Reply Brief — Costle v. Republic Steel Corp.

DEC 16 \977

MICHAEL RODAK Je. CUERK

No. 77-631

Gu the Supreme Court of the United States

OcToBER ‘TERM, 1977

Dovetas M. CostLeE, ADMINISTRATOR OF THE ENVIRON-

MENTAL PROTECTION AGENCY, AND GEORGE R. ALEx-

ANDER, JR., REGIONAL ADMINISTRATOR, PETITIONERS

Vv.

REPUBLIC STEEL CoOKPORATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY MEMORANDUM FOR THE PETITIONERS

WADE H. McCREE, JR.,

Solic tor General,

Department of Justice,

Washington, D.C. 20530.

Gn the Supreme Court of the United States

OctToBER TERM, 1977

No. 77-631

Dova.as M. CostLe, ADMINISTRATOR OF THE ENVIRON-

MENTAL PROTECTION AGENCY, AND GEORGE R. ALEx-

ANDER, JR., REGIONAL ADMINISTRATOR, PETITIONERS

Vv.

ReEpusLic STEEL CORPORATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY MEMORANDUM FOR THE PETITIONE!.s

Respondent Republic Steel Corporation has filed a

brief in opposition that disputes the petition’s charac-

terization of the opinion of the court of appeals and

attempts to distinguish the cases that, in our view,

squarely conflict with the decision below. We see no

need to add, in these respects, to what we have said

in the petition. Three points, however, deserve

elaboration.

1. Republic argues (Br. in Opp. 10, 17) that the

case is unimportant because “July 1, 1977, is now

(1)

2

passed’’ and because Congress has agreed on amend-

ments to the statute that “provide for extensions of

the July 1, 1977, compliance date.” These arguments,

of course, conflict. To the extent that the July 1, 1977,

date is extended, the problem that has arisen in this

case will arise again. The problem will recur when-

ever a deadline for compliance is reached, as long as

the Administrator has not promulgated nationwide

guidelines. Indeed, the problem will recur when the

Administrator attempts to enforce the 1983 deadline

for achievement of the best available technology eco-

nomically achievable. In view of the Administrator’s

decision not to issue guidelines for some categories of

point sources (see note 6, infra), the problem pre-

sented by this case will be important for as long as

polluters continue to be confronted with deadlines

under the statute.

In any event, contrary to the implication of the

brief in opposition, Congress has not agreed to pro-

vide extensions of the July 1, 1977, compliance date,

either generally or on a case-by-case basis. It has

agreed only to authorize the Administrator to grant

such extensions in cases where he determines that

specified conditions are met.

We have noted (Pet. 17-18 n. 18) that the Senate,

on August 4, 1977, passed a bill (S. 1952, 95th Cong.,

1st Sess.) giving the Administrator limited authority

to extend the compliance deadline, in terms essentially

identical to the Agency’s existing Enforcement Com-

pliance Schedule Letter (ECSL) program. The Senate

Committee stated that ‘*[i]his authorization of limited

flexibility granted to the Administrator will maintain

the pressure for compliance while at the same time

enabling the Administrator to use his discretion to

grant any justifiable extension” (S. Rep. No. 95-370,

95th Cong., Ist Sess. 62 (1977)).

The report of the Conference Committee was filed

on December 6, 1977; it adopts the approach of the

Senate bill. The bill agreed on by the conferees would

amend Section 309(a) of the Federal Water Pollu-

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

(Supp. V) 1319(a), by adding a new paragraph

(5)(B), which would provide: *

The Administrator may, if he determines (i)

that any person who is a violator of, or any:

person who is otherwise not in compliance with,

the time requirements under this Act or in any

nermit issued under this Act, has acted in good

faith, and has made a coiiinitment (in the form

of contracts or other securities) of necessary

resources to achieve compliance by the earliest

possible date after July 1, 1977, but not later

than April 1, 1979; (ii) that any extension

under this provision will not result in the

imposition of any additional controls on any

other point or nonpoint source; (iii) that an

application for a permit under section 402 of

this Act was filed for such person prior to

December 31, 1974; and (iv) that the facilities

necessary for compliance with such require-

ments are under construction, grant an exten-

sion of the date referred to in section 301(b)

(1) (A) to a date which will achieve compliance

- 1123 Cong. Rec. H12698 (daily ed., December 6, 1977) ; see also

H.R. Conf. Rep. No. 95-830, 95th Cong., 1st Sess, (1977), repro-

2 tay. 128 Cong. Rec. H12704-H12722 (daily ed., December

6, .

4

at the earliest time possible but not later than

April 1, 1979.

This provision presupposes that the July 1, 1977,

deadline is enforceable, both under the existing law

and under the proposed amendment. The court of ap-

peals in this case has rejected that supposition, and

its decision would undercut the amended statute just

as it undercuts the existing one. Moreover, although

the amendment would give the Administrator a care-

fully-shaped discretion to extend or enforce the dead-

line, the court of appeals has denied him that

discretion, a denial that would preclude enforce-

ment under the amended Act whenever nationwide

guidelines have not been promulgated. The existence

of the discretion is important, for there is no cer-

tainty that Republic, or similarly situated polluters,

would be able to demonstrate to the Administrator’s

satisfaction that they were entitled to the extension

that the Administrator is authorized to grant.’

We therefore submit that the Court should review

this case, in order to restore to the Administrator the

authority to enforce the July 1, 1977, deadline in an

important class of situations.

2. Republic argues (Br. in Opp. 10) that we have

“failfed] to cite any litigation generated or affected

* The Conference Report confirms that the conference bili con-

tinues “the existing enforcement policy of the EPA.” 123 Cong.

Rec. H12715 (daily ed., December 6, 1977). The conferees also

state “that during such time of compliance, the Administrator may

require a point source to meet any interim levels of treatment as he

deems appropriate under the circumstances” (id. at H12715-

H12716). This, too, is impossible under the judgment of the court

of appeals.

5

by this decision, and widespread litigation cannot be

presumed * * *.” We did not cite such litigation

because, at the time the petition was filed, the effects

of the decision had not yet been felt. But now they

have been.

In Ford Motor Co. v. United States Environmental

Protection Agency, C.A. 6, No. 76-1463, decided De-

cember 6, 1977, a divided panel of the court of ap-

peals held that the Administrator could not object

to revisions that a State made in a permit to a major

polluter ‘‘because [his objection] was not based upon

any published regulation or guideline” (App. A, infra,

p. 2a).* Although the revision of the permit signifi-

cantly increased the amount of discharge allowed, the

panel, relying in part on the instant decision, con-

cluded that in the absence of federal guidelines no

permit revision is “outside the guidelines and require-

ment” of the Act, and thus no permit revision may be

objected to by the Administrator (id. at 21a). This

decision magnifies the effect of the present case by

making the promulgation of guidelines a precondition

not only to enforcement of the deadlines in the Act

but also to control of the amount of discharge any

polluter may be permitted to make. If the Ford panel

has correctly interpreted the instant decision, it means

that, in the absence of guidelines, the statute cannot

be enforced at all.‘

” 0 We have reproduced this opinion as Appendix A, infra. —

‘ The decision has also been relied on as a defense to enforcement

of permit provisions (compare Br. in Opp. 10). The United States

commenced an action to enforce the limitations contained in a

permit, and the district court granted summary judgment for the

6

3. We stated (Pet. 12 n. 9) that the decision below

“conflicts in principle” with Natural Resources

Defense Council, Inc. v. Train, 510 F. 2d 692, 710-

711 (C.A. D.C.), because the Court of Appeals for the

District of Columbia Circuit there invited the Admin-

istrator to pretermit the promulgation of guidelines

for certain categories of sources. Since the petition

was filed, the conflict with the District of Columbia

Circuit has become more pronounced. In Natural

Resources Defense Council, Inc. v. Costle (Runoff

Point Sources), C.A. D.C., No. 75-2056, decided

November 16, 1977,° that court once more invited the

Administrator to enforce the statute without promul-

gating guidelines.°

In Runoff Point Sources the Administrator argued

that it was impossible to promulgate guidelines for

certain types of sources and, indeed, that it was

impossible to determine discharge levels for them. He

therefore attempted to exempt those sources from the

permit requirement of the Act. The court of appeals

United States, leaving open only the issue of remedy. United States

v. Velsicol Chemical Corp., W.D. Tenn., Civ. No. C-75-462, sum-

mary judgment granted, November 10, 1976, Velsicol moved to

set aside the summary judgment, relying on the court of appeals’

decision here. The motion was argued and denied orally on No-

vember 28, 1977. Although this effort to capitalize on the present

decision was unsuccessful, there will doubtless be more such ef-

forts, and it is possible that not all of them will fail.

° We have reproduced this opinion as Appendix B, infra.

° The Administrator, relying on these invitations, has concluded

that the best administrative practice is to proceed without guide-

lines in certain categories of cases. This conclusion makes it inevit-

able that the problem presented by this case will recur when the

1983 deadline is reached.

7

held, however, “that Congress intended the NPDES

permit to be the only means by which a discharge

from a point source may escape the total prohibition

of §301(a),” and that the attempted exemption was

therefore ineffective and simply left each discharger

“subject to the total proscription of § 301” (App. B,

infra, pp. 42a-43a)—that is, forbidden to discharge

anything. If even a considered attempt by the Admin-

istrator himself to exempt some -sources from the

Act’s requirements is unacceptable, the mere failure

to promulgate national discharge guidelines in timely

fashion cannot reasonably operate to suspend the

Act’s requirements for a period of years.

Runoff Point Sources was a case in which tech-

nological infeasibility prevented the issuance of na-

tional guidelines. The court of appeals nevertheless

concluded that discharge limitations could be written

into individual (or area-wide) permits even in the

absence of national guidelines (App. B, infra, pp.

48a-53a). The court discussed its earlier opinion in

Natural Resources Defense Council, Inc. v. Train

and explained that “technological or admnistrative in-

teasibility [in issuing guidelines] was a reason for

adjusting court mandates to the minimum extent nec-

essary to realize the general objectives of the Act”

(App. B, infra, p. 52a; footnote omitted). The deci-

sion below to lift the July 1, 1977, deadline because

of the Administrator’s inability to promulgate the

guidelines is not “necessary to realize the general

objectives of the Act.” Rather, it defeats them.

8

For these reasons, in addition to the reasons dis-

cussed in the petition, it is respectfully submitted that

the petition for a writ of certiorari should be granted.

Wave H. McCres, Jr.,

Solicitor General.

DECEMBER 1977.

APPENDIX A

No. 76-1463

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Forp Motor Company,

Petitioner,

v. On Peririon to review

Unrrep STATEs ENVIRONMENTAL action of the Admin-

PROTECTION AGENCY, | istrator of the United

R _ States Environmental

and "| Protection Agency.

STATE OF MICHIGAN,

Intervenor. |

Decided and Filed December 6, 1977.

Before: Weick and ENcEL, Circuit Judges, and WEINMAN,

Senior District Judge.*

Weick, Circuit Judge, delivered the opinion of the Court,

in which Wemm™an, Senior District Judge, joined. ENce, Cir-

cuit Judge, (pp. 22-32) filed a separate dissenting opinion.

Weick, Circuit Judge. The principal question before us is

whether the Environmental Protection Agency [EPA] properly

vetoed modifications in Ford Motor Company’s [Ford] existing

National Pollutant Discharge Elimination System [NPDES]

permit which were proposed by the Michigan Water Resource

* The Hon. Carl A. Weinman, Senior J United States District

Court for the Southern District of Ohio, sitting by designation.

la

252-125 O-77-2

2a

Commission [MWRC] pursuant to the Federal Water Pollu-

tion Control Act of 1972 [FWPCA] §§ 101, et seg, 33 U.S.C.

§§ 1251, et seq. Ford has petitioned for review of EPA's

veto of the permit modifications. We hold that the veto of

EPA was invalid because it was not based upon any published

regulation or guideline or on any express statutory provision.

I

In order fully to understand the issues, a review of the

pertinent provisions of the FWPCA is necessary. Congress de-

clared that the objective of the Act was “to restore and main-

tain the chemical, physical and biological integrity of the

Nation’s waters” § 101(a), 33 U.S.C. §1251(a). One of the

national goals of the Act was to eliminate by 1985 “the dis-

charge of pollutants into navigable waters.” § 101(a) (1). Fur-

thermore, Congress proclaimed by the Act its policy to have

the States participate in the prevention, reduction and elimina-

tion of pollution. § 101(b). Congress also stressed the need

for public participation “in the development, revision and en-

forcement of anv regulation, standard, effluent limitation, plan

or program established by the Administrator or any State ” and

required the publication of “regulations specifying minimum

guidelines for public participation in such processes.” § 101(a).

