Manatee County, Fla. v. Train, 76-4115

• Decision Date: 03 November 1978
• Docket Number: No. 76-4115,76-4115
• Parties: , 8 Envtl. L. Rep. 20,851 MANATEE COUNTY, FLORIDA, Plaintiff-Appellee, v. Russell E. TRAIN, as Administrator of the United States Environmental Protection Agency, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 179

583 F.2d 179

12 ERC 1436, 8 Envtl. L. Rep. 20,851

MANATEE COUNTY, FLORIDA, Plaintiff-Appellee, v. Russell E. TRAIN, as Administrator of the United States

Environmental Protection Agency, Defendant-Appellant.

No. 76-4115.

United States Court of Appeals, Fifth Circuit.

Nov. 3, 1978.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Eleanore J. Hill, Asst. U. S. Atty., Tampa, Fla., Paul M. Kaplow, Atty, Dept. of Justice, Washington, D. C., Frances E. Phillips, Regional Counsel, Environmental Protection Agency, Atlanta, Ga., Peter R. Taft, Asst. Atty. Gen., Edmund B. Clark, Carl Strass, Land & Nat. Res. Div., Dept. of Justice, App. Sect., Washington, D. C., for defendant-appellant.

Paul E. Logan, Warren M. Goodrich, Bradenton, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, TJOFLAT and HILL, Circuit Judges.

RONEY, Circuit Judge:

In April 1971, plaintiff Manatee County, Florida, was awarded a federal grant of 33% Of the cost of construction of a sewage treatment plant. In 1972, a statutory amendment increased the possible federal participation to 75% Of the cost, conditioned on a state board certification as to need. The sole issue in this case of first impression is whether a district court may properly order the Administrator of the Environmental Protection Agency to pay the increase from 33% To 75% On the basis of a state board certificate which, though regular on its face, is considered to be wrong by the Administrator.

In this case, the district court ruled that if the state board certifies in the statutory language, the Administrator is powerless under the law to challenge the correctness of the certification. We affirm.

In 1971 Manatee County applied for a federal grant for sewage treatment works construction under the Federal Water Pollution Control Act. In April of 1971 the application was approved for a grant of 33% Of the cost of construction, in accordance with the then extant provision of the statute governing the federal share, 33 U.S.C. § 1158 (1970).

Thereafter, in 1972, the Act was amended by the Federal Water Pollution Control Act Amendments of 1972 (Pub.L. No. 92-500, 86 Stat. 816, 33 U.S.C. §§ 1251 Et seq. (Supp. II 1972)). Subsection 202(a) of the 1972 Amendments (33 U.S.C. § 1282(a) (Supp. II 1972)) provided that the federal share of all subsequent grants would be 75%. Subsection 202(b) (33 U.S.C. § 1282(b) (Supp. II 1972)), directly involved in this appeal, provided that a specified class of grants made prior to July 1, 1971 could be increased to 75%.

Since the Federal Water Pollution Control Act has been further amended by the Clean Water Act of 1977 (Pub.L. No. 95-217, 91 Stat. 1611, codified at 33 U.S.C.A. §§ 1251 Et seq. (Supp.1978)), we have set out in the notes the language of § 1282(a) ¹ and § 1282(b) ² prior to the 1977 Amendments. All references in this opinion are to the Act as it appeared in 33 U.S.C. §§ 1251 Et seq. (Supp. II 1972) at the time suit was brought; references to the Act as amended in 1977 and currently in force are clearly noted as such and are cited to U.S.C.A.

Manatee County's grant fell within the class of grants eligible for increase to 75%. Therefore, Manatee County requested that its grant be increased to 75% Under the provisions of § 1282(b). This section provided that grants such as Manatee's approved after January 1, 1971 and before July 1, 1971, "Shall, upon the request of the applicant, be increased" to 75%, if two conditions are met, only the second of which is contested here. That condition requires a State water pollution control agency certificate that the quantity of available ground water will be insufficient without the project. In support of its request, Manatee County submitted the certification of the Florida Pollution Control Board, which had held hearings and certified in the statutory language that

The quantity of available ground water is and will be insufficient, inadequate, or unsuitable for public use, including the ecological preservation and recreational use of surface water bodies, unless publicly owned treatment works return effluents to the ground after adequate treatment in Manatee County.

