Petition — Porter County Chapter of the Izaak Walton League of America, Inc. v. Costle

M

In THE

Supreme Court of the United States

OcroBer TerR™, 1978

No. 788% ~ 1798

PORTER COUNTY CHAPTER OF THE IZAAK WALTON

LEAGUE OF AMERICA, INC.; SAVE THE DUNES

COUNCIL, INC.; ANN SIMS and HERBERT P. READ,

Petitioners,

v.

DOUGLAS COSTLE, Administrator, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Epwarp W. Osann, Jr.

One IBM Plaza - Suite 4600

Chicago, Lllinois 60611

Marvin N. Benn

Suite 2222

134 North LaSalle Street

Chicago, Illinois 60602

Attorneys for Petitioners

June 1978

eS eee —

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

Supreme Court, U. §

FILED

JUN 19 1978

L_MICHAEL RopaK JR., CLERK

TABLE OF CONTENTS

PAGE

OPINIONS BELOW 2

JURISDICTION cee eee 2

QUESTION PRESENTED 22 eccccccccccceeeee 3

STATUTES, REGULATIONS, AND EXECUTIVE

ORDERS INVOLVED ... 4

STATEMENT OF THE CASE ono. ccecccccceccceeceeees 5

The Agency Proceedings 20.0.0... cccccecccseceeceeeeees 5

ee 8

REASONS FOR GRANTING THE WRIT .......... 10

I.

The Court's Decision Below Has So Far Departed

From The Accepted And Usual Course Of Judicial

Proceedings And The Controlling Decisions Of

This Court That Review Is Warranted ................... 10

Il.

The Error Of The Court Below Which Relieves

The Administrator Of Strict Compliance With

Section 301(b)(1)(C) Is A Source Of Ongoing

Harm To The National Pollutant Discharge Elimi-

Nn cscemeeemereeee 12

AE 13

APPENDIX OF STATUTES, REGULATIONS, AND

ceeeeeses la-18a

TaBLe Or CrraTIoNns

Cases

American Meat Institute v. EPA, 526 F. 2d 442, 453

I IPP Soldier a 10

E. I. duPont de Nemours & Co. v. Train, 430 U.S. 112,

Ol DL, Fed, Sa-SiG, OF TB. Ck. BE CAGE) cncencneneccccncecccesersens 12

F.P.C. v. Idaho Power Co., 344 U.S. 17, 20, 21, 97 L. Ed.

pM Ee SRE ee ee RA 10

Ford Motor Co. v. Labor Board, 305 U.S. 364, 373-74,

83 L.. Eid. 221, SBS. Ct. BOL CLOG) nnn ncn nsncscccsccecncsene 11

Securities Comm’n. v. Chenery Corp., 318 U.S. 80, 88,

87 L. Ed. 626, 63 S. Ct. 454 (1942) ou... nne ee 10, 11

United States v. Pennsylvania Chem. Corp., 411 U.S.

655, 656, 36 L. Ed. 2d 567, 93 S. Ct. 1804 (1973) 000... 11

United States v. United States Steel Corporation, 482

F. 2d 439 (7th Cir. 1973), Cert. den. 414 U.S. 909... 11

United States Steel Corp. v. Train, 556 F. 2d 822, 835

GUY MED icctclicsnakanaititiathiesliatiscices, Shcibinnaheckinesiadindenatabin 13

Statutes

Federal Water Pollution Control Act, as Amended, 33

CF eles ee Ms dic didccleacphidicbtetasttlabienigisibeaebetbisina 4, la

Publie Law 89-298, October 27, 1965, Title II1I—Rivers

and Harbors, Sec. 301; 79 Stat. 1073 .0002 wu. ii

vervsiiasinli taiicteiacl tana i Naa A 4, 10, 11, 12, 13, 13a

Te Metmee Ast, BE UT. BOT csccscccensintsentenseresnsonse 4,11, l4a

Regulations

Regulations of the Environmental Protection Agency,

ee PRR ee sor UNE earned 2, 4, 6

Executive Orders

Executive Order No. 11,574, December 23, 1970, 35 F.R.

19,627—Administration of Refuse Act Permit Pro-

SUTIN, scisssissechgiiieuechailiiadieaainiingseiiaeichicmaichdiiatapidatiae 4, 11, 12

;

.

:

In THe

Supreme Court of the Anited States

Ocroser Term, 1978

No. 78-

PORTER COUNTY CHAPTER OF THE IZAAK WALTON

LEAGUE OF AMERICA, INC.; SAVE THE DUNES

COUNCIL, INC.; ANN SIMS and HERBERT P. READ,

Petitioners,

v.

DOUGLAS COSTLE, Administrator, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to re-

view the judgment of the United States Court of

Appeals for the Seventh Circuit entered on January 30,

1978.

malin

OPINIONS BELOW

The majority and dissenting opinions in the Court of

Appeals are reported at 571 F2d 359, and are repro-

duced in the Appendix to this Petition at pp. 1-18 and

19-20. The order of the Court of Appeals denying the

petition for rehearing is reproduced in the Appendix at

p. 21.

The Decision of the General Counsel on Matters of

Law Pursuant to 40 C.F.R. Section 125.36(m), No. 42, in-

cluding Attachment, appears in the Appendix at pp. 22-

35. The Administrator’s Denial of Petition for Review is

reproduced in the Appendix at pp. 36-39.

Permit No. IN 0000132, Authorization te Discharge

under the National Pollutant Discharge Elimination

System, the final agency decision under review, appears

in the Appendix at pp. 40-56.

JURISDICTION

The judgment of the Court of Appeals was entered on

January 30, 1978 (App. p. 1). A timely petition for re-

hearing was denied on March 20, 1978 (App. p. 21). This

Court has jurisdiction to review the judgment by Writ of

Certiorari pursuant to 28 U.S.C. § 1254(1).