The Supreme Court in EPA v. State Water Resources Control

Bd., 426 U.S. 200, 204-05 (1976), noted one of the purposes

of the Act:

First, the Amendments are aimed at achieving maxi-

mum “effluent limitations” on “point sources,” as well as

achieving acceptable water quality standards. A point

ny “any discernible, confined and discrete con-

. from which pollutants are or may be dis-

charged”? An “effluent limitation” in turn is “any re-

striction established by a State or the Administrator on

quantities, rates, and concentrations of chemical, physical,

biological, and other constituents which are discharged

3a

:

point sources . . . including schedules of compli-

ance.”"® Such direct restrictions on discharges facilitate

enforcement by making it unnecessary to work back-

ward from an overpolluted body of water to determine

9§502 (14), 33 pom ee § 1362 (14) (1970 ed,

terms Pay own are defined in

$§ 502 (6), (12), 33 U.S.C. 8 (6), (12) (1970 ed., Supp. IV).

10 § 502 (i. 33 — § 1362 (11) ow IV). Sec-

“best practicable

July 1, 1977, and orate ty daly of the “best ey

. achie”. by J woRy $8301 (b) (1) (A),

(2) , U.S.C. $§1311 (b) (1) (A), (2) (A) ( ed.,

hy standards are retained as a supplementary

limitations, however, so that numerous point

be prevent water

below acceptable

$$ 1311 (e), 1312; 1313 (1970 Sec, H4301 3.

The EPA Administrator was required after consultation with

the appropriate federal and state agencies and other inter-

ested persons, to adopt regulations providing guidelines for

effluent limitations no later than October 18, 1973 and annually

thereafter. § 304{b)(2), 33 U.S.C. § 1314(b)(2). Once these

guidelines were provided they were to be followed when

NPDES permits were issued and were “to serve as the basis

of the administrator's veto of objectionable permits.” CPC

Int'l, Inc. v. Train, 515 F.2d 1032, 1039 (8th Cir. 1975).

4a

Compare E. I. duPont deNemours & Co. v. Train, 430 U.S.

——, n.24, 45 U.S.L.W. 4212, 4218 n.24 (U.S. Feb. 23, 1977).

The EPA Administrator also was authorized to promulgate

effluent limitations for classes and categories of existing point

sources which necessarily serve as a basis for denial of a

permit. See § 301, 33 U.S.C. § 1311; E. I. duPont deNemours

& Co. v. Train, supra; and American Iron and Steel Inst. v.

EPA, 526 F.2d 1027, 1041 (3d Cir. 1975).

The Court in the duPont case explained at 4217 the function

of the § 304(b) guidelines and at the same time their relation

to § 301 regulations:

As we noted earlier, § 304(b) requires EPA to identify

the amount of effluent reduction attainable through use

of the best practicable or available technology and to

“specify factors to be taken into account” in determining

Congress also provided a plan for implementing water quali-

ty standards, which addressed the problem of concentration

of pollutants in particular bodies of water, to meet the pur-

poses and goals of the FWPCA.

Section 303(a), 33 U.S.C. §1313(a) provides for state-

adopted water quality standards including those state standards

adopted prior to the FWPCA, which standards meet the re-

quirements of the FWPCA unless otherwise determined by the

EPA Administrator. For instance, on September 21, 1973 the

5a

State of Michigan, pursuant to the FWPCA, approved new

water quality standards which went into effect on December

12, 1973. Michigan Water Quality Standards, Michigan Ad-

ministrative Code Part 4; Rule 323.1041, et seq. Because EPA

took no action on the Michigan standards, they became the

federal water quality standards in that state. See § 303(c) (3),

33 U.S.C. § 1313(c) (3).

Moreover, the EPA Administrator, after issuing notice and

holding a public hearing, has authority to establish more re-

strictive effluent limitations to “discharges of pollutants from

a point source or group of point sources” which (even though

the effluent limitations under §301(b)(2) (best available

control technology) are applied to the point sources) would

still be interfering “with the attainment or maintenance of that

water quality in a specific portion of the ravigable

waters .. .”. §302(a) and (b), 33 US.C. §1312(a) and

(b).

The Supreme Court in the State Water Resources case also

explained a second purpose of the FWPCA, 426 U.S. at 205:

6a

U. S. C. § 1342(k) (1970 ed., Supp. IV). In short, the

permit defines, and facilitates compliance with and en-

forcement of, a preponderance of a discharger’s obliga-

tions under the Amendments.

13 § 402, 33 U.S.C. § 1342 (1970 ed., Supp. IV).

makes unlawful “the discharge of any Pollutant by any person’

ments, including 4 402 which establishes NPDES.

= oa, = terminates epceaiion Ge Batu Oe

permit program. #8 20a) (4). (5 od 33 US.C. §§ 1342

(a) (4), (5), 1342 (kk) (1970 Ty Bay

EPA is empowered by Congress to issue these permits.

§ 402, 33 U.S.C. § 1342. However, the Act also provides that

these permits may be issued by the States. If a State desires

to administer the program pursuant to the Congressional

policy of State control over water pollution, EPA must first

approve the State’s permit program. See §402(b). Once

the Administrator's approval is civen, the State may issue

NPDES permits as long as the permits meet the requirements

of the FWPCA. Among its duties under the permit program,

the State must “provide an opportunity for public hearing

before a ruling on each such application [for a permit]” and

provide the Administrator with “notice of each application

(including a copy thereof) for a permit.” § 402(b)(3) and

(4). On October 17, 1973 the EPA Administrator approved

the permit program of the State of Michigan. 39 F.R. 26061

(July 16, 1974).

In addition to EPA’s possible withdrawal of its approval of

a State’s permit program under § 402(c), EPA also retains a

veto power over a State’s issuance of an individual permit.

Section 402(d)(2)(B) provides:

No permit shall issue .. . if the Administrator within

ninety days ot the date of transmittal of

permit by the State objects in writing to

7a

of such permit as being outside the guidelines and re-

quirements of [the Act]. [Emphasis added]

The aggrieved party has ninety days from the date of denial

of the permit under § 402 in which to seek review of the

Administrator’s action, by petition therefor filed in the appro-

priate United States Court of Appeals. § 509(B)(1)(F), 33

U.S.C. § 1369(b)(1)(F).

Il

Ford operates a stamping plant in Monroe, Michigan

Each day the plant produces 40,000 steel automobile wheels,

16,000 bumpers and numerous coil springs. The plant dis-

charges into the Raisin River less than one mile above the

river's point of entry into Lake Erie, various metals, such as

chromium, copper, nickel and zinc.

On June 30, 1971 Ford applied for a NPDES discharge

permit for its Monroe plant.' On the application form at the

place noted for intake sources, Ford indicated that it planned

to pump 147 million gallons [MGD] of water per day from

Lake Erie, treat 10 MGD for the plant millwater supply, and

discharge the excess (137 MGD) into a plant-owned canal,

a dilution water canal, which in turn discharges the water

into the Raisin River. Later, in November 1973, Ford revised —

its permit application.

In August, 1974 EPA questioned among other things, Ford's

proposed use of the entire Raisin River as a “mixing zone.”

Under Michigan Water Quality Standards Rule 1043(n) a

“mixing zone” is “a region of a water body which receives a

wastewater discharge of a different quality than the receiving

waters, and within which the water quality standards as pre-

scribed by these rules do not apply.” The State of Michigan

nr ae ed for the permit under the Rivers and Har-

bors Aci of ~ Sa Pua te ae ean

OO. RUSC tae _

8a

does not allow use of more than 25% of the strearn as a mixing

zone “unless it can be demonstrated [to the MWRC] that

designation of a greater area or volume of streamflow will allow

passage of fish and fishfood organisms sc that effccts on their

immediate and future populations ere negligible or not mea-

surable.” Rule 1082 of the Michigan Water Quality Standards.

EPA, based on a bioassay conducted by the MWRC in April,

1973, also questioned Ford’s ability during the Raisin River's

low flow period, to meet the water quality standard concen-

tration limits.

In September, 1974 EPA again questioned the use of the

entire width of the Raisin River as a mixing zone and sug-

gested that Ford use only one-half of the river. MWRC soon

responded to the EPA suggestion and revised the mixing

zone to include “the total flow in the River Raisin from the

point of discharge to the Detroit Edison Power Plant intake”

(which intake is about 900 feet distant from the Ford dis-

charge). MWRC stated that “(t]he effluent restrictions

placed on the Ford Motor Company Monroe Plant discharge

are more restrictive than the promulgated guidelines.”

On December 20, 1974 the State of Michigan, pursuant

to the approval of MWRC, issued Ford the NPDES permit

on its Monroe Plant. The permit included the mixing zone

as suggested to EPA by MWRC, supra. EPA did not veto

the permit and it became effective.

On July 11, 1975 MWRC at Ford’s suggestion, sent to EPA

brief to this Court, stated:

9a

pollutants to levels specified in the permit and to assure

compliance with the concentration limits in the water

Quality Standards. The State proposes to allow flow

augmentation (dilution) to meet the water quality

dard concentration limitations. Monitoring for

pliance with the BPT limitations is to be done

dilution. Monitoring for compliance with the

quality standards concentration limitations is to be

dt

|

fly

Tale

patel

Hi

or,

Hillesien

plied and that the flow augmentation was not being used to

252-125 O- 77-3

108

“dilute to meet [the best available technology economically

achievable]”. In fact, in the next three communications be-

tween EPA and MWRC, no objections were raised with respect

to the use of flow augmentation.

On October 1, 1975 however, in a letter from Dale S. Bryson,

the Region V EPA Deputy Director Enforcement Division, to

Roy Schrameck, MWRC’s Division Permit Coordinator, EPA

again questioned whether fish passage on the river was pos-

sible due to the large size of the mixing zone, and requested

studies from MWRC pursuant to Rule 1082 of the Michigan

Water Quality Standards to demonstrate fish passage in the

river. More importantly, EPA expressed displeasure with the

use of flow augmentation to meet the water quality standards.

Mr. Bryson said:

The plan to allow the company to treat their metal

plating wastes to the BPT level and then dilute with

cooling water and possibly flow augmentation to meet

water quality standards is in contiict with the intent of

the Federal 1972 Amendments and EPA Policy. Dilu-

tion should not be utilized unless additional treatment

is unavailable or economically unreasonable. Treatment

at the BPT level is not usually the point at which addi-

tional treatment is considered economically unreasonable.

Therefore, please submit any documentation which pur-

ports to demonstrate that additional treatment is un-

reasonable and that flow augmentation is the only avail-

able approach. This should be done on a process by

process and parameter by parameter basis and should

also include the anticipated effect this additional pump-

age would have on entrainment and impingement impacts

on the fish population in the surrounding nursery and

spawning areas and migratory routes.

Despite the above letter, on October 7, 1975 Robert J.

Courchaine, Chief Engineer of MWRC formally submitted to

EPA (Bryson) the proposed modifications on Ford’s Monroe

Plant permit which included a control of heavy metal con-

lla

centration that would assure uninterrupted fish passage “ac-

complished on a continuing basis by low-flow augmentation,

an acceptable water quality management tool.” Mr. Cour-

chaine emphasized that the proposed permit modifications

required filtration as an additional BPT treatment step.?

On October 17, 1975 Paul Zugger, Assistant Regional En-

gineer of the Bureau of Water Management of MWRC wrote

Harry Clemens of EPA, informing him that the chlorine limit

in Ford’s permit would be revised to facilitate fish passage in

the mixing zone.

On October 20, 1975 Bryson of EPA wrote a letter to Miller

of EPA requesting information “as soon as possible as to the

national policy” on flow augmentation. Bryson said that his

office was opposed to the use of “flow augmentation to achieve

lower concentration in the effluent to comply with their Water

Quality Standards.”

On November 3, 1975 Mr. Courchaine of MWRC, pursuant

to Bryson’s letter to MWRC on October 1, 1975, requested

from Ford “documentation to justify the use of flow aug-

mentation” which would “show why treatment beyond [the]

present proposal, BPT plus filtration, to meet water quality

standards is economically and/or technically unfeasible.”

In response to Bryson’s request of October 20, 1975 con-

cerning the subject of flow augmentation to achieve water

2 The permit modification as to discharge limitations be-

ginning on July 1, 1977 states:

Flow or dilution, can be used to meet these limi-

tations and only if, the following treatment facilities, when

oes © ane = um effluent, are not of

achieving limitations

—destruction of cyanide oxidation

—reduction of bw Ay A — to the trivalent form

—neutralization

eee

Such facilities constructed from plans and specifications

Sooroved by the Chief Engineer of the Michigan Water Re-

sources Commission.

12a

quality standards, Miller on January 14, 1976 sent to Bryson

his written memorandum, which memorandum concluded that

flow augmentation at the Ford Plant was unacceptable. Miller

stated:

You ask whether the proposed flow augmentation to

meet water quality standards is a valid approach and

whether it might set a national precedent for dischargers

in any area where sufficient water is available for dilu-

tion pumping.

To the extent that concentration limitations alone do

not control the actual amount of pollutants discharged,

they may be generally considered as protection against

localized acutely toxic conditions that would endanger

aquatic life or serve as a barrier to free passage to up-

river reaches. This being the case, achievement of con-

centration limits per se becomes a requirement for dif-

fusion of the discharge and the specification of a mixing

zone indicates the degree of diffusion required.