The EPA rejected the request. It concedes that all other requirements and conditions have been met, and that the appropriate state agency has certified in the statutory language of § 1282(b)(2). It also concedes that the action of the Florida Board was duly and regularly taken, and that the certification was not fraudulent or criminal. It explained to Manatee County, however, that on the basis of analyses by the EPA's experts, it had concluded that the quantity of available ground water was not insufficient, and that because of certain geological conditions in Florida, the project could not possibly improve ground water.

Manatee County then brought the present action in the nature of mandamus in the district court. Both parties moved for summary judgment. The district court denied the Government's summary judgment motion and granted summary judgment for Manatee County, citing Union Electric Co. v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976).

Congress provided in § 1282(b) that the EPA "Shall " increase project grants to 75% If two conditions are met. "Use of the word 'shall' generally indicates a mandatory intent unless a convincing argument to the contrary is made." Sierra Club v. Train, 557 F.2d 485, 489 (5th Cir. 1977). See generally, 73 Am.Jur.2d Statutes §§ 22-25 (1974). It is necessary to look to the wording of a statute, its purposes, and its legislative history to see if any contrary intent is to be found. In the present case, not only is there no indication to the contrary, but the indications show that Congress did intend this to be a mandatory duty.

Looking to the specific language employed in Subchapter II of the Act, "Grants for Construction of Treatment Works," 33 U.S.C. §§ 1281-1292 (Supp. II 1972), it is at once apparent that Congress knew the difference between mandatory and discretionary language. Where Congress wanted to give discretion to the Administrator of the EPA, Congress employed the term "is authorized." For example, the basic granting provision provides that

The Administrator Is authorized to make grants to any State, municipality, or intermunicipal or interstate agency for the construction of publicly owned treatment works.

33 U.S.C. § 1281(g)(1) (Supp. II 1972) (emphasis added). The "is authorized" language is employed many times in Subchapter II where the Administrator is to have discretion. See 33 U.S.C. §§ 1281(g)(4), 1283(e), 1288(g) (Supp. II 1972). The 1977 Amendments also frequently used the "is authorized" language to give discretionary power. See U.S.C.A. §§ 1281(j), 1282(a)(3), 1284(b)(6), 1285(g)(1), 1285(g)(2) (Supp.1978).

In addition, the 1977 Amendments use the term "may" in several sections where discretion is to be employed. See 33 U.S.C.A. §§ 1281(h), 1283(a), 1284(b)(3), 1284(b)(5), 1285(g)(2), 1285(h) (Supp.1978). The fact that in the 1977 Amendments Congress distinguished "shall" from "may" shows that in Subchapter II of the Act, Congress used "shall" in its everyday sense, as imposing a mandatory duty on the Administrator. See Train v. City of New York, 420 U.S. 35, 95 S.Ct. 839, 43 L.Ed.2d 1 (1975) (holding that the use of the word "shall" in § 1285(a) of Subchapter II of the Act imposes a mandatory duty on the Administrator to allot all the amounts authorized to be appropriated).

This conclusion is reinforced by the structure of the Act. Congress intended for the states to have the primary responsibility for planning their construction projects. This was made even clearer by the 1977 Amendments to the Act, which amended the Act's general declaration of congressional goals and policy, adding the italicized language, to provide:

(b) It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter. It is the policy of Congress that the States manage the construction grant program under this chapter and implement the permit programs under sections 1342 and 1344 of this title. It is further the policy of the Congress to support and aid research relating to the prevention, reduction, and elimination of pollution, and to provide Federal technical services and financial aid to State and interstate agencies and municipalities in connection with the prevention, reduction, and elimination of pollution.

33 U.S.C.A. § 1251(b) (Supp.1978). Congress has often followed this policy of giving primary responsibility to the states and only a secondary role to the EPA when dealing with environmental problems. For example, in construing certain provisions of the Clean Air Amendments of 1970, the Supreme Court stated:

The Agency (EPA) is plainly charged by the Act with the responsibility for setting the national ambient air standards. Just as plainly, however, it is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met. Under § 110(a) (2), the Agency is Required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section's other general requirements. The Act gives the Agency no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of § 110(a)(2), and the Agency may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan...