Appendix — Minnesota, Etc. v. Clifford L. Alexander, Secretary of the Army

Supreme Court, U.

FILED

JAN 26 1977

In THE

Supreme Court of the United

October Term, 1976

3 76-1030

STATE OF MINNESOTA, by its Attorney General

| WARREN SPANNAUS, and its

POLLUTION CONTROL AGENCY,

AEL RODAK, JR.,

Appellant,

vs.

N MARTIN R. HOFFMAN, Secretary,

DEPARTMENT OF THE ARMY, et al.,

Appellees.

ON APPEAL FROM, AND PETITION FOR CERTIORARI TO,

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

APPENDIX

WARREN SPANNAUS

Attorney General

State of Minnesota

RICHARD B. ALLYN

Solicitor General

ELDON G. KAUL

Assistant Attorney General

WILLIAM P. DONOHUE

JAY M. HEFFERN

Special Assistant

Attorneys General

1935 West County Road B2

Roseville, Minnesota 55113

Telephone: (612) 296-7842

Attorneys for Appellant

224-7658 — Review Publishing Co., 287 E Gth St, St. Parl, Mis. SSI — 278

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APPENDICES

PAGE

A Complaint, dated April 17, 197ꝶꝶũ/ tei 4-1

B District Court’s Opinion, dated October 9, 1975 A-11

C Eighth Circuit Court of Appeals’ Opinion,

dated October 28, 1976 A-24

D(1) Judgment of Eighth Circuit Court of .

dated October 28, 1976 A 45

D(2)

Notice of Appeal to the United States Senses

Court (State of Minnesota), dated January 7, 1977. A-46

E Article VI, Clause 2, United States Constitution

(Supremacy Clause) , A-47

F(1) Federal Water Pollution Control Act

Amendments of 1972, Section 101 : A-48

F(2) Federal Water Pollution Control Act

Amendments of 1972, Section 313 A-50

F(3) Federal Water Pollution Control Act

Amendments of 1972, Section 402 ............... A-51

F (4) Federal Water Pollution Control Act

Amendments of 1972, Section 404 A-58

F(5) Federal Water Pollution Control Act

Amendments of 1972, Section 502 A-59

F(6) Federal Water Pollution Control Act

Amendments of 1972, Section 510 A-63

F(7) Federal Water Pollution Control Act

Amendments of 1972, Section 511 . A-63

G(1) Minn. Stat. §115.01 . 2 A-65

G(2) Minn. Stat. 5115.00 A-68

G(8) Minn. Stat. 5115.45 <a A-75

G(4) Minn. Reg. WPC 15 Cay A-76

G(5) Minn. Reg. WPC 25 6 A-108

A-1

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

STATE OF MINNESOTA, by its Attorney General,

WARREN SPANNAUS, and its Pollution Control Agency,

Plaintiff,

vs.

Howard H. Callaway, Secretary

Department of the Army;

Corps of Engineers

Department of the Army;

Lt. Gen. William C. Gribble

Chief of Engineers

Department of the Army; and

Colonel Max Noah

District Engineer

Corps of Engineers,

Defendants.

COMPLAINT

The State of Minnesota, by its Attorney General, Warren

Spannaus, at the request of the Minnesota Pollution Control

Agency, for its complaint herein states and alleges as follows:

INTRODUCTION

1. This is an action for a declaratory judgment, com-

menced pursuant to 28 U.S.C.A. 52201 (1959) to determine

that Defendants, during the course of dredging activities in

the State of Minnesota, are required to comply with Minnesota

A-2

Statutes and Regulations which relate to maintenance of the

quality of the water in the lakes and rivers of Minnesota. At

present Defendants dredge major Minnesota waterways on

a seasonal basis for the purpose of maintaining commercial

channels. The manner of the dredging results in violations of

Minnesota Statutes and Regulations and in severe degrada-

tion of the quality of the waters of this state.

JURISDICTION AND VENUE

2. This action arises under the laws of the United States,

inter alia, 33 U.S. C. A. §1251 et seq. (Supp. 1975) and 33

U.S. C. A. 81365 (Supp. 1975). This court has jurisdiction

pursuant to 38 U.S.C.A. 81365 (Supp. 1975); 28 U.S.C.A.

81331 (1966); and 5 U.S.C.A. 5701 et seq. (1967). The mat-

ter in controversy exceeds, exclusive of interest and costs, the

sum of ten thousand dollars ($10,000).

8. This Court is the proper venue of this action pursuant

to 28 U.S.C.A. 81391 (Supp. 1975) since three of the defen-

dants are officials of the United States acting in their official

capacities and the other defendant is an agency of the United

States, the cause of action arose in the District of Minnesota,

the cause of action involves real property located within the

District of Minnesota, and Plaintiff resides within that Dis-

trict.

DESCRIPTION OF PARTIES

4. Warren Spannaus is the Attorney General of the State

of Minnesota and is generally charged with enforcement of

all laws of this state (Minn. Stat. $8.01 et seq. (1974)), and

is specifically charged with enforcement of the statutes and

regulations relating to air, land and water pollution (Minn.

Stat. §115.071 subd. 3 and 4 (1974)). The Minnesota Pollu-

tion Control Agency (hereinafter “Agency”) is a statutory

agency of the State of Minnesota. It is responsible for adminis-

—

A-3

tering and enforcing laws and regulations relating to air, land

and water pollution, which laws and regulations have general

application throughout the State of Minnesota (Minn. Stat.

$115.01 et seq. and 8116.01 et seq. (1974)).

5. Defendant Howard H. Callaway is Secretary of the

Army and is the head of the Department of the Army.

6. Defendant Corps of Engineers, hereinafter referred

to as the Corps, is one of the basic branches of the Army au-

thorized by 10 U.S.C.A. 83063 (1959). The Corps engages,

inter alia, in dredging in the waters of the United States and

has its principle place of business in Washington, D.C.

7. Defendant Lt. Gen. William C. Gribble is the Chief of

Engineers, Department of the Army, and is vested with au-

thority over the operations of the Corps.

8. Defendant Colonel Max Noah is the Chief Engineer

of the St. Paul District of the Corps vested with authority over

the Corps in the St. Paul District.

FACTUAL ALLEGATIONS

9. The Defend: ts in the course of performing their duties

within the State of Minnesota dredge, and maintain by dredg-

ing, channels and harbors in the waters of Minnesota for the

purpose of aiding commercial navigation.

10. The entire State of Minnesota is within the St. Paul

District of the Corps.

11. Among the major dredging projects the Corps under-

takes within the State of Minnesota are the maintenance by

dredging of a navigation channel in the Mississippi River,

various harbors on Lake Superior, and a harbor on Lake of

the Woods at Warroad, Minnesota. The Corps also engages

in other dredging maintenance and from time to time in dredg-

ing related to construction.

A-4

12. The exact extent of defendant’s dredging activities

in the State of Minnesota are unknown to the Plaintiff. Upon

information and belief part of defendant’s dredging activities

in the State of Minnesota consist of the annual removal of ap-

proximately two million cubic yards of bottom sediments from

the Mississippi River and depositing approximately one mil-

lion cubie yards of dredge spoil in Minnesota.

13. Each dredging activity is carried out in the waters of

Minnesota by removing portions of the bottom sediments of

lakes and rivers and depositing the removed sediments into

other portions of lakes and rivers or on land.

14. During the loosening of bottom sediments the dredging

activity disrupts the bottom of the lake or stream causing pol-

lutants which were adsorbed to bottom sediments and pol-

lutants which had precipitated into the bottom sediments to

be redissolved and resuspended.

15. During the removal of the bottom sediments, portions

of the dredge spoil are washed into the water causing pollu-

tants to be redissolved and resuspended in the water and caus-

ing turbidity in the water.

16. The resuspension and redissolution of pollutants and

turbidity caused by the loosening and removal processes de-

grade the quality of the water of the lake or river to an extent

which affects the habitat and the organisms which are present

in the lake or river including fish, shellfish and wildlife.

17. Once the bottom sediments are excavated from the

river or lake, the dredge spoil is disposed of (or “spoiled’’)

by dumping onto land at unconfined sites or redeposited into

open water portions of the water body. The exact method of

disposal is dependent on the method of dredging and the loca-

tion of the dredging.

A-5

18. The effect of Defendant’s dredging operations includ-

ing removal and disposal is to seriously harm the quality of

the water in Minnesota by greatly increasing the amounts of

suspended and dissolved solids, creating turbidity and resus-

pending and dissolving the pollutants which had lay dormant

or were adsorbed to sediments on the bottom of the waters.

This deterioration of the quality of the water in the river ad-

versely affects the ability of a variety of organisms to grow,

reproduce and survive in waters affected by the dredging ac-

tivity.

STATUTORY BACKGROUND

19. 33 U.S.C.A. 81323 (Supp. 1975) provides in pertinent

part 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 of runoff of pollutants

shall 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 re-

quirements, including the payment of reasonable service

20. 33 U.S.C.A. $1811 (Section 201 of the Federal Water

Pollution Control Act Amendments of 1972) provides in perti-

nent part:

(a) Except as in compliance with this section and

sections 1317, 1328, 1342, and 1344, of this Title, the dis-

charge of any pollutant by any person shall be unlawful.

(b) In order to carry out the objective of this chapter

there shall be achieved—

A-6

[Nlot later than July 1, 1977, any more stringent

limitation, including those necessary to meet water quali-

ty standards, treatment standards, or schedules of com-

pliance, established pursuant to any State law or regula-

tions (under authority preserved by section 1370 of this

Title) or any other Federal law or regulation, or required

to implement any applicable water quality standard estab-

lished pursuant to Chapter.

21. The dredging activities and depositing of dredge spoil

materials and future similar operations of Defendants are

within the provisions of 33 U.S.C.A. §1311 (Supp. 1975) and

33 U.S.C.A. 81323 (Supp. 1975).

22. 33 U.S.C.A. §1323 and §1311 (Supp. 1975) each make

Defendants’ dredging activities subject to Minnesota effluent

and water quality standards.

COUNT I

23. Plaintiff realleges the allegations contained in para-

graphs 1 through 22 of this complaint.

24. Minn. Reg. WPC 15(c)(3) provides in part:

Existing discharges of inadequately treated sewage, in-

dustrial waste or other wastes shall be abated, treated

or controlled so as to comply with the applicable stan-

dards.

25. “Other wastes” are defined by Minn. Stat. §115.01

subd. 4 as:

“Other wastes” means garbage, municipal refuse, decayed

wood, sawdust, shavings, bark, lime, sand, ashes, offal,

oil, tar, chemicals, dredged spoil, solid waste, incinerator

residue, sewage sludge, munitions, chemical wastes, bio-

logical materials, radioactive materials, heat, wrecked

or discharged equipment, rock, cellar dirt or municipal

A-7

or agricultural waste, and all other substances not in-

cluded within the definitions of sewage and industrial

waste set forth in this chapter which may pollute or tend

to pollute the waters of the state.

26. Minn. Reg. WPC 15(c)(6) establishes the following

effluent standard:

[T]he Agency shall require secondary treatment as a

minimum for all municipal sewage and biodegradable

industrial or other wastes to meet adopted water quality

standards. . Secondary treatment facilities are de-

fined as works which will provide effective sedimentation,

biochemical oxidation, and disinfection, or the equivalent,

including effluents conforming to the following:

Substance or Characteristic Limiting Concentration Range

5-day biochemical oxygen 25 milligrams per liter

demand

Fecal coliform group 200 most probable number per

organisms 100 milliliters

Total suspended solids 30 milligrams per liter

Oil Essentially free of visible oil

Turbidity 25

ph range 6.5-8.5

Unspecified toxic or corro- None at levels acutely toxic

sive substances to humans or other animals or

plant life or directly damaging

to real property

A-8

27. These regulations have the force and effect of law and

are fully applicable to and enforceable against the Defendants

and others.

28. During the course of their dredging operations on the

Mississippi River and elsewhere, the Defendants have failed

and will continue to fail to treat or control their discharges

of other wastes to comply with State effluent standards in

violation of Minn. Reg. WPC 15(c)(3) and Minn. Reg. WPC

15(c) (6).

COUNT II

29. Plaintiff realleges the allegations contained in para-

graphs 1 through 22 of this Complaint.

30. Minn. Reg. WPC 15(c)(13) provides in part:

No sewage, industrial waste or other wastes shall be dis-

charged into the interstate waters of the state in such

quantity or in such manner alone or in combination with

any substances as to cause pollution thereof as defined

by law.

31. With respect to the dredging activities of the Corps

Minn. Reg. WPC 15(d) provides in part:

The following standards shall prescribe the qualities or

properties of the interstate waters of the state which are

necessary for the designated public use or benefit and

which, if the limiting conditions given are exceeded, shall

be considered indicative of a polluted condition which is

actually or potentally deleterious, harmful, detrimental

or injurious with respect to such designated uses or estab-

lished classes of the interstate waters.

32. These regulations have the force and effect of law and

are fully applicable to and enforceable against the Defendants

and others.

—

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ä om

A-9

33. Minn. Reg. WPC 15 (d) also establishes water quality

standards for each of the waters in which Defendants carry

on dredging activities. During the course of their dredging

operations, the Defendants discharge and will continue to dis-

charge dredge spoil to the waters of Minnesota in such quanti-

ties and in such a manner as to cause pollution as defined by

these water quality standards. The result of such dredging

activity is in violation of Minn. Reg. WPC 15 (e) (13) and

Minn. Reg. WPC 15 (d).

COUNT III

34. Plaintiff realleges the allegations contained in para-

graphs 1 through 22 of this Complaint.

35. Minn. Stat. § 115.07 subd. 1 (1974) provides:

It shall be unlawful for any person to construct, install

or operate a disposal system, or any part thereof, until

plans therefor shall have been submitted to the [Agency]

unless the [Agency] shall have waived the submission

thereof to it and a written permit therefor shall have been

granted by the [Agency].

36. Minn. Reg. WPC 36(e)(6)(aa) provides in part:

No person shall construct, install or operate a disposal

system, or any part thereof, until an application for a

state disposal system permit and plans and specifications

therefor have been submitted to the Director [of the

Agency], and a permit for such disposal system has been

issued by the Director and approved by the Agency.

This regulation has the force and effect of law and is fully ap-

plicable to and enforceable against the Defendant and others.

87. Minn. Stat. §115.01 subd. 8 (1974) defines “disposal

system” as:

A-10

[A] system for disposing of sewage, industrial waste,

and other wastes, and includes sewer systems and treat-

ment works.

38. Defendant has operated and is operating a disposal

system without obtaining a state disposal system permit, in

violation of Minn. Stat. §115.07 subd. 1 (1974) and Minn. Reg.

WPC 36(e) (6) (aa).

39. Plaintiff has met with Defendants and their represen-

tatives on numerous occasions in an attempt to achieve volun-

tary compliance with Minnesota Statutes and Regulations.

Defendants and their representatives have consistently

claimed that they are not subject to Minnesota Statutes and

Regulations and have not taken actions to come into compliance

with Minnesota law. Plaintiff believes or has reason to believe

that such claim and refusal to act will continue in the future.

RELIEF REQUESTED

WHEREFORE, plaintiff prays that the Court enter its

order and judgment as follows:

1. Declaring that applicable federal law requires the

dredging activity of Defendants to be carried out within the

ambit of state laws and regulations.

2. Declaring that the dredging activities carried out by

Defendants within the State of Minnesota must be conducted

in accordance with Minnesota Statutes and Regulations re-

garding water quality including but not limited to Minn. Reg.

WPC 15 (e) (3); Minn. Reg. WPC 15 (e) (6); Minn. Reg. WPC

15 (c) (13) ; Minn. Reg. 15(d) ; Minn. Reg. WPC 36(e) (6) (aa)

and Minn. Stat. §115.07 (1974).

8. Granting any further relief which may be just and ap-

propriate including reasonable attorneys fees.

RR ll LT iii.

A-11

Respectfully submitted.

WARREN SPANNAUS

Attorney General

State of Minnesota

By PETER W. SIPKINS

Solicitor General

160 State Office Building

St. Paul, Minnesota 55155

Telephone: (612) 296-2731

And ELDON G. KAUL

Special Assistant

Attorney General

1935 W. County Road B2

Roseville, Minnesota 55113

Telephone: (612) 296-7341

Attorneys for the Minnesota

Pollution Control Agency

Dated: April 17, 1975.

APPENDIX B

(Caption)

MEMORANDUM & ORDER

Warren Spannaus, Attorney General, Eldon G. Kaul, Assistant

Attorney General and William P. Donohue, Special Attorney

General, St. Paul, Minnesota, attorneys for plaintiff.

