On October 18, 1972, Congress overrode President Nixon's veto of the Federal Water Pollution Control Act Amendments of 1972, and enacted the broadest, most complex, and most costly legislation ever to deal with this country's water pollution problem. The statute sets out a detailed, complex scheme aimed at achieving the explicit goal of zero discharge of pollutants into navigable waters by 1985.¹ The FWPCAhas three primary goals: (1) to furnish financial aid for the planning and construction of waste treatment facilities (Title II), (2) to regulate the discharge of pollutants into American waterways (Titles III and IV), and (3) to encourage planning for waste treatment management (Title II). Though the Amendments are long and detailed and are aimed at setting up precise standards and definite guidelines, ambiguities and controversies abound. In the two years since enactment, the Amendments have already spawned considerable litigation. Much more can be expected. The cases so far have centered on only two of the Act's three goals — funding for construction of waste treatment facilities and, more importantly, regulation of the discharge of pollutants.

Waste Treatment Facilities

Section 202 of Title II provides for federal grants to states and municipalities of 75 percent of the cost of building publicly-owned waste treatment plants.² Section 205 sets up a new federal financing scheme for waste treatment facility grants to assure the state and local governments involved that money for construction will be available. The usual funding procedure for most congressional expenditures entails authorization of expenditures first and then funding by congressional appropriation. This process was objectionable because Congress often did not appropriate money to projects it had already authorized. Therefore, to allay the uncertainty of local governments as to the availability of congressional funding, Congress devised a decidedly different process to deal with funding waste treatment plants under Title II. Six steps were involved:

(1) Authorization by Congress to appropriate funds (§ 207); (2) 'allotment' of those sums among the various states, pursuant to formula (§ 205); (3) review by the Administrator of project proposals submitted by a particular municipality (§§ 203, 201(g) (2) and 204); (4) obligation by the Administrator of the federal share of an approved project (§§ 203 and 201(g) (1)); (5) appropriation by Congress of funds to pay obligated contracts as they fall due; and (6) disbursement of the funds (§ 203(b) and (c)).³

However, because of ambiguous drafting and an ambivalent legislative history, the effect of the new funding procedure was to shift the responsibility for funding uncertainty from Congress to the Executive. Soon after passage of the Act, President Nixon directed the Administrator of EPA to allot only $5 billion of the congressionally authorized $11 billion for funding construction of waste treatment facilities for 1973 and 1974.⁴

The language of the statute appears to require that all sums be allotted, so that if the President succeeded in impounding funds at the obligation stage, funds would be distributed among the states on a pro rata basis according to need. If, however, the President's right to impound funds was not sustained by the courts, there would be no delay in making funds available as allotted. Congress' ambiguity as to whether the President had discretion to impound funds wasperhaps designed to avoid the worst possible result, a decision by the courts that the section was unconstitutional for placing excessive limits on Presidential power.

Former President Nixon, however, impounded the funds at the allotment stage. Suits were brought in several states soon afterwards challenging the legality of that action. The issue has not been conclusively resolved and is pending in the Supreme Court. Currently, different views on the issue are reflected in three decisions: City of New York v. Train,⁵ Campaign Clean