An important element of the case in question, and

any similar case, is that BPT reductions or, ultimately,

the BAT reductions of pollutant pounds discharged or

any more stringent reductions required by load allo-

cations must be met before flow augmentation may be

allowed.

In the instant case, the upstream concentration of

pollutants expressed as pounds based on total river flow

plus the BPT allowance of pounds of pollutants dis-

charged after dilution exceed the in-stream concentration

limitations. We, therefore, do not see flow augmentation

as being consistent with the requirements of the in-stream

concentration limits contained in the water quality

standards.

As regards to national policy and the establishment of

precedent, it would not appear that any policy guideline

can be laid down either flatly prohibiting or approving

flow augmentation to achieve a given water quality stan-

13a

dard, nor that the decision for or against such dilution in

a given case can be cited as a precedent for a general

position.

Please note that there is a definite distinction between

the effluent concentration limits and the in-stream con-

centration limits specified in water quality standards. It

Therefore, on January 22, 1976 Mr. Bryson of EPA informed

Mr. Courchaine of MWRC by letter that MWRC’s proposed

permit modifications on the Ford Monroe Plant were denied.

Bryson stated that “[t]reatment to BPT supplemented by

dilution to meet water quality standards is not compatible

with the requirements of [the FWPCA].” Attached to the

letter was Miller's memorandum of Janmary 14, 1976, supra,

as justification for EPA’s action.? EPA stated to MWRC

that Miller's memorandum made “two important points about

the inconsistency of the proposed permit with national policy.”

l4a

question of flow augmentation to achieve diffusion

oriented limitations can be considered.

On April 20, 1976 pursuant to § 509(b)(1)(F) of the Act,

33 U.S.C. § 1369(b)(1)(F), Ford petitioned this Court to

review the January 22, 1976 decision of EPA denying the

permit modifications for the Monroe Plant.

Ill.

Initially, EPA contends that actions taken by MWRC sub-

sequent to its veto of the proposed permit modifications have

mooted this case. Specifically, EPA argues that in May 1976

which was subsequent to the fiung by Ford of its petition for

review in this Court, MWRC decided not to continue to

support the issuance of the NPDES permit on the Monroe

Plant; agreed that EPA’s refusal to concur in issuance was

reasonable; and ordered an adjudicatory hearing to reconsider

the need for the permit modifications. Therefore, EPA con-

cludes that judicial review at this time is not appropriate

because no controversy exists. It asserts that only if MWRC

and/or EPA later refuse to issue the permit modifications,

after an adjudicatory hearing record has been developed,

should this Court review the action of EPA

The State of Michigan as an intervenor also requests that

this Court defer ruling on EPA’s denial of the permit mod-

ifications until the administrative record can be developed

through an adjudicatory hearing. The State concedes that

it forwarded to EPA the proposed permit modifications with-

out an adequate factual review.

The statute at § 509(b)(1)(F) is quite clear however, in

conferring upon this Court jurisdiction to review the EPA

Administrator's action for denial of any permit under § 402.

There is no dispute by any party that EPA denied Ford

modification on its Monroe Plant permit under § 402(d) (2)

(B). We hold therefore, that the Administrator’s action is

properly before this Court subject to review. Mianus River

15a

Preservation Comm. v. Administrator EPA, 541 F.2d 899, 909

(2d Cir. 1976) and Shell Oil Co. v. Train, 415 F. Supp.-70,

71-18 (N.D.Cal. 1976). Cf. E. I. duPont deNemours & Co.

v. Train, supra, at 4219. The factual record in this case has

been sufficiently developed that this Court can review ade-

the action of EPA.

OE ie & ce contin Oe ects hs a

Michigan to issue the revised permit with the proposed modi-

fications, and the FWPCA does not foreclose the State from

conducting further hearings in the matter. Nevertheless,

Ford is entitled under the statute to have its day in court, and

post-denial action by the State of Michigan (which obviously

was reacting to EPA’s veto of the proposed permit modifi-

cations) neither changes the action already taken by EPA

nor moots this case. An actual controversy still exists between

Ford and EPA. Accordingly, we will proceed to the merits

of this case.

IV.

As noted above, the EPA Administrator has authority to

refuse a NPDES permit proposed by the State if the Admin-

istrator, within ninety days of the State’s transmittal of the

proposed permit, objects to it in writing “as being outside the

guidelines and requirements” of the FWPCA. § 402(d)(2)

B).

i argues that this statute provides the Administrator

with but narrow review powers over a proposed permit when

a State is supervising its own permit program under the

FWPCA. Ford contends that EPA is exercising control over

the effluent limitations in individual States on a plant-by-plant

basis, even though the permits as in the present case, are

not inconsistent with the published guidelines and explicit

statu requirements under the Act.

Although the issue as to whether the proposed permit

modifications are or are not outside the guidelines and re-

l6a

quirements of the FWPCA is tle main question to be decided

in this case, there is little doubt that EPA has limited review

powers over the issuance of a proposed permit submitted

by a State pursuant to the State’s own NPDES permit program

under § 402. The FWPCA does vest final review authority

with the Administrator for permits issued by the states (see

the duPont case, supra, at 4219 n. 27) but since it was

“believed that the states would shoulder the primary burden

of issuing permits to individual dischargers,” the “EPA duties

were to be restricted to assuring that the state followed the

procedural guidelines and to reviewing individual permits of

major significance.” Natural Resources Defense Council, Inc.

v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 709 (1975).

See 1972 U.S. Code Cong. & Ad. News 3737. Cf. Mianus

River Preservation Comm. v. Administrator, EPA, supra.

The permit involved raises an issue of “major significance,”

namely, the use of low-flow augmentation to meet water

quality standards. This issue may have a major impact on

many dischargers in the United States.

We now proceed to determine whether under § 10 of the

Administrative Procedure Act, the Administrator's action was

“arbitrary, capricious, an abuse of discretion or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A). See Buck-

eye Power, Inc. v. EPA, 481 F.2d 162, 171 (6th Cir. 1973);

Appalachian Power Co. v. Train, 545 F.2d 1351, 1356 (4th

Cir. 1976); and Sierra Club v. EPA, 176 U.S.App.D.C. 335,

540 F.2d 1114, 1123-24 (1976), cert. denied. — US. —,

45 U.S.L.W. 3667 (U.S. Apr. 4, 1977).

Under the “arbitrary and capricious” standard, the Supreme

Court in Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402, 416 (1971) stated:

[T]he court must consider whether the decision

17a

and careful, the ultimate standard of review is a nar-

row one. The court is not empowered to substitute its

judgment for that of the agency. [citations omitted]

Quoted with approval in Buckeye Power, Inc. v. EPA, supra,

at 171.

Furthermore, EPA is held to a high standard of articulation.

Id., quoting from Environmental Defense Fund, Inc. v. EPA,

150 U.S. App.D.C. 348, 465 F.2d 528, 540-41 (1972).

Ford argues that EPA objected to the use of low-flow

augmentation to meet water quality standards under the

FWPCA solely upon EPA’s own ad hoc policy determination

as to effluent limitations at the Monroe Plant. Ford further

contends that there are no published regulations, guidelines

or specific statutory requirements under the FWPCA pro-

hibiting the use of low-flow augmentation to meet water quality

standards. Ford concludes therefore, that EPA exceeded its

veto authority when it denied Ford the permit modification

because § 402(d)(2)(B) allows EPA to object only to the

issuance of NPDES permits which are outside the guidelines

and requirements of the FWPCA, and not upon the EPA’s

private policy determination. In fact, Ford maintains that

EPA’s action in the present case denied Ford as a permittee,

its statutory right to a hearing on the issues related to the

permit. Ford argues that although § 402(b)(3) provides the

permittee a right to a hearing under a state's permit program,

EPA in effect renders this statutory right to a hearing a nullity

when it declines to issue a NPDES permit for any policy

reason, rather than upon “previously promulgated geveric

guidelines.” We believe that the main thrust of Ford's argu-

ment is well taken.

It is clear from the record in this appeal that EPA had

no prior well-established agency policy which prohibited

the use of low-flow augmentation to meet water quality

standards. In fact, in August 1975 two EPA officials appear

252-125 O- 77-4

18a

to have indicated initially that flow augmentation was proper.

When Bryson, the Region V EPA Deputy Director, in October

1975 requested from Miller of EPA a memorandum on flow

augmentation, Bryson did not even know the national policy

of the agency on flow augmentation. Miller's response in

a memorandum, the basis for EPA’s veto of the proposed

permit modifications, did not cite any statutory provision,

regulation or guideline. As already noted, Miller stated:

[I]t would not appear that any policy guideline can be

laid down either flatly prohibiting or approving flow

augmentation to achieve a given water quality standard,

nor that the decision for or against such dilution in a

given case can be cited as a precedent for a general

position.

EPA’s November 1976 memorandum from the office of its

General Counsel, on the subject of low-flow augmentation,

contains this statement:

The [FWPCAj is silent on the question of whether this

alternative is proper and legal as a method of meeting

water quality standards based on concentrations.

Nonetheless, this memorandum stated that the EPA policy

clearly discouraged the use of flow augmentation or dilution

“as an alternative to treatment for meeting water quality

standards,” developing its reasoning from analogies on the

statutory requirements under § 102(b)(1) of the Act, 33

U.S.C. § 1252(b)(1), and § 110(-)(2)(B) of the Clean Air

Act, 42 U.S.C, § 1857c-4(a)(2)(B). Such a position would

undoubtedly be a good reason for publishing regulations or

guidelines in the future on this subject, but it can hardly be

a justification for vetoing the proposed permit modifications

in the present case when the reasoning was adopted ten

months after the veto. This Court can consider only the

19a

grounds asserted by EPA in its letter of January 22, 1976

which vetoed the permit modifications.*

The Supreme Court in Burlington Truck Lines, Inc. v.

United States, 371 U.S. 156, 168-69 (1962), stated, with refer-

ence to SEC v. Chenery Corp., 332 U.S. 194, 196 (1947):

The courts may not accept appellate counsel's post

hoc rationalizations for agency action; Chenery requires

that an agency’s discretionary order be upheld, if at

all, on the same basis articulated in the order by the

agency itself:

“[A] simple but fundamental rule of adminis-

trative law ... is .. . that a reviewing court, in

Ibid.

For the courts to substitute their or counsel's dis-

reap te ly ed ealipr 7 eapmendcdyer yer om yalbramg

the orderly functioning of the process of judicial review.

This is not to deprecate, but to ‘vindicate (see Phelps

Dodge Corp. v. Labor Board, 313 U.S. 177, 197), the

administrative process, for the purpose of the rule is to

avoid “propel[ling] the court into the domain which

has set aside exclusively for the administrative

agency.” 332 US., at 196.

See also Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd.

of Trade, 412 U.S. 800, 806-07 (1973) (Marshall, J., speaking

for the plurality). Cf. Hooker Chemical & Plastics Corp. v.

Train, 537 F.2d 620, 634, 636 (2d Cir. 1976).

a pe Speer 1976 memorandum 8, EPA’s Ky wy ht

failed any lished guidelines

oF do wos af ee eet cuamnitation > mauct Galer quality canmabes

20a

Moreover, EPA’s contention that Ford did not provide the

necessary information to EPA or MWRC on the need for

flow augmentation at the Monroe Plant and other related

arguments cannot support EPA’s veto because such “dei-

ciencies” were not included in any part of EPA’s veto letter.

In other words, they are an afterthought.

An examination of the various statutory provisions of the

FWPCA indicates that Congress among other things, directed

EPA to publish guidelines and regulations setting forth the

effluent limitations applicable to point sources. For example,

§ 304(a) required EPA to publish “criteria for water quality

accurately reflecting the latest scientific knowledge” as to

most aspects of water pollution and its effect on the aquatic

environment, as well as to develop and pubiish information on

the factors necessary to measure, restore and maintain water

quality and to protect the aquatic environment. Section

304(b) required EPA to publish “regulations, providing for

effluent limitations.” Section 301(b) required EPA to publish

regulations on effluent limitations for point sources. Section

302 directed EPA to publish regulations on water quality

related effluent limitations where such limitations were neces-

sary. Section 306(b) ordered EPA to “propose and publish

regulations establishing Federal standards of performance for

new [pollution] sources within” various industries. Section

307 required EPA to publish toxic and pretreatment effluent

standards. These regulations and guidelines if violated,

would serve as a basis for vetoing a NPDES permit. Compare

E. I. Dupont deNemours & Co. v. Train, 430 U.S. — n. 24,

45 US.L.W. 4212, 4218 n. 24 (U.S. Feb. 23, 1977) and

American Iron and Steel Inst. v. EPA, 526 F.2d 1027, 1041 (3rd

Cir. 1975) with CPC Int'l, Inc. v. Train, 515 F.2d 1032, 1039

(8th Cir. 1975). See also §§ 402(a)(1) and (b)(1)(A).