Robert G. Renner, United States Attorney, Stephen G. Palmer,

Assistant United States Attorney, Minneapolis, Minnesota

and Michael O. Graves, Department of Justice, Washington,

D.C., attorneys for defendants.

In this declaratory judgment action brought by the State

of Minnesota against certain federal officials, the issue is

A-12

whether the U. S. Corps of Engineers must comply with Min-

nesota laws and regulations governing pollution abatement

in its dredging operations on the Mississippi River and else-

where. We hold it must.

The matter is before the court on defendants’ motion to dis-

miss under Rule 12 based on their allegations that the court

lacks subject matter jurisdiction and the complaint fails to

state a claim upon which relief can be granted. Because there

are no issues of material fact, this matter is considered sub-

mitted on cross motions for summary judgment.

In this lawsuit, plaintiff, the State of Minnesota by its at-

torney general and its Pollution Control Agency, seeks a dec-

laration that the Water Pollution Control Act Amendments

of 1972, 83 U.S.C.A. § 1251 et seq., require defendants, the Sec-

retary of the Army, the Corps of Engineers and two of its of-

ficers, to carry out their dredging activities in compliance with

Minnesota pollution abatement laws and regulations. In its

three count complaint, plaintiff contends that defendants are

in violation of Minnesota pollution laws and regulations which

require secondary treatment of all dredged spoil, forbid dis-

charges into navigable waters which violate state water quali-

ty standards and require all dredgers obtain a disposal per-

mit from the Pollution Control Agency. Plaintiff alleges that

the dredging activities of defendants seriously harm the quali-

ty of navigable waters within Minnesota by resuspending and

redissolving previously adsorbed or dormant pollutants caus-

ing turbidity and degrading the habitat of fish, plants and

other water organisms.

1 At oral argument held on August 18, 1975, the parties agreed that

there are no issues of material fact, that the case is indeed ripe

for final determination and that it should be considered as if

submitted on cross motions for summary judgment.

—— Oe, eet Otel

A-13

Jurisdiction

The first question presented for decision is whether the gen-

eral federal question statute, 28 U.S.C.A. § 1331, gives the

court jurisdiction to enforce the Water Pollution Control Act.

Defendants argue that 83 U.S.C.A. § 1865, which provides that

„Itjhe district courts shall have jurisdiction without regard

to the amount in controversy or the citizenship of the parties,

to enforce .. . an effluent standard or limitation . . and

to apply any appropriate civil penalties under section 1819 (d)

of this title,” is the exclusive jurisdictional basis to raise ques-

tions under the Act. Section 1365 (b) provides that Inlo ac-

tion may be commenced— under. . . this section—

(A) prior to sixty days after the plaintiff has given notice

of the alleged violation . . . (iii) to any alleged violator.

Because plaintiff has not complied with this notice provi-

sion, defendants argue that this suit must be dismissed for

want of subject matter jurisdiction. For the reasons that fol-

low, the court accepts plaintiff's contention that it has juris-

diction under the general federal question statute to hear

claims arising under the Water Pollution Control Act.?

First, § 1365 (e) states that “[n]othing in this section shall

restrict any right which any person (or class of persons) may

have under any statute or common law to seek enforcement

of any effluent standard or limitation or to seek any other re-

lief (including relief against the Administrator or a State

agency).” This “saving clause,” consistent with the legislative

2 Plaintiff also maintains that section 10(a) of the Administrative

Procedure Act, 5 U.S.C.A. § 702, provides jurisdiction. The case

law in this circuit is that the Administrative Procedure Act does

not furnish an independent basis of jurisdiction. Twin Cities

Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d

529 (8th Cir. 1967).

A-14

history of § 1365, evinces a clear congressional intent to ex-

pand, rather than restrict federal jurisdiction.

Defendants direct the court’s attention to Natural Resources

Defense Council, Inc. v. Callaway, 389 F. Supp. 1268 (D. Conn.

1974), where the court decided that “alleged violations of the

Water Pollution Control Act may not be complained of under

some other jurisdictional head (e.g. 28 U.S.C. § 1331 (1970)”

despite subsection (e). Id. at 1271, n. 28. This subsection, the

court decided, “was not intended to allow violations of the Act

to be prosecuted, except as they create some rights indepen-

dent of the Act, other than under the jurisdictional grant of

the Act, 33 U.S.C. § 1865 (Supp. II, 1972).” Jd. However, the

Court of Appeals for the District of Columbia Circuit, in an

enlightening and well reasoned opinion, concluded that actions

to enforce the Act may be brought under § 1331.9 Natural

Resources Defense Council, Inc. v. Train, 510 F.2d 692, 699

(D.C. Cir. 1975).

In that case, plaintiff did not give the sixty days notice re-

quired by § 1365 and defendant urged the court to dismiss for

lack of subject matter jurisdiction arguing that any lawsuit

to enforce the Act must be commenced under § 1365. In reach-

ing its decision, tie court relied on the legislative history of

§ 1365 and also on the legislative history of section 304 of the

Clean Air Act Amendments of 1970. Congress used this provi-

sion of the Clean Air Act as the model for § 1365. 1972 U.S.

Code, Cong. & Admin. News p. 3745. The legislative history

of section 304 clearly indicates that it was intended to broaden

The Court of Appeals also decided that section 10(a) of the Ad-

ministrative Procedure Act, 5 U.S. C. A. § 702, would turnish juris-

diction. However, the law in that circuit is that section 10(a) is

an independent source of jurisdiction. Pickus v. Board of Parole,

507 F.2d 1107 (D.C. Cir. 1974).

—

A-15

rather than restrict federal jurisdiction. That section “took

broad steps to facilitate the citizen’s role in the enforcement

of the Act, both in renouncing those concepts that make feder-

al jurisdiction dependent on diversity of citizenship and juris-

dictional amount, and in removing the barrier, or hinderance,

to citizen suits that might be threatened by challenges to plain-

tiff’s standing.” Natural Resources Defense Council, Inc. v.

Train, supra., at 700. The court determined that, in light of

its legislative history, section 304 “reflected a deliberate choice

by Congress to widen citizen access to the courts... .” Id.

A congressional report on this section stated that It] he right

of persons (or class of persons) to seek enforcement or other

relief under any statute or common law is not affected.” Id.

at 701, n. 45. The sixty days notice provision is one of several

jurisdictional restrictions contained in § 1365. However, these

“rescrict the expansion of jurisdiction provided by the special

citizen suits provision of § 1865 and do not cut back on federal

court jurisdiction over actions that would have been maintain-

able even in the absence of that special authorization. This in-

tent is confirmed by the saving clause of subsection (e).” Jd.

at 702, footnote omitted.

Clearly, an action for a declaration that the Act applies to

these defendants is one arising under the laws of the United

States. However, to properly invoke the jurisdiction granted

by 8 1831, not only must the action arise under the laws of the

United States but there must be more than $10,000 in con-

troversy. The Supreme Court has recently indicated that this

jurisdictional amount may be assumed in cases such as this.

Illinois v. City of Milwaukee, 406 U.S. 91 (1972). The Court

stated that It] he considerable interests involved in the purity

of interstate waters would seem to put beyond question the

A-16

jurisdictional amount provided for in § 1331 (a).“ Id. at 98.

Because this is an action arising under the laws of the United

States and there is more than $10,000 in controversy, the court

has jurisdiction under 28 U.S. C. A. § 1881.

Sovereign Immunity

Defendants also contend in this preanswer motion that this

suit, filed against a federal agency and three federal officials,

is actually against the sovereign and therefore barred by the

doctrine of sovereign immunity. A suit is against the sovereign

if the “effect of the judgment would be ‘to restrain the Gov-

ernment from acting or to compel it to act.’” Dugan v. Rank,

372 U.S. 609, 620 (1968), citing Larson v. Domestic & Foreign

Commerce Corporation, 337 U.S. 682, 704 (1949). Because

it is without question that the effect of a judgment in favor

of Minnesota would be to compel defendants to comply with

state pollution abatement requirements, this is a lawsuit

against the sovereign.

It is an elementary principle of law that a suit against

federal officials is not barred by the doctrine of sovereign im-

munity if those officials are acting beyond their statutory

powers. The Court in Larson, supra, said:

*Section 1365 was intended to encourage “citizen participation in

the enforcement” of this Act. 1972 U.S. Code, Cong. & Admin.

News p. 3745. The sixty day notice provision was intended to af-

ford the alleged polluter an opportunity to comply with the terms

of the Act and thus avoid the necessity of a lawsuit. Plaintiff has

engaged in protracted negotiation with defendants seeking to

settle this controversy. All through those negotiations and through

this lawsuit, defendants have maintained that they do not have to

comply with Minnesota’s pollution abatement requirements. Thus,

in this case, the purpose behind the sixty-day notice provision

would not be served by dismissing this lawsuit. In addition, judi-

cial economy would certainly not be promoted. Plaintiff's counsel

has stated that if this lawsuit were dismissed on jurisdictional

grounds, the State would merely give notice, wait sixty days and

refile the same complaint.

A-17

Where the officer’s powers are limited by statute, his

actions beyond those limitations are considered individual

and not sovereign actions. The officer is not doing the

business which the sovereign has empowered him to do

or he is doing it in a way which the sovereign has for-

bidden. His actions are ultra vires his authority and

therefore may be the object of specific relief.

Larson, supra, at 689.

In its complaint, plaintiff has alleged that §§ 1311 and 1823

are statutory constraints on defendants’ powers which require

them to comply with Minnesota pollution abatement require-

ments. Therefore, if plaintiff’s allegations are true, defendants

are acting ultra vires their authority and may not rely on

sovereign immunity.

In addition, it is clear from the language of this Act and its

legislative history that Congress intended to waive sovereign

immunity as to any action brought to enforce the terms of the

Act. The report of the Senate Committee on Public Works on

§ 1828 indicates that federal facilities must meet all control

requirements as if they were private citizens.” 1972 U.S. Code,

Cong. & Admin. News p. 3734. Section 1365, discussed above,

allows any person adversely affected by the polluter to bring

an enforcement action in the district courts. The committee

report on this section states that:

[An] enforcement action might be brought against an

individual or government agency. As recognized under

section 813 of the bill [§ 1323], Federal facilities generate

considerable water pollution. Since some Federal agencies

such as the Department of Defense have failed in abating

pollution and in requesting appropriations to develop con-

A-18

trol measures, it is important to provide that citizens can

seek, through the courts, to expedite the government per-

formance specifically directed under section 313 [§ 1323].

1972 U. S. Code, Cong. & Admin. News. p. 3746.

These sections of the Act and the pertinent legislative his-

tory clearly indicate that Congress intended federal agencies

and federal officers to have the same obligations under this

Act as any other person would have. The inevitable conse-

quence of this intention is that sovereign immunity does not

bar a suit against federal officials or agencies to enforce the

terms of the Act.

Federal Compliance

We come to the principal question at issue—whether fed-

eral agencies must obtain state discharge permits.

The objective of this legislation is to restore and maintain

the chemical, physical, and biological integrity of the nation’s

waters.” 33 U.S.C.A. § 1251. In order to reach this objective,

Congress established as one of its goals the elimination by the

year 1985 of the discharge of pollutants into navigable waters.

Further, Congress recognized that it is the primary responsi-

bility and right of the states “to prevent, reduce, and elimi-

nate pollution,” and it committed the federal government to

provide “technical services and financial aid to State and

interstate agencies and municipalities in connection with the

prevention, reduction, and elimination of pollution.” Id.

In order to accomplish this awesome objective, Congress

directs the Administrator of the Environmental Protection

Agency to establish, and regularly revise, limitations on the

quantity of pollutants which may be discharged into navigable

waters. These effluent limitations are to be enforced through

permit systems, the most important of which are the permit

A-19

systems established pursuant to § 1342. That section autho-

rizes states to establish and administer permit programs and

directs the Administrator of the E.P.A. to approve these state

programs if they meet prescribed siandards. If a state does

not have a permit program or if a state’s approved program

does not regulate a specific type of discharge, the Administra-

tor may issue a permit for the discharge if the discharge meets

the established effluent limitations. The language of the Act

and its legislative history make it clear, however, that these

state permit programs are to be the primary enforcement

mechanism under the Act.

.. . The Federal Government as the custodian of the

navigable waters has the responsibility to control af-

firmatively any discharges of pollutants into the navi-

gable waters and, under the committee bill, seek to

achieve elimination of the discharge of pollutants.

It is expected that the States will play a major role in

the administration of this program.

The committee believes that, after a transition period,

during which the State program and capability will be

upgraded, the program should be administered by those

States with programs which meet the requirements of

this Act.

Therefore, the bill provides that after a State submits

a program which meets the criteria established by the

Administrator pursuant to regulations, the Administrator

shall suspend his activity in such State under the Federal

Permit Program.

1972 "J. S. Code, Cong. & Admin. News, p. 3737.

With this background in mind, a reading of § 1323 and its

legislative history clearly indicates that, as a general rule, fed-

A-20

eral agencies are subject to state permit requirements. That

section directs that:

{eJach department, agency or instrumentality of the

executive, legislative, and judicial branches of the Federal

Government . . engaged in any activity resulting, or

which may result, in the discharge. of pollutants

shall comply with ... State, and local require-

ments respecting control and abatement of pollution to

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

ments, including the payment of reasonable service

charges.

The Court of Appeals for the Ninth Circuit, when con-

fronted with this question, relied on the last clause quoted

above, in deciding that federal facilities have to obtain state

permits. California v. Environmental Protection Agency, 511

F.2d 963 (9th Cir.), cert. granted — U.S. ——, 95 S. Ct.

2655 (1975). That case interpreted “reasonable service

charges” as including charges incident to state permit pro-

grams. Id. at 970. However, the answer to this question seems

to come more directly from a reading of the whole Act. Con-

gress, recognizing that federal agencies are among the major

polluters of this nation’s waterways, see, e.g. Committee Re-

port on § 1365, 1972 U.S. Code, Cong. & Admin. News, p. 3746,

directed those agencies to comply with state “requirements

respecting control and abatement of pollution. 38

U.S.C.A. § 1323. This is an unqualified order to comply. The

Act draws no distinction between substantive compliance and

procedural compliance. Further, to exempt federal agencies

from state permit requirements, the primary enforcement

mechanism established by the Act, could allow those agencies

to exceed the applicable effluent limitations promulgated pur-

suant to the Act.

re wee ee

A-21

Defendants contend that even if federal agencies must, as

a general rule, obtain state discharge permits, § 1344 exempts

dredging operations from all state regulatory programs au-

thorized by § 1342(b). In order to answer this final question,

it is necessary to closely examine the relation among §§ 1342

(a), 1842(b) and 1344.

The first sentence of § 1342 (a) indicates that there are

basically three types of federal enforcement programs which

operate in the absence of an approved state program. First,

the Administrator may “permit the discharge of a specific pol-

lutant or pollutants under controlled conditions associated

with an approved aquaculture project under Federal or State

supervision.” 33 U.S.C.A. § 1328 (a). Second, the Administra-

tor and the Secretary of the Army may provide for and regu-

late the discharge of dredged or fill material into navigable

waters. 33 U.S.C.A. § 1344. Finally, § 1342 (a) regulates all

other discharges. However, § 1342 (b) authorizes the governor

of each state to establish a permit program to regulate “dis-

charges into navigable waters within its jurisdiction. .. .”

Section 1362 (16) defines discharge“ as “a discharge of a pol-

lutant” or “a discharge of pollutants,” and § 1362 (6) defines.

“pollutant” as including “dredged spoil.” Thus, clearly § 1342

(b) authorizes the establishment of state permit programs

which regulate, among other things, the discharge of dredged

material into navigable waters. The Conference Committee

report on § 1344 stated, although in a different context, that

„e lonsistent with the intent of this Act, the conferees expect

that the disposal activities of private dredgers and the Corps

of Engineers will be treated similarly.” 1972 U.S. Code, Cong.

& Admin. News p. 3819.

A-22

Defendants urge that because § 1344 specifically deals with

the disposal of dredged spoil, it alone must be referred to in

answering this question. However, this Act offers a compre-

hensive, albeit a complex, regulatory scheme to restore this

nation’s water resources. This legislation and its history indi-

cate that restoration is to be accomplished by effluent limi-

tations promulgated by the Administrator but enforced by

the states aided by federal funding and technical assistance.

In isolation § 1344 might appear to be the only provision ap-

plicable to dredging. However, taken in context, it is clear that

§ 1344 is applicable only if there is no approved state permit

program or if the approved state program does not attempt

to regulate dredging. 33 U.S. C. A. § 1342 (e). However, because

Minnesota has an approved state program, a program which

covers the dredging operations in question, 39 Fed. Reg. 26061,

§ 1344 does not come into play.