I

=

QUESTION PRESENTED

A divided court below affirmed the decision of the Ad-

ministrator of the United States Environmental Protec-

tion Agency granting a discharge permit under Section

402 of the Federal Water Pollution Control Act of 1972,

as amended,’ where the Administrator had failed to

determine the meaning of a technologically based pollu-

tion control standard in Public Law 89-298? urged by

petitioners to be more stringent than that required by

Section 301(bX1XA)’ and therefore binding on the Ad-

ministrator under Section 301(bX1\C),‘ and the court

substituted its own judgment for the expertise of the

agency by interpreting the meaning of that standard

and holding it not binding on the Administrator.

The question presented is whether the court’s decision

has so far departed from the accepted and usual course

of judicial proceedings and the controlling decisions of

this Court that review is warranted, especially in view

of the ongoing harm to the National Pollutant Dis-

charge Elimination System from the court’s error which

relieves the Administrator of strict compliance with Sec-

tion 301(bX1XC).

1 33 U.S.C. § 1342.

2 Act of October 27, 1965, Title I1I—Rivers and Harbors,

§ 301; 79 Stat. 1073.

$ 33 U.S.C. § 1311(bX1XA).

‘ 33 U.S.C. § 1311(bX1XC).

A ee ae

ee

STATUTES, REGULATIONS, AND

EXECUTIVE ORDERS INVOLVED*

Federal Water Pollution Control Act, as amended,

33 U.S.C. §§ 1251 et seq.

Public Law 89-298, October 27, 1965, Title III—

Rivers and Harbors, Sec. 301; 79 Stat. 1073.

The Refuse Act, 33 U.S.C. § 407.

Executive Order No. 11,574, December 23, 1970, 35

F.R. 19,627—Administration of Refuse Act

Permit Program.

Regulations of the Environmental Protection Agency,

40 C.F.R. § 125.36(m).

5’ The relevant provisions of the oe. due to their

mee. ore set forth in the statutory Appendix at the end of

is Petition.

—$—

STATEMENT OF THE CASE

This proceeding was brought under 33 U.S.C. § 1369

and 5 U.S.C. § 701 et seq. to review final orders of the

Administrator of the United States Environmental

Protection Agency (1) denying review of the General

Counsel’s decision holding the pollution control standard

of Public Law 89-298 inapplicable to effluent limita-

tions in a discharge permit to Northern Indiana

Public Service Company (NIPSCO) under Section 402 of

the Federal Water Pollution Control Act of 1972, as

amended (FWPCA), and (2) granting NIPSCO a Section

402 NPDES permit to discharge pollutants from its coal

fired Bailly Generating Station into Lake Michigan at

Burns Waterway Harbor adjacent to the Indiana Dunes

National Lakeshore without requiring compliance with

the standard of Public Law 89-298.

The Agency Proceedings

On October 31, 1974, the U.S. Environmental Protec-

tion Agency, Region V, issued an NPDES permit to

NIPSCO to discharge pollutants from its coal fired Bail-

ly Generating Station into Lake Michigan at Burns

Waterway Harbor, ir Porter County, Indiana, adjacent

the Indiana Dunes National Lakeshore. At NIPSCO’s re-

quest, on June 27, 1975 a notice of adjudicatory hearing

was issued by EPA Region V to resolve certain

questions about the permit. In response to the notice,

petitioners filed a request for party status on July 28,

1975 which was approved on August 29, 1975. (App. pp.

2, 3)

As a result of a prehearing conference held November

12, 1975, the Administrative Law Judge certified to the

General Counsel of EPA for decision pursuant to 40

oe

C.F.R. § 125.36(m) an issue of law raised by petitioners

involving the applicability of the following provision of

Public Law 89-298 to the permit:

“.. .. The State of Indiana shall furnish assurance

satisfactory to the Secretary of the Army that water

and air pollution sources will be controlled to the

maximum extent feasible in order to minimize any

adverse effects on public recreational areas in the

general vicinity of the Harbor... .”

Petitioners contended that this provision set a higher

pollution control standard than that proposed by the Ad-

ministrator for NIPSCO’s discharge permit. (App. p. 3).

They pointed out that this provision grew out of the

compromise in the contest over the use of the shoreline

of Lake Michigan near Burns Ditch, Indiana. In-

dusirialists proposed to develop the area as Burns

Waterway Harbor. Conservationists sought to expand an

existing Indiana State park and include the area in a

proposed Indiana Dunes National Lakeshore Park.

Between 1963 and 1965, both sides in this “port versus

park” controversy compromised and agreed to the

development of a public harbor and a national lake-

shore. Legislation to this effect was introduced in both

houses of Congress in 1965.

The Public Works and Interior Committees of each

house held hearings and marked up legislation creating

the port and park respectively. The Public Works Com-

mittees acted first, each house reporting out a bill

authorizing the development of Burns Waterway Har-

bor. Although these bills did not contain specific

language providing for control of pollution in Burns

Harbor, they did authorize the development of the har-

bor under the “direction of the Secretary of the Army”

pursuant to House Document 160. This document con-

tained the recommendation of the Secretary of the Army

that:

_

“* * * the State of Indiana furnish assurances

satisfactory to the Secretary of the Army that water

and air pollution sources will be controlled to the

maximum extent feasible in order to minimize any

adverse effects on public recreational areas in the

general vicinity of the harbor.”

This language was written into the legislation as

enacted. (App. pp. 8-10)

On June 9, 1976, the EPA General Counsel handed

down a decision to the effect that Public Law 89-298

“has no applicability in establishing effluent limitations

for the NPDES permit at issue” (App. pp. 4, 22-25),

without a determination of the meaning of the above-

quoted “maximum extent feasible” pollution control stan-

dard.

On July 6, 1976, petitioners filed a petition to the

Administrator for review of the General Counsel’s

decision. The Administrator denied their petition for

review in a decision dated August 10, 1976 (App. pp. 4,

37-40), again without a determination of the meaning of

the “maximum extent feasible” standard.