EPA has not met with difficulty in publishing necessary

regulations and guidelines within the time framework con-

templated by Congress for most industries.

2la

The absence of such regulations and guidelines however,

as well as the lack of specific statutory requirements under

the Act relating to the use of flow augmentation to meet water

quality standards precludes EPA’s denial of a modification on

a NPDES permit as to flow augmentation under § 502(d) (2)

(B) because such modification is not “outside the guidelines

and requirements” of the Act. Cf. Republic Steel Corp. v.

Train, —— F.2d —, No. 76-1557 (6th Cir. June 23, 1977).

Without such guidelines and requirements, EPA could arbi-

tarily deny permit modifications and render state NPDES

permit programs a farce. An industry would have difficulty in

preparing its application for a permit without such guidelines.

As Ford argued, a permittee would effectively be denied a

hearing on issues related to the permit. In other words, EPA

would be making decisions unfettered by administrative con-

straints, despite the congressional policy specifically providing

therefor. § 101(e).

In the present case we are unable to find any “guidelines

and requirements” in the FWPCA, or guidelines promulgated

pursuant thereto upon which EPA on January 22, 1976 relied,

to deny the NPDES permit modifications on the Ford Monroe

Plant. Therefore, EPA’s veto action under § 402(d)(2)(B)

was a clear error in judgment and was arbitrary, capricious

and an abuse of discretion. Ad hoc national policy determin-

ations developed through internal agency memoranda stand-

ing alone without promulgating regulations or guidelines

through public notice and/or an opportunity for a public

hearing, are not proper procedures for EPA to enforce the

FWPCA. See Associated Indus. of Alabama v. Train, 9 ERC

1561, 1568-69 (N.D.Ala. Dec. 6, 1976). Cf. Natural Resources

Defense Council, Inc. v. Train, supra, at 706-10.

If the State of Michigan conducts further hearings on the

proposed permit modifications at the «ord Monroe Plant,

Ford and EPA may appear at these hearings to present their

respective contentions with respect thereto.

22a

Accordingly, EPA’s veto of the proposed permit modifi-

cations at the Ford Monroe Plant is set aside. This case is

remanded for further proceedings not inconsistent with this

opinion.

Encex, Circuit Judge, dissenting.

I respectfully dissent. The practical effect of the majority

opinion is to hold that if a pollution discharge is not expressly

forbidden by the FWPCA, EPA regulations or state-adopted

water quality standards, it is permitted.

In my opinion such a view runs counter both to the history

and text of the Act, and in particular to the language of Sec-

tion 301(a) of the Act, 33 U.S.C. §1311(a), which in a

straightforward manner states:

Except as in compliance with this section and sections

302, 306, 307, 318, 402, and 404 of this Act [33 U.S.C.

§§ 1312, 1316, 1317, 1326, 1342, 1344], the discharge of

any pollutant by any person shall be unlawful.

The use of flow augmentation is not authorized by any of the

exceptions referred to in Section 301(a) of the Act.

As pointed out in the majority opinion, Michigan adopted

its water quality standards effective December 12, 1973.

Because the Administrator did not express his disapproval,

they became standards under the FWPCA. Section 303(c)

(3) of the Act, 33 U.S.C. § 1313(c)(3). Michigan’s adopted

water quality standards do not provide for flow augmentation

even by inference. The EPA was not accorded the oppor-

tunity to pass upon the question of flow augmentation when

the standards were submitted to it, there being no suggestion

that the issue was ever raised.

Ford’s Monroe plant is currently subject to a permit which

does not include any authorization for the use of flow augmen-

tation as a means of meeting the applicable water quality

23a

Only six months later, however, a modification was sent to

Taking advantage of the fact that the Michigan water

quality standards are stated on a per liter basis, the effect of

the proposed permit modification would be to allow Ford to

dilute its pollution to achieve the water quality standards

without a reduction in the amount of pollutants it was dis-

charging. With the modification Ford proposes to dump

more than twice as much metallic sludge into the Raisin River

as has previously been permitted.

it te twee that if Michigan water quality standards do not

condone, neither do they expressly condemn flow augmenta-

tion as a means of achieving acceptable concentrations of dis-

charged pollutants. And it is true that the Administrator's

power to veto under the Act may be exercised only when a

permit is “outside the guidelines and requirements” of the

Act, Section 402 (d)(2) of the Act, 33 U.S.C. § 1342(d) (2).

On this basis the majority holds that because it is unable to

find any guidelines and requirements in the FWPCA or regu-

lations promulgated under it upon which the EPA could

rely to sustain its January 22, 1976 veto of the NPDES permit

Ford £ eggrovel fer Sow suqmentation i= 161.

onan for a permit under the Rivers and Harbors

applied, ES, =.

permit

water could divert from Lake Erie. The modification,

- Michigan, would thus allow Ford to exceed even its 1971

24a

modification, therefore the action was arbitrary and an abuse

of discretion.? It is this point at which I depart from the

majority. In my view it is precisely because flow augmenta-

tion is not specifically approved as a means of achieving

acceptable concentrations under Michigan’s water quality

standards that the EPA is justified in intervening. Further,

I am unwilling to compel that agency to promulgate regula-

tions respecting flow augmentation as a condition to exer-

cising its veto powers upon the facts here.

To be lawful under Section 301(a) of the Act, 33 U.S..C.

§ 1311(a), a di e must satisfy carefully delineated excep-

tions set forth in the other sections of the Act. In other

words, unless a discharge of pollutants can be shown to be

legal, it is illegal under Section 301(a).*

The effect of the majority opinion is to require the EPA

to point to a regulation which outlaws the flow augmentation

technique before it can act. No doubt the potential means

of evading the operation of the Act are myriad if the plain

command of Section 301 is to be ignored. It was, in my

jeagment, precisely because such loopholes could not be

anticipated that Congress couched the Act in such bold, pro-

hibitory terms.*

While it is not necessary to hold that flow augmentation is

implicitly forbidden by the FWPCA, there is much within

ened eee ee te aves the idee thet the EPA's ection

Us pent we ee ees ane for

ff ‘the only’ one of "478. NPD

Sa eM, aca ee

s use of its

caeamaary wet power. ‘This

3 Obviously

Keministrator’s' action in disapproving the permit modification’, See

(3rd Cir. 1975).

4 The breadth of Section 301, of qousen, 1 cthegsther consictent with

the national goal of the Act“. that the discharge of pollutants into

the Act, 33 USC. $1251 (a) (1). 0) (2)

25a

the Act and its history to support such a view. Congress

chose the phrase “effluent limitation” to describe the means

for obtaining water quality. Section 302 of the Act, 33 U.S.C.

§ 1312.5 As we noted in Big Rivers Electric Corp. v. EPA,

523 F. 2d 16 (6th Cir. 1975), cert. denied 425 U.S. 924 (1976),

the concept “emission limitation” in the Clean Air Act requires

regulation of “the amount of [a pollutant] which may be in-

cluded in the emission from a given source.” Id. at 22

(emphasis in original). A consistent construction of “effluent

limitation” in the FWPCA suggests a similar intent on the

part of Congress to achieve water quality by controlling

quantity. Indeed, the definition of “effluent limitation” in

the FWPCA denotes a concern for restricting the amount of

pollutants:

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... .

Section 502(11) of the Act, 33 U.S.C. § 1362(11); See Amer-

ican Iron & Steel Institute v. EPA, 543 F. 2d 521, 528 (3d

Cir. 1976).

Such a view is fully substantiated in the legislative history.

The goals and policy of Congress, as declared in the statute

itself, include the prevention, reduction and elimination cf

pollutants from the nation’s water. Section 101(b) of the

Act, 33 U.S.C. § 1251(b). The statute, needless to say, does

not speak in terms of dilution. It is significant, however, that

the Conference Committee replaced the words “abate” and

“abatement” with “reduction” and “elimination” in Sections

101 and 102, 33 U.S.C. §§ 1251, 1252. S. Conf. Rep. 92-1236,

verna Ford's’ Monroe plant and thousands of other” point wurces,

formally entitled - National Pollution Discharge

402 of the Act, 33 U.S.C. § 1342 Ma (Entchesis waded).

252-125 O- 77-5

26a

92d Cong., 2d Sess. (1972), reprinted in 2 U.S. Code Cong.

& Admin. News at 3778 (1972). Flow augmentation, it is

agreed, simply reduces the concentration of pollutants intro-

duced into a body of water. It does not, however, eliminate

or reduce the quantity of the pollution.

A further indication of national policy is to be gleaned

from Section 102(b)(1) of the Act, 33 U.S.C. § 1252(b)(1),

which states:

In the survey or planning of any reservoir by the

Corps of Engineers, Bureau of Reclamation, or other

Federal agency, consideration shall be given to inclusion

of storage for regulation of streamflow, except that any

such storage and water releases shall not be provided

as a substitute for adequate treatment or other methods

of controlling waste at the source. (Emphasis added).

The flow augmentation contemplated by Section 102(b) (1)

involves the release of impounded waters at a time of low

flow. The Act notes that such augmentation shall not be a

substitute for “adequate treatment or other methods of con-

trolling waste at the source.”®

The Conference Committee Report noted with respect to

Section 102(b) (1):

The Conference substitute specifically bans pollution

dilution as an alternative to waste treatment. At the

same time it recognizes that stream flow augmentation

may be useful as a means of reducing the environmental

impact of runoff from non-point sources. The Conference

substitute also recognizes that stream flow augmenta-

tion may be useful for recreational, navigation, and other

purposes. Finally, section 102(b) [33 U.S.C. § 1252(b)]

specifically sets forth that any calculation for the need

éThe EPA takes the view that “adequate treatment” means the

best available technology (BAT). Memorandum from EPA General

Council to Regional Administrators and State NPDES Directors at 4.

(November 8, 1976). See generally Section 301(b)(2) of the Act,

33 U.S.C. § 1311(b) (2).

27a

for and value of stream flow augmentation to reduce the

impact of pollution mu « be determined by the Adminis-

trator of the Environmental Protection Agency.” (Em-

phasis added).

S. Conf. Rep. No. 92-1236, 92d Cong., 2d Sess. (1972), re-

printed in 2 U.S. Code Cong. & Admin. News at 3778-79

(1972).

Without question, Ford’s Monroe plant is a “point source,”

as defined in Section 502( 14) of the Act, 33 U.S.C. § 1362(14),

and is thus not within the qualified exception recognized in

the Conference Committee Report. The conclusion is in-

escapable that the drafters of the FWPCA did not intend

industrial dischargers of waste materials from point sources

such as Ford’s Raisin River plant to achieve statutory com-

pliance by using dilution as a substitute for waste treatment.

The EPA’s position also finds analogous support in our

court's interpretation of the Clean Air Act. In Big Rivers,

supra, the Administrator had disapproved the Kentucky state

implementation plan submitted under the Clean Air Act. We

upheld the Administrator’s view that the dispersal of airborne

contaminants was not a satisfactory means of achieving emis-

sion limitations, expressly approving similar reasoning in Na-

tional Resources Defense Council, Inc. v. EPA, 489 F. 2d 390

(5th Cir. 1974), rev'd in part on other grounds sub nom. Train

v. National Resources Defense Council, Inc., 421 U.S. 60

(1975). See 523 F. 2d at 20-22. In NRDC v. EPA, the Fifth

7 The Act authorizes the Administrator to determine the value of

flow regulation to achieve water quality:

(2) The need for and the value of storage for

of streamflow (other than for water quality) incl but

not limited to naviga salt water intrusion, recreation,

and fish and dlife, shall be determined by the

Engineers, Bureau of Reclamation, or other Federal

(3) The need for, the value of, and the of

ue Gor eally Guidi Gall te diamine ee hee

Section 102(b) (2), (3) of the Act, 88 U.S.C. § 1252(b) (2), (3).

28a

Circuit determined that the use of tall smokestacks merely

achieved a dispersion of pollutants and did not limit the

quantities emitted. The “tall stacks” technique was judged

to be an inadequate means of attaining national primary

ambient air quality standards.* Flow augmentation is analo-

gous to the use of tall stacks in that it facilitates the dispersion

of pollutants but does not reduce the quantity disseminated

into the waters.’

Finally turning to the Michigan Water Quality Standards

themselves, they provide that:

[t]he water quality standards prescribed by these rules

for the various designated uses of the waters of the state

apply to receiving waters .. .

Michigan Water Quality Standards, Michigan Admin. Code,

Part 4, Rule 323.1090. “Receiving waters” is defined therein

as “the waters of the state into which an effluent is or may

be discharged.” Id., Rule 323.1044(f). A natural construc-

tion of the terms “receiving waters” and “the waters of the

state,” would not normally be thought to include waters which

the polluter has artificially diverted from elsewhere into the

stream in order to dilute the pollution. The concentration:

expressed in the water quality standards applicable to the

smusttiiied waters of the Raisin River appear wholly con-

8 National primary ambient air ty

pnnn | standards under the

standards resemble water

in that both depend upon the

ma of a ey - over a given area or in a given watercourse

pollution derived from Yew Wit)

State. Water Resources Control Bd., 426 U “205 m 12 (1976)

(water quality standards) ; Train v. NRDC, supra, 421 1 US. at 65, 78

(na primary ambient air quality standards).

= Gaee sees recently amended the Clean Air Act with to

tall on techniques. Clean Air Act end-

ments of 1977, oan D. 95-95, $123, “o Stat. 721 (1977). As the

legislative history ry takes explicit, Congress intended to endorse and

eomey, Go Wes 6 Se et ae RDC v. EPA that on

mg, lst Seas. 81-82, reprinted im US. H.R. Rep. No. 95- 95th

Cong, "ist Se 91-92, reprinted in U.S. Code Cong. & ews

29a

sistent with the Administrator's position and are inconsistent

with the manipulation of flow contemplated by Ford.

Further, I cannot agree with the majority that we should

take so grudging a view of the EPA’s articulated basis for the

exercise of its veto. It is true, as the majority notes, that it

is not for the courts to provide post hoc rationalization for an

agency's action which that agency has not itself given. It

is also, however, true that our scope of review is a narrow

one and that an agency decision of less than ideal clarity

will be upheld “if the agency’s path may reasonably be dis-

cerned.” Bowman Transportation, Inc. v. Arkansas-Best

Freight System, 419 U.S. 281, 286 (1974), quoting Colorado

Interstate Gas Co. v. FPC, 324 U.S. 521, 589 (1945). The

majority opinion would appear to confine the EPA to the

grounds asserted in its letter of January 22, 1976, vetoing the

permit modification. However, accompanying that letter was

a memorandum dated January 14, 1976, which the veto letter

incorporated by reference. The January 22 letter stated:

Flow augmentation is not consistent with the require-

ments of the in-stream concentration limits contained in

water quality standards.

The January 14 memorandum added:

In the instant case, the upstream concentration of pol-

lutants expressed as pounds based on total river flow

plus the BPT [best practicable technology] allowance

of pounds of pollutants discharged after dilution exceed

the in-stream concentration limitations. We, therefore,

do not see flow augmentation as being consistent with

the requirements of the in-stream concentration limits

contained in the water quality standards. (Emphasis

in original).

The only reasonable construction of the January 14 and

January 22 memoranda in the context of the EPA’s veto of

the proposed permit modification is that simply satisfying the

30a

best practicable technology requirement contained in effluent

limitation standards would be insufficient if in-stream con-

centration limits, without flow augmentation, still could not

be met.'® This is exactly the situation contemplated by the

Supreme Court in EPA v. State Water Resources Control

Board, 426 U.S. 200, 205 n.12 (1976). The EPA thus ex-

pressed with clarity its view that the flow augmentation was

not permitted by the water quality standards, which rest on

in-stream concentrations of pollutants. It therefore con-

cluded that no authority could be found in Michigan water

quality standards for enhancing the flow of a watercourse to

achieve lawful pollutant concentrations. Because the water

quality standards thus do not immunize the otherwise-unlawful

discharge, Section 301(a) of the Act, 33 U.S.C. §1311(a),

applies to forbid the discharge.

Contrary to the view of the majority, I would hold that the

path of the agency's reasoning is sufficiently clear from its

veto correspondence and does not constitute a post hoc

rationalization.

Finally, I am unable to join in attributing a legal distinction

to permits of “major” and minor significance. The majority

apparently concludes that the Administrator's veto will be

summarily set aside if the permit is not of major significance

— a conclusion which I am unable to draw from the authorities

cited. "

Congress undoubtedly intended that, where states qualified

themselves to issue NPDES permits, the great bulk of the

1®@ Under the FWPCA, discharge permits issued

to

promulgated by the EPA and the water quality standards by

ow Section 402(b)(1)(A) of the Act, 33 U.S.C. § 1342(b)

1! The mety Gude Go peepeand pemit mediiention to be of

oe and \ y not because of its impact on the

River or Lake e but because the permit raises an issue of

major significance, the use of flow augmentation to achieve water

quality standards.

~

with the EPA itself judging when the circumstances warrant

its intervention. I would hold instead that any unlawful

permit outside the guidelines and requirements of the Act

would be the appropriate subject for a veto in the discretion

of the EPA, Appalachian Power Co. v. Train, 545 F. 2d 1351,

1358 (4th Cir. 1976). Contrary to the majority, I do not

12 Section 402(d) (3) of the 33 U.S.C. § 1342(d) (3), allows the

eaten CS S Se issued

which is “outside the guidelines and requirements” of the Act.

32a

understand National Resources Defense Council, Inc. v. Train,

510 F. 2d 692, 709 (D. C. Cir. 1975), to establish a test of

“major significance” for judging the Administrator's authority

in reviewing state-issued permits under Section 402(d) (2)

of the Act, 33 U.S.C. § 1342(d) (2).

Had the EPA approved water quality standards for the

State of Michigan expressly providing for flow augmentation,

there would be much more force to the claim that its veto was

arbitrary and capricious. As the majority concedes, however,

the standards are silent as to flow augmentation. It is not

for us to speculate that the Administrator approved or would

have approved the use of flow augmentation, when such an

inference is obviously inconsistent with the objectives of the

Act and results in a strained construction of the water quality

standards themselves.

The Administrator, in vetoing the proposed permit modi-

fication, has expressed his view that flow augmentation is an

impermissible means of attaining the concentrations of pol-

lutants contained in the water quality standards of Michigan.

As our court held in Big Rivers, supra, “interpretations of this

complex statute [the Ciean Air Act] by the agency charged

with administering it are entitled to great deference.” 523

F. 2d at 22. Similar deference should be given to the EPA’s

interpretation of the FWPCA and of the state water quality

standards, the text of which the agency itself reviewed and

approved. Americar: Iron & Steel Institute v. EPA, 543 F. 2d

521, 526 (3d Cir. 176). In my view the Administrator was

justified in concluding that flow augmentation was not a

permissible technique for achieving water quality standards,

since no express authorization in the Act or regulations can

be found to support it. I would deny the petition for review

and affirm the action of the Administrator.

iS

APPENDIX B

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-2056

* NATURAL RESOURCES DEFENSE COUNCIL, INC.

Vv.

DOUGLAS M. COSTLE, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

NATIONAL FOREST PRODUCTS ASSOCIATION, APPELLANT

No. 75-2066

NATURAL RESOURCES DEFENSE COUNCIL, INC., ETC.

Vv.

DouGLas M. COSTLE, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

NATIONAL MILK PRODUCERS FEDERATION, APPELLANT

No. 75-2067

NATURAL RESOURCES DEFENSE COUNCIL, INC., ETC.

V.

DouGLas M. COSTLE, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

APPELLANTS

* For convenience the court will refer to this case hereafter

as NRDC v. Costle [Runoff Point Sources].

33a

34a

No. 75-2235

NATURAL RESOURCES DEFENSE COUNCIL, INC.

V.

DoucLas M. CosTLe, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY,

COLORADO RIVER WATER CONSERVATION DISTRICT,

APPELLANT

Appeals from the United States District Court

for the District of Columbia

(D.C. Civil 1629-73)

Argued December 3, 1976

Decided November 16, 1977

Irvin B. Nathan, with whom Burton J. Mallinger was

on the brief, for appellant in No. 75-2056.

Charles W. Bills, with whom James R. Murphy was on

the brief for appellant in No. 75-2066.

G. William Frick, Attorney, Department of Justice, of

the bar of the Supreme Court of Missouri, pro hac vice

by special leave of court for appellants in No. 75-2067.

Peter R. Taft, Assistant Attorney General, Robert V.

Zener, General Counsel, Environmental Protection Agency

Edmund B. Clark, Lloyd S. Guerci, Larry A. Boggs, At.

torneys Department of Justice and Pamela P. Quinn, At-

torney Environmental Protection Agency were on the

brief for appellants in No. 75-2067.

35a

Christopher D. Williams, with whom Kenneth Balcomb

and Robert L. McCarty were on the brief for appellant in

No. 75-2235.

J. G. Speth for appellee.

Theodore O. Torve, Assistant Attorney General, State of

Washington filed a brief on behalf of the State of Wash-

ington as amicus curiae urging reversal in No. 75-2056.

Richard E. Schwartz filed a brief on behalf of Iron and

Steel Institute as amicus curiae urging reversal in No. 75-

2067.

John L. Hill, Attorney General, State of Texas and

David M. Kendall, First Assistant Attorney General, State

of Texas filed a brief on behalf of State of Texas as

amicus curiae urging reversal in No. 75-2067.

Before: BAZELON, Chief Judge, LEVENTHAL and MAC-

KINNON, Circuit Judges.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

Concurring Opinion filed by Circuit Judge MACKINNON.

LEVENTHAL, Circuit Judge: In 1972 Congress passed

the Federal Water Pollution Control Act Amendments

(hereafter referred to as the “FWPCA” or the “Act” *).

It was a dramatic response to accelerating environmental

degradation of rivers, lakes and streams in this country.

The Act’s stated goal is to eliminate the discharge of

pollutants into the Nation’s waters by 1985. This goal is

to be achieved through the enforcement of the strict time-

tables and technology-based effluent limitations established

by the Act.

233 U.S.C. §§ 1251-1876 (Supp. V 1975). Although char-

acterized in the official title as “amendments”, the 1972

FWPCA actually substitutes its provisions for those of the

pre-1972 Federal Water Pollution Control Act as amended,

id. §§ 1151-1175 (1970).

36a

The FWPCA sets up a permit program, the National

Pollutant Discharge Elimination System (NPDES), as

the primary means of enforcing the Act’s effluent limita-

tions. At issue in this case is the authority of the Ad-

ministrator of the Environmental Protection Agency to

make exemptions from this permit component of the

¥YWPCA.

Section 402 of the FWPCA, 33 U.S.C. § 1342 (Supp. V

1975), provides that under certain circumstances the

EPA Administrator “may . . . issue a permit for the dis-

charge of any pollutant” notwithstanding the general pro-

scription of pollutant discharges found in § 301 of the

Act. 33 U.S.C. § 1811 (Supp. V 1975). The discharge of

a pollutant is defined in the FWPCA as “any addition of

any pollutant to navigable waters from any point source”

or “any addition of any pollutant to the waters of the

contiguous zone or the ocean from any point source other

than a vessel or floating craft.” 33 U.S.C. § 1362(12)

(Supp. V 1975). In 1973 the EPA Administrator issued

regulations that exempted certain categories of “point

sources” of pollution from the permit requirements of

§ 402." The Administrator’s purported authority to make

such exemptions turns on the proper interpretation of

§ 402.

A “point source” is defined in § 502(14) as “any dis-

cernible, confined and discrete conveyance, including but

* This case deals with § 402 of the FWPCA, 33 U.S.C.

§ 1842 (Supp. V 1975), which sets out the permitting author-

ity of the EPA Administrator as well as that of the states

under EPA-approved state permit programs. The Secretary

of the Army also has a permitting authority in certain cir-

cumstances. Under § 404 of the FWPCA, 33 U.S.C. § 1344

(Supp. V 1975), he may issue permits for the discharge of

dredged or fill material into navigable waters.

*40 C.F.R. § 125.4 (1975). See 38 Fed. Reg. 18000-04

(1973).

37a

not limited to any pipe, ditch, channel, tunnel, conduit,

well, discrete fissure, container, rolling stock, concen-

trated animal feeding operation, or vessel or other floating

craft, from which pollutants are or may be discharged.” *

The 1973 regulations exempted discharges from a num-

ber of classes of point sources from the permit require-

ments of § 402, including all silvicultural point sources;

all confined animal feeding operations below a certain size ;

all irrigation return flows from areas of less than 3,000

contiguous acres or 3,000 noncontiguous acres that use the

same drainage system; all nonfeedlot, nonirrigation agri-

cultural point sources; and separate storm sewers con-

taining only storm runoff uncontaminated by any in-

dustrial or commercial activity.° The EPA’s rationale for

*33 U.S.C. § 1862(14) (Supp. V 1975).

* 40 C.F.R. § 125.4 (1975):

The hmnetnes do not require an NPDES permit:

Uncontrolled discharges composed entirely of

storm runoff when these discharges are uncontam-

inated by any industrial or commercial activity, un-

less the particular storm runoff discharge has been

identified by the Regional Administrator, the State

water pollution control agency or an interstate agency

as a significant contributor of pollution. (It is an-

ticipated that significant contributors of pollution

will be identified in connection with the development

of plans pursuant to section 308(e) of the Act. This

exclusion applies only to separate storm sewers. Dis-

charges from combined sewers and bypass sewers

are not excluded.)

@ Discharges of pollutants from agricultural and

silvicultural activities, including irrigation return

flow and runoff from orchards, cultivated crops, pas-

tures, rangelands, and forest lands, except that this

exclusion shal] not apply to the following:

38a

these exemptions is that in order to conserve the Agency’s

enforcement resources for more significant point sources

of pollution, it is necessary to exclude these smaller

sources of pollutant discharges from the permit program.

