511 F.2d 963 (9th Cir. 1975), 73--2466, People of State of Cal. ex rel. State Water Resources Control Bd. v. E.P.A.

Docket Nº:73--2466, 73--2486 and 74--1189.
Citation:511 F.2d 963
Party Name:PEOPLE OF the STATE OF CALIFORNIA ex rel. STATE WATER RESOURCES CONTROL BOARD, Petitioner, v. The ENVIRONMENTAL PROTECTION AGENCY, and Russell E. Train, as Administrator of the Environmental Protection Agency, Respondents. STATE OF WASHINGTON and its Department of Ecology, Petitioners, v. The ENVIRONMENTAL PROTECTION AGENCY and Russell E. Train, as
Case Date:February 13, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 963

511 F.2d 963 (9th Cir. 1975)

PEOPLE OF the STATE OF CALIFORNIA ex rel. STATE WATER

RESOURCES CONTROL BOARD, Petitioner,

v.

The ENVIRONMENTAL PROTECTION AGENCY, and Russell E. Train,

as Administrator of the Environmental Protection

Agency, Respondents.

STATE OF WASHINGTON and its Department of Ecology, Petitioners,

v.

The ENVIRONMENTAL PROTECTION AGENCY and Russell E. Train, as

Administrator of the Environmental Protection

Agency, United States of America, Respondents.

Nos. 73--2466, 73--2486 and 74--1189.

United States Court of Appeals, Ninth Circuit

February 13, 1975

Certiorari Granted June 23, 1975.

See 95 S.Ct. 2655.

Page 964

Roderick Walston, Deputy Atty. Gen. (argued) San Francisco, Cal., Charles B. Roe, Jr., Deputy Atty. Gen. (argued), Olympia, Wash., for petitioners.

Raymond W. Mushal (argued), Dept. of Justice, Washington, D.C., for respondents.

OPINION

Before WRIGHT and CHOY, Circuit Judges and BURNS, [*] District Judge.

EUGENE A. WRIGHT, Circuit Judge:

Are federal agencies and enclaves within California and Washington required to comply with state procedural requirements with respect to control of water pollution? We hold that they are and we direct the respondent administrator to proceed accordingly and to reconsider the application of the state agencies of Washington and California.

Section 313 of the 1972 Amendments to the Federal Water Pollution Control Act (hereinafter 'the Act,' 33 U.S.C. §§ 1251--1376 (Supp. II, 1972)) directs that federal agencies 'shall comply with . . . State . . . requirements respecting control and abatement of pollution.' But the issue before us is whether federal agencies should submit to the precedural requirements for securing discharge permits which state regulatory bodies may impose on local dischargers under section 402 of the statute, which is also sometimes referred to as the Clean Water Act.

Section 402 of the Act (33 U.S.C. § 1342) established the National Pollutant Discharge Elimination System (hereinafter NPDES). Thereunder, the Administrator of the Environmental Protection Agency (hereinafter 'the Administrator') is delegated the initial responsibility for issuing permits for discharges of pollutants into the navigable waters 1 of the United States.

Page 965

The Act contemplates, however, that the states will assume primary responsibility for operation of the NPDES permit system. Section 402(b) of the Act (33 U.S.C. § 1342(b)) provides for approval by the Administrator of state-submitted permit programs which are adequate to ensure compliance with the federal standards set out in the Act. After approving a state program, the Administrator is required to suspend his issuance of discharge permits 'as to those navigable waters subject to (that state's) program.' Section 402(c)(1) of the Act (33 U.S.C. § 1342(c)(1)).

Petitioners (California and Washington) challenged the Administrator's limited approval of their proposed permit programs in original actions authorized by Section 509(b)(1)(D) of the Act (33 U.S.C. § 1369(b)(1)(D)). Both states claim error because the Administrator's approval exempted federal agencies and instrumentalities from compliance with their proposed permit programs. We ordered the cases consolidated for purposes of the government's briefing and oral argument.

We have determined that the interpretation advanced by petitioners, that the Act provides for state regulation of federal as well as state dischargers, is correct. Hence we declare invalid those portions of 40 C.F.R. 125.2(b) that exclude federal facilities discharging pollutants into navigable waters from compliance with any state permit program operating under NPDES. We direct the Environmental Protection Agency and its Administrator to include henceforth in any otherwise approvable permit program submitted to it by the governors of the States of Washington or California, the authority to issue permits for all discharges by federal facilities within their respective jurisdictions.