Finally, defendants argue that to compel them to obey state

requirements would impair their authority to maintain navi-

gation in violation of the protection afforded by § 1371. That

section provides that:

[tjhis chapter shall not be construed as .. . affect-

ing or impairing the authority of the Secretary of the

Army (A) to maintain navigation. .. .

Compelling defendants to comply with state permit require-

ments would not affect the Secretary’s authority to maintain

navigation. It would merely require the Secretary and the

Corps of Engineers to accomplish this mission in compliance

with effluent limitations established pursuant to the Act.

In summary, the language and legislative history of the

Water Pollution Control Act clearly indicates that the objec-

tives of the Act are to be met primarily by the states thru ade-

— — ͤ —

A-23

quate pollution control programs vigorously enforced. Section

1342 (b) authorizes states to establish permit programs to

regulate discharges of all pollutants. Minnesota’s plan, which

has the approval of the Administrator, regulates the discharge

of dredged spoil into navigable waters.

Accordingly, the court declares that § 1342(b) grants to

Minnesota authority to require defendants to comply with

state pollution abatement requirements including obtaining

a state discharge permit.

It is ORDERED that plaintiff’s motion for summary judg-

ment is GRANTED and defendants’ motion for summary

judgment is DENIED.

Dated: October 9, 1975.

EDWARD J. DEVITT

Chief Judge

United States District Court

A-24

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 75-1869

STATE OF MINNESOTA, By Its Attorney General,

WARREN SPANNAUS, And Its Pollution Control Agency,

Appellee,

vs.

MARTIN R. HOFFMAN, As Secretary of

the Army, Et Al.,

Appellants.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MINNESOTA.

Submitted: May 12, 1976

Filed: October 28, 1976

Before BRIGHT and WEBSTER, Circuit Judges, and TAL-

BOT SMITH,“ Senior District Judge.

TALBOT SMITH, Senior District Judge.

The case before us is one of first impression and involves

the dredging operations of the Army Corps of Engineers. The

* TALBOT SMITH, Senior District Judge, Eastern District of Michi-

gan, Southern Division, sitting by designation.

A-25

various procedural arguments made below have not been pur-

sued on appeal. The issue, the parties are agreed, is the au-

thority of the State of Minnesota under the Federal Water Pol-

lution Control Act Amendments of 1972 (hereafter “the

Amendments”), 86 Stat. 816, 33 U.S.C. § 1251 et seq. (Supp.

IV), to regulate the Corps of Engineers of the United States

Army, in the Corps’ conduct of dredging operations in th.

navigable waters of the United States, within Minnesota. The

District Court, writing before the recent interpretation of the

1972 Amendments by the Supreme Court in EPA v. California

ex rel. State Water Resources Control Board, US. —,

44 U.S.L.W. 4781 (June 7, 1976), held that § 402(b) of the

Amendments, 33 U.S.C. § 1342(b) (Supp. IV), establishing

the National Pollutant Discharge Elimination System (here-

after “NPDES”), “grants to Minnesota authority to require

defendants to comply with state pollution abatement require-

ments including obtaining a state discharge permit.” Minne-

sota, Spannaus v. Callaway, 401 F. Supp. 524, 531 (D. Minn.

1975). We reverse and remand for the entry of judgment in

accordance herewith.

The original Federal Water Pollution Control Act was

passed in 1948, frequently revised, and codified at 33 U.S.C.

§ 1151 et seq. It proved to be inadequate.* The result was the

enactment of the Amendments of 1972, their objective being

1The term, “navigable waters,“ as here used means “the waters

of the United States, including the territorial seas.” Amendments

§ 502 (7), 33 U.S.C. § 1362(7) (Supp. IV). That the Congress in-

tended to extend the Act’s jurisdiction to the constitutional limit

is clear from the Conference Committee report, S. Rep. No. 92-

1236, 92d Cong. 2d Sess. 144 (1972) and 1 Legislative History of

the Water Pollution Control Act Amendments of 1972 (compiled

for the Senate Comm. on Public Works by the Library of Con-

gress), Ser. No. 93-1 at 327 (1973) (hereafter “Leg. Hist.”).

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

3 See State Water Resources Control Board, supra, 44 U.S. L. W. at

4781.

A-26

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

integrity of the Nation’s water.“

Although the Amendments retained the basic policy placing

primary responsibility for the control of water pollution in

the states,° two major changes were made. The first imposes

direct restrictions on discharges of pollutants, phrased in

terms of “effluent limitations” on “point sources,” thus mak-

ing it unnecessary, as had been the case theretofore, to work

backwards from a polluted body of water to determine the

point source of the pollution.“ The second major change was

the establishment of the National Pollutant Discharge Elimi-

nation System (NPDES)?* for the purpose of attaining and

enforcing the effluent limitations.

The Bill of Complaint alleged that the Corps of Engineers,

for the purpose of aiding commercial navigation, maintains

a navigation channel in the Mississippi River, various harbors

on Lake Superior, and a harbor on Lake of the Woods by its

dredging operations. These dredging operations are alleged

to have caused deterioration in water quality.* Both federal

law and state law were relied upon and violations of both

were alleged. The relief requested was a declaratory judg-

ment that the “applicable federal law requires the dredging

activity of the defendants to be carried out within the ambit

of state laws and regulations,” and that the dredging ac-

#§ 101(a) (1), 33 U.S.C. § 1251(a)(1) (Supp. IV).

5 See § 101(b), 33 U.S.C. § 1251(b) (Supp. IV).

See § 311(b), 33 U.S.C. f 1311(b) (Supp. IV). The terms “effluent

limitation” and “point source” are defined in § 502 (11), 33 U.S.C.

§ 1362(11) (Supp. IV), and § 502(14), 33 U.S.C. § 1362(14) (Supp.

IV), respectively.

7 § 402, 33 U.S.C. § 1342 (Supp. IV).

The Corps points out that it is under a duty to maintain a nine

foot channel in the n River, 47 Stat. 55, and a twenty

eight foot channel for the Duluth- Superior Harbor, Rlver and

Harbor Act of 1960 § 101, 74 Stat. 480, 482.

A-27

tivities of the defendants within the State of Minnesota “be

conducted in accordance with the Minnesota Statutes and

Regulations regarding water quality.”

The Corps moved to dismiss under Fed. R. Civ. P. 12(b),

arguing that the District Court lacked subject matter juris-

diction and that the complaint failed to state a claim for which

relief could be granted. Oral argument on the motion was held,

and, as the parties agreed that no question of material fact

existed, the District Court considered the matter submitted

on cross-motions for summary judgment, granted the state’s

motion, and denied that of the Corps.

First, the District Court’s conclusion that the Corps is re-

quired to obtain discharge permits from the State of Minne-

sota cannot be maintained, in light of State Water Resources

Control Board, supra. In, State Water Resources Control

Board, the Supreme Court held that agencies of the federal

government do not need to obtain NPDES discharge permits

from the states.“

o There are actually two Minnesota permit programs involved in

this case. The — established under Minn. Stat. § 115.03 subds.

1(e) & 5 (1974), is the Minnesota NPDES program, which § 402(b)

of the Amendments, 33 U.S.C. § 1342(b) (Supp. IV), authorizes.

Minnesota’s NPDES program has been approved by EPA, see 39

Fed. Reg. 2606 (July 16, 1974). The second, the Minnesota Disposal!

System, Minn. Stat. § 115.07, is an independent state permit pro-

gram, not authorized by federal law, and not submitted to EPA

for approval As a matter of practice, Minnesota issues one permit

to water polluters, designated as both a Minnesota Disposal Sys-

tem permit and a Minnesota NPDES permit.

While compliance by federal agencies with independent state

permit programs was not directly at issue in State Water Re-

sources Control Board, supra, the rationale for that decision leads,

a fortiorari, to the conclusion that the Corps need not obtain such

permits. The Court's rationale in State Water Resources Control

Board was that there had not been a clear and unequivocal wuiver,

by Congress, of federal immunity from state regulation with re-

spect to state administered NPDES permit programs. Unlike state

NPDES permit programs, the Minnesota Disposal system is not

authorized by Congress, hence the case for finding a waiver of

federal immunity is much weaker with respect to it than with re-

spect to state NPDES programs.

A-28

We turn now to the major question posed by this case. In

support of its argument that the Corps is required to conform

to the State’s water quality standards and effluent limitations,

Minnesota relies primarily upon two sections of the Amend-

ments, § 313, 33 U.S.C. § 1323 (Supp. IV), and § 510, 33

U.S.C. § 1870 (Supp. IV). The former, § 313, requires that:

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 re-

quirements respecting control and abatement of pollu-

tion to the same extent that any person is subject to such

requirements, including the payment of reasonable ser-

vice charges. * * *

This provision of the Amendments, it is argued, “clearly

and explicitly requires Federal entities to comply with State

requirements respecting the control and abatement of pollu-

tion.” In addition, in support of its position, the State urges

to us the requirements of § 510, 33 U.S.C. § 1370 (Supp. IV),

providing, in part, that:

Except as expressly provided in this Act, nothing in this

Act shall (1) preclude or deny the right of any State or

political subdivision thereof or interstate agency to adopt

or enforce (A) any standard or limitation respecting dis-

charges of pollutants, or (B) any requirement respecting

control or abatement of pollution; * * *.

The Corps, per contra, raises a basic constitutional issue,

asserting that the Supremacy Clause of the United States Con-

stitution (Art. VI, Cl. 2), absent Congressional authorization,

A-29

bars state regulation of its dredging operations, which are per-

formed in the navigable waters of the United States to main-

tain navigation, and that Congress has nowhere in the 1972

Amendments authorized such state regulation. Per contra,

it urges that 8 404 of the Amendments, 33 U.S.C. § 1344

(Supp. IV), creates an exclusive program for dredged or fill

material, including dredged spoil. Under this section, it is

argued, the sole and exclusive responsibility for the adminis-

tration of the program is vested in the Secretary of the Army,

acting through the Chief of Engineers, and no provision is

found therein for administration by the EPA or by any state.

Section 404 provides as follows:

PERMITS FOR DREDGED OR FILL MATERIAL

SEC. 404. (a) The Secretary of the Army, acting

through the Chief of Engineers, may issue permits, after

notice and opportunity for public hearings for the dis-

charge of dredged or fill material into the navigable

waters at specified disposal sites.

(b) Subject to subsection (c) of this section, each

such disposal site shall be specified for each such permit

by the Secretary of the Army (1) through the applica-

tion of guidelines developed by the Administrator, in con-

junction with the Secretary of the Army, which guidelines

shall be based upon criteria comparable to the criteria

applicable to the territorial seas, the contiguous zone, and

the ocean under section 403(c), and (2) in any case where

such guidelines under clause (1) alone would prohibit

the specification of a site, through the application addi-

tionally of the economic impact of the site on navigation

and anchorage.

A-30

(c) The Administrator is authorized to prohibit the

specification (including the withdrawal of specification)

of any defined area as a disposal site, and he is au-

thorized to deny or restrict the use of any defined area

for specification (including the withdrawal of specifica-

tion) as a disposal site, whenever he determines, after

notice and opportunity for public hearings, that the dis-

charge of such materials into such area will have an un-

acceptable adverse effect of municipal water supplies,

shellfish beds and fishery areas (including spawning and

breeding areas), wildlife, or recreational areas. Before

making such determination, the Administrator shall con-

sult with the Secretary of the Army. The Administrator

shall set forth in writing and make public his findings

and his reasons for making any determination under this

subsection.

With respect to the above-quoted section, the Corps points

out that § 402, 33 U.S.c. § 1842 (Supp. IV), the section creat-

ing the NPDES, commences with an exception, manifesting

a Congressional intent that the EPA not exercise administra-

tive authority over the pollutant covered by § 404, namely,

(a) (!) Except as provided in sections 318 and 404 of

this Act, the Administrator'® may * * issue a perinit

for the discharge of any pollutant * * *. (Emphasis and

added footnote ours.) 11

The Administrator here referred to is the Administrator of the

EPA. § 101(d), 33 U.S.C. § 1251(d) (Supp. IV).

Note that the exception in § 402, “except as provided in section]

* * * 404,” provides another basis, independent of the Supreme

Court decision in State Water Resources Control Board, supra,

for holding that the Corps does not have to obtain a Minnesota

NPDES permit. See note 31 infra.

—— — — —

A-31

At the heart of the controversy, then, is the basic question

of the existence and extent, if any, of the authority of the

state, purportedly embodied principally in § 313, 33 U.S.C.

§ 1323 (Supp. IV), and § 510, 33 U.S.C. § 1870 (Supp. IV),

over the Corps of Engineers as to the Corps’ dredging for the

purpose of aiding commercial navigation, in the light of the

heretofore cited provisions relied upon by the Corps, princi-

pally §§ 402, 88 U.S.C. § 1342 (Supp. IV) and 404, 33 U.S. C.

§ 1844 (Supp. IV).

The legislative history of the 1972 Amendments is exten-

sive'? and we have reviewed it in detail. The Senate version

of the Amendments, S.2770,'* as reported out of the Senate

Committee on Public Works, did not contain a special provi-

sion on dredging. The only special provision in the bill on

dredging was §401(c):

In order to implement the provisions of this section,

the Secretary of the Army, acting through the Chief of

Engineers, is authorized, if he deems it to be in the public

interest, to permit the use of spoil disposal areas under

his jurisdiction by Federal licensees or permittees, and

to make an appropriate charge for such use. Moneys re-

ceived from such licensees or permittees shall be deposited

in the Treasury as miscellaneous receipts. '*

As reported out of the Senate Committee on Public Works,

§ 402 of S.2770 would have included the disposal of dredged

spoil in the NPDES, requiring that a permit be obtained from

12 The legislative history of the 1972 Amendments has been compiled

for 1 Senate Committee on Public Works, by the Library of

Song, let Seas, 2 Leg. Hist. 1834 (1971),

192d „Ist Sess., 2 Leg. Hist. =

148.2770 at 151-52, 2 Leg. Hist. at 1684-85. Section 401 (c) of S.2770

became § 401 (c) of the Amendments, 33 U.S.C. § 1341(c) (Supp.

IV), without amendment.

A-32

the EPA Administrator. During the Senate floor debate on

S.2770, Senator Ellender, of Louisiana, introduced the follow-

ing amendment:

At page 161, between lines 7 and 8 add new section:

Sec. 404. (a) The Secretary of the Army may issue per-

mits, after notice and opportunity for public hearing, for

the discharge of dredged materials into navigable waters

at specified disposal sites. 15 |

(b) In identifying disposal sites for the purposes of

subsection (a), the Secretary shall apply the criteria

established pursuant to subsection (c) (1) of section 408

together with an evaluation of the impact of such sites

on navigation and anchorage. In applying such criteria,

the Secretary in cooperation with the Administrator,

shall determine those sites which would not adversely af-

fect shellfish beds, fisheries (including spawning and

breeding areas) or recreation areas. (Footnote ours.)

2 Leg. Hist. at 1386. In explanation of his amendment Sena-

tor Ellender said:

It simply retains the authority of the Secretary of the

Army to issue permits for the disposal of dredged mate-

rials. This is essential since the Secretary of the Army

is responsible for maintaining and improving the navi-

gable waters of the United States.

Id.

In explaining subsection (b) of his amendment, Senator El-

lender amplified his concern with the maintenance of naviga-

tion:

* * * The Secretary of the Army will not be obligated

16 We note the similarity between the language of the amendme

proposed as § 404(a) and that ultimately enacted. a -

A-33

to require strict compliance with the effluent require-

ments established by the Environmental Protection Agen-

cy in issuing permits. The strict adherence to the pub-

lished standards would result in 90 percent of the ports

and harbors of the United States being closed, until such

time as land disposal areas are provided. This would

create a catastrophical situation with respect to our

foreign and domestic commerce.

Id. at 1387.

Senator Muskie spoke in opposition to the Ellender amend-

ment, arguing, in part:

What Senator Ellender’s amendment would do would

be to exempt dredging. There is no question that the Sec-

retary of the Army should retain authority to permit

dredging operations for the purpose of navigable water

and channel maintenance. It is a mission-oriented agency,

and this is its mission. We do not undertake to turn that

mission over to anybody else, and that specific activity

should not be interfered with by the Environmental Pro-

tection Agency.

But, conversely, spoil disposal should be subject to EPA

regulations. Spoil disposal is a pollutant. Any person who

wished to dump polluted dredge spoil into navigable

waters would be required, under this section, to get a per-

mit from EPA or the State, just as would be required

of other discharges.