(1) Discharges from animal confinement facilities,

if such facility or facilities contain, or at any time

during the previous 12 months contained, for a total

of 30 days or more, any of the following types of

animals at or in excess of the number listed for each

type of animal:

(i) 1,000 slaughter and feeder cattle;

(ii) 700 mature dairy cattle (whether milkers or

dry cows);

(iii) 2,500 swine weighing over 55 pounds;

(iv) 10,000 sheep;

(v) 55,000 turkeys;

(vi) If the animal confinement facility has continu-

ous overflow watering, 100,000 laying hens and broil-

ers;

(vii) If the animal confinement facility has liquid

manure handling systems, 30,000 laying hens and

broilers;

(viii) 5,000 ducks;

(2) Discharges from animal confinement facilities,

if such facility or facilities contain, or any time

during the previous 12 months contained for a total

of 30 days or more, a combination of animals such

that the sum of the following numbers is 1,000 or

greater: the number of slaughter and feeder cattle

multiplied by 1.0, plus the number of mature dairy

cattle multiplied by 1.4, plus the number of swine

weighing over 55 pounds multiplied by 0.4, plus the

number of sheep multiplied by 0.1;

(8) Discharges from aquatic animal production

facilities;

(4) Discharges of irrigation return flow (such as

tailwater, tile drainage, surfaced groundwater flow

or bypass water), operated by public or private or-

39a

The National Resources Defense Council, Inc. (NRDC)

sought a declaratory judgment that the regulations are

unlawful under the FWPCA. Specifically, NRDC con-

tended that the Administrator does not have authority to

exempt any class of point source from the permit require-

ments of § 402. It argued that Congress in enacting

§§ 301, 402 of the FWPCA intended to prohibit the dis-

charge of pollutants from all point sources unless a permit

had been issued to the discharger under § 402 or unless

the point source was explicitly exempted from the permit

requirements by statute. The District Court granted

NRDC’s motion for summary judgment. It held that the

FWPCA does not authorize the Administrator to exclude

any class of point sources from the permit program.

NRDC v. Train, 396 F. Supp. 1393 (D.D.C. 1975). The

EPA has appealed to this court. It is joined on appeal by

a number of defendant-intervenors, National Forest Prod-

ucts Association (NFPA), National Milk Producers Fed-

eration (NMPF), and the Colorado River Conservation

District.*

This case thus presents principally a question of statu-

tory interpretation. EPA also argues that even if Con-

ganizations or individuals, if: (1) There is a point

source of discharge (e.g., a pipe, ditch, or other de-

fined or discrete conveyance, whether natural or arti-

ficial) and; (2) the return flow is from land areas of

more than 3,000 contiguous acres, or 3,000 non-con-

eS

an

(5) Discharges from any agricultural or silvicul-

tural activity which have been identified by the Re-

gional Administrator or the Director of the State

water pollution control agency or interstate agency

as a significant contributor of pollution.

* Briefs as amicus curiae were filed by the American Iron

and Steel Institute, the State of Texas, and the State of Wash-

ington, Department of Natural Resources.

40a

gress intended to include the pertinent categories in the

permit program, the regulations exempting them should

be upheld on a doctrine of administrative infeasibility,

i.e., the regulations should be upheld as a deviation from

the literal terms of the FWPCA that is necessary to per-

mit the Agency to realize the principal objectives of the

Act.

I. LEGISLATIVE HISTORY

The principal purpose of the FWPCA is “to restore and

maintain the chemical, physical, and biological integrity

of the Nation’s waters.”’ The Act’s ultimate objective,

to eliminate the discharge of pollutants into navigable

waters by 1985, is to be achieved by means of two inter-

mediate steps. As of July 1, 1977, all point sources

other than publicly owned treatment works were to have

achieved effluent limitations that require application of

the “best practicable control technology.”* These same

point sources must reduce their effluent discharges by

July 1, 1983 to meet limitations determined by applica-

tion of the “best available technology economically achiev-

able” for each category of point source.°

The technique for enforcing these effluent limitations

is straightforward. Section 301(a) of the FWPCA pro-

vides:

Except as in compliance with this section and sec-

tions 302, 306, 307, 318, 402, and 404 of this Act, the

discharge of any pollutant by any person shall be

unlawful.”

Appellants concede that if the regulations are to be valid,

it must be because they are authorized by § 402; none of

738 U.S.C. § 1251(a) (Supp. V .~78).

* 33 U.S.C. § 1811(b) (1) (A) (Supp. V 1975).

* Id. § 1811(b) (2) (A).

© Id. §1311(a).

4la

the other sections listed in § 301(a) afford grounds for

ae the exempted point sources from the prohibition

§ 301."

Section 402 provides in relevant part that

the Administrator may, after opportunity for public

hearing, issue a permit for the discharge of any pol-

lutant, or combination of pollutants, notwithstanding

section 301(a), upon condition that such discharge

will meet either all applicable requirements under

sections 301, 302, 306, 307, 308, and 403 of this Act,

or prior to the taking of the necessary implementing

actions relating to all such requirements, such condi-

tions as the Administrator determines are necessary

to carry out the provisions of this Act.

The NPDES permit program established by § 402 is

central to the enforcement of the FWPCA. It translates

general effluent limitations into the specific obligations of

a discharger. As this court noted in NRDC v. Train, 166

U.S.App.D.C. 312, 315, 510 F.2d 692, 695 (1975), the

™ Section 302, 33 U.S.C. § 1312 (Supp. V 1975), permits

the Administrator to set water quality related effluent limita-

tions or control strategies where technology-based limitations

are inadequate. Section 306, 33 U.S.C. §1316 (Supp. V

1975), instructs the EPA Administrator to promulgate stand-

ards of performance for new sources of pollution constructed

after those standards are proposed. Section 307, 33 U.S.C.

§ 1317 (Supp. V 1975), gives the EPA Administrator the

authority to issue generally applicable effluent standards with

respect to toxic substances and to require pretreatment of

some pollutants before their introduction into treatment works.

By virtue of § 318, 33 U.S.C. § 1828 (Supp. V 1975), the Ad-

ministrator may “permit the discharge of a specific pollutant

or pollutants under controlled conditions associated with an

approved aquaculture project under Federal or State super-

vision.” Section 404, 38 U.S.C. § 1844 (Supp. V 1975), gives

the Secretary of the Army authority to issue permits for the

discharge of dredged or fill material into the navigable wa-

ters at specified disposal sites.

42a

Act “relies primarily on a permit program for the achieve-

ment of effluent limitations . . . to attain its goals.” The

comments in floor debates of Senator Muskie, the leading

Congressional sponsor of the Act, makes this clear.”

The appellants argue that § 402 not only gives the

Administrator the discretion to grant or refuse a permit,

but also gives him the authority to exempt classes of

point sources from the permit requirements entirely. They

argue that this interpretation is supported by the legisla-

tive history of § 402 and the fact that unavailability of

this exemption power would place unmanageable admin-

istrative burdens on the EPA.

Putting aside for the moment the appellants’ adminis-

trative infeasibility argument, we agree with the District

Court that the legislative history makes clear that Con-

gress intended the NPDES permit to be the only means

by which a discharger from a point source may escape the

total prohibition of § 301(2). This intention is evident

in both Committee Reports. In discussing § 301 the House

Report stressed:

Any discharge of a pollutant without a permit issued

by the Administrator under section 318, or by the

Administrator or the State under section 402 or by

the Secretary of the Army under section 404 is un-

lawful. Any discharge of a pollutant not in compli-

ance with the conditions or limitations of such a per-

mit is also unlawful.”

12“The Administrator of the Environmental Protection

Agency is authorized to regulate discharge of pollutants

through the use of an expanded permit program.” 117 Cong.

Rec. 38800 (1971) (Senator Muskie) (emphasis added), re-

printed in 2 Environmental Policy Div., Congressional Ref-

erence Serv., A Legislative History of the Water Pollution

Control Act Amendments of 1972, at 1259 (Senate Public

Works Comm. Print 1973) [hereinafter cited as Legislative

History).

18H. Rep. No. 92-911, 92d Cong., 2d Sess. 100 (1972), re-

printed in Legislative History at 787.

43a

The Senate Report echoed this interpretation:

[Section 301] clearly establishes that the

of pollutants is unlawful. Unlike its predecessor

program which permitted the discharge of certain

amounts of pollutants under the conditions described

above, this legislation would clearly establish that no

one has the right to pollute—that pollution continues

because of technological limits, not because of any

inherent rights to use the nation’s waterways for

the purpose of disposing of wastes.

The program proposed by this Section will be im-

plemented through permits issued in Section 402.

The Administrator will have the capability and the

mandate to press technology and economics to achieve

those levels of effluent reduction which he believes to

be practicable in the first instance and attainable

in the second.™

The EPA argues that since § 402 provides that “the

Administrator may . . . issue a permit for the discharge

of any pollutant” (emphasis added), he is given the dis-

cretion to exempt point sources from the permit require-

ments altogether. This argument, as to what Congress

meant by the word “may” in § 402, is insufficient to

rebut the plain language of the statute and the com-

mittee reports. We say this with due awareness of the

deference normaily due “the construction of a new statute

by its implementing agency.” NRDC v. Train, 166 U.S.

App.D.C. at 326, 510 F.2d at 706; see Zuber v. Allen, 396

U.S. 168, 192 (1969) ; Udall v. Tallman, 380 U.S. 1, 16

(1965). The use of the word “may” in § 402 means only

that the Administrator has discretion either to issue a

permit or to leave the discharger subject to the total

proscription of § 301. This is the natural reading, and

the one that retains the fundamental logic of the statute.

“S. Rep. No. 92-414, 92d Cong., Ist Sess. 42

printed in Legislative History at 1460. ea),

44a

Under the EPA’s interpretation the Administrator

would have broad discretion to exempt large classes of

point sources from any or all requirements of the FWPCA.

This is a result that the legislators did not intend. Rather

they stressed that the FWPCA was a tough law that

relied on explicit mandates to a degree uncommon in

legislation of this type. A statement of Senator Jennings

Randolph of West Virginia, Chairman of the Senate

Committee responsible for the Act, is illustrative.

I stress very strongly that Congress has become very

specific on the steps it wants taken with regard to

environmental protection. We have written into law

precise standards and definite guidelines on how the

environment should be protected. We have done more

than just provide broad directives for administrators

to follow....

In the past, too many of our environmental laws

have contained vague generalities. What we are at-

tempting to do now is provide laws that can be ad-

ministered with certainty and precision. I think that

is what the American people expect that we do.*

6 117 Cong. Rec. 38865 (1971), reprinted in Legislative His-

tory at 1272. See also the comments of Senator Montoya on

the original Senate bill.

Your committee has placed before you a tough bill. This

body and this Nation would not have it be otherwise. Our

legislation contains an important principle of psychology:

Men seldom draw the best from themselves unless pressed

by circumstances and deadlines. This bill contains dead-

lines and it imposes rather tough standards on industry,

_ municipalities, and all other sources of pollution. Only

under such conditions are we likely to press the technolog-

ical threshold of invention into new and imaginative de-

velopments that will allow us to meet the objectives stated

in our bill.

117 Cong. Rec. 38808 (1971), reprinted in Legislative History

at 1278.

45a

There are innumerable references in the legislative his-

tory to the effect that the Act is founded on the “basic

premise that a discharge of pollutants without a permit is

unlawful and that discharges not in compliance with the

limitations and conditions for a permit are unlawful.” *

Even when infeasibility arguments were squarely raised,

the legislature declined to abandon the permit require-

ment.” We stand by our previous interpretation of the

a 118 Cong. Rec. 10215 (1972) (Rep. Clausen), reprinted

in Legislative History at 378. See, e.g., H.R. Rep. No. 92-911

92d Cong., 2d Sess. 100 (1972), reprinted in Legislative His-

tory at 787; S. Rep. No. 92-414; 92d Cong., Ist Sess. 42-48

(1971), reprinted in Legislative History at 1460-61; 118 Cong.

— pref (1972) (Rep. Podell), reprinted in Legislative His-

ry °

* The House rejected an amendment designed to avoid the

problems of including irrigation return flows in the permit

program. Congressman Teno Roncalio of Wyoming offered an

amendment on the floor of the House that would have ex-

plicitly exempted irrigated agriculture from the NPDES per-

mit program.

Mr. RONCALIO. ...

I offer my amendment so that a serious omission to

H.R. 11896 can be corrected before we end up with a law

that would be virtually impossible to enforce. My amend-

ment would specifically exempt irrigated agriculture from

sections 301 (a), 302 and 304 of the Federal Water Pollu-

tion Control Act.

I think my colleagues will agree that the type of salinity

problems created by irrigation runoff are simply not as

alarming as the more common pollutants discharged by

industrial and municipal facilities. Substantial salinity

concentrations have little effect on recreational use of

water or its suitability for the propagation of fish.

