Save the Bay, Inc. v. Administrator of E.P.A.

• Decision Date: 05 August 1977
• Docket Number: No. 75-1633,75-1633
• Parties: , 7 Envtl. L. Rep. 20,674 SAVE THE BAY, INC., Petitioner, v. ADMINISTRATOR OF the ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1282

556 F.2d 1282

10 ERC 1437, 7 Envtl. L. Rep. 20,674

SAVE THE BAY, INC., Petitioner, v. ADMINISTRATOR OF the ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-1633.

United States Court of Appeals, Fifth Circuit.

Aug. 5, 1977.

Rehearing and Rehearing En Banc Denied Sept. 21, 1977.

Robert O. Homes, Jr., Metairie, La., for petitioner.

Russell E. Train, Administrator, E. P. A., Washington, D. C., Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, Michael P. Carlton, Chief, Appellate Sec., Dept. of Justice, Land & Nat. Resources, Washington, D. C., for respondent.

Petition for Review of an Order of the Environmental Protection Agency (Mississippi Case).

Before GOLDBERG, SIMPSON and FAY, Circuit Judges.

GOLDBERG, Circuit Judge:

The 1972 amendments to the Federal Water Pollution Control Act joined the Environmental Protection Agency and the fifty states in a delicate partnership charged with controlling and eventually eliminating water pollution throughout the United States. The petition before us raises several questions concerning the role of the federal appellate and district courts in scrutinizing EPA's performance within this partnership.

The Mississippi Air and Water Pollution Control Commission is a member of this pollution battling alliance. In 1975 the Commission granted to E. I. DuPont de Nemours & Co. a permit to operate a titanium dioxide plant at Bay St. Louis, Mississippi. EPA acquiesced in this action by its partner; petitioner here challenges that acquiescence. Petitioner specifically claims, first, that the Commission so mishandled DuPont's permit application that the EPA should have revoked the Commission's authority to grant such permits. Second, petitioner would have this court review EPA's failure to block the DuPont permit.

EPA strenuously urges that this court is without jurisdiction to consider either of petitioner's contentions. We conclude that this court has both the authority and obligation to review EPA decisions to withdraw or not to withdraw a state's delegated permit authority. Certain preconditions to that review are here missing, however, and preclude our determination of the merits of petitioner's first claim. Second, we conclude that this court lacks jurisdiction to review EPA's failure to veto the permit. To the extent EPA's action in this regard is reviewable, original jurisdiction must lie in the district courts. Accordingly, we dismiss the original petition filed in this court.

I. Legislative and Factual Background

The Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251-1376 (hereinafter "Amendments") substantially overhauled the nation's system of water quality control, declaring "the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985". § 101(a)(1), 33 U.S.C. § 1251(a)(1). Toward that end the Amendments introduced a system of "effluent limitations" on "point sources" of pollutants. ¹ Formerly federal water pollution control efforts centered on standards of water quality specifying acceptable levels of pollution in interstate navigable waters. Through the shift in the 1972 Amendments to strict limitations applicable to each individual point of discharge, Congress intended to "facilitate enforcement by making it unnecessary to work backward from an overpolluted body of water to determine which point sources are responsible and which must be abated." EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 204, 96 S.Ct. 2022, 2024-25, 48 L.Ed.2d 528 (1976). ²

To enforce the effluent limitations, the Amendments created the National Pollution Discharge Elimination System (NPDES), a scheme for issuing permits to individual dischargers of pollutants. See § 402, 33 U.S.C. § 1342. Without an NPDES permit, one may not lawfully discharge a pollutant. See § 301(a), 33 U.S.C. § 1311(a). Discharge in compliance with the terms of an NPDES permit, on the other hand, is with few exceptions deemed compliance with the Amendments for enforcement purposes. See § 402(k), 33 U.S.C. § 1342(k). Thus the terms of individual NPDES permits provide the chief means of implementing the strict national standards mandated by the Amendments.

Congress vested this all-important permit issuing authority in EPA as an original matter. See § 402(a)(1), 33 U.S.C. § 1342(a)(1). In keeping with congressional desire "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution", Amendments § 101(b), 33 U.S.C. 1251(b), the 1972 legislation also offered states the opportunity to obtain permit issuing authority. Under § 402(b), 33 U.S.C. § 1342(b), a state may submit to EPA a proposed permit program governing discharges into navigable waters within its borders. The state must demonstrate that it will apply the effluent limitations and the Amendments' other requirements in the permits it grants and that it will monitor and enforce the terms of those permits. ³ Unless the Administrator of EPA determines that the proposed state program does not meet these requirements, he must approve the proposal.