Id. at 1388.

The House version of the Amendments, H.R. 11896,“ dif-

fered from the Senate version as to the disposal of dredged

material into the navigable waters. Section 404(a) thereof

provided, as does § 404 of the Amendments, 33 U.S.C. § 1344

16 92d Cong. 2d Sess., 1 Leg. Hist. 893 (1972).

A-34

(Supp. IV), for the Secretary of the Army to issue the speci-

fied permits, upon his determination that “such discharge

[would] not unreasonably degrade or endanger human health,

welfare, or amenities, or the marine environment, ecological

systems, or economic potentialities.” In making this deter-

mination, the Secretary was to apply, inter alia, guidelines

promulgated by the Administrator, but in the event of con-

flict, the Secretary was to have had the final decision-making

authority.!7

The report of the House Committee on Public Works stated:

The Committee expects that until such time as economic

and feasible alternative methods for disposal of dredge

material are available, no arbitrary o[r] unreasonable

restrictions shall be imposed on dredging activities essen-

tial for the maintenance of interstate and foreign com-

merce, and that, consistent with the intent of this Act,

the Committee expects the disposal activities of private

dredgers and the Corps of Engineers will be treated in

a similar manner. (Emphasis ours.) 16

Minnesota argues that the second portion of the quoted

paragraph, regarding similar treatment of private dredgers

and the Corps, supports its position. It says, in substance, that

since private dredging is subject to state regulation, the

Corps activities can only be similarly treated if they are also

subject to State regulation.“ O However, as may be observed,

the House Committee expressed only an intent that private

dredgers and the Corps be given similar but not identical,

17 H.R. 11896 § 404 (b), 1 Leg. Hist. at 1063-64. The Secretary of

. . 6 y th

Army would have been allowed to disregard the —

guidelines and recommendations when he determined that there

was “no economically feasible alternative reasonably available.”

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

1® Brief for Minnesota at 22. ng at 130, 1 Leg. Hist. at 817.

A-35

treatment.?° In any event, identical treatment of Corps dredg-

ing and private dredging is not possible. Private dredgers, like

all other “applicants” for federal permits, must obtain water

quality compliance certificates from the states in order to ob-

tain federal permits. § 401 (a), 33 U.S.C. § 1841(a) (Supp.

IV). 21 Federal agencies are not “applicants,” § 401(a)(6),

33 U.S.C. § 1341 (a) (6) (Supp. IV), and thus they need not

obtain state certificates of water quality compliance.

The sentence relied upon by Minnesota, is, however, con-

strued out of context. The language concerning similar treat-

ment for Corps dredging and private dredging occurs imme-

diately after the Committee expresses its concern that unrea-

sonable restrictions not be placed “on dredging activities es-

sential for the maintenance of interstate and foreign com-

merce.” It is the dredging activities of the Corps which are

essential for the maintenance of commerce.

In the Conference Committee a compromise was reached on

the treatment of dredged spoil as a pollutant. The Conferees

adopted a version substantially similar to the House version,

the major difference being that the Conference version gives

the EPA Administrator a veto power over the Secretary of

the Army in the issuance of permits.**

20 As enforced by Department of the Army regulations, § 404 does

provide for similar treatment of the disposal activities of private

persons and those of the Corps. The guidelines promulgated by

the EPA Administrator, in conjunction with the Secretary of the

Army, under § 404(b), have been recognized by the Army to be

applicable to the Corps’ dredging activities. See 33 C. F. R. § 209.145

(a) (1975). Furthermore, the Army recognizes that the limited

veto power over the specification of disposal sites given to the

Administrator in § 404(c) applies to the Corps’ own projects. See

33 C.F.R. § 209.145(b)(1) (1975). Additionally, the Corps has de-

vised a procedure functionally equivalent to permit issuance for

its own dredging projects. See 33 C. F. R. § 209.145(f) (1) (vii) (1975).

21 See also CF. R. § 209.120(f)(3) (1975); 40 C.F.R. Part 230, 40

Fed. Reg. 11292-93 (Sept. 5, 1975).

228 404(c), 33 U.S.C. § 1344(c) (Supp. IV). This veto power will be

discussed in more detail, infra.

A-36

As enacted, § 404 of the Amendments, 33 U.S.C. § 1344

(Supp. IV), follows the House version in placing the authori-

ty for issuing permits for the discharge of dredged spoil in

the Secretary of the Army, acting through the Chief of Engi-

neers. However, subsection (b) of § 404 requires the Secretary

of the Army to apply guidelines developed by the EPA Admin-

istrator, in conjunction with the Secretary of the Army, in

specifying disposal sites.** If the guidelines would alone pro-

hibit the specification of a disposal site, the Secretary of the

Army may also consider “the economic impact of the site on

navigation and anchorage.” § 404 (b), 33 U.S.C. § 1344 (b)

(Supp. IV). Subsection (c) of § 404 gives the EPA Adminis-

trator a veto power over the specification and use of defined

areas as disposal sites when he determines “that the discharge

of [dredged or fill] materials into such areas[s] will have an

unacceptable adverse effect on municipal water supplies, shell-

fish beds, and fishery areas (including spawning and breeding

areas), wildlife, or recreational areas.“ 2+

23 The EPA Administrator has promulgated interim final guideli

4 % PR Part 230, 40 Fed. Reg. 11292 (Sept. 5, 1975). —

The Department of the Army recognizes that the Administrator's

but not a state’s, veto power is applicable to the dredging projects

of the Corps of Engineers. 33 C. F. R. § 209.145 (b) (1) (1975), which

is applicable to the projects of the Corps, 33 C. F. R. §

“TCE —— — 1 in relevant part:

urthermore, the Administrator can prohibit or

the use of any defined area as a disposal — Bey —

mines, after notice and opportunity for public hearings, that

the discharge of such materials into such areas will have an un-

acceptable adverse effect on municipal water supplies, shell fish

beds and fishery areas, wildlife or recreation areas.

1 bey om | Rwy hy 11. version of the Amendments

a i p

inthe ae oo uskie, who explained the final version

RMITS FOR DREDGED OR FILL MATERIAL [Sec

A major difference between the Senate bill — 1

amendment related to the issue of dredging. The Senate Com-

mittee had reported a bill which treated the disposal of dredged

A-37

The Conference Committee report, like the House and

Senate Committee reports, expressed the intent that dredging

activities necessary for the maintenance of commerce not be

unreasonably impeded:

The Secretary and the Administrator shall act prompt-

ly on dredging permits essential for the maintenance of

interstate commerce because of the seasonal nature of

dredging nad the need to preschedule scarce dredging

equipment.

It is expected that until such time as feasible alterna-

tive methods for disposal of dredged or fill material are

available, unreasonable restrictions shall not be imposed

on dredging activities essential for the maintenance of

spoil like any other pollutant. Pursuant to an amendment ac-

cepted on tne Senate floor, dredged spoil disposal was made

subject to a different set of criteria to determine any environ-

mental effects. The House bill not only established a different

set of criteria to determine the environmental effects of dredged

spoil disposal but also designated the Secretary of the Army

rather than the Administrator of the Environmental Protection

Agency as the permit issuing authority. The Conference agree-

ment follows those aspects of the House bill which related to

the Secretary of the Army's regulatory authority. However, con-

sistent with the Senate provision, the Administrator of the

Environmental Protection Agency has three clear responsibil-

ities and authorities.

First, the Administrator has both responsibility and authority

for failure to obtain a Section 404 permit or comply with the

condition thereon. Section 309 authority is available because

discharge of the pollutant“ dredge spoil without a permit or in

violation of a permit would violate Section 301 (a).

Second, the Environmental Protection Agency must determine

whether or not a site to be used for the disposal of dredged

spoil is acceptable when judged against the criteria established

for fresh and ocean waters similar to that which is required

under Section 403.

Third, prior to the issuance of any permit to dispose of spoil,

the Administrator must determine that the material to be dis-

of will not adversely affect municipal water supplies,

shellfish beds and fishery areas (including spawning and breed-

ing areas), wildlife or recreational areas in the specified site.

Should the Administrator so determine, no permit may issue.

1 Leg. Hist. at 177.

A-38

interstate and foreign commerce. Consistent with the in-

tent of this Act, the conferees expect that the disposal

activities of private dredgers and the Corps of Engineers

will be treated similarly.

A-39

tion that they are competent for a necessary part of

them.

Taken with the old and well-known rule that statutes

which in general terms divest pre-existing rights or

S. Rep. No. 92-1236, supra at 142, 1 Leg. Hist. at 325.

The State of Minnesota is subject to the authority of the

United States Government in the matter before us. We start

privileges will not be applied to the sovereign” “without

a clear expression or implication to that effect,” this im-

munity means that where “Congress does not affirma-

seminal principle of our law “that the constitution and

the laws made in pursuance thereof are supreme; that

they control the constitution and laws of the respective

states and cannot be controlled by them.” McCulloch v.

Maryland, 4 Wheat. 316, 426 (1819). From this principle

is deduced the corollary that

“[i]t is the very essence of supremacy to remove all

obstacles to its action within its own sphere, and so to

modify every power vested in subordinate govern-

ments, as to exempt its own operation from their own

influence.” Id., at 427.

The effect of this corollary, which derives from the

Supremacy Clause and is exemplified in the Plenary

with the tively declare its instrumentalities or property subject

to regulation,” “the federal function must be left free“

of regulation. Particular deference should be accorded

that “old and well-known rule” where, as here, the rights

and privileges of the Federal Government at stake not

only find their origin in the Constitution, but are to be

divest2d in favor of and subjected to regulation by a sub-

ordinate sovereign. Because of the fundamental impor-

tance of the principles shielding federal installations and

activities from regulation by the States, an authorization

of state regulation is found only when and to the extent

there is “a clear congressional mandate,” “specific con-

gressional action” that makes this authorization of state

regulation “clear and unambiguous.”

Hancock v. Train, —— U.S. ——, 44 U.S.L.W. 4767, 4771

(June 7, 1976) (footnotes omitted and emphasis added).

Powers Clause giving Congress exclusive legislative au-

thority over federal enclaves purchased with the consent

of a State, is “that the activities of the Federal Govern-

ment are free from regulation any State.” As Mr.

g j j 7 “ Our decision in this case is governed by the same fund mental

Justice Holmes put it in Johnson v. Maryland, 254 U.S. principles applied today in Hancock v. Train, * * *: federal

51, 57 (1920) installations are subject to state regulation only when and to

, the extent that congressional authorization is clear and ——

“the immunity of the instruments of the United States biguous. As in Hancock v. Train, we must determine whether

: : : Congress has subjected federal installations to the degree of

from state control in the performance of their duties state control urged by the States.

extends to a requirement that they desist from perfor-

mance until they satisfy a state officer upon examina-

| 25 See also State Water Resources Control Board, supra, respecting

the Act before us:

4

44 U. S.L. W. at 4784.

A-40

With these considerations and the Congressional debates

in mind, we look to the principal arguments relied upon by the

State, namely §§ 313, 83 U.S.C. § 1823 (Supp. IV), and 510

83 U.S.C. § 1870 (Supp. IV), of the Amendments.

Minnesota seeks to find support for its position by virtue

of the fact that Congress, in § 313, removed and asserted am-

biguity in the prior law, § 21(a) of the Water Quality Im-

provement Act of 1970, 83 U.S.C. § 1171(a) (1970), by re-

quiring federal agencies to “comply with Federal, State, inter-

state, and local requirements respecting control and abate-

ment of pollution to the same extent that any person is subject

to such requirements * *.”2° There is no doubt that the prior

law as to the duty of Federal facilities and activities to comply

with the requirements of pollution control laws has been

strengthened but this strengthening does not directly address

the problem at hand: Whether Congress intended to waive

the immunity of the Corps of Engineers from state regulation

of those dredging activities of the Corps which are essential

for the maintenance of interstate commerce. Nor is there any

— in the legislative history of § 313 that Congress in-

tended to subject the dis i

—— ig posal of dredged material by the Corps

Section 313 constitutes a general authorization on the part

of Congress, that “[eJach * * * agency * * of the Federal

Government * * * shall comply with Federal, State, interstate,

*6 Section 21(a) of the 1970 Act provided in

relevant part:

1— Federal agency * * having juriedietion over any real

x 11 3 engag — any LI public works

0 , consistent with the :

— of the United States as determined by the President

nsure compliance with applicable water quality standards and

the purposes of this Act

facility, or activity. in the administration of such property,

A-41

and local requirements respecting control and abatement of

pollution.” Minnesota urges that the words are clear and un-

ambiguous and hence there is no need to look at the legislative

history or other sections of the Amendments. We have seen,

however, only recently, that § 313 is to be construed in the

light of the Congressional intent with respect thereto. State

Water Resources Control Board, supra. The problem arises

from the fact that words do not construe themselves.

It would be anomalous to close our minds to persuasive

evidence of intention on the ground that reasonable men

could not differ as to the meaning of the words. Legisla-

tive materials may be without probative value, or contra-

dictory, or ambiguous it is true, and in such cases will not

be permitted to control the customary meaning of words

or overcome rules of syntax or construction found by ex-

perience to be workable; they can scarcely be deemed to

be incompetent or irrelevant. (Citation omitted.) The

meaning to be ascribed to an Act of Congress can only

be derived from a considered weighing of every relevant

aid to construction.

United States v. Dickerson, 310 U.S. 554, 562 (1940) (Murphy,

J.) (footnote omitted) .“

Moreover, a statute will not be read literally if such a read-

ing leads to a result that conflicts with Congress’ intent. In

Helvering v. New York Trust Co., 292 U.S. 455, 464-65 (1934),

in addressing this point the Court stated:

But the expounding of a statutory provision strictly ac-

cording to the letter without regard to other parts of the

Act and legislative history would often defeat the object

intended to be accomplished. * * * Quite recently in

27 See also Kokoszka v. Belford, 417 U.S. 642, 650 (1974).

A-42

Ozawa v. United States, 260 U.S. 178, we said (p. 194):

“It is the duty of this Court to give effect to the intent

of Congress. Primarily this intent is ascertained by giving

the words their natural significance, but if this leads to

an unreasonable result, plainly at variance with the policy

of the legislation, as a whole, we must examine the mat-

ter further. We may then look to the reason of the enact-

ment and inquire into its antecedent history and give it

effect in accordance with its design and purpose, sacrific-

ing, if necessary, the literal meaning in order that the

purpose may not fail.“

Thus, what is asserted to be the literal meaning of § 313 must

be interpreted to give effect to the intent of Congress that the

Corps is not to be hampered in maintaining navigation.?“

What we are here dealing with is a specific agency, the Corps

of Engineers, performing a specific federal function, the clear-

ing of the channels of interstate commerce for purposes of

navigation, 29 its responsibility being delineated in a special

section of the Act, § 404, 38 U.S.C. § 1344 (Supp. IV). Unlike

all other pollutants, dredged spoil is not regulated under the

NPDES, § 402, 33 U.S.C. § 1342 (Supp. IV), since § 402(a) (1)

establishing the NPDES begins, as we have seen, “o with the

28 The intent of the Congress to maintain navigation finds further

support in § 511 (a) (2), 33 U.S.C. § 1371(a) (2) (Supp. IV), stating

that the 1972 Amendments “shall not be construed as * * * affect-

ing or impairing the authority of the Secretary of the Army (A)

to maintain navigation * *,”

29 That federal power over navigation and navigable waters is plen-

ary and predominant, see Gibbons v. Ogden, 22 U.S. (9 Wheat.)

1 (1824); City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320,

334 (1958).

80 Supra at p. 7.

A-43

words, “[e]xecpt as provided in sections 318 and 404.”*!

With respect to § 510, 33 U.S.C. § 1870 (Supp. IV), quoted

supra at p. 6, Minnesota asserts that “[t]his unequivocal lan-

guage was passed in direct response to claims such as the

Corps is making in this case.”** A careful reading of § 510,

however, makes it clear that this section does not — to

grant the states any new authority. By its terms, 8 510 * de-

signed only to prevent the Amendments from “preclud [ing]

or deny[ing] the right of any State * * * to adopt or en-

force” pollution control requirements. Thus it prevents *

Amendments from pre-empting the states from adopting

higher pollution control standards than those established

under the Amendments.“ The Corps does not argue pre-

emption. Section 510 does not auuress the issue of state 2

over the Corps’ dredging essential for the purpose of maintain-

i igation.