My amendment is necessary, Mr. Chairman, because at

the present time we could not enforce pollution control on

irrigation systems. It is virtually impossible to trace

pollutants to specific irrigation lands, making these pol-

lutants a nonpoint source in most cases. Second, we do not

46a

Act’s scheme for the enforcement of effluent limitations:

After dates set forth in [§ 301(b)], a person must

obtain a permit and comply with its terms in order to

discharge any pollutant. The conditions of the per-

mit must assure that any discharge complies with the

applicable requirements of numerous sections includ-

ing the effluent limitations of section 301(b).

NRDC v. Train, 166 U.S.App.D.C. at 316, 510 F.2d at

696 (emphasis added; footnotes omitted).

We also note that all the Supreme Court decisions re-

ferring to § 402 view the permit as the only means by

which a point source polluter can avoid the ban on dis-

charges found in § 301. Strictly speaking these expres-

sions may be dicta, for they do not touch directly on the

interpretation of § 402. But they are at least a consid-

ered reading of what the Act appears to mean.

In Train v. Colorado Public Interest Research Group,

Inc., 426 U.S. 1 (1976), vustice Marshall characterized

the enforcement scheme of the FWPCA as follows:

[E}ffluent limitations are { “poeta ——- a =

rogram. The discharge of “pollu ” into water

eae without a permit issued by the Administra-

tor of the EPA or, if a State has developed a nro-

gram that complies with the FWPCA, by the

State....

Id. at 7 (footnote omitted).

f we will be doing the Federal Government a great

Gevoune tl es cane pass a Federal water pollution

control bill that cannot be fully enforced.

118 Cong. Rec. 10764-65 (1972), reprinted in Legislative His-

tory at 651. The amendment was rejected.

47a

In EPA v. State Water Resources Control Board, 426

U.S. 200 (1976), the issue was whether federal installa-

tions were subject to state NPDES programs. Justice

White’s majority opinion described NPDES at 205 (foot-

note omitted) :

Under NPDES, it is unlawful for any person to

discharge a pollutant without obtaining a permit and

complying with its terms. An NPDES permit serves

to transform generally applicable effluent limitations

and other standards—including those based on water

quality—into the obligations (including a timetable

for compliance) of the individual discharger, and the

Amendments provide for direct administrative and

judicial enforcement of permits.

In E. I. du Pont de Nemours v. Train, 430 U.S. 112

(1977), the Court held that under FWPCA the EPA can

set uniform effluent limitations through industry-wide

regulations rather than develop them on an individual

basis during the permit issuance process. But the Court,

per Justice Stevens, clearly indicated that those limitations

were translated into obligations of the discharger through

their inclusion in an NPDES permit. 7d. at 119-20.

The wording of the statute, legislative history, and

precedents are clear: the EPA Administrator does not

have authority to exempt categories of point sources from

the permit requirements of § 402. Courts may not manu-

facture for an agency a revisory power inconsistent with

the clear intent of the relevant statute. In holding that

the FPC does not have authority to exempt the rates of

small producers from regulation under the Natural Gas

Act, the Supreme Court observed:

It is not the Court’s role . . . to overturn congres-

sional assumptions embedded into the framework of

regulation established by the Act. This is a proper

task for the Legislature where the public interest

48a

may be considered from the multifaceted points of

view of the representational process.

FPC v. Texaco, Ine., 417 U.S. 380, 400 (1974).

Il. ADMINISTRATIVE INFEASIBILITY

The appellants have stressed in briefs and at oral argu-

ment the extraordinary burden on the EPA that will be

imposed by the above interpretation of the scope of the

NPDES program. The spectre of millions of applications

for permits is evoked both as part of appellants’ legisla-

tive history argument—that Congress could not have in-

tended to impose such burdens on the EPA—and as an

invitation to this court to uphold the regulations as devia-

tions from the literal terms of the FWPCA necessary to

permit the agency to realize the general objectives of thai

act. During oral argument we asked for supplemental

briefs so that the appellants could expand on their in-

feasibility arguments. We consider EPA’s infeasibility

contentions in turn.

A. Uniform National Effluent Limitations

EPA argues that the regulatory scheme intended under

Titles III and IV of the FWPCA requires, first, that the

Administrator establish national effluent limitations “ and,

second, that these limitations be incorporated in the indi-

vidual permits of dischargers. EPA argues that the

establishment of such limitations is simply not possible

1* See FWPCA § 502(11), 38 U.S.C. § 1862(11) (Supp. V

1975):

The term “effluent limitation” means any restriction es-

tablished 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 contigu-

ous zone, or the ocean, including schedules of compliance.

49a

with the type of point sources involved in the 1973 regula-

tions, which essentially invelve the discharge of runoff—

i.e., wastewaters generated by rainfall that drain over

terrain into navigable waters, picking up pollutants along

the way.

There is an initial question, to what extent point

sources are involved in agricultural, sivicultural,. and

storm sewer runoff. The definition of point source in

§ 502(14), including the concept of a “discrete convey-

ance”, suggests that there is room here for some exclusion

by interpretation. We discuss this issue subsequently.

Meanwhile, we assume that even taking into account what

are clearly point sources, there is a problem of infeasibil-

ity which the EPA properly opens for discussion.

EPA contends that certain characteristics of runoff

pollution make it difficult to promulgate effluent limita-

tions for most of the point sources exempted by the 1973

regulations:

The major characteristic of the pollution problem

which is generated by runoff .. . is that the owner

of the discharge point . . . has no control over the

quantity of the flow or the nature and amounts of

the pollutants picked up by the runoff. The amount

of flow obviously is unpredictable because it results

from the duration and intensity of the rainfall event,

the topography, the type of ground cover and the

saturation point of the land due to any previous rain-

fall. Similar factors affect the types of pollutants

which will be picked up by that runoff, including the

tyre of farming practices employed, the rate and

type of pesticide and fertlizer application, and the

conservation practices employed... .

An effluent limitation must be a precise number

in order for it to be an effective regulatory tool; both

the discharger and the regulatory agency need to

have an identifiable standard upon which to deter-

50a

mine whether the facility is in compliance. That was

the principal of the passage of the 1972 Amend-

ments.

Federal Appellants’ Memorandum on “Impossibility” at

7-8 (footnote omitted). Implicit in EPA’s contentions is

the premise that there must be a uniform effluent limita-

tion prior to issuing a permit. That is not our under-

standing of the law.

In NRDC v. Train, we described the interrelationship

of the effluent limitations and the NPDES permit pro-

gram, 166 U.S.App.D.C. at 327, 510 F.2d at 707 (foot-

notes omitted) :

The Act relies on effluent limitations on individual

point sources as the “basis of pollution prevention

and elimination.” . . . Section 301(b) contains a

broad description of phase one and phase two efflu-

ent limitations, to be achieved by July 1, 1977 and

July 1, 1988, respectively. The limitations estab-

lished under section 301(b) are to be imposed upon

individual point sources through permits issued un-

der the National Pollutant Discharge Elimination

System (NPDES) established by section 402. Those

permits are to contain schedules which will assure

phased compliance with the effluent limitations no

later than the final dates set forth in section 301(b).

Section 304(b) calls for the publication of regula-

tions containing guidelines for effluent limitations for

classes and categories of point sources. These guide-

lines are intended to assist in the establishment of

section 301(b) limitations that will provide uni-

formity in the permit conditions imposed on similar

sources within the same category by diverse state

and federal permit authorities.

As noted in NRDC v. Train, the primary purpose of

the effluent limitations and guidelines was to provide uni-

formity among the federal and state jurisdictions enforc-

ing the NPDES program and prevent the “Tragedy of the

5la

Commons” ” that might result if jurisdictions can com-

pete for industry and development by providing more lib-

eral limitations than their neighboring states. 510 F.2d

at 709. The effluent limitations were intended to create

floors that had to be respected by state permit programs.

But in NRDC v. Train it was also recognized that per-

mits could be issued before national effluent limitations

were promulgated and that permits issued subsequent to

promulgation of uniform effluent limitations could be

modified to take account of special characteristics of sub-

categories of point sources.

Prior to the promulgation of effluent limitations un-

der section 301, the director of a state program is

instructed merely to impose such terms and condi-

tions in each permit as he determines are necessary

to carry out the provisions of the Act. Once an efflu-

ent limitation is established, however, the state direc-

tor and the regional EPA Administrator are required

to apply the specified, uniform effluent limitations,

*® As one commentator has recently written:

The Tragedy of the Commons arises in noncentralized

decisionmaking under conditions in which the rational

but independent pursuit by each decisionmaker of its own

self-interest leads to results that leave all decisionmakers

worse off than they would have been had they been able

to agree collectively on a different set of policies.

Stewart, Pyramids of Sacrifice? Problems of Federalism in

Mandating State Implementation of National Environmental

Policy, 86 Yale L.J. 1196, 1211 (1977). The classic account of

the Tragedy of the Commons can be found in Hardin, The

Tragedy of the Commons, 162 Science 1248 (1968). Hardin

makes the point in the context of sheep-grazing. Pui simply,

even over-simply, Hardin shows that if no one is authorized

to set limits to preserve open pasture land as a whole, allowing

sheep to graze on that land may lead to serious overgrazing, as

each herdsman thinks only of his own advantage. The solution

lies in some mandate, from above or by agreement, with sanc-

tions to compel conformance.

52a

modified only as necessary to take account of funda-

mentally different factors pertaining to particular

point sources within a given class or category. Any

variation in the uniform limitations adopted for

specific dischargers must be approved by the Admin-

istrator.

510 F.2d at 710 (footnotes omitted).

Another passage in NRDC v. Train touches on the in-

feasibility problem. We noted that “(t]he statutory frame-

work is not so tightly drawn as to require guidelines for

each and every class and category of point source regard-

less of the need for uniform guidelines or to mandate that

all guidelines be published prior to December 31 [1974]

regardless of their quality or the burden that task would

place upon che agency.” Jd. at 320-21, 510 F.2d at 710-11.

In that case this court fully appreciated that technological

and administrative constraints might. prevent the Admin-

istrator from developing guidelines and corresponding

uniform numeric effluent limitations for certain point

sources anytime in the near future. The Administrator

was deemed to have the burden of demonstrating that

the failure to develop the guidelines on schedule was due

to administrative or technological infeasibility. 510 F.2d

at 713. Yet the underlying teaching was that technologi-

cal or administrative infeasibility was a reason for ad-

justing court mandates to the minimum extent necessary

to realize the general objectives of the Act.” It is a

7 In NRDC v. Train this court stated:

A federal equity court may exercise its discretion to

give or withhold its mandate in furtherance of the public

interest, including specifically the interest in effectuating

the congressional objective incorporated in regulatory

legislation. We think the court may forebear the issuance

of an order in those cases where it is convinced by the

official involved that he has in good faith employed the

utmost diligence in discharging his statutory responsibili-

ties. The sound discretion of an equity court does not

53a

number of steps again to suggest that these problems

afford the Administrator the authority to exempt cate-

gories of point sources from the NPDES program entirely.

With time, experience, and technological development,

more point sources in the categories that EPA has now

classed as exempt may be amenable to national effluent

limitations achieved through end-of-pipe technology or

other means of pollution control. EPA has noted its own

success with runoff from mining operations:

EPA has found that in the area of runoff from

mining operations, there is sufficient predictability

because of a longer history of regulation and the

relatively confined nature of the operations that

numerical limitations can be established. Thus, con-

sistent with EPA’s position stated earlier that it will

expand the permit program where its capability of

establishing effluent limitations allows, appropriate

limitations have been created and the permit pro-

gram expanded.

Federal Appellants’ Memorandum on “Impossibility” at 8.

In sum, we conclude that the existence of uniform na-

tional effluent limitations is not a necessary precondition

for incorporating into the NPDES program pollution

from agricultural, silvicultural, and storm water runoff

point sources. The technological or administrative infeasi-

bility of such limitations may result in adjustments in

the permit programs, as will be seen, but it does not

authorize the Administrator to exclude the relevant point

source from the NPDES program.

embrace enforcement through contempt of a party’s duty

to comply with an order that calls him “to do an impos-

sibility.”

166 U.S.Anp.D.C. at 333, 510 F.2d at 713 (footnotes omitted).

For reasous stated in this opinion, we conclude that to require

the EPA Administrator to include silvicultural, agricultural,

and storm sewer point sources in the NPDES program is not

to require him “to do an impossibility.”

—

54a

B. Alternative Permit Conditions under § 402(a)

EPA contends that even if it is possible to issue permits

without national effluent limitations, the special charac-

teristics of point sources of runoff pollution make it in-

feasible to develop restrictions on a case-by-case basis.

EPA’s implicit premise is that whether limitations are

promulgated on a class or individual source basis, it 1s

still necessary to articulate any limitation in terms of a

numerical effluent standard. That is not our under-

standing.

Section 402 provides that a permit may be issued upon

condition “that such discharge will meet either all ap-

plicable requirements under sections 301, 302, 306, sv’,

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

implementing actions relating to all such requirements,

such conditions as the Administrator determines are neces-

sary to carry out the provisions of this Act.” 33 US.C.