On October 7, 1976, the Regional Administrator issued

the initial decision authorizing the issuance of an

amended NPDES permit to NIPSCO. The parties also

entered into a stipulation at that time which resolved

factual issues and preserved legal questions pertaining

to Public Law 89-298.

On December 7, 1976, the Administrator, acting

through the Director of Enforcement for Region V, for-

mally issued the new NPDES permit to NIPSCO under

the same number (No. 0000132) as the previous one.

(App. pp. 5, 42-58)

é

4

:

a

:

—§—

The Proceedings Below

On November 8, 1976, petitioners filed their first peti-

tion (No. 76-2093) with the court below for review of the

Administrator's August 10, 1976 decision denying

review of the General Counsel's decision on Public Law

89-298. On March 7, 1977, petitioners filed their second

petition (No. 77-1262) with the court below seeking

review of the order of December 7, 1976 issuing the per-

mit. The court ordered consolidation of these two

appeals on May 9 and 16, 1977. (App. p. 5)

On January 30, 1978, the court below, by a divided

vote, dismissed the petitioners’ petition for review and

affirmed the decision of the Administrator on Public

Law 89-298. (App. 18)

The majority opinion pays lip service to Section

301(bX1XC) which provides that there shall be achieved:

“(C) not later than July 1, 1977, any more stringent

limitation including those necessary to meet water

quality standards, treatment standards, or

schedules of compliance, established pursuant to any

State law or regulations (under authority preserved

by Section 510) or other Federal law or regulation,

or required to implement any applicable water

quality standard established pursuant to this Act.”

(emphasis supplied)

The majority concedes that “If Public Law 89-298 had

provided a precise standard and one more stringent

than that required by FWPCA § 301(b\ 1A), the court

would have to direct the Regional Administrator of EPA

to heed that stricter standard in the issuance of the per-

mit to NIPSCO”. (App. pp. 12, 13) Then, in the absence

of a determination by the Administrator as to the mean- .

ing of the “maximum extent feasible” pollution control

standard, the majority develops its own interpretation.

It refuses te direct the Administrator to heed the

standard of Public Law 89-298 on the theory that the

law “does not contain a specific standard”, “does not

confer authority in the Secretary to promulgate such

specific standards”, and “voices only a broadly stated

objective which gives the Secretary ... authority to

exercise his discretion in obtaining assurances from

Indiana of ‘maximum feasible’ pollution control in Burns

Harbor”. (App. pp. 10-13)

Chief Judge Fairchild, dissenting (App. pp. 19, 20),

notes that the EPA considered the language of Public

Law 89-298 inapplicable and ambiguous and never de-

termined its meaning. He points out that EPA, without

making that determination. cannot fulfill its duty under

Section 301(bX1\XC) to effectuate in Section 402 permits

more stringent standards for pollution control, where

created by other federal or state statutes, than “best

practicable technology”. Judge Fairchild would there-

fore set aside EPA’s decision and remand for determina-

tion whether the effluent limitations in the permit ful-

fill the 89-298 language and, if not, for imposition of

limitations that would do so.

—19—

REASONS FOR GRANTING THE WRIT

THE COURT'S DECISION BELOW HAS SO FAR

DEPARTED FROM THE ACCEPTED AND USUAL

COURSE OF JUDICIAL PROCEEDINGS AND THE

CONTROLLING DECISIONS OF THIS COURT THAT

REVIEW IS WARRANTED.

As Chief Judge Fairchild noted in his dissenting opin-

ion, the court majority below “adopts the view that

because the 1965 language (of Public Law 89-298) is am-

biguous it is not really a standard capable of enforce-

ment” (App. p. 19) The majority, absent any technical

determination by EPA, then goes on to interpret this

“ambiguous” standard of “maximum extent feasible”

and to hold it no different from the standard applied by

EPA in issuing the NIPSCO discharge permit, stating:

“.... We do not perceive that any difference in

pollution control would result from enforcement of

an objective to control pollution to the ‘maximum

extent feasible’ on one hand and a standard (the

standard set out in FWPCA § 301(bX1XA)) which

establishes the ‘maximum level of pollution allow-

able’ on the other. Thus, application of the objective

stated in Public Law 89-298 would not result in the

adoption of a standard more stringent than the

applicable standards under the FWPCA.” (emphasis

supplied) (App. pp. 17, 18)

It is crystal clear that determination of the meaning of

a technical standard such as “maximum extent feasible” _

is an administrative function involving the expertise of

EPA. American Meat Institute v. EPA, 526 F.2d 442,

453 (7th Cir. 1975). The majority’s intrusion into that

determination which the agency alone is authorized to

make was reversible error. F.P.C. v. Idaho Power Co..

344 U.S. 20, 21 (1952); Securities Comm'n. v. Chenery

Corp., 318 U.S. 80, 88 (1942); Ford Motor Co. v. Labor

Board, 305 U.S. 364, 373-374 (1939).

Nor can the administrative intrusion of the majority

below be justified on the ground that Public Law 89-298

does not confer authority on the Secretary of the Army to

promulgate standards, but merely left the matter of

pollution control at the Harbor to his discretion (App.

pp. 12, 15); and that the law has no application to EPA

or to permits under FWPCA. (App. p. 14)

What the majority overlooks is the fact that when

Public Law 89-298 was enacted in 1965, and sub-

sequently, the Secretary of the Army already had

pollution control authority and the power to issue

permits under The Refuse Act (Section 13 of the Rivers

and Harbors Act of 1899; 33 U.S.C. § 407). While the

Secretary had no formal regulatory permit program, the

water quality legislation of 1965 and 1970 limited his

authority so as to require compliance with applicable

water quality standards. The Refuse Act was upheld in

the courts despite the lack of a formal regulatory

program. United States v. Pennsylvania Chem. Corp.,

411 U.S. 655, 656, 36 L. Ed. 2d 567, 93 S. Ct. 1804

(1973); United States v. United States Steel Corporation,

482 F.2d 439 (7th Cir. 1973), cert. denied. 414 U/S.

909.