1— a suggestion by amici that failure to impose upon

the Corps of Engineers the requirements of state water pollu-

tion control may result in action by the Secretary of the —

inimical to proper environmental considerations. The Act is

not so construed by the Army and the EPA. ** the EPA

guidelines“ and the Army’s regulations“ bear directly on

NPDES is true

redged spoil is not regulated under the

“aa ce NPDES permit program is yy ye * 1—

rsuant to § 402 (a), or by a state, pursuant to § 402( ). =

pe n from the structure of § 402 (E.., § 102 (a) (3), stating -

the NPDES program is subject to “the 1 . * :

” whether administered by the s .

r stating that any state permit — * —

rr

ary am. Thus state-a

— I EPA. administered NPDES programs are

limited by the exceptions delineated in § 402(a) (1).

innesota at 15.

25 rept sy Rep. No. 92-911, supra at 136, 4 Leg. Hist. at 823.

34 40 C. F. R. Pt. 230, 40 Fed. Reg. 41292 (Sept. 5, 1975). —

3533 CFR. Pt. 209, as amended, 40 Fed. Reg. 31320 (July 25, 1975).

A-44

this point. Under the guidelines, evaluation criteria, expressly

made applicable to the Corps of Engineers,“ are developed

for all proposed discharges of dredged or fill material. s“ The

regulations controlling the Corps, in turn, require the Corps

to consider the environmental, as well as the social and eco-

nomic consequences of its civil projects.** It appears also*®

that the Corps is currently conducting a study of the environ-

mental effects of the disposal of dredged material,“ which,

we are aiso told, is being applied in implementing § 404, 33

U.S.C. § 1344 (Supp. IV), to assure that all discharges of

dredged material result in the least environmental harm pos-

sible.

In light of the principles we have discussed, the Supremacy

Clause, the legislative history of the Act, as well as its internal

structure, we find with respect to the disposal of dredged

material by the Corps, that there is insufficient evidence to

meet the clear and unequivocal standard for finding Congres-

sional authorization for state regulation under the teachings

of Hancock, supra, and State Water Resources Control Board,

supra, whether by authorization under the NPDES or inde-

pendently thereof. Although environmental considerations

were matters of grave concern to the Congress, and obvious-

ly so to both the Environmental Protection Administration

and the Secretary of the Army, as appears clearly from their

respective guidelines and regulations, the overriding concern

of the Congress in this context was for the maintenance of un-

86 40 C. F. R. § 230.1 (b) (2), 40 Fed. Reg. 41293 (Sept. 5, 1975).

7 The evaluation criteria are stated in 40 C. F. R. § 230.4-230.5, 40 Fed.

Reg. 41294-96.

38 See 33 C.F.R. § 209.410 (1975); 33 C. F. R. § 209.145(f) (1975).

89 See Reply Brief for Minnesota at 4. [sic].

4° Authorized by the River and Harbor Act of 1970 § 123(i), 33 U.S.C.

§ 1165a(i) (1970).

A-45

impeded traffic in the navigable waters of the United —

Regulation by the various States of the Union, each bases its

own requirements, could result in a conceivably chaotic situa-

tion as riverborne traffic moved from the boundaries of one

state to those of another. We find no authorization of such

state regulation in the legislative history of the Act or its sev-

eral sections. We hold that the Congress did not intend a sub-

ordination of the federal power and authority in this area to

State control.

Reversed and remanded for entry of judgment in ac-

cordance herewith.

A true copy.

ATTEST:

Clerk, U.S. Court of Appeals,

Eighth Circuit

APPENDIX D(1)

: JUDGMENT

United States Court of Appeals

For The Eighth Circuit

No. 75-1869

September Term, 1976

State of Minnesota, by its Attorney General, Warren Spannaus

and its Pollution Control Agency,

Appellee,

vs.

Martin R. Hoffman, Secretary, Department of the Army ;

Corps of Engineers, Department of the Army ; Lt. Gen.

William C. Gribble, Chief of Engineers, Department of the

Army ; and Colonel Max Noah, District Engineer, Corps of

Engineers,

Appellants.

Natural Resources Defense Council, Amicus Curiae

State of California, Amicus Curiae

APPEAL FROM the United States District Court for the Dis-

trict of Minnesota.

A-46

THIS CAUSE came on to be heard on the record from the

United States District Court for the District of Minnesota

and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now here ordered and

adjudged by this Court, that the judgment of the said District

Court, in this cause, be, and the same is hereby, reversed.

And it is further ordered by this Court that this cause be

ant is hereby remanded to the said District Court for proceed-

ings consistent with the opinion of this Court.

October 28, 1976

A true copy.

Attest:

Clerk, U. S. Court of Appeals, 8th Circuit.

APPENDIX D(2)

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 75-1869

STATE OF MINNESOTA, by its Attorney General,

WARREN SPANNAUS, and its Pollution Control Agency,

Plaintiffs,

vs.

Martin R. Hoffman, Secretary Department of the Army;

Corps of Engireers, Department of the Army; Lt. Gen.

William C. Gribble, Chief of Engineers, Department of the

Army: and Colonel Max Noah, District Engineer, Corps of

Engineers, Defendants.

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that the State of Minnesota by its

Attorney General and its Pollution Control Agency, the plain-

tiffs above named, hereby appeal to the Supreme Court of the

A-47

United States from the judgment of the United States Court

of Appeals for the Eighth Circuit entered in this action on

October 28, 1976.

This appeal is taken pursuant to 28 U.S.C. 81254 (2).

WARREN SPANNAUS

Attorney General

State of Minnesota

RICHARD B. ALLYN

Solicitor General

By ELDON G. KAUL

Assistant Attorney

General

WILLIAM P. DONOHUE

Special Assistant

Attorney General

JAY M. HEFFERN

Special Assistant

Attorney General

1935 West County Road B2

Roseville, Minnesota 55113

Telephone: (612) 296-7342

Attorneys for Plaintiffs

DATED: January 4, 1977

APPENDIX E

ARTICLE VI, CLAUSE 2

(SUPREMACY CLAUSE)

This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof; and all Treaties made,

or which shall be made, under the Authority of the United

States, shall be the supreme Law of the Land; and the Judges

in every State shall be bound thereby, any Thing in the Con-

A-48

stitution or Laws of any State to the Contrary notwithstand-

ing.

APPENDIX F(1)

“DECLARATION OF GOALS AND POLICY

“Sec. 101. (a) The objective of this Act is to restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters. In order to achieve this objective it is

hereby declared that, consistent with the provisions of this

Act—

“(1) it is the national goal that the discharge of pol-

lutants into the navigable waters be eliminated by 1985;

“(2) it is the national goal that wherever attainable,

an interim goal of water quality which provides for the

protection and propagation of fish, shellfish, and wildlife

and provides for recreation in and on the water be

achieved by July 1, 1983;

“(3) it is the national policy that the discharge of

toxic pollutants in toxie amounts be prohibited;

“(4) it is the national policy that Federal financial

assistance be provided to construct publicly owned waste

treatment works;

“(5) it is the national policy that areawide waste

treatment management planning processes be developed

and implemented to assure adequate control of sources

of pollutants in each State; and

“(6) it is the national policy that a major research

and demonstration effort be made to develop technology

necessary to eliminate the discharge of pollutants into

the navigable waters, waters of the contiguous zone, and

the oceans.

“(b) It is the policy of the Congress to recognize, pre-

serve, and protect the primary responsibilities and rights of

States to prevent, reduce, and eliminate pollution, to plan the

development and use (including restoration, preservation, and

enhancement) of land and water resources, and to consult with

A-49

the Administrator in the exercise of his authority under this

Act. It is further the policy of the Congress to support and

aid research relating to the prevention, reduction, and elimina-

tion of pollution, and to provide Federal technical services and

financial aid to State and interstate agencies and municipali-

ties in connection with the prevention, reduction, and elimina-

tion of pollution.

„(e) It is further the policy of Congress that the Presi-

dent, acting through the Secretary of State and such national

and international organizations as he determines appropriate,

shall take such action as may be necessary to insure that to

the fyllest extent possible all foreign countries shall take

meaningful action for the prevention, reduction, and elimina-

tion of pollution in their waters and in international waters

and for the achievement of goals regarding the elimination

of discharge of pollutants and the improvement of water

quality to at least the same extent as the United States does

under its laws.

„((d) Except as otherwise expressly provided in this Act,

the Administrator of the Environmental Protection Agency

(hereinafter in this Act called ‘Administrator’) shall adminis-

ter this Act.

“(e) Public participation in the development, revision,

and enforcement of any regulation, standard, effluent limita-

tion, plan, or program established by the Administrator or

any State under this Act shall be provided for, encouraged,

and assisted by the Administrator and the States. The Admin-

istrator, in cooperation with the States, shall develop and

publish regulations specifying minimum guidelines for public

participation in such processes.

“(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 delays at all levels of government.

A-50

APPENDIX F(2)

“FEDERAL FACILITIES POLLUTION CONTROL

“Sec. 313. 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 runoff of pollutants shall com-

ply with Federal, State, Interstate, and local requirements re-

specting control and abatement of pollution to the same extent

that any person is subject to such requirements, including the

payment of reasonable service charges. The President may

exempt any effluent source of any department, agency, or in-

strumentality in the executive branch from compliance with

any such a requirement if he determines it to be in the para-

mount interest of the United States to do so; except that no

exemption may be granted from the requirements of section

306 or 307 of this Act. No such exemptions shall be granted

due to lack of appropriation unless the President shall have

specifically requested such appropriation as a part of the bud-

getary process and the Congress shall have failed to make

available such requested appropriation. Any exemption shall

be for a period not in excess of one year, but additional exemp-

tions may be granted for periods of not to exceed one year

upon the President’s making a new determination. The Presi-

dent shall report each January to the Congress all exemptions

from the requirements of this section granted during the pre-

ceding calendar year, together with his reason for granting

such exemption.

A-51

APPENDIX F(3)

“NATIONAL POLLUTANT DISCHARGE

ELIMINATION SYSTEM

“Sec, 402.(a)(1) Except as provided in sections 318 and

404 of this Act, the Administrator may, after opportunity for

public hearing, issue a permit for the discharge of any pollu-

tant, or combination of pollutants, notwithstanding section

391(a), upon condition that such discharge will meet either

all applicable requirements under sections 301, 302, 306, 307,

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

implementing actions relating to all such requirements, such

conditions as the Administrator determines are necessary to

carry out the provisions of this Act. |

“(2) The Administrator shall prescribe conditions for

such permits to assure compliance with the requirements of

paragraph (1) of this subsection, including conditions on —

and information collection, reporting, and such other require-

ments as he deems appropriate.

“(3) The permit program of the Administrator under

paragraph (1) of this subsection, and permits issued there-

under, shall be subject to the same terms, conditions, and re-

quirements as apply to a State permit program and permits

issued thereunder under subsection (b) of this section.

“(4) All permits for discharges into the navigable waters

issued pursuant to section 18 of the Act of March 3, 1899, shall

be deemed to be permits issued under this title, and permits

issued under this title shall be deemed to be permits issued

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

tinue in force and effect for their term unless revoked, modi-

fied, or suspended in accordance with the provisions of this

Act.

A-52

“(5) No permit for a discharge into the navigable waters

shall be issued under section 13 of the Act of March 8, 1899,

after the date of enactment of this title. Each application for

a permit under section 13 of the Act of March 3, 1899, pending

on the date of enactment of this Act shall be deemed to be an

application for a permit under this section. The Administra-

tor shall authorize a State, which he determines has the

capability of administering a permit program which will carry

out the objective of this Act, to issue permits for discharges

into the navigable waters within the jurisdiction of such State.

The Administrator may exercise the authority granted him

by the preceding sentence only during the period which begins

on the date of enactment of this Act and ends either on the

ninetieth day after the date of the first promulgation of guide-

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

of approval by the Administrator of a permit program for

such State under subsection (b) of this section, whichever date

first occurs, and no such authorization to a State shall extend

beyond the last day of such period. Each such permit shall be

subject to such conditions as the Administrator determines

are necessary to carry out the provisions of this Act. No such

permit shall issue if the Administrator objects to such issu-

ance.

“(b) At any time after the promulgation of the guidelines

required by subsection (h)(2) of section 304 of this Act, the

Governor of each State desiring to administer its own permit

program for discharges into navigable waters within its ju-

risdiction may submit to the Administrator a full and com-

plete description of the program it proposes to establish and

administer under State law or under an interstate compact.

In addition, such State shall submit a statement from the at-

7

A-53

torney general (or the attorney for those State water pollu-

tion control agencies which have independent legal counsel),

or from the chief legal officer in the case of an interstate agen-

cy, that the laws of such State, or the interstate compact, as

the case may be, provide adequate authority to carry out the

described program. The Administrator shall approve each

such submitted program unless he determines that adequate

authority does not exist:

“(1) To issue permits which—

“(A) apply, and insure compliance with, any appli-

cable requirements of sections 301, 302, 306, 307, and 403;

“(B) are for fixed terms not exceeding five years;

and

“(C) can be terminated or modified for cause includ-

ing, but not limited to, the following:

„(i) violation of any condition of the permit;

„(ii) obtaining a permit by misrepresentation, or

failure to disclose fully all relevant facts;

„(iii) change in any condition that requires either

a temporary or permanent reduction or elimination of

the permitted discharge;

“(D) control the disposal of pollutants into wells;

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

pliance with, all applicable requirements of section 308 of this

Act, or

(B) To inspect, monitor, enter, and require reports to

at least the same extent as required in section 308 of this Act;

“(3) To insure that the public, and any other State the

waters of which may be affected, receive notice of each appli-

cation for a permit and to provide an opportunity for public

hearing before a ruling on each such application;

A-54

“(4) To insure that the Administrator receives notice of

each application (including a copy thereof) for a permit;

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

State), whose waters may be affected by the issuance of a per-

mit may submit written recommendations to the permitting

State (and the Administrator) with respect to any permit ap-

plication and, if any part of such written recommendations

are not accepted by the permitting State, that the permitting

State will notify such affected State (and the Administrator)

in writing of its failure to so accept such recommendations

together with its reasons for so doing;

“(6) To insure that no permit will be issued if, in the judg-

ment of the Secretary of the Army acting through the Chief

of Engineers, after consultation with the Secretary of the de-

partment in which the Coast Guard is operating, anchorage

and navigation of any of the navigable waters would be sub-

stantially impaired thereby; ö

“(7) To abate violations of the permit or the permit pro-

gram, including civil and criminal penalties and other ways

and means of enforcement;

“(8) To insure that any permit for a discharge from a

publicly owned treatment works includes conditions to require

adequate notice to the permitting agency of (A) new introduc-

tions into such works of pollutants from any source which

would be a new source as defined in section 306 if such source

were discharging pollutants, (B) new introductions of pollu-

tants into such works from a source which would be subject

to section 301 if it were discharging such pollutants, or (C)

a substantial change in volume or character of pollutants being

introduced into such works by a source introducing pollutants

into such works at the time of issuance of the permit. Such

A-55

notice shall include information on the quality and quantity

of effluent to be introduced into such treatment works and

any anticipated impact of such change in the quantity or quali-

ty of effluent to be discharged from such publicly owned

treatment works; and

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

owned treatment works will comply with sections 204(b), 307,

and 308.

„(e) (!) Not later than ninety days after the date on

which a State has submitted a program (or revision thereof)

pursuant to subsection (b) of this section, the Administrator

shall suspend the issuance of permits under subsection (a)

of this section as to those navigable waters subject to such pro-

gram unless he determines that the State permit program does

not meet the requirements of subsection (b) of this section

or does not conform to the guidelines issued under section

304 (h) (2) of this Act. If the Administrator so determines,

he shall notify the State of any revisions or modifications

necessary to conform to such requirements or guidelines.

“(2) Any State permit program under this section shall

at all times be in accordance with this section and guidelines

promulgated pursuant to section 304(h)(2) of this Act.

“(3) Whenever the Administrator determines after public

hearing that a State is not administering a program approved

under this section in accordance with requirements of this sec.

tion, he shall so notify the State and, if appropriate corrective

action is not taken within a reasonable time, not to exceed

ninety days, the Administrator shall withdraw approval of

such program. The Administrator shall not withdraw approval

of any such program unless he shall first have notified the

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

drawal.

A-56

“(d)(1) Each State shall transinit to the Administrator

a copy of each permit application received by such State and

provide notice to the Administrator of every action related

to the consideration of such permit application, including each

permit proposed to be issued by such State.

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

in ninety days of the date of his notification under subsection

(b)(5) of this section objects in writing to the issuance of

such permit, or (B) if the Administrator within ninety days

of the date of transmittal of the propcsed permit by the State

objects in writing to the issuance of such permit as being out-

side the guidelines and requirements of this Act.