§ 1342(a) (Supp. V 1975) (emphasis added). This pro-

vision gives EPA considerable flexibility in framing the

permit to achieve a desired reduction in pollutant uis-

charges. The permit may proscribe industry practices

that aggravate the problem of point source pollution.”

21 That Congress did not regard numeric effluent limitations

as the only permissible limitation on a discharger is supported

by § 302(a) of the Act, 88 U.S.C. §1812(a) (Supp. V 1975):

Whenever, in the judgment of the Administrator, dis-

charges of pollutants from a point source or group of point

sources, with the application of effluent limitations re-

quired under [§ 301(b) of the Act], would interfere with

the attainment or maintenance of that water quality in a

specific portion of the navigable waters which shall assure

protection of public water supplies, agricultural and in-

dustrial uses, and the protection and propagation of a

balanced population of shellfish, fish and wildlife, and

allow recreational activities in and on the water, effluent

limitations (including alternative effluent control strate-

55a

EPA’s counsel caricatures the matter by stating that

recognition of any such authority would give EPA the

power “to instruct each individual farmer on his farming

practices.” Federal Appellants Memorandum on “Impossi-

bility” at 12. Any limitation on a polluter forces him to

modify his conduct and operations. For example, an air

polluter may have a choice of installing scrubbers, burn- |

ing different fuels or reducing output. Indeed, the author-

ity to prescribe limits consistent with the best practicable

technology may be tantamount to prescribing that tech-

nology. Of course, when alternative techniques are avail-

able, Congress intended to give the discharger as much

flexibility as possible in choosing his mode of compliance.

See, ¢.g., H. Rep. No. 92-911, 92d Cong., 2d Sess. 107,

reprinted in Legislative History at 794. We only indicate

here that when numerical effluent limitations are infeasi-

ble, EPA may issue permits with conditions designed to

reduce the level of effluent discharges to acceptable levels.

This may well mean opting for a gross reduction in pol-

lutant discharge rather than the fine-tuning suggested by

numerical limitations. But this ambitious statute is not

hospitable to the concept that the appropriate response to a

difficult pollution problem is not to try at all.

It may be appropriate in certain circumstances for the

EPA to require a permittee simply to monitor and report

effluent levels; EPA manifestly has this authority.* Such

permit conditions might be desirable where the full extent

of the pollution problem is not known.

yies) for such point source or sources shall be established

which can reasonably be expected to contribute to the

attainment or maintenance of such water quality.

The emphasis has been added.

** FWPCA § 402(a) (3), (b) (2) (B), 38 U.S.C. § 1842(a)

(3), (b) (2) (B) (Supp. V 1975). EPA concedes that it has

this authority. Federal Appellants’ Memorandum on “Impos-

sibility” at 14.

C. General Permits

Finally, EPA argues that the number of permits in-

volved in the absence of an exemption authority will sim-

ply overwhelm the Agency. Affidavits filed with the Dis-

trict Court indicate, for example, that the number of

silviculture point sources may be over 300,000 and that

there are approximately 100,000 separate storm sewer

point sources.* We are and must be sensitive to EPA’s

concerns of an intolerable permit load. But the District

Court and the various parties have suggested devices to

mitigate the burden—to accommodate within a practical

regulatory scheme Congress’s clear mandate that all point

sources have permits. Ail that is required is that EPA

make full use of its interpretational authority. The ex-

istence of a variety of options belies EPA’s infeasibility

arguments.

Section 402 does not explicitly describe the necessary

scope of a NPDES permit. The most significant require-

ment is that the permit be in compliance with limitation

sections of the Act described above. As a result NRDC

and the District Court have suggested the use of area or

general permits. The Act allows such techniques. Area-

wide regulation is one well-established means of coping

with administrative exigency. An instance is area pricing

for natural gas producers, which the Supreme Court up-

held in Permian Basin Area Rate Cases, 390 U.S. 747

(1968).* A more dramatic example is the administrative

23 Affidavit of William H. McCredie, Director, Industrial For-

estry, of the NFPA; Affidavit of Walter G. Gilbert, Chief of

the Municipal Operations Branch, Municipal Waste Water

Systems Div., EPA Office of Air and Water Programs.

* In Permian Basin the Supreme Court observed:

The Commission has asserted, and the history of producer

regulation has confirmed, that the ultimate achievement

of the Commission’s regulatory purposes may easily de-

pend upon the contrivance of more expeditious adminis-

57a

search warrant, which may be issued on an area basis

despite the normal Fourth Amendment requirement of

probable cause for searching specific premises. Camara v.

Municipal Court, 387 U.S. 523 (1967).

In response to the District Court’s order, EPA promul-

gated regulations that make use of the general permit

device. 42 Fed. Reg. 6846-53 (Feb. 4, 1977). The general

permit is addressed to a class of point source dischargers,

subject to notice and opportunity for public hearing in

the geographical area covered by the permit. Although

we do not pass on the validity of the February, 1977,

regulations, they serve to dilute an objection of wholesale

infeasibility.*

Our approach is not fairly subject to the criticism that

it elevates form over substance, that the end result will

look very much like EPA’s categorical exemption. It is

the function of the courts to require agencies to comply

with legislative intent when that intent is clear, and to

leave it to the legislature to make adjustments when the

result is counterproductive.” At the same time, where

trative methods. The Commission believes that the ele-

ments of such methods may be found in area proceedings.

“TC]onsiderations of feasibility and practicality are cer-

tainly germane” to the issues before us... . We cannot,

in these circumstances, conclude that Congress has given

authority inadequate to achieve with reasonable effective-

ness the purposes for which it has acted.

390 U.S. at 777.

**It is also of some, albeit limited, significance that the

House Committee on Government Operations found EPA’s

administrative problems with applying the permit program to

animal feedlots “grossly exaggerated.” It was of the opin-

ion that the Administrator did not have authority to exempt

point sources from the NPDES program. H. Rep. No. 93-1012,

93d Cong., 2d Sess. 15-80 (1974).

** The Supreme Court recently reiterated this instruction in

Union Electric Co. v. EPA, 427 U.S. 246 (1976). There the

58a

intent on an issue is unclear, we are instructed to afford

the administering agency the flexibility necessary to

achieve the general objectives of the Act. Weinberger v.

Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653 (1973) ;

United States v. Southwestern Cable Co., 392 U.S. 157,

Court held that the EPA Administrator could not consider

claims of technological or economic infeasibility when approv-

ing state implementation plans under the Clean Air Act

Amendments of 1970, 42 U.S.C. §§ 1857a-1857/ (1970). Such

claims were held only to be cognizable by the states in the plan

design stage or by the Administrator when drawing up com-

pliance orders. Justice Marshall, writing for the Court, em-

phasized that federal courts are not to ignore clear expressions

of Congressional intent in order to accommodate claims of

technological or economic infeasibility.

Allowing such claims to be raised by appealing the Ad-

ministrator’s approval of an implementation plan .. .

would frustrate congressional intent. It would permit a

proposed plan to be struck down as infeasible before it is

given a chance to work, even though Congress clearly

contemplated that some plans would be infeasible when

proposed. And it would permit the Administrator or a

federal court to reject a State’s legislative choices in reg-

ulating air pollution, even though Congress plainly left

with the States, so long as the national standards were

met, the power to determine which sources would be bur-

dened by regulation and to what extent. Technology forc-

ing is a concept somewhat new to our aational experience

and it necessarily entails certain risks. But Congress con-

sidered those risks in passing the 1970 Amendments and

decided that the dangers posed by uncontrolled air pollu-

tion made them worth taking. Petitioner’s theory would

render that considered legislative judgment a nullity, and

that is a result we refuse to reach.

427 U.S. at 268-69 (footnote omitted). See also Wilderness

Society v. Morton, 156 U.S.App.D.C. 121, 171, 479 F.2d 842,

892 (1978), cert. denied, 411 U.S. 917 (quoting United States

v. City and County of San Francisco, 310 U.S. 16, 31-82

(1940): “ ‘We cannot accept the contention that administra-

tive rulings—such as those relied on—can thwart the plain

purpose of a valid law.’”)

59a

177-78 (1968) ; Permian Basin Area Rate Cases, 390 U.S.

747, 780 (1968). These lines of authority conjoin in our

approach. We insist, as the Act insists, that a permit is

necessary ; the Administrator has no authority to exempt

point sources from the NPDES program. But we concede

necessary flexibility in the shaping of the permits that is

not inconsistent with the clear terms of the Act.

There is also a very practical difference between a

general permit and an exemption. An exemption tends to

become indefinite: the problem drops out of sight, into a

pool of inertia, unlikely to be recalled in the absence of

crisis or a strong political protagonist. In contrast, the

general or area permit approach forces the Agency to

focus on the problems of specific regions and requires that

the problems of the region be reconsidered at least every

five years, the maximum duration of a permit.”

D. Other Interpretational Powers

Many of the intervenor-appellants appear to argue that

the District Court should be reversed because the cate-

gories exempted by EPA are nonpoint sources and are

not, in fact, point sources.* We agree with the District

Court “that the power to define point and nonpoint sources

is vested in EPA and should be reviewed by the court only

** 33 U.S.C. § 1842(a) (3), (b) (1) (B) (Supp. V 1975).

“This appears to be the position of the Colorado River

Water Conservation District and the NFPA with respect to

silvicultural activities, and NMPF, less obviously, with respect

to small dairy farms.

We would put in the same category EPA’s contention that

the exempt categories are best handled under the areawide

waste treatment management planning process of § 208 of the

FWPCA, 383 U.S.C. § 1288 (Supp. V 1975). By its terms that

section is concerned with areawide waste treatment plans that

identify and control “agriculturally and silviculturally related

non-point sources of pollution.” Jd. § 1288(b) (2) (F).

60a

after opportunity for full agency review and examina-

tion.” 396 F. Supp. at 1396. The only issue precisely con-

fronted by all the parties and properly framed for our

consideration is whether the Administrator has authority

to exempt point sources from the NPDES program. We

also think that we should, for similar reasons, not consider

at this time the appropriate definition of “discharge of

any pollutant” as used in § 402. The American Iron and

Steel Institute as amicus curiae has pressed upon us the

argument that the term “discharge” as used in § 402 was

intended to encompass only “volitional flows” that add pol-

lutants to navigable waters. Most forms of runoff, it is

argued, do not involve volitional flows.

We assume that FWPCA, however tight in some re-

spects, leaves some leeway to EPA in the interpretation of

that statute, and in that regard affords the Agency some

means to consider matters of feasibility. However, for

reasons already noted, we do not consider these particular

contentions as to interpretation on the merits.

III. CONCLUSION

As the Supreme Court recently stated in a FWPCA

case, “(t]he question . . . is not what a court thinks is

generally appropriate to the regulatory process, it is what

Congress intended... .” E. I. du Pont de Nemours & Co.

v. Train, 430 U.S. 112, 188 (1977). We find a plain

Congressional intent to require permits in any situation

of pollution from point sources. We also discern an intent

to give EPA flexibility in the structure of the permits, in

the form of general or area permits. We are aware that

Congress hoped that more of the NPDES permit program

would be administered by the states at this point.” But

* See, e.g., 118 Cong. Rec. 10235 (1972) (Rep. Ichord) re-

printed wn Legislative History at 428.

6la

it also made provision for continuing EPA administration.

Imagination conjoined with determination will likely give

EPA a capability for practicable administration. If not,

the remedy lies with Congress.

So ordered.

62a

MACKINNON, Circuit Judge, concurring: I concur in

the very sound and practical construction set forth in the

foregoing opinion. Any person concerned with the actual

application and enforcement of laws would necessarily

be concerned by the application of the relevant legislation

to all point sources in agriculture—and particularly to

irrigated agriculture. Concern would also lie in the con-

gressional admission that present technology is inadequate

to enable our citizens to meet the standards and deadlines

the Act imposes; in passing the law, Congress was relying

on the future “invention [of] new and imaginative devel-

opments that will allow us to meet the objectives of our

bill.” * In gambling parlance, Congress in enacting the

law was “betting on the come.” It is relying on our citi-

zens in the near future to develop the complex technology

to meet all the law’s standards and objectives on time.

The difficulty with that approach is that the hopes of

Congress in this respect, like that of any gambler, might

not be realized. The agency in this case, however, has

shown that it takes a realistic view of both the situation

and the task of meeting the difficult requirements and

objectives of the Act. I sincerely hope that the ability of

the agency to issue section 402 permits—including general

area permits *—will permit it to the present and

future compliance problems posed by Act in a practi-

cal way.

*Comments of Senator Montoya, 117 Conc. REc. 38808

(1971), quoted in court’s opinion at 12, reprinted in Legiisla-

tive History at 1278.

* As an example, an area permit with appropriate conditions

and modifications could issue for the agricultural point sources

within the Grand River Irrigation District, or the watershed

of the Roaring Fork River and tributaries, etc.

U. 8, GOVERNMENT PRINTING OFFICE ; 1977 O - 252-125