Executive Order No. 11574, 35 Fed. Reg. 19627 (Dec.

23, 1970) (Stat. App. pp. 15a, 16a) established a formal

Section 13 permit program under the Secretary. Section

2 of the Executive Order required the Secretary to

consult with the Administrator of EPA respecting

“water quality matters”, “regulations, procedures, and

. applications for permits .. .” The Administrator

was obligated to “make findings, determinations, and

interpretations . . . respecting applicable water quality

antiies

standards and compliance with these standards in

particular circumstances”.

The Executive Order No. 11574 program, with certain

changes, was incorporated into § 401 of Public Law 92-

500. United States v. Pennsylvania Chem. Corp., supra.

Under §§ 402(aX4) and 402(aX5), all discharge permits

issued or pending under Section 13 were deemed issued

under § 402 and no new permits under Section 13 were

to be issued.

In view of the transition of the discharge permit

program directly from the Secretar’ of the Army to the

Administrator of EPA, the authority both shared

regarding applicable water quality standards and issu-

ance of permits, and the more stringent limitation

requirement of Section 301(bX1XC), it is obvious that the

majority erred in heiding Public Law 89-298 inappli-

cable to EPA or to permits issued under FWPCA. (App.

p. 14)

Il.

THE ERROR OF THE COURT BELOW WHICH

RELIEVES THE ADMINISTRATOR OF STRICT COM-

PLIANCE WITH SECTION 301(b\(1XC) IS A SOURCE

OF ONGOING HARM TO THE NATIONAL POLLU-

TANT DISCHARGE ELIMINATION SYSTEM.

The Administrator is required under Section 301

FWPCA to establish 1977 and 1983 effluent limitations

based primarily on classes and categories of point

sources. EF. I. duPont de Nemours & Co. v. Train, 430

U.S. 112, 51 L.Ed. 2d 204, 97 S.Ct. 965 (1977). He is also

required under Section 301(bX1XC) to condition the

NPDES permit upon the discharger’s meeting “all

applicable requirements under Sections 301”, et ai. and

6 EPA had been created by Reorganization Plan No. 3 which

one effective December 2, 1970. 35 Fed. Reg. 15623

=)

“any more stringent limitation . . . established pursuant

to any State law or regulations . . . or other Federal law

or regulation ...”. The Administrator is given no

authority to set aside or modify such limitations in a

permit proceeding. United States Steel Corp. v. Train,

556 F.2d 822, 835 (7th Cir. 1977).

The error of the court below relieves the Ad-

ministrator of strict compliance with Section

301(bX1XC) by the simple expedient of not making a

determination of a “more stringent limitation” estab-

lished pursuant to a State or Federal law or regulation.

This, we submit, is a source of ongoing harm to the

NPDES program and frustration of the Congressional

policies set forth in the Act.

CONCLUSION

In view of the ongoing harm to the National Pollutant

Discharge Elimination System resulting from the error

of the court below, it is submitted that Certiorari should

be granted, the decision of the court below reversed, and

the cause remanded for such further proceedings as may

be appropriate.

Respectfully submitted,

Epwarp W. Osann, Jr.

One IBM Plaza - Suite 4600

Chicago, Illinois 60611

Marvin N. Benn

Suite 2222

134 North LaSalle Street

Chicago, Illinois 60602

Attorneys for Petitioners

June 1978

—la—

APPENDIX OF

STATUTES, REGULATIONS,

AND EXECUTIVE ORDERS

FEDERAL WATER POLLUTION

CONTROL ACT, AS AMENDED

(33 U.S.C. §§ 1251 et seq.)

§ 1251. Congressional declaration of goals and

policy

(a) The objective of this chapter is to restore and

maintain the chemical, physical, and biological integrity

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

it is hereby declared that, consistent with the provisions

of this chapter—

(1) it is the national goal that the discharge of

pollutants into the navigable waters be eliminated

by 1985:

(2) it is the national goal that wherever attain-

able, an interim goal of water quality which

provides for the protection and propagation of fish,

Shellfish, and wildlife and provides for recreation in

and on the water be achieved by July 1, 1983:

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

toxic pollutants in toxic amounts be prohibited;

(4) it is the national policy that Federal financial

assistance be provided to construct publicly owned

waste treatment works;

(5) it is the national policy that areawide waste

treatment management planning processes be

developed and implemented to assure adequate con-

trol of sources of pollutants in each State; and

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

and demonstration effort be made to develop

technology necessary to eliminate the discharge of

pollutants into the navigable waters, waters of the

contiguous zone, and the oceans.

** * * *

—2a-—

§ 1311. Effluent limitations—Illegality of pollu-

tant discharges except in compliance with law

(a) Except as in compliance with this section and

sections 1312, 1316, 1317, 1328, 1342, and 1344 of this ti-

— the discharge of any pollutant by any person shall be

unlawful.

Timetable for achievement of objectives

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

there shall be achieved—

(1XA) not later than July 1, 1977, effluent

limitations for point sources, other than publicly

owned treatment works, (i) which shall require the

application of the best practicable control

technology currently available as defined by the Ad-

ministrator pursuant to section 1314(b) of this title.

or (ii) in the case of a discharge into a publicly own-

ed treatment works which meets the requirements

of subparagraph (B) of this paragraph, which shal]

require compliance with any applicable pretreat-

ment requirements and any requirements under

section 1317 of this title: and

(B) for publicly owned treatment works in ex-

istence on July 1, 1977, or approved pursuant to sec-

tion 1283 of this title prior to June 30, 1974 (for

which construction must be completed within four

years of approval), effluent limitations based upon

secondary treatment as defined by the Ad-

——e pursuant to section 1314 (d\1) of this ti-

tle; or,

(C) not later than July 1, 1977, any more

stringent limitation, including those necessary to

meet water quality standards, treatment standards,

or schedules of compliance, established pursuant to

any State law or regulations (under authority pre-

served by section 1370 of this title) or any other

Federal law or regulation, or required to imple-

ment any applicable water quality standard es-

tablished pursuant to this chapter.

ee

—3a—

(2XA) not later than July 1, 19838, effluent

limitations for categories and classes of point

sources, other than publicly owned treatment

works, which (i) shall require application of the best -

available technology economically achievable for

such category or class, which will result in

reasonable further progress toward the national

goal of eliminating the discharge of all pollutants,

as determined in accordance with regulations

issued by the Administrator pursuant to section

1314(bX2) of this title, which such effluent

limitations shall require the elimination of dis-

charges of all pollutants if the Adninistrator finds,

on the basis of information available to him

(including information developed pursuant to sec-

tion 1325 of this title), that such elimination is

technologically and economically achievable for a

category or class of point sources as determined in

accordance with regulations issued by the Ad-

ministrator pursuant to section 1314(b\2) of this ti-

tle, or (ii) in the case of the introduction of a pollu-

tant into a publicly owned treatment works which

meets the requirements of subparagraph (B) of this

paragraph, shall require compliance with any

applicable pretreatment requirements and any

other requirement under section 1317 of this title:

and

(B) not later than July 1, 1983, compliance by all

publicly owned treatment works with the require-

ments set forth in section 1281(g\2\A) of this title.

Modification of timetable

(c) The Administrator may modify the requirements

of subsection (bX2XA) of this section with respect to any

point source for which a permit application is filed after

July 1, 1977, upon a showing by the owner or operator of

such point source satisfactory to the Administrator that

such modified requirements (1) will represent the max-

imum use of technology within the economic capability

of the owner or operator; and (2) will result in reason-

able further progress toward the elimination of the dis-

charge of pollutants.

—da—

Review and revision of effluent limitations

(d) Any effluent limitation required by paragraph (2)

of subsection (b) of this section shall be reviewed at least

every five years and, if appropriate, revised pursuant to

the procedure established under such paragraph.

All point discharge source

application of effluent limitations

(e) Effluent limitations established pursuant to this

section or section 1312 of this title shall be applied to all

point sources of discharge of polutants in accordance

with the provisions of this chapter.

Illegality of discharge of radiological,

chemical, or biological warfare

agents or high-level radioactive waste

(f) Notwithstanding any other provisions of this

chapter it shall be unlawful to discharge any

radiological, chemical, or biological warfare agent or

high-level radioactive waste into the navigable waters.

June 30, 1948, c. 758, Title III, § 301, as added Oct. 18,

1972, Publ.L. 92-500, § 2, 86 Stat. 844.

se kee

§ 1342. National pollutant discharge elimination

system—Permits for discharge of pollutants

(aX1) Except as provided in sections 1328 and 1344

of this title, the Administrator may, after opportunity

for public hearing, issue a permit for the discharge of

any pollutant, or combination of pollutants, notwith-

standing section 1311(a) of this title, upon condition that

such discharge will meet either all applicable require-

ments under sections 1311, 1312, 1316, 1317, 1318, and -

1343 of this title, or prior to the taking of necessary im-

plementing actions relating to all such requirements,

such conditions as the Administrator determines are

necessary to carry out the provisions of this chapter.

SE Sn nan Renn enn enn fen nT oe

—5a—

(2) The Administrator shall prescribe conditions for

such permits to assure compliance with the re-

quirements of paragraph (1) of this subsection, including

conditions on data and information collection, reporting, .

and such other requirements as he deems appropriate.

(3) The permit program of the Administrator under

paragraph (1) of this subsection, and permits issued

thereunder, shall be subject to the same terms, con-

ditions, and requirements as apply to a State permit

program and permits issued thereunder under subsec-

tion (b) of this section.

(4) All permits for discharges into the navigable

waters issued pursuant to section 407 of this title, shall

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

mits issued under this title shall be deemed to be per-

mits issued under section 407 of this title, and shall con-

tinue in force and effect for their term unless revoked,

modified, or suspended in accordance with the

provisions of this chapter.

(5) No permit for a discharge into the navigable

waters shall be issued under section 407 of this title

after October 18, 1972. Each application for a permit

under section 407 of this title, pending on October 18,

1972, shall be deemed to be an application for a permit

under this section. The Administrator shall authorize a

State, which he determines has the capability of ad-

ministering a permit program which will carry out the

objective of this chapter, to issue permits for discharges

into the navigable waters within the jurisdiction of such

State. The Administrator may exercise the authority

granted him by the preceding sentence only during the

period which begins on October 18, 1972, and ends

either on the ninetieth day after the date of the first

promulgation of guidelines required by section 1314(h\2)

of this title, or the date of approval by the Ad-

ministrator of a permit program for such State under

subsection (b) of this section, whichever date first oc-

curs, and no such authorization to a State shall extend

beyond the last day of such period. Each such permit

shall be subject to such conditions as the Administrator

NN ESET TO Oe

—6§a—

determines are necessary to carry out the provisions of

this chapter. No such permit shall issue if the Ad-

ministrator objects to such issuance.

State permit programs

(b) At any time after the promulgation of the guide-

lines required by subsection (hX2) of section 1314 of this

title. the Governor of each State desiring to administer

its own permit program for discharges into navigable

waters within its jurisdiction may submit to the Ad-

ministrator a full and complete description of the

program it proposes to establish and administer under

State law or under an interstate compact. In addition,

such State shall submit a statement from the attorney

general (or the attorney for those State water pollution

control agencies which have independent legal counsel),

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

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

compact, as the case may be, provide adequate authority

to carry out the described program. The Administrator

shall approve each such submitted program unless he

determines that adequate authority does not exist:

(1) To issue permits which—

(A) apply, and insure compliance with, any

applicable requirements of sections 1311, 1312,

1316, 1317, and 1343 of this title:

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

an

(C) can be terminated or modified for cause in-

cluding, but not limited to, the following:

(i) violation of any condition of the permit;

(ii) obtaining a permit by misrepresenta-

tion, or failure to disclose fully all relevant .

facts;

(iii) change in any condition that requires

either a temporary or permanent reduction or

elimination of the permitted discharge;

(D) control the disposal of pollutants into wells;

—Ta—

(2XA) To issue permits which apply, and insure com-

pliance with, all applicable requirements of section 1318

of this title, or

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

at least the same extent as required in section 1318 of

this title;

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

waters of which may be affected, receive notice of each

application for a permit and to provide an opportunity

for public hearing before a ruling on each such applica-

tion;

(4) To insure that the Administrator receives notice

of each application (including a copy thereof) for a per-

mit;

(5) To insure that any State (other than the permit-

ting State), whose waters may be affected by the

issuance of a permit may submit written recom-

mendations to the permitting State (and the Ad-

ministrator) with respect to any permit application and,

if any part of such written recommendations are not

accepted by the permitting State, that the permitting

State will notify such affected State (and the Ad-

ministrator) in writing of its failure to so accept such

recommendations together with its reasons for so doing;

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

judgment of the Secretary of the Army acting through

the Chief of Engineers, after consultation with the

Secretary of the department in which the Coast Guard is

operating, anchorage and navigation of any of the

navigable waters would be substantially impaired

thereby;

(7) To abate violations of the permit or the permit

program, including civil and criminal penalties and

other ways and means of enforcement:

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

publicly owned treatment works includes conditions to

require adequate notice to the permitting agency of (A)

new introductions into such works of pollutants from

—Sa—

any source which would be a new source as defined in

section 1316 of this title if such source were discharging

pollutants, (B) new introductions of pollutants into such

works from a source which would be subject to section

1311 of this title if it were discharging such pollutants,

or (C) a substantial change in volume or character of

pollutants being introduced into such works by a source

introducing pollutants into such works at the time of

issuance of the permit. Such notice shall include infor-

mation on the quality and quantity of effluent to be in-

troduced into such treatment works and any anticipated

impact of such change in the quantity or quality of

effluent to be discharged from such publicly owned

treatment works; and

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

owned treatment works will comply with sections

1284(b), 1317, and 1318 of this title.

Suspension of federal program

upon submission of State program:

withdrawal of approval of State program

(cX1) Not later than ninety days after the date on

which a State has submitted a program (or revision

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

Administrator shall suspend the issuance of permits un-

der subsection (a) of this section as to those navigable

waters subject to such program unless he determines

that the State permit program does not meet the re-

quirements of subsection (b) of this section or does not

conform to the guidelines issued under section 1314(h\2)

of this title. If the Administrator so determines, he shal]

notify the State of any revisions or modifications

necessary to conform to such requirements or guide- |

lines.

(2) Any State permit program under this section

shall at all times be in accordance with this section and

emery promulgated pursuant to section 1314(hX2) of

this title.

—9IJa—

(3) Whenever the Administrator determines after

public hearing that a State is not administering a

program approved under this section in accordance with

requirements of this section, he shall so notify the State

and, if appropriate corrective action is not taken within

a reasonable time, not to exceed ninety days, the Ad-

ministrator shall withdraw approval of such program.

The Administrator shali not withdraw approval of any

such program unless he shall first have notified the

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

withdrawal.

Notification of Administrator

(dX1) Each State shall transmit to the Administrator

a copy of each permit application received by such State

and provide notice to the Administrator of every action

related to the consideration of such permit application,

including each permit proposed to be issued by such

State.

(2) No permit shall issue (A) if the Administrator

within ninety days of the date of his notification under

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

issuance of such permit, or (B) if the Administrator

within ninety days of the date of transmittal of the

proposed permit by the State objects in writing to the

issuance of such permit as being outside the guidelines

and requirements of this chapter.

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

tion, waive paragraph (2) of this subsection.

Waiver of notification requirement

(e) In accordance with guidelines promulgated pur-

suant to subsection (h\2) of section 1314 of this title, the

Administrator is authorized to waive the requirements

of subsection (d) of this section at the time he approves a

program pursuant to subsection (b) of this section for

any category (including any class, type, or size within

such category) of point sources within the State sub-

mitting such program.

—10a—

¥

Point source categories

(f) The Administrator shall promulgate regulations

establishing categories of point sources which he deter-

mines shall not be subject to the requirements of sub-

section (d) of this section in any State with a program

approved pursuant to subsection (b) of this section. The

Administrator may distinguish among classes, types,

and sizes within any category of point sources.

Other regulations for safe transportation,

handling, carriage, storage,

and stowage of pollutants

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

charge of pollutants into the navigable waters from a

vessel or other floating craft shall be subject to any

applicable regulations promulgated by the Secretary of

the department in which the Coast Guard is operating,

establishing specifications for safe transportation, han-

dling. carriage, storage, and stowage of pollutants.

Violation of permit conditions;

restriction or prohibition upon

introduction of pollutant by

source not previously

utilizing treatment works

(h) In the event any condition of a permit for dis-

charges from a treatment works (as defined in section

1292 of this title) which is publicly owned is violated, a

State with a program approved under subsection (b) of

this section or the Administrator, where no State

program is approved, may proceed in a court of com-

petent jurisdiction to restrict or prohibit the introduc-

tion of any pollutant into such treatment works by a

source not utilizing such treatment works prior to the

finding that such condition was violated.