“(3) The Administrator may, as to any permit applica-

tion, waive paragraph (2) of this subsection.

“(e) In accordance with guidelines promulgated pursuant

to subsection (h)(2) of section 304 of this Act, the Adminis-

trator is authorized to waive the requirements of subsection

(d) of this section at the time he approves a program pur-

suant to subsection (b) of this section for any category

(including any class, type, or size within such category) of

point sources within the State submitting such program.

“(f) The Administrator shall promulgate regulations

establishing categories of point sources which he determines

shall not be subject to the requirements of subsection (d) of

this section in any State with a program approved pursuant

to subsection (b) of this section. The Administrator may dis-

tinguish among classes, types, and sizes within any category

of point sources.

“(g) Any permit issued under this section for the dis.

charges of pollutants into the navigable waters from a vessel

or other floating craft shall be subject to any applicable regu-

A-57

lations promulgated by the Secretary of the department in

which the Coast Guard is operating, establishing specifications

for safe transportation, handling, carriage, storage, and stow-

age of pollutants.

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

from a treatment works (as defined in section 212 of this Act)

which is publicly owned is violated, a State with a program

approved under subsection (b) of this section or the Adminis-

trator, where no State program is approved, may proceed in

a court of competent jurisdiction to restrict or prohibit the

introduction of any pollutant into such treatment works by

a source not utilizing such treatment works prior to the find-

ing that such condition was violated.

„(i) Nothing in this section shall be construed to limit the

authority of the Administrator to take action pursuant to sec-

tion 309 of this Act.

j) A copy of each permit application and each permit

issued under this section shall be available to the public. Such

permit application or permit, or portion thereof, shall further

be available on request for the purpose of reproduction.

“(k) Compliance with a permit issued pursuant to this

section shall be deemed compliance, for purposes of sections

309 and 505, with sections 301, 302, 306, 307, and 408, except

any standard imposed under section 307 for a toxic pollutant

injurious to human health. Until December 31, 1974, in any

case where a permit for discharge has been applied for pur-

suant to this section, but final administrative disposition of

such application has not been made, such discharge shall not

be a violation of (1) section 301, 306, or 402 of this Act, or

(2) section 13 of the Act of March 3, 1899, unless the Adminis-

trator or other plaintiff proves that final administrative dis-

A-58

position of such application has not been made because of the

failure of the applicant to furnish information reasonably re-

quired or requested in order to process the application. For

the 180-day period beginning on the date of enactment of the

Federal Water Pollution Control Act Amendments of 1972,

in the case of any point source discharging any pollutant or

combination of pollutants immediately prior to such date of

enactment which source is not subject to section 13 of the Act

of March 3, 1899, the discharge by such source shall not be a

violation of this Act if such a source applies for a permit for

discharge pursuant to this section within such 180-day period.

APPENDIX F(4)

“PERMITS FOR DREDGED OR FILL MATERIAL

“Sec. 404. (a) The Secretary of the Army, acting

through the Chief of Engineers, may issue permits, after

notice and opportunity for public hearings for the discharge

of dredged or fill material into the navigable waters at speci-

fied disposal sites.

“(b) Subject to subsection (c) of this section, each such

disposal site shall be specified for each such permit by the

Secretary of the Army (1) through the application of guide-

lines developed by the Administrator, in conjunction with the

Secretary of the Army, which guidelines shall be based upon

criteria comparable to the criteria applicable to the territorial

seas, the contiguous zone, and the ocean under section 403(c),

and (2) in any case where such guidelines under clause (1)

alone would prohibit the specification of a site, through the

application additionally of the economic impact of the site on

navigation and anchorage.

„(e) The Administrator is authorized to prohibit the

specification (including the withdrawal of specification) of

—

A-59

any defined area as a disposal site, and he is authorized to

deny or restrict the use of any defined area for specification

(including the withdrawal of specification) as a disposal site,

whenever he determines, after notice and opportunity for pub-

lic hearings, that the discharge of such materials into such

area will have an unacceptable adverse effect on municipal

water supplies, shellfish beds and fishery areas (including

spawning and breeding areas), wildlife, or recreational areas.

Before making such determination, the Administrator shall

consult with the Secretary of the Army. The administrator

shall set forth in writing and make public his findings and his

reasons for making any determination under this subsection.

APPENDIX F(5)

“GENERAL DEFINITIONS

“Sec. 502. Except as otherwise specifically provided, when

used in this Act:

“(1) The term ‘State water pollution control agency’

means the State agency designated by the Governor having

responsibility for enforcing State laws relating to the abate-

ment of pollution.

“(2) The term ‘interstate agency’ means an agency of two

or more States established by or pursuant to an agreement

or compact approved by the Congress, or any other agency of

two or more States, having substantial powers or duties per-

taining to the control of pollution as determined and approved

by the Administrator.

“(3) The term ‘State’ means a State, the District of

Columbia, the Commonwealth of Puerto Rico, the Virgin

Islands, Guam, American Samoa, and the Trust Territory of

the Pacific Islands.

A-60

“(4) The term ‘municipality’ means a city, town, borough,

county, parish, district, association, or other public body

created by or pursuant to State law and having jurisdiction

over disposal of sewage, industrial wastes, or other wastes,

or an Indian tribe or an authorized Indian tribal organization,

or a designated and approved management agency under sec-

tion 208 of this Act.

“(5) The term ‘person’ means an individual, corporation,

partnership, association, State, municipality, commission, or

political subdivision of a State, or any interstate body.

“(6) The term ‘pollutant’ means dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge, muni-

tions, chemical wastes, biological materials, radioactive mate-

rials, heat, wrecked or discarded equipment, rock, sand, cellar

dirt and industrial, municipal, and agricultural waste dis-

charged into water. This term does not mean (A) ‘sewage

from vessels’ within the meaning of section 312 of this Act;

or (B) water, gas, or other material which is injected into a

well to facilitate production of oil or gas, or water derived in

association with oil or gas production and disposed of in a well,

if the well used either to facilitate production or for disposal

purposes is approved by authority of the State in which the

well is located, and if such State determines that such injection

or disposal will not result in the degradation of ground or sur-

face water resources.

“(7) The term ‘navigable waters’ means the waters of the

United States, including the territorial seas.

“(8) The term ‘territorial seas’ means the belt of the seas

measured from the line of ordinary low water along that por-

tion of the coast which is in direct contact with the open sea

and the line marking the seaward limit of inland waters, and

extending seaward a distance of three miles.

A-61

“(9) The term ‘contiguous zone’ means the entire zone es-

tablished or to be established by the United States under

article 24 of the Convention of the Territorial Sea and the

Contiguous Zone.

“(10) The term ‘ocean’ means any portion of the high seas

beyond the contiguous zone.

“(11) The term ‘effluent limitation’ means any restriction

established by a State or the Administrator on quantities,

rates, and concentrations of chemical, physical, biological, and

other constituents which are discharged from point sources

into navigable waters, the waters of the contiguous zone, or

the ocean, including schedules of compliance.

“(12) The term ‘discharge of a pollutant’ and the term

‘discharge of pollutants’ each means (A) any addition of any

pollutant to navigable waters from any point source, (B) any

addition of any pollutant to the waters of the contiguous zone

or the ocean from any point source other than a vessel or other

floating craft.

“(18) The term ‘toxic pollutant’ means those pollutants,

or combinations of pollutants, including disease-causing

agents, which after discharge and upon exposure, ingestion,

inhalation or assimilation into any organism, either directly

from the environment or indirectly by ingestion through food

chains, will, on the basis of information available to the Ad-

ministrator, cause death, disease, behavioral abnormalities,

cancer, genetic mutations, physiological malfunctions (includ-

ing malfunctions in reproduction) or physical deformations,

in such organisms or their offspring.

(14) The term ‘point source’ means any discernible, con-

fined and discrete conveyance, including but not limited to any

pipe, ditch, channel, tunnel, conduit, well, discrete fissure,

A-62

container, rolling stock, concentrated animal feeding operation,

or vessel or other floating craft, from which pollutants are or

may be discharged.

“(15) The term ‘biological monitoring’ shall mean the de-

termination of the effects on aquatic life, including accumula-

tion of pollutants in tissue, in receiving waters due to the dis-

charge of pollutants (A) by techniques and procedures, in-

cluding sampling of organisms representative of appropriave

levels of the food chain appropriate to the volume and the

physical, chemical, and biological characteristics of the efflu-

ent, and (B) at appropriate frequencies and locations.

“(16) The term ‘discharge’ when used without qualifica-

tion includes a discharge of a pollutant, and a discharge of pol-

lutants.

“(17) The term ‘schedule of compliance’ means a schedule

of remedial measures including an enforceable sequence of

actions or operations leading to compliance with an effluent

limitation, other limitation, prohibition, or standard.

“(18) The term ‘industrial user’ means those industries

identified in the Standard Industrial Classification Manual,

Bureau of the Budget, 1967, as amended and supplemented,

under the category ‘Division D—Manufacturing’ and such

other classes of significant waste producers as, by regulation,

the Administrator deems appropriate.

“(19) The term ‘pollution’ means the man-made or man-

induced alteration of the chemical, physical, biological, and

radiological integrity of water.

—ũ——ͤ—

A-63

APPENDIX F (6)

“STATE AUTHORITY

“Sec. 510. Except as expressly provided in this Act, noth-

ing in this Act shall (1) preclude or deny the right of any State

or political subdivision thereof or interstate agency to adopt

or enforce (A) any standard or limitation respecting dis-

charges of pollutants, or (B) any requirement respecting con-

trol or abatement of pollution; except that if an effluent limi-

tation, or other limitation, effluent standard, prohibition, pre-

treatment standard, or standard of performance is in effect

under this Act, such State or political subdivision or inter-

state agency may not adopt or enforce any effluent limitation,

or other limitation, effluent standard, prohibition, pretreat-

ment standard, or standard of performance which is less

stringent than the effluent limitation, or other limitation, ef-

fluent standard, prohibition, pretreatment standard, or stan-

dard of performance under this Act; or (2) be construed as

impairing or in any manner affecting any right or jurisdiction

of the States with respect to the waters (including boundary

waters) of such States.

APPENDIX F(7)

“OTHER AFFECTED AUTHORITY

“Sec. 511. (a) This Act shal! not be construed as (1) limit-

ing the authority or functions of any officer or agency of the

United States under any other law or regulation not inconsis-

tent with this Act; (2) affecting or impairing the authority

of the Secretary of the Army (A) to maintain navigation or

(B) under the Act of March 3, 1899 (30 Stat. 1112); except

that any permit issued under section 404 of this Act shall be

conclusive as to the effect on water quality of any discharge

resulting from any activity subject to section 10 of the Act

A-64

of March 3, 1899, or (3) affecting or impairing the provisions

of any treaty of the United States.

“(b) Discharges of pollutants into the navigable waters

subject to the Rivers and Harbors Act of 1910 (36 Stat. 593;

33 U.S.C. 421) and the Supervisory Harbors Act of 1888 (25

Stat. 209; 38 U.S.C. 441—451b) shall be regulated pursuant

to this Act, and not subject to such Act of 1910 and the Act

of 1888 except as to effect on navigation and anchorage.

“(c)(1) Except for the provision of Federal financial as-

sistance for the purpose of assisting the construction of pub-

licly owned treatment works as authorized by section 201 of

this Act, and the issuance of a permit under section 402 of this

Act for the discharge of any pollutant by a new source as de-

fined in section 306 of this Act, no action of the Administrator

taken pursuant to this Act shall be deemed a major Federal

action significantly affecting the quality of the human en-

vironment within the meaning of the National Environmental

Policy Act of 1969 (83 Scat. 852) ; and

“(2) Nothing in the National Environmental Policy Act

of 1969 (83 Stat. 852) shall be deemed to—

“(A) authorize any Federal agency authorized to li-

cense or permit the conduct of any activity which may

result in the discharge of a pollutant into the navigable

waters to review any effluent limitation or other require-

ment established pursuant to this Act or the adequacy

of any certification under section 401 of this Act; or

B) authorize any such agency to impose, as a con-

dition precedent to the issuance of any license or permit,

any effluent limitation other than any such limitation

established pursuant to this Act.”

A-65

APPENDIX G(1)

115.01 DEFINITIONS. Subdivision 1. The following

words and phrases when used in chapter 115 and, with re-

spect to the pollution of the waters of the state, in chapter 116,

unless the context clearly indicates otherwise, shal] have the

meanings ascribed to them in this section.

Subd. 2. “Sewage” means the water-carried waste prod-

ucts from residences. public buildings, institutions or other

buildings, or any mobile source, including the excrementitious

or other discharge from the bodies of human beings or ani-

mals, together with such ground water infiltration and surface

water as may be present.

Subd. 3. “Industrial waste” means any liquid, gaseous or

solid waste substance resulting from any process of industry,

manufacturing trade or business or from the development of

any natural resource.

Subd. 4. “Other wastes” mean garbage, municipal refuse,

decayed wood, sawdust, shavings, bark, lime, sand, ashes,

offal, oil, tar, chemicals, dredged spoil, solid waste, incinerator

residue, sewage sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or discarded

equipment, rock, cellar dirt or municipal or agricultural waste,

and all other substances not included within the definitions

of sewage and industrial waste set forth in this chapter which

may pollute or tend to pollute the waters of the state.

Subd. 5. “Pollution of water”, “water pollution”, or “pol-

lute the water“ means: (a) the discharge of any pollutant into

any waters of the state or the contamination of any waters

of the state so as to create a nuisance or render such waters

unclean, or noxious, or impure so as to be actually or poten-

tially harmful or detrimental or injurous to public health, safe-

ty or welfare, to domestic, agricultural, commercial, industrial,

A-66

recreational or other legitimate uses, or to livestock, animals,

birds, fish or other aquatic life; or (b) the man-made or man-

induced alteration of the chemical, physical, biological, or

radiological integrity of waters of the state.

Subd. 6. “Sewer system” means pipe lines or conduits,

pumping stations, and force mains, and all other constructions,

devices, and appliances appurtenant thereto, used for conduct-

ing sewage or industrial waste or other wastes to a point of

ultimate disposal.

Subd. 7. “Treatment works” means any plant, disposal

field, lagoon, dam, pumping station, constructed drainage

ditch or surface water intercepting ditch, incinerator, area

devoted to sanitary land fills, or other works not specifically

mentioned herein, installed for the purpose of treating,

stabilizing or disposing of sewage, industrial waste, or other

wastes.

Subd. 8. “Disposal system” means a system for disposing

of sewage, industrial waste amd other wastes, and includes

sewer systems and treatment works.

Subd. 9. Waters of the state“ means all strearns, lakes,

ponds, marshes, watercourses, waterways, wells, springs,

reservoirs, aquifers, irrigation systems, drainage systems and

all other bodies or accumulations of water, surface or under-

ground, natural or artificial, public or private, which are con-

tained within, flow through, or border upon the state or any

portion thereof.

Subd. 10. Person“ means the state or any agency or insti-

tution thereof, any municipality, governmental subdivision,

public or private corporation, individual, partnership, or other

entity, including, but not limited to, association, commission

or any interstate body, and includes any officer or governing

—— ae hh Pee —— 2. —

A-67

or managing body of any municipality, governmental subdivi-

sion, or publie or private corporation, or other entity.

Subd. 11. “Agency” means the Minnesota pollution con-

trol agency.

Subd. 12. “Discharge” means the addition of any pollu-

tant to the waters of the state or to any disposal system.

Subd. 13. “Pollutant” means any “sewage,” “industrial

waste,” or “other wastes,” as defined in chapter 115, dis-

charged into a disposal system or to waters of the state.

Subd. 14. “Toxie pollutants” means those pollutants, or

combinations of pollutants, including disease-causing agents,

which after discharge and upon exposure, ingestion, inhala-

tion or assimilation into any organism, either directly from

the environment or indirectly by ingestion through food

chains, will, on the basis of information available to the

agency, cause death, disease, behavioral abnormalities, cancer,

genetic mutations, physiological malfunctions, including mal-

functions in reproduction, or physical deformation, in such

organisms or their offspring.

Subd. 15. “Point source” means any discernible, confined

and discrete conveyance, including, but not limited to, any

pipe, ditch, channel, tunnel, conduit, well, discrete fissure, con-

tainer, rolling stock, concentrated animal feeding operation,

or vessel or other floating craft, from which pollutants are

or may be discharged.

Subd. 16. “Standards” means effluent standards, effluent

limitations, standards of performance for new sources, water

quality standards, pretreatment standards, and prohibitions.

