559 F.2d 921 (4th Cir. 1977), 76-1320, State Water Control Bd. v. Train

Docket Nº:76-1320.
Citation:559 F.2d 921
Party Name:STATE WATER CONTROL BOARD, an agency of the Commonwealth of Virginia, Appellant, v. Russell E. TRAIN, Administrator United States Environmental Protection Agency, Newton Ancarrow, individual petitioner for intervention, Appellees, Natural Resources Defense Council, Inc., Amicus Curiae.
Case Date:July 13, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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559 F.2d 921 (4th Cir. 1977)

STATE WATER CONTROL BOARD, an agency of the Commonwealth of

Virginia, Appellant,

v.

Russell E. TRAIN, Administrator United States Environmental

Protection Agency, Newton Ancarrow, individual

petitioner for intervention, Appellees,

Natural Resources Defense Council, Inc., Amicus Curiae.

No. 76-1320.

United States Court of Appeals, Fourth Circuit

July 13, 1977

Argued Dec. 6, 1976.

Page 922

James E. Ryan, Jr., Deputy Atty. Gen., Richmond, Va. (Andrew P. Miller, Atty. Gen. of Virginia, and David E. Evans, Asst. Atty. Gen., Richmond, Va., on brief), for appellant.

Larry A. Boggs, Atty., Dept. of Justice, Washington, D. C. (Peter R. Taft, Asst. Atty. Gen., Washington, D. C., William B. Cummings, U. S. Atty., Alexandria, Va., Charles L. Beard, Asst. U. S. Atty., and Edmund B. Clark, and Jacques B. Gelin, Attys., Dept. of Justice, Washington, D. C., on brief), for appellee Russell E. Train, Administrator, U. S. E. P. A.

David S. Favre, Detroit, Mich., on brief, for appellee Newton Ancarrow.

Edward L. Strohbehn, Jr., Washington, D. C., on brief, for amicus curiae.

Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

DONALD RUSSELL, Circuit Judge:

The State Water Control Board of the Commonwealth of Virginia brought this action against the Administrator of the United States Environmental Protection Agency (EPA) on behalf of the Commonwealth of Virginia and certain of her political subdivisions, seeking a declaration that the effluent limitations of Section 301(b)(1) of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA) 1 do not apply to publicly owned sewage treatment plants which have not received federal grants under Title II 2 of the FWPCA. 3

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The district court denied the relief sought 4 and the Board appeals. For the reasons stated below, we affirm.

I.

The FWPCA seeks to eliminate the discharge of pollutants into the navigable waters by 1985 in order to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 5 As an initial step toward that goal, 6 Section 301(b)(1)(B) requires publicly owned treatment works 7 to achieve, by July 1, 1977, the degree of effluent reduction attainable through application of secondary treatment. 8 In addition, such plants must satisfy any limitations which are necessary to implement any applicable water quality standard. 9

These criteria are applied to individual treatment plants primarily through the national permit system established by Section 402. 10 Under that system, no person may discharge pollutants without a permit issued by EPA or an EPA-approved state permit program. 11 Section 402 requires that such permits be conditioned on compliance with the requirements of, inter alia, Section 301. Discharge of pollutants without a permit or in violation of a permit condition may result in civil and criminal penalties as well as injunctive sanctions. 12

To assist in financing the facilities necessary to accomplish the effluent reductions mandated by Section 301, Title II of the Act establishes a program of federal grants to states, municipalities and intergovernmental agencies for the construction of publicly owned treatment plants. Section 202(a) 13 provides that the amount of any grant made under this program 14 shall be 75% of approved construction costs; and Section

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207 15 authorizes the appropriation of $18 billion for fiscal years 1973 through 1975 for such grants. 16

Unfortunately, however, the grant program's effectiveness in facilitating compliance with the 1977 effluent limitations has been limited. Grants have not been available for many construction projects because the money authorized by Section 207 is insufficient to finance 75% of the cost of every needed sewage treatment plant in the country. 17 Moreover, disbursement of the authorized funds has been substantially delayed by Presidential impoundment 18 and by the time consumed by administrative processing of grant applications. 19 These problems, together with the fiscal difficulties now confronting most State and local governments, have made it economically impossible for many localities to accomplish the required effluent reductions by the 1977 deadline.

Motivated by this circumstance, appellant contends that, under a proper construction of the Act, receipt of Title II grant money is a condition precedent to the duty to comply with the 1977 effluent standards. We cannot agree.

II.

Our analysis begins with the undisputed fact that appellant's position is not supported by the text of the statute. Section 301(b)(1)'s effluent limitations are, on their face, unconditional; and no other provision indicates any link between their enforceability and the timely receipt of federal assistance.

Appellant, relying on the Act's legislative history, asks us to hold that such a link is, nevertheless, implicit in the statutory scheme. However, as the following discussion demonstrates, that history actually tends to reinforce the "plain meaning" of the text. 20

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As the Third Circuit has noted, "all discussion of this date (the July 1, 1977 deadline) in the legislative history indicates that Congress viewed it as an inflexible target." Bethlehem Steel Corp. v. Train (3d Cir. 1976) 544 F.2d 657, 661. The House committee report on the bill which became the FWPCA states:

It is the intention of the Committee that the requirements of section 301(b) (1)(A) and (B) be met by phased compliance between the date of enactment . . . and January 1, 1976, (now July 1, 1977) so that all point sources will be in full compliance no later than (July 1, 1977), except as any extension of time for compliance may be made in accordance with section 301(b)(3). 21 (H.R.Rep. No. 92-911, 92d Cong., 2d Sess., reprinted at S. Comm. on Public Works, 93rd Cong., 1st Sess., A Legislative History of the Water Pollution Control Act Amendments of 1972, 788 (Comm. Print, 1973) (2 vols.) (hereinafter cited as "Legis.Hist.")) (Emphasis added.) 22

Senator Muskie, a principal author of the Act, commented that the July 1, 1977 deadline

does not mean that the Administrator cannot require compliance by an earlier date; it means that these limitations must be achieved no later than July 1, 1977 . . . (Legis.Hist. 162) (Emphasis added.)

And finally, the Senate Report notes that the EPA must act quickly in determining whether particular point sources must satisfy the technology-base standards of Section 301(b)(1)(A) and (B) or more stringent water quality-based effluent limits under Section 301(b)(1)(C) 23 because

(t)he deadlines established to achieve effluent limitations are strict (and) (s)ources of pollution, whether they are cities or industries, must know what the requirements are in order to proceed on schedule with their construction program. (S.Rep. No. 92-414, 92d Cong., 2nd Sess., U.S.Code Cong. & Admin.News 1972, pp. 3668, 3710 (1971), Legis.Hist. 1462.)

More importantly, Congress actually declined to write the statute as appellant would now have us construe it. During hearings on the House bill, William Ruckelshaus, then head of EPA, and appellee Train, then Chairman of the Council on Environmental Quality, urged that the Act permit extension of the 1977 deadline in cases where, despite good faith efforts, compliance is impossible. 24 Significantly, Mr. Ruckelshaus also recommended that "the secondary treatment requirement (of Section 301(b)(1)(B)) should only apply to

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projects for which new Federal grants are provided." 25 The bill which the House subsequently passed 26 empowered EPA to extend the 1977 deadline for up to two years in cases where compliance is physically or legally impossible; 27 but, despite the recommendation of Mr. Ruckelshaus, it did not limit the applicability of Section 301(b)(1)(B) to those facilities receiving federal assistance. 28 Moreover, even the provision authorizing case-by-case extension of the deadline was later deleted without comment by the Conference Committee. This clearly provides strong...

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