Federal enforcement not limited

(i) Nothing in this section shal! be construed to limit

the authority of the Administrator to take action pur-

suant to section 1319 of this title.

—lla—

Public information

(j) A copy of each permit application and each per-

mit issued under this section shall be available to the

public. Such permit —— or permit, or portion

thereof, shall further available on request for the

purpose of reproduction.

Compliance with permits

(k) Compliance with a permit issued pursuant to this

section shall be deemed compliance, for purposes of sec-

tions 1319 and 1365 of this title, with sections 1311,

1312, 1316, 1317, and 1348 of this title, except any stan-

dard imposed under section 1317 of this title for a toxic

pollutant injurious to human health. Until December 31,

1974, in any case where a permit for discharge has been

applied for pursuant to this section, but final ad-

ministrative disposition of such application has not been

made, such discharge shall not be a violation of (1) sec-

tion 1311, 1316, or 1342 of this title, or (2) section 407 of

this title, unless the Administrator or other plaintiff

proves that final administrative disposition of such

application has not been made because of the failure of

the applicant to furnish information reasonably re-

quired or requested in order to process the application.

For the 180-day period beginning on October 18, 1972,

in the case of any point source discharging any pollutant

or combination of pollutants immediately prior to such

date of enactment which source is not subject to section

407 of this title, the discharge by such source shall not

be a violation of this chapter if such a source applies for

a permit for discharge pursuant to this section within

such 180-day period.

‘es *& *&

—12a—

§ 1369. Administrative procedure and judicial

review

ses & * &

(bX1) Review of the Administrator’s action (A) in

promulgating any standard of performance under section

1316 of this title, (B) in making any determination pur-

suant to section 1316(BX1XC}) of this title, (C) in

promulgating any effluent standard, prohibition, or pre-

treatment standard under section 1317 of this title, (D)

in making any determination as to a State permit

program submitted under section 1342(b) of this title,

(E) in approving or promulgating any effluent limitation

or other limitation under section 1311, 1312, or 1316 of

this title, and (F) in issuing or denying any permit un-

der section 1342 of this title, may be had by any in-

terested person in the Circuit Court of Appeals of the

United States for the Federal judicial district in which

such person resides or transacts such business upon

application by such person. Any such application shall

be made within ninety days from the date of such deter-

mination, approval, promulgation, issuance or denial, or

after such date only if such application is based solely on

grounds which arose after such ninetieth day.

Os Qe. - ewes cet ate ee

ae

=—

PUBLIC WORKS—RIVERS AND HARBORS

PUBLIC LAW 89-298; 79 sTAT. 1073

{S. 2300]

An Act authorizing the construction, repair, and preservation of certain

public works on rivers and harbors for navigation, flood control, and for

other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That:

ses * *& &

TITLE IlI-—RIVERS AND HARBORS

Sec. 301. The following works of improvement of

rivers and harbors and other waterways for navigation,

flood control, and other purposes are hereby adopted

and authorized to be prosecuted under-the direction of

the Secretary of the Army and supervision of the Chief

of Engineers, in accordance with the plans and subject

to the conditions recommended by the Chief of

Engineers in the respective reports hereinafter

designated. The provisions of section 1 of the River and

Harbor Act approved March 2, 1945 (Public Law

Numbered 14, Seventy-ninth Congress, first session),

shall govern with respect to projects authorized in this

title; and the procedures therein set forth with respect to

plans, proposals, or reports for works of improvement

for navigation or controi and for irrigation and

pu incidental thereto, shall apply as if herein set

forth in full.

NAVIGATION

*_*s & * *

Burns Waterway Harbor, Indiana: House Document

Numbered 160, Eighty-eighth Congress, at an estimated

cost of $25,000,000. The Secretary of the Army may re-

imburse the State of Indiana for the expenditure of

funds used to construct such portions of the project as

approved by the Chief of Engineers and constructed

under the supervision of the Chief of Engineers. Unless

construction of the project is initiated within three years

—l4a—

from the date of enactment of this Act, the authority to

reimburse the State of Indiana contained in this

paragraph shall expire. The State of Indiana shall fur-

nish assurance satisfactory to the Secretary of the Army

that water and air pollution sources will be controlled to

the maximum extent feasible in order to minimize any

adverse effects on public recreational areas in the

general vicinity of the Harbor. No appropriation is

authorized to be made for the construction of this pro-

ject until the Indiana Dunes National Lakeshore has

been voted upon by both Houses of Congress during the

same Congress.

(Reprinted in U.S. Code Cong. and Admin. News, 1965,

Vol. 1, 1074, 1093-95)

THE REFUSE ACT

(33 U.S.C. § 407)

§ 407. Deposit of refuse in navigable waters

generally

It shall not be lawful to throw, discharge, or deposit,

or cause, suffer, or procure to be thrown, discharged, or

deposited either from or out of any ship, barge. or other

floating craft of any kind, or from the shore, wharf,

manufacturing establishment, or mill of any kind, any

refuse matter of any kind or description whatever other

than that flowing from streets and sewers and passing

therefrom in a liquid state, into any navigable water of

the United States, or into any tributary of any navigable

water from which the same shall float or be washed into

such navigable water; and it shall not be lawful to

deposit, or cause, suffer, or procure to be deposited

material of any kind in any place on the bank of any

navigable water, or on the bank of any tributary of any ©

navigable water, where the same shall- be liable to be

washed into such navigable water, either by ordinary or

high tides, or by storms or floods, or otherwise, where-

by navigation shall or may be impeded or ob-

structed: - Provided, That nothing herein contained shall

extend to, apply to, or prohibit the operations in connec-

tion with the improvement of navigable waters or con-

Oe nS tha ee Se

—15a—

struction of public works, considered necessary and

proper by the United States officers supervising such

improvement or public work: And provided further,

That the Secretary of the Army, whenever in the judg-

ment of the Chief of Engineers anchorage and naviga-

tion will not be injured thereby, may permit the deposit

of any material above mentioned in navigable waters,

within limits to be defined and under conditions to be

prescribed by him, provided application is made to him

prior to depositing such material; and whenever any

permit is so granted the conditions thereof shall be

strictly complied with, and any violation thereof shail be

unlawful.