Subd. 17. “Schedule of compliance” means a schedule of

remedial measures including an enforceable sequence of ac-

tions or operations leading to compliance with an effluent

limitation, other limitation, prohibition, or standard.

— —

—

A-68

APPENDIX G(2) j

115.03 POWERS AND DUTIES. Subdivision 1. The

agency is hereby given and charged with the following powers

and duties:

(a) To administer and enforce all laws relating to the pol-

lution of any of the waters of the state;

(b) To investigate the extent, character, and effect of the

pollution of the waters of this state and to gather data and in-

formation necessary or desirable in the administration or en-

forcement of pollution laws, and to make such classification

of the waters of the state as it may deem advisable;

(c) To establish and alter such reasonable pollution stan-

dards for any waters of the state in relation to the public use

to which they are or may be put as it shall deem necessary for

the purposes of chapter 115 and, with respect to the pollution

of waters of the state, chapter 116;

(d) To encourage waste treatment, including advanced

waste treatment, instead of stream low-flow augmentation

for dilution purposes to control and prevent pollution;

(e) To adopt, issue, reissue, modify, deny, or revoke, enter

into or enforce reasonable orders, permits, variances, stan-

dards, regulations, schedules of compliance, and stipulation

agreements, under such conditions as it may prescribe, in

order to prevent, control or abate water pollution, or for the

installation or operation of disposal systems or parts thereof,

or for other equipment and facilities ;

(1) Requiring the discontinuance of the discharge of

sewage, industrial waste or other wastes into any waters of

the state resulting in pollution in excess of the applicable pol-

lution standard established under this chapter;

—— — —

A-69

(2) Prohibiting or directing the abatement of any dis-

charge of sewage, industrial waste, or other wastes, into any

waters of the state or the deposit thereof or the discharge into

any municipal disposal system where the same is likely to get

into any waters of the state in violation of this chapter and,

with respect to the pollution of waters of the state, chapter

116, or standards or regulations promulgated or permits is-

sued pursuant thereto, and specifying the schedule of compli-

ance within which such prohibition or abatement must be ac-

complished;

(3) Prohibiting the storage of any liquid or solid sub-

stance or other pollutant in a manner which does not reason-

ably assure proper retention against entry into any waters

of the state that would be likely to pollute any waters of the

state; i

(4) Requiring the construction, installation, maintenance,

and operation, by any person of any disposal system or any

part thereof, or other equipment and facilities, or the recon-

struction, alteration, or enlargement of its existing disposal

system or any part thereof, or the adoption of other remedial

measures to prevent, control or abate any discharge or deposit

of sewage, industrial waste or other wastes by any person;

(5) Establishing, and from time to time revising, stan-

dards of performance for new sources taking into considera-

tion, among other things, classes, types, sizes, and categories

of sources, processes, pollution control technology, cost of

achieving such effluent reduction, and any non-water quality

environmental impact and energy requirements. Said stan-

dards of performance for new sources shall encompass those

standards for the control of the discharge of pollutants which

reflect the greatest degree of effluent reduction which the

A-70

agency determines to be achievable through application of the

best available demonstrated control technology, processes,

operating methods, or other alternatives, including, where

practicable, a standard permitting no discharge of pollutants.

New sources shall encompass buildings, structures, facilities,

or installations from which there is or may be the discharge

of pollutants, the construction of which is commenced after

the publication by the agency of proposed regulations pre-

scribing a standard of performance which will be applicable

to such source. Notwithstanding any other provision of the

law of this state, any point source the construction of which

is commenc d after May 20, 1973 and which is so constructed

as to meet all applicable standards of performance for new

sources shall, consistent with and subject to the provisions

of section 306(d) of the Amendments of 1972 to the Federal

Water Pollution Control Act, not be subject to any more

stringent standard of performance for new sources during:

a ten-year period beginning on the date of completion of such

construction or during the period of depreciation or amortiza-.

tion of such facility for the purposes of section 167 or 169, or

both, of the Federal Internal Revenue Code of 1954, which-

ever period ends first. Construction shall encompass any place-

ment, assembly, or installation of facilities or equipment, in-

cluding contractual! obligations to purchase such facilities or

equipment, at the premises where such equipment will be used,

including preparation work at such premises;

(6) Establishing and revising pretreatment standards to

prevent or abate the discharge of any pollutant into any pub-

licly owned disposal system, which pollutant interferes with,

passes through, or otherwise is incompatible with such dis-

posal system;

ee Ee Oe et te EE —— 222 — eee ewe —

A-71

(7) Requiring the owner or operator of any disposal sys-

tem or any point source to establish and maintain such

records, make such reports, install, use, and maintain such

monitoring equipment or methods, including where appro-

priate biological monitoring methods, sample such effluents

in accordance with such methods, at such locations, at such

intervals, and in such a manner as the agency shall prescribe,

and providing such other information as the agency may rea-

sonably require;

(8) Notwithstanding any other provision of chapter 115,

and with respect to the pollution of waters of the state, chap-

ter 116, requiring the achievement of more stringent limita-

tions than otherwise imposed by effluent limitations in order

to meet any applicable water quality standard by establishing

new effluent limitations, based upon section 115.01, subdivi-

sion (5), clause (b), including alternative effluent control

strategies for any point source or group of point sources to

insure the integrity of water quality classifications, whenever

the agency determines that discharges oi pollutants from such

point source or sources, with the application of effluent limi-

tations required to comply with any standard of best avail-

able technology, would interfere with the attainment or main-

tenance of the water quality classification in a specific portion

of the waters of the state. Prior to establishment of any such

effluent limitation, the agency shall hold a public hearing to

determine the relationship of the economic and social costs

of achieving such limitation or limitations, including any eco-

nomic or social dislocation in the affected community or com-

munities, to the social and economic benefits to be obtained

and to determine whether or not such effluent limitation can

be implemented with available technology or other alternative

——

A-72

control strategies. If a person affected by such limitation

demonstrates at such hearing that, whether or not such tech-

nology or other alternative control strategies are available,

there is no reasonable relationship between the economic and

social costs and the benefits to be obtained, such limitation

shall not become effective and shall be adjusted as it applies

to such person;

(9) Modifying, in its discretion, any requirement or limi-

tation based upon best available technology with respect to

any point source for which a permit application is filed after

July 1, 1977 upon a showing by the owner or operator of such

point source satisfactory to the agency that such modified re-

quirements will represent the maximum use of technology

within the economic capability of the owner or operator and

will result in reasonable further progress toward the elimina-

tion of the discharge of pollutants. |

(f) To require to be submitted and to approve plans and

specifications for disposal systems or point sources, or any

part thereof and to inspect the construction thereof for com-

pliance with the approved plans and specifications thereof;

(g) To prescribe and alter rules and regulations, not in-

consistent with law, for the conduct of the agency and other

matters within the scope of the powers granted to and imposed

upon it by this chapter and, with respect to pollution of waters

of the state, in chapter 116, provided that every rule or regu-

lation affecting any other department or agency of the state

or any person other than a member or employee of the agency

shall be filed with the secretary of state;

(h) To conduct such investigations, issue such notices,

public and otherwise, and hold such hearings as are necessary

or which it may deem advisable for the discharge of its duties

A-73

under this chapter and, with respect to the pollution of waters

of the state, under chapter 116, including, but not limited to,

the issuance of permits, and to authorize any member, em-

ployee, or agent appointed by it to conduct such investigations

or, issue such notices and hold such hearings;

(i) For the purpose of water pollution control planning

by the state and pursuant to the Federal Water Pollution Con-

trol Act, as amended, to establish and revise planning areas,

adopt plans and programs and continuing planning processes,

including, but not limited to, basin plans and areawide waste

treatment management plans, and to provide for the imple-

mentation of any such plans by means of, including, but not

limited to, standards, plan elements, procedures for revision,

intergovernmental cooperation, residual treatment process

waste controls, and needs inventory and ranking for construc-

tion of disposal systems;

(j) To train water pollution control personnel, and charge

such fees therefor as are necessary to cover the agency’s costs.

All such fees received shall be paid into the state treasury and

credited to the water pollution control training fund of the

agency, from which the agency shall have the power to make

disbursements to pay expenses relating to such training;

(k) To impose as additional conditions in permits to pub-

licly owned disposal systems appropriate measures to insure

compliance by industrial and other users with any pretreat-

ment standard, including, but not limited to, those related to

toxic pollutants, and any system of user charges ratably as

is hereby required under state law or said Federal Water Pol-

lution Control Act, as amended, or any regulations or guide-

lines promulgated thereunder; and

(1) To set a period not to exceed five years for the dura-

tion of any National Pollutant Discharge Elimination System

permit.

*

A-74

Subd. 2. In any such hearing or investigation, any member

of the agency, or any employee or agent thereto authorized

by the agency, may administer oaths, examine witnesses and

issue, in the name of the agency, subpoenas requiring the at-

tendance and testimony of witnesses and the production of

evidence relevant to any matter involved in any such hearing

or investigation. Witnesses shall receive the same fees and

mileage as in civil actions.

Subd. 3. In case of contumacy or refusal to obey a sub-

poena issued under this section, the district court of the county

wnere the proceeding is pending or in which the person guilty

of such contumacy or refusal to obey is found or resides, shall

have jurisdiction upon application of the agency or its au-

thorized member, employee or agent to issue to such person

an order requiring him to appear and testify or produce evi-

dence, as the case may require, and any failure to obey such

order of the court may be punished by said court as a contempt

thereof.

Subd. 4. It is unlawful for any person to issue or grant

a building permit for, or otherwise permit, the construction,

enlargement, or relocation of a commercial or industrial build-

ing to be used as the place of employment of more than 12 per-

sons, or any other commercial or industrial building to house

a process producing industrial or other wastes, unless the

sewage or industrial or other waste originating in such build-

ings is or will be discharged into a disposal system for which

a permit has first been granted by the agency unless the

agency has cause not to apply this requirement, provided that

this subdivision shall not apply to building permits issued for

buildings, which have an estimated value of less than $500,000,

located or to be located within an incorporated municipality.

tn —_ _ -

A-75

After January 1, 1975 such permits shall be acted upon by the

agency within 90 days after submitted, provided that the

agency, for good cause, may order said 90 day period to be ex-

tended for a reasonable time.

Subd. 5. Notwithstanding any other provisions prescribed

in or pursuant to chapter 115 and, with respect to the pollu-

tion of waters of the state, in chapter 116, or otherwise, the

agency shall have the authority to perform any and all acts

minimally necessary including, but not limited to, the estab-

lishment and application of standards, procedures, regula-

tions, orders, variances, stipv'ation agreements, schedules of

compliance, and permit conditions, consistent with and, there-

fore not less stringent than the provisions of the Federal

Water Pollution Control Act, as amended, applicable to the

participation by the state of Minnesota in the National] Pol-

lutant Discharge Elimination System (NPDES); provided

that this provision shall not be construed as a limitation on

any powers or duties otherwise residing with the agency pur-

suant to any provision of law.

APPENDIX G(3)

115.45 VIOLATIONS. Subdivision 1. It is the duty of

every person affected to comply with the provisions of Laws

1963, Chapter 874, and of Minnesota Statutes, Sections 115.01

to 115.09, comprising the state water pollution control act, as

now in force or hereafter amended, and all regulations, orders,

and permits adopted or issued by the agency thereunder, and

to do and perform all acts and things within his or its power

required to effectuate, carry out, and accomplish the purposes

of such provisions, regulations, orders, and permits.

— *

— .

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APPENDIX G(4)

RULES AND REGULATIONS

CHAPTER FIFTEEN: WPC 15

CRITERIA FOR THE CLASSIFICATION OF THE

INTERSTATE WATERS OF THE STATE AND THE

ESTABLISHMENT OF STANDARDS OF

QUALITY AND PURITY

WPC 15 The official policy and purpose of the State of Min-

nesota in regard to these matters is set forth in the Minnesota

Water Pollution Control Statutes as amended by Minnesota

Laws 1973, Chapter 374:

Sec. 115.42. It is the policy of the state to provide for the

prevention, control and abatement of pollution of all waters

of the state, so far as feasible and practical, in furtherance

of conservation of such waters and protection of the public

health and in furtherance of the development of the economic

welfare of the state.

.. . It is the purpose of Laws 1963, Chapter 874, to safe-

guard the waters of the state from pollution by: (a) pre-

venting any new pollution; and (b) abating pollution existing

when Laws 1963, Chapter 874, become effective, under a pro-

gram consistent with the declaration of policy above stated.

Sec. 115.44 Subd. 2. In order to attain the objectives of

Laws 1963, Chapter 874, the Agency after proper study, and

after conducting public hearing upon due notice, shall as soon

as practicable, group the designated waters of the state into

classes aad adopt classifications and standards of purity and

quality therefor. Such classification shall be made in accor-

dance with considerations of best usage in the interest of the

public and with regard to the considerations mentioned in sub-

division 3 hereof.

eet ae

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Sec. 115.44 Subd. 8. If the Agency finds in order to com-

ply with the federal water pollution control act or any other

federal law or rule or regulation promulgated thereunder that

it is impracticable to comply with the requirements of this sec-

tion in classifying waters or adopting standards or in meet-

ing any of the requirements thereof, compliance with the

requirements of such section are waived to the extent neces-

sary to enable the agency to comply with federal laws and

rules and regulations promulgated thereunder. The agency

may classify waters and adopt criteria and standards in such

form and based upon such evidence as it may deem necessary

and sufficient for the purposes of meeting requirements of

such federal laws, notwithstanding any provisions in chapter

115 or any other state law to the contrary. In the event waters

are classified and criteria and standards are adopted to meet

the requirements of federal law, the agency shall thereafter

proceed to otherwise comply with the provisions of this section

which were waived as rapidly as is practicable. This authority

shall extend to proceedings pending before the agency on May

20, 1973.

. . Wherever advisable and practicable the agency may

establish standards for effluent or disposal systems discharg-

ing into waters of the state regardless of whether such waters

are or are not classified.

Sec. 115.03 Subd. 5. Notwithstanding any other provi-

sions prescribed in or pursuant to chapter 115 and, with re-

spect to the pollution of waters of the state, in chapter 116,

or otherwise, the agency shall have the authority to perform

any and all acts minimally necessary including, but not limited

to, the establishment and application of standards, procedures,

regulations, orders, variances, stipulation agreements, sched-

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ules of compliance, and permit conditions, consistent with and,

therefore, not less stringent than the provisions of the Federal

Water Pollution Control Act, as amended, applicable to the

participation by the state of Minnesota in the National Pollu-

tant Discharge Elimination System (NPDES)... .

In accordance with this declaration of policy and legislative

intent, and under the powers delegated to the Agency, the fol-

lowing interstate water use classifications and corresponding

standards of quality and purity are hereby adopted by the Pol-

lution Control Agency as provided by law.

(a) Introduction

(1) Scope. The following classifications, criteria and

standards of water and effluent quality and purity as hereby

adopted and established shall apply to all interstate waters

of the state, notwithstanding any other interstate water

quality or effluent regulations of general or specific applica-

tion, except that any more stringent water quality or effluent

standards or prohibitions in the other applicable regulations

are preserved.

(2) Severability. All provisions of this regulation shall

be severable and the invalidity of any lettered paragraph or

any subparagraph or subdivision thereof shall not void any

other lettered paragraph or subparagraph, subdivision or any

part thereof.

(3) Definitions. The terms “waters of the state” for the

purposes of this regulation shall be construed to mean inter-

state waters as herein below defined, and the terms “sewage,”

“industrial wastes,” and “other wastes,” as well as any other

terms for which definitions are given in the Water Pollution

Control Statutes, as used herein have the meanings ascribed

to them in Minnesota Statutes, Sections 115.01 and 115.41,

enon Mpa we

A-79

with the exception that disposal systems or treatment works

operated under permit of the Agency shall not be construed

to be “waters of the state” as the term is used herein. Inter-

state waters are defined as all rivers, lakes, and other waters

that flow across or form part of state boundaries. Other terms

and abbreviations used herein which are not specifically de-

fined in applicable federal or state law shall be construed in

conformance with the context, and in relation to the applicable

section of the statutes pertaining to the matter at hand, and

current professional usage.

(4) Uses of the Interstate Waters. The classifications

are listed separately in accordance with the need for interstate

water quality protection, considerations of best use in the

interest of the public and other considerations, as indicated

in Minnesota Statutes, Section 115.44. The classifications

should not be construed to be an order of priority, nor con-

sidered to be exclusive or prohibitory of other beneficial uses.

