-

gument of state-imposed burdens on federal facilities which

violate the Supremacy Clause is of no merit.

Moreover, any state permit procedures which will apply

to federal facilities are authorized by Congress and are, in

effect, federal law. As the court below stated,

„It is of course well established that Congress may

waive exclusive jurisdiction over the activities of Fed-

eral enclaves in deference to State regulation of those

activities, at least so long as in doing so it does not

undermine its ultimate legislative control over these

areas.’’ (Citations omitted.) App. A, p. 10a.

In Mayo v. United States, 319 U.S. 441, 446, this Court

held that ‘‘[i)t lies within the Congressional power to au-

thorize regulation, including taxation, by the state of fed-

eral instrumentalities. Under the FWPCA Amendments,

the states act as agents of the federal government and are

explicitly given the authority to regulate federal facilities.

Section 1323 provides that federal agencies must comply

with state requirements 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. This provision fully satisfies the test in

Mayo, supra, 319 U.S. at 448, that Congress ‘‘affirmatively

declare’’ federal instrumentalities subject to state regula-

tions. See decision below, App. A, p. 10a.

Finally, the refusal of federal instrumentalities to com-

ply with a state permit program is a federal offense. The

16

Administrator, upon approving a state permit program,

delegates all of his permit-granting authority within that

state and part of his enforcement powers. He retains con-

current jurisdiction to enforce any standards contained in

state permits. 33 U.S.C. §1319(3). If the violations of

state permits were not violations of federal law as well as

state law, the Administrator would have no authority to

enforce them. (See Getty Oil v. Ruckelshaus, 342 F. Supp.

1006, 1017 (D.C. Del. 1972), mod. on other grounds 467 F.

2d 349, cert. denied 409 U.S. 1125, which held violations of

state Clean Air Act plans are federal offenses enforceeble

by the Administrator).

The FWPCA Amendments provide that a citizen may

sue to enforce “an effluent standard or limitation under

this chapter... .” 33 U.S.C. § 1365 (a) (1). These “effluent

standard[s] or limitation[s]’’ are to be determined by a

state after its program is certified. Yet even then, juris-

diction of such actions is conferred upon the federal dis-

trict courts and is considered a federal question. The re-

fusal of a federal facility to comply with state permit regu-

lations would violate federal law, and the Supremacy

Clause would not absolve it from compliance. |

Unless the judgment of the Court of Appeals is affirmed,

the states will be paralyzed from protecting the purity of

their waterways from discharges by federal instrumentali-

ties. This would create a double standard which Congress

never envisaged, under which the same acts of non-com-

pliance which could result in fines and penalties for a pri-

vate polluter or a state or municipal agency would be,

under legislation enacted by Congress, immune from per-

mit regulation if caused by federal agencies. That double

standard would severely hamper enforcement of water-

quality legislation and discourage others from compliance.

Nothing in the Act or the Constitution compels such an

anomalous result.

17

CONCLUSION

The judgment of the Court of Appeals snould be

affirmed.

Dated, New York, October 6, 1975.

Respectfully submitted,

Louts J. Lerxowrrz

Attorney General of the

State of New York

Attorney for State of

New York, Amicus Curiae

2 World Trade Center

New York, New York 10047

Samvuet A. Hmsnowrrz Tel. No. (212) 488-7561

First Assistant Attorney General

Pamir WEINBERG

Ricuarp G. BRA

Assistant Attorneys General

Of Counsel

Nore: Charles Harak, Legal Assista also —— in

the preparation of this brief.

Susscrisrne States

The following Attorneys General, on behalf of their re-

spective States, join as amici curiae in support of the

States of California and Washington, and subscribe to this

brief.

Rosert L. SHevin

Attorney General of Florida

State Capitol

Tallahassee, Florida 32304

Warren Sraxxaus

Attorney General of Minnesota

Perer W. Srexins

Solicitor General

EL Dbox G. Kavi

Assistant Attorney General

102 State Capitol

St. Paul, Minnesota 55155