Upon approval of a state program, EPA must suspend its own issuance of permits covering those navigable waters subject to the program. § 402(c)(1), 33 U.S.C. § 1342(c)(1). Although its role as issuer of NPDES permits thereupon ceases, the federal agency retains review authority and responsibility over an approved state program. The two aspects of this supervisory role form the subjects of the case at bar.

First, EPA may withdraw its approval of a state program upon determining, after notice and an opportunity to respond, that the program is not being administered in compliance with the requirements of § 402, 33 U.S.C. § 1342. See § 402(c)(3), 33 U.S.C. § 1342(c)(3). Second, EPA may veto individual permits issued under approved state programs. Section 402(d)(1), 33 U.S.C. § 1342(d)(1), requires a state to send EPA a copy of each permit application it receives and to notify EPA of every action related to the application, including any proposed permit. Section 402(d)(2)(B), 33 U.S.C. § 1342(d)(2) (B), provides that no permit shall issue

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.

The Administrator may waive his right to object to any individual permit application. § 402(d)(3), 33 U.S.C. § 1342(d)(3). Additionally, at the time he approves a state program the administrator may waive as to any category of point sources the requirement that the state transmit proposed permit applications and related action as well as his veto power over permits within the category. § 402(e), 33 U.S.C. § 1342(e). The Administrator may also promulgate regulations, applicable to every approved state program, designating categories of point sources within which the transmittal requirements and veto power will not apply. § 402(f), 33 U.S.C. § 1342(f).

In both the committee reports and floor debates Congress devoted significant attention to the EPA veto power over individual permits granted under state NPDES programs. In that version of the Amendments first passed by the Senate, § 402(d) provided that no permit under a state program could issue "until the Administrator is satisfied that the conditions to be imposed by the State meet the requirements of this Act." S. 2770, 92nd Cong., 2d Sess. § 402(d) (1972). Like the legislation now in effect, the Senate bill authorized EPA waiver of this review requirement on an individual permit or categorical basis. The Public Works Committee explained its understanding of the veto provision:

Although the Administrator is given the authority to review any permit before it is issued by a State, the Committee expects that, after delegation, the Administrator will withhold his review of proposed permits which are not of major significance.

S.Rep. No. 92-414, 92d Cong., 1st Sess. (1971), reprinted in (1972) U.S.Code Cong. & Ad.News, pp. 3668, 3737.

The House rejected the individual permit veto in the version of the Amendments it passed. It authorized EPA to interpose an objection to a state permit only upon notification by another state claiming adverse impact from the proposed permit. H.R. 11896, 92d Cong., 2d Sess. §§ 402(b)(5), 402(d)(2) (1972). The House Public Works Committee explained its failure to include a permit-by-permit veto power in the following terms:

The Committee considered extensively the proposition that all the permits issued by the States ought to be subject to review and possible veto by the Administrator. During the Committee's hearings, the Governors and other representatives of the States, almost unanimously, stressed the need to put the maximum responsibility for the permit program in the States. They deplored the duplication and second guessing that could go on if the Administrator could veto the State decisions. The Committee believes that the States ought to have the opportunity to assume the responsibilities that they have requested. If, however, a State fails to carry out its obligations and misuses the permit program, the Administrator is fully authorized under subsection (c)(3) of this section to withdraw his approval of a State program.

H.Rep. No. 92-911, 92d Cong., 2d Sess. 127 (1972). During the floor debates in the House, the sponsors of the legislation echoed these arguments for disapproval of the veto power. See 118 Cong.Rec. 10219, 10663 (1972) (remarks of Rep. Terry); 118 Cong.Rec. 10662-63 (1972) (remarks of Rep. Roe). Proponents of the veto power contended that it was necessary to deter states from relaxing enforcement to attract industry and that EPA's power to revoke a state's NPDES authority was too unwieldy and drastic a tool to be a useful alternative. See 118 Cong.Rec. 10639 (1972) (remarks of Rep. Dingell); 118...