(5) Determination of Compliance. In making tests or

analyses of the interstate waters of the state, sewage, indus-

trial wastes or other wastes to determine compliance with the

standards, samples shall be collected in such manner and place,

and of such type, number and frequency as may be considered

necessary by the Agency from the viewpoint of adequately re-

flecting the condition of the interstate waters, the composition

of the effluents, and the effects of the pollutants upon the

specified uses. Reasonable allowance will be made for dilution

of the effluents which are in compliance with Section (c) (6),

following discharge into waters of the State. The Agency by

allowing dilution may consider the effect on all uses of the

interstate waters into which the effluents are discharged. The

extent of dilution allowed regarding any specific discharge

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shall not violate the applicable water quality standards. The

samples shall be preserved and analyzed in accordance with

procedures given in the 1971 edition of Standard Methods for

the Examination of Water and Waste-Water, by the American

Public Health Association, American Water Works Associa-

tion, and the Water Pollution Control Federation, and any

revisions or amendments thereto. The Agency may accept or

may develop other methods, procedures, guidelines or criteria

for measuring, analyzing and collecting samples.

(6) Natural Interstate Water Quality. The interstate

waters may, in a state of nature, have some characteristics

or properties approaching or exceeding the limits specified

in the water quality standards. The standards shall be con-

strued as limiting the addition of pollutants of human activity

to those of natural origin, where such be present, so that in

total the specified limiting concentrations will not be exceeded

in the interstate waters by reason of such controllable addi-

tions. Where the background level of the natural origin is rea-

sonably definable and normally is higher than the specified

standard the natural level may be used as the standard for con-

trolling the addition of pollutants of human activity which

are comparable in nature and significance with those of na-

tural origin. The natural background level may be used instead

of the specified water quality standard as a maximum limit

of the addition of pollutants, in those instances where the na-

tural level is lower than the specified standard and reasonable

justification exists for preserving the quality to that found

in a state of nature.

In the adoption of standards for individual interstate

waters, the Agency will be guided by the standards set forth

herein but may make reasonable modifications of the same

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on the basis of evidence brought forth at a public hearing if

it is shown to be desirable and in the public interest to do so

in order to encourage the best use of the interstate waters or

the lands bordering such interstate waters.

(7). Non-Degradation. Waters which are of quality bet-

ter than the established standards shall be maintained at high

quality unless a determination is made by the Agency that a

change is justifiable as a result of necessary economic or social

development and will not preclude appropriate beneficial pres-

ent and future uses of the waters. Any project or development

which would constitute a source of pollution to waters of the

state shall be required to provide the best practicable control

technology currently available not later than July 1, 1977 and

the best available technology economically achievable not later

than July 1, 1983 and any other applicable treatment stan-

dards as defined by and in accordance with the requirements

of the Federal Water Pollution Control Act, 33 U.S.C. 1251

et seq., as amended, in order to maintain high water quality

and keep water pollution at a minimum. In implementing this

policy the Administrator of the U. S. Environmental Protec-

tion Agency will be provided with such information as he re-

quires to discharge his responsibilities under the Federal

Water Pollution Control Act, as amended.

(8) Variance from Standards. In any case where, upon

application of the responsible person or persons, the Agency

finds that by reason of exceptional circumstances the strict

enforcement of any provision of these standards would cause

undue hardship; that disposal of the sewage, industrial waste

or other waste is necessary for the public health, safety or wel-

fare; and that strict conformity with the standards would be

unreasonable, impractical or not feasible under the circum-

stances; the Agency in its discretion may grant a variance

—

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therefrom upon such conditions as it may prescribe for pre-

vention, control or abatement of pollution in harmony with

the general purposes of these classifications and standards

and the intent of the applicable state and federal laws. The

U.S. Environmental Protection Agency will be advised of any

permits which may be issued under this clause together with

information as to the need therefor.

(b) Water Use Classifications—All Interstate Waters of

the State. Based on considerations of best usage in the inter-

est of the public and in conformance with the requirements

of the applicable statutes, the interstate waters of the state

shall be grouped into one or more of the following classes:

(1) Domestic Consumption. (To include all interstate

waters which are or may be used as a source of supply for

drinking, culinary or food processing use or other domestic

purposes, and for which quality control is or may be necessary

to protect the public health, safety or welfare.)

(2) Fisheries and Recreation. (To include all interstate

waters which are or may be used for fishing, fish culture,

bathing or any other recreational purposes, and for which

quality control is or may be necessary to protect aquatic or

terrestrial life, or the public health, safety or welfare.)

(3) Industrial Consumption. (To include all interstate

waters which are or may be used as a source of supply for in-

dustrial process or cooling water, or any other industrial or

commercial purposes, and for which quality control is or may

be necessary to protect the public health, safety or welfare.)

(4) Agriculture and Wildlife. (To include all interstate

waters which are or may be used for any agriculture purposes,

including stock watering and irrigation, or by waterfowl] or

other wildlife, and for which quality control is or may be

necessary to protect terrestrial life or the public health, safety

or welfare.)

A-83

(5) Navigation and Waste Disposal. (To include all

interstate waters which are or may be used for any form of

water transportation or navigation, disposal of sewage, indus-

trial waste or other waste effluents, or fire prevention, and

for which quality control is or may be necessary to protect the

public health, safety or welfare.)

(6) Other Uses. (To include interstate waters which

are or may serve the above listed uses or any other beneficial

uses not listed herein, including without limitation any such

uses in this or any other state, province, or nation of any inter-

state waters flowing through or originating in this state, and

for which quality control is or may be necessary for the above

declared purposes, or to conform with the requirements of the

legally constituted state or national agencies having jurisdic-

tion over such interstate waters, or any other considerations

the Agency may deem proper.)

(c) General Standards Applicable to All Interstate Waters

of the State

(1) No untreated sewage shall be discharged into any

interstate waters of the state. No treated sewage, or industrial

waste or other wastes containing viable pathogenic organisms,

shall be discharged into interstate waters of the state with-

out effective disinfection. Effective disinfection of any dis-

charges, including combined flows of sewage and storm water,

will be required where necessary to protect the specified uses

of the interstate waters.

(2) No sewage, industrial waste or other wastes shall be

discharged into any interstate waters of the state so as to

cause any nuisance conditions, such as the presence of signifi-

cant amounts of floating solids, scum, oil slicks, excessive sus-

pended solids, material discoloration, obnoxious odors, gas

ebullition, deleterious sludge deposits, undesirable slimes or

fungus growths, or other offensive or harmful effects.

A-84

(3) Existing discharges of inadequately treated sewage,

industrial waste or other wastes shall be abated, treated or

controlled so as to comply with the applicable standards. Sepa-

ration of sanitary sewage from natural run-off may be re-

quired where necessary to ensure continuous effective treat-

ment of sewage.

(4) The highest levels of water quality, including, but not

limited to, dissolved oxygen, which are attainable in the inter-

state waters by continuous operation at their maximum capa-

bility of all primary and secondary units of treatment works

or their equivalent discharging effluents into the interstate

waters shall be maintained in order to enhance conditions for

the specified uses.

(5) Means for expediting mixing and dispersion of

sewage, industrial waste, or other waste effluents in the re-

ceiving interstate waters are to be provided so far as prac-

ticable when deemed necessary by the Agency to maintain the

quality of the receiving interstate waters in accordance with

applicable standards. Mixing zones be established by the

Agency on an individual basis, with primary consideration

being given to the following guidelines: (a) mixing zones in

rivers shall permit an acceptable passageway for the move-

ment of fish; (b) the total mixing zone or zones at any

transect of the stream should contain no more than 25% of

the crossectional area and/or volume of flow of the stream,

and should not extend over more than 50% of the width; (c)

mixing zone characteristics shall not be lethal to aquatic

organisms; (d) for contaminants other than heat, the 96 hour

median tolerance limit for indigenous fish and fish food or-

ganisms should not be exceeded at any point in the mixing

zone; (e) mixing zones should be as small as possible, and not

intersect spawning or nursery areas, migratory routes, water

A-85

intakes, nor mouths of rivers; and (f) overlapping of mixing

zones should be minimized and measures taken to prevent ad-

verse synergistic effects.

(6) It is herein established that the Agency shall require

secondary treatment as a minimum for all municipal sewage

and biodegradable industrial or other wastes to meet the

adopted water quality standards. A comparable high degree

of treatment or its equivalent also shall be required of all non-

biodegradable industrial or other wastes unless the discharger

can demonstrate to the Agency that a lesser degree of treat-

ment or control will provide for water quality enhancement

commensurate with present and proposed future water uses

and a variance is granted under the provisions of the vari-

ance clause. Secondary treatment facilities are defined as

works which will provide effective sedimentation, biochemical

oxidation, and disinfection, or the equivalent, including ef-

fluents conforming to the following:

A-86 A-87

Substance or Characteristic Limiting Concentration or Range* In addition to providing secondary treatment as defined

5-Day Biochemical Oxygen 25 milligrams per liter above, all dischargers of sewage, industrial wastes or other

demand wastes also shall provide the best practicable control tech-

nology not later than July 1, 1977, and best available tech-

nology economically achievable by July 1, 1983, and any other

applicable treatment standards as defined by and in ac-

Fecal coliform group organisms 200 most probable number per 100

milliliters

Total suspended solids 30 milligrams per liter

Pathogenic organisms None cordance with the requirements and schedules of the Federal

Oil Essentially free of visible oil Water Pollution Control Act, 33 U.S.C. 1251 et seq., as amend-

Phosphorus** 1 milligram per liter ed, and applicable regulations or rules promulgated pursuant

Turbidity 25 thereto by the Administrator of the U. S. Environmental Pro-

pH range 6.5-8.5 | tection Agency.

Unspecified toxic or corrosive None at levels acutely toxic to humans (7) Dischargers of sewage, industrial waste or —

substances or other animals or plant life, or waste effluents shall be controlled so that the water quality

directly damaging to real property. standards will be maintained at all stream flows which are

»The arithmetic mean for concentrations of 5<day biochemical oxy-

gen demand and total suspended solids shall not exceed the stated

values in a period of 30 consecutive days and 45 milligrams per

liter in a period of 7 consecutive days. Disinfection of wastewater

effluents to reduce the coliform organisms levels is required year

around. The geometric mean for the fecal coliform organisms

shall not exceed the stated value in a period of 30 consecutive days

and 400 most probable number per 100 milliliters in a period of 7

consecutive days. The application of the coliform and pathogenic

organism standards ordinarily shall be limited to sewage or other

effluents containing admixtures of sewage and shall not apply to

industrial wastes except where the presence of sewage, fecal coli-

form organisms or viable pathogenic organisms in such wastes is

known or reasonably certain.

**Where the discharge of effluent is directly to or affects a lake or

reservoir. Removal of nutrients from all wastes shail be provided

to the fullest practicable extent wherever sources of nutrients are

considered to be actually or potentially detrimental to preservation

or enhancement of the designated water uses.

oo

equal to or exceeded by 90 percent of the seven consecutive

daily average flows of record (the lowest weekly flow with

a once in ten year recurrence interval) for the critical

month(s). The period of record for determining the specific

flow for the stated recurrence interval, where records are

available, shall include at least the most recent ten years of

record, including flow records obtained after establishment

of flow regulation devices, if any. Such calculations shall not

be applied to lakes and their embayments which have no com-

parable flow recurrence interval. Where stream flow records

are not available, the flow may be estimated on the basis of

available information on the watershed characteristics, pre-

cipitation, run-off and other relevant data.

Allowance shall not be made in the design of treatment

works for low stream flow augmentation unless such flow aug-

mentation of minimum flow is dependable and controlled

under applicable laws or regulations.

A-88

(8) In any instance where it is evident that the minimal

treatment specified in Section (c)(6) and dispersion are not

effective in preventing pollution, or if at the applicable flows

it is evident that the specified stream flow is inadequate to

protect the specified water quality standards, the specific stan-

dards may be interpreted as effluent standards for control

purposes. In addition, the following effluent standards may

be applied without any allowance for dilution where stream

flow or other factors are such as to prevent adequate dilution,

or where it is otherwise necessary to protect the interstate

waters for the stated uses:

Item* Limits

5 day biochemical oxygen 5 milligrams per liter

demand

Total suspended solids 5 milligrams per liter

*The concentrations specified in section (c)(6) of this regulati

may be used in lieu thereof if the discharge of effluent is —

to the spring flush or other high runoff periods when the stream

flow rate above the discharge point is sufficiently greater than the

effluent flow rate to insure that the applicable water quality stand-

ards are met during such discharge period. If treatment works are

designed and constructed to meet the specified limits given above

for a continuous discharge, at the discretion of the Agency the

operation of such works may allow for the effluent quality to

vary between the limits specified above and in section (e) (6),

provided the water quality standards and all other requirements

of the Agency and the U.S. Environmental Protection Agency are

being met. Such variability of operation must be based on adequate

monitoring of the treatment works and the effluent and receiving

waters as specified by the Agency.

(9) In any case where, after a public hearing, the Agency

finds it necessary for conformance with Federal requirements,

or conservation of the interstate waters of the state, or protec-

tion of the public health, or in furtherance of the development

of the economic welfare of the state, it may prohibit or further

A-89

limit the discharge to any designated interstate waters of any

sewage, industrial waste, or other waste effluents, or any com-

ponent thereof, whether such effluents are treated or un-

treated, or existing or new, notwithstanding any other provi-

sions of classifications or specific standards stated herein

which may be applicable to such designated interstate waters.

(10) It shall be incumbent upon all persons responsible

for existing or new sources of sewage, industrial wastes or

other wastes which are or will be discharged to interstate

waters, to treat or control their wastes so as to produce ef-

fluents having a common level or concentration of pollutants

of comparable nature or effect as may be necessary to meet

the specified standards or better, but this shall not be inter-

preted to prohibit the Agency after providing an opportunity

for public hearing from accepting effective loss prevention

and/or water conservation measures or process changes or

other waste control measures or arrangements as being

equivalent to the waste treatment measures required for com-

pliance with applicable effluent and/or water quality stan-

dards or load allocations.

(11) All sources of sewage, industrial waste, or other

waste which do not at present have a valid operation and dis-

charge permit, or an application for the same pending before

the Agency, shall apply for the same within 30 days of the

adoption of this regulation, or the Agency may abate the

source forthwith. The provisions of section (c)(6) relating

to effluent quality standards, and the other provisions of this

regulation, are applicable to existing sewage, industrial waste

or other waste disposal facilities and the effluent discharged

therefrom. Nothing herein shall be construed to prevent the

Agency subsequently from modifying any existing permits

so as to conform with federal requirements and the require-

ments of this regulation.

A-90

(12) Liquid substances which are not commonly con-

sidered to be sewage or industrial wastes but which could con-

stitute a pollution hazard shall be stored in accordance with

Regulation WPC 4, and any revisions or amendments thereto.

Other wastes as defined by law or other substances which

could constitute a pollution hazard shall not be deposited in

any manner such that the same may be likely to gain entry

into any interstate waters of the state in excess of or contrary

to any of the standards herein adopted, or cause pollution as

defined by law.

(13) No sewage, industrial waste or other wastes shall

be discharged into the interstate waters of the state in such

quantity or in such manner alone or in combination with other

substances as to cause pollution thereof as defined by law. In

any case where the interstate waters of the state into which

sewage, industrial wastes or other waste effluents discharge

are assigned different standards than the interstate waters

into which such receiving interstate waters flow, the stan-

dards applicable to the interstate waters into which such

sewage, industrial waste or other wastes discharged shall be

supplemented by the following:

The quality of any waters of the state receiving sewage, in-

dustrial waste or other waste effluents shall be such that no

violation of the standards of any interstate waters of the state

in any other class shall occur by reason of the discharge of

such sewage, industrial waste or other waste effluents.

(14) Questions concerning the permissible levels, or

changes in the same, of a substance, or combination of sub-

stances, of undefined toxicity to fish or other biota shall be

resolved in accordance with the latest methods recommended

by the U. S. Environmental Protection Agency. The recom-

A-91

mendations of the National Technical Advisory Committee

appointed by the U. S. Environmental Protection Agency shall

be used as official guidelines in all aspects where the recom-

mendations may be applicable. Toxic substances shall not ex-

ceed 1/10 of the 96 hour median tolerance limit (TLM) as a

water quality standard except that other more stringent appli-

cation factors shall be used when justified on the basis of

available evidence.

(15) All persons operating or responsible for sewage, in-

dustrial waste or other waste disposal systems which are ad-

jacent to or which discharge effluents to these waters or to

tributaries which affect the same, shall submit regularly every

mon

This text is long and has been trimmed here. Open the source document for the complete record.