  1. THE STATUTE.

    Modern federal legislation in the area of water pollution control began in 1948 with the enactment of the initial version of the Federal Water Pollution Control Act, ch. 758, 62 Stat. 1155. The Act was amended in 1956, 1965, 1966, and 1970 as well as in 1972, each set of amendments seeking to establish a more comprehensive and effective national system for encouraging and coordinating regulation of waste discharges into the nation's waters.

    At the same time, all successive versions of the Federal Water Pollution Control Act have reflected a consistent federal policy that the primary responsibility and right to control water pollution lies with the states. See generally S.Rep.No.92--414, 1972 U.S.Code Cong. & Admin.News, pp. 3668, 3669--3670. As a corollary, the federal role has primarily been viewed as one of supporting and assisting state efforts in this area. See id. Section 21(a) of the 1970 amendments to the Act (collectively dubbed the Water Quality Improvement Act of 1970, Pub.L. 91--224, 84 Stat. 91) applied this policy of primary state responsibility for water pollution control to federal agency dischargers. It required federal agencies having jurisdiction over properties, or engaged in public works activities, to comply with 'applicable water quality standards' as well as with the more general

    Page 966

    pollution abating purposes behind the legislation.

    In reporting favorably what became the House version of the 1970 amendments, the House Committee on Public Works noted that Section 21(a) would require federal agencies to take 'immediate and appropriate steps to insure compliance with applicable Federal, State and local water quality standards . . . subject to the availability of appropriations and the needs of the United States.' H.R.Rep.No.91--127, 1970 U.S.Code Cong. & Admin.News, pp. 2691, 2736--2737.

    The final bill which emerged from conference removed any discretion based on availability of appropriations, and thus required compliance by federal agencies subject only to 'the paramount interest of the United States as determined by the President.' Id. at 2740. The interpretation of Section 21(a) suggested by this legislative history (that federal agencies must comply with local pollution abatement standards and guidelines 'unless and until the President may determine otherwise') was judicially approved in California v. Davidson, 3 E.R.C. 1157, 1158 (N.D.Cal.1971) (refusing to dismiss an action by the State of California against the Army's commanding general at Fort Ord, seeking injunctive relief and damages for the installation's violation of the state's waste discharge limitations).

    Section 21(a) was replaced in 1972 by Section 313 of the 1972 Amendments, 33 U.S.C. § 1323, which set out the compliance requirement for federal agencies in the following language:

    Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements, including the payment of reasonable service charges. The President may exempt any effluent source of any department, agency, or instrumentality in the executive branch from compliance with any such a requirement if he determines it to be in the paramount interest of the United States to do so; except that no exemption may be granted from the requirements of section 1316 or 1317 of this title. No such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation.

    The legislative history behind Section 313 shows that Congress considered that section 'similar to one in existing law.' S.Rep.No.92--414, 1972 U.S.Code Cong. & Admin.News, p. 3733. Several supplementary affidavits submitted by petitioner State of California indicate that some federal installations may in fact be refusing in certain instances to comply with water quality standards established by state administrative boards. 2 However,

    Page 967

    respondents are willing to concede, at least in principle, that Section 313 does command deference to the substantive effluent limitations and standards promulgated by states pursuant to the Act.

    In determining whether Section 313 commands a like federal deference to procedures for obtaining state NPDES permits, California v. Davidson, supra, may again be of some guidance. In that case District Judge Weigel held that California's assertion that the Army had refused to bring one of its facilities into compliance with 'requirements' promulgated by a California regional water quality control board stated a good cause of action for injunctive relief under Section 21(a) of the 1970 amendments to the Act (the former 33 U.S.C. § 1171(a) (1970)). Since the regional boards determine 'substantive' requirements applicable to specific waste discharges via administrative hearings which are ordinarily participated in by the discharger, 3 the inference might be drawn that Section 21(a) required compliance with state administrative procedures as well.

    Any such inference that federal agencies must comply with 'procedural' as well as substantive state discharge permit requirements could only be strengthened by the language of the section of the 1972 amendments which replaced Section 21(a), considered in Davidson. Section 21(a) had required only that federal agencies comply with 'applicable water quality standards,' without specifying whether compliance was limited to the...

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