Mar. 3, 1899, c. 425, § 13, 30 Stat. 1152.

EXECUTIVE ORDER No. 11574

December 25, 1970, 35 F.R. 19627

ADMINISTRATION OF REFUSE ACT PERMIT PROGRAM

By virtue of the authority vested in me as President of

the United States, and in furtherance of the purposes

and policies of section 13 of the Act of March 3, 1899, c.

425, 30 Stat. 1152 (33 U.S.C. 407), the Federal Water

Pollution Control Act, as amended (33 U.S.C. 1151 et

seq.), the Fish and Wildlife Coordination Act, as amend-

ed (16 U.S.C. 661-666c), and the National Environ-

mental Policy Act of 1969 (42 U.S.C. 4321-—-4347), it is

hereby ordered as follows:

Section 1. Refuse Act permit program. The ex-

ecutive branch of the Federal Government shall imple-

ment a permit program under the aforesaid section 13

of the Act of March 3, 1899 (hereinafter referred to as

“the Act”) to regulate the discharge of pollutants and

other refuse matter into the navigable waters of the

United States or their tributaries and the placing of such

matter upon their banks.

Sec. 2. Responsibilities of Federal agen-

cies. (aX1) The Secretary shall, after consultation

with the Administrator respecting water quality

matters, issue and amend, as appropriate, regulations,

citings:

procedures, and instructions for receiving, processing,

and evaluating applications for permits pursuant to the

authority of the Act.

(2) The Secretary shall be responsible for granting,

denying, conditioning, revoking, or suspending Refuse

Act permits. In so doing:

(A) He shall accept findings, determinations, and in-

terpretations which the Administrator shall make

respecting applicable water quality standards and com-

pliance with those standards in particular circum-

stances, including findings, determinations, and inter-

pretations arising from the Administrator’s review of

State or interstate agency water quality certifications

under section 21(b) of the Federal Water Pollution Con-

trol Act (84 Stat. 108). A permit shall be denied where

the certification prescribed by section 21(b) of the

Federal Water Pollution Control Act has been denied, or

where issuance would be inconsistent with any finding,

determination, or interpretation of the Administrator

pertaining to applicable water quality standards and

considerations.

(B) In addition, he shall consider factors, other than

water quality, which are prescribed by or may be law-

fully considered under the Act or other pertinent laws.

(3) The Secretary shall consult with the Secretary of

the Interior, with the Secretary of Commerce, with the

Administrator, and with the head of the agency exer-

cising administration over the wildlife resources of any

affected State, regarding effects on fish and wildlife

which are not reflected in water quality considerations,

where the discharge for which a permit is sought im-

pounds, diverts, deepends the channel, or otherwise con- |

trols or similarly modifies the stream or body of water

into which the discharge is made.

(4) Where appropriate for a particular permit

application, the Secretary shall perform such con-

sultations respecting environmental amenities and

values, other than those specifically referred to in

paragraphs (2) and (3) above, as may be required by the

National Environmental Policy Act of 1969.

PSE hate “ne litt Plessis $

—17a—

(b) The Attorney General shall conduct the legal

proceedings necessary to enforce the act and permits

issued pursuant to it.

Sec. 3. Coordination by Council on Environmental

Quality. (a) The Council on Environmental Quality

shall coordinate the regulations, policies, and procedures

of Federal agencies with respect to the Refuse Act per-

mit program.

(b) The Council on Environmental Quality, after con-

sultation with the Secretary, the Administrator, the

Secretary of the Interior, the Secretary of Commerce,

the Secretary of Agriculture, and the Attorney General,

shall from time to time or as directed by the President

advise the President respecting the implementation of

the Refuse Act permit program, including recom-

mendations regarding any measures which should be

taken to improve its administration.

Sec. 4. Definitions. As used in this order, the word

“Secretary” means the Secretary of the Army, and the

word “Administrator” means the Administrator of the

Environmental Protection Agency.

RICHARD NIXON.

THE WHITE HOUSE,

December 23, 1970.

[Reprinted in U.S. Code Cong. and Admin. News, 1970,

Vol. 3, 6305]

—18a—

RULES AND REGULATIONS OF THE

U.S. ENVIRONMENTAL PROTECTION AGENCY

(40 C.F.R. § 125.36(m)

(m) Decision of the Assistant Administrator for En-

forcement and General Counsel on questions of law.

(1) Issues of law, including questions relating to the

interpretation of provisions of the Act, and the legality

and interpretation of regulations promulgated pursuant

to the Act, shall be decided in accordance with this sub-

section and shall not be considered at the adjudicatory

hearing.

(2) The Presiding Officer shall determine which

issues, if any, submitted by the parties fall into the

category specified in subparagraph (1) of this

paragraph, and shall refer such issues to the Assistant

Administrator for Enforcement and General Counsel for

resolution. Such referral may be accompanied by briefs,

filed with the Assistant Administrator for Enforcement

and General Counsel within twenty (20) days of the

removal of the referred issues from the adjudicatory

hearing by the Presiding Officer pursuant to sub-

paragraph (2) of this paragraph.....

** * * *

(4) The Assistant Administrator for Enforcement

and General Counsel shall provide the Regional Ad-

ministrator, the Presiding Officer, where appropriate,

and each party with a written decision with respect to

each referred issue of law. A written opinion setting

forth the reasons and basis for the decision shall also be

provided. The decision of the Assistant Administrator

for Enforcement and General Counsel shall be final with

respect to each referred issue of law as it relates to the

particular permit in question and shall-be relied upon

= the Regional Administrator in rendering the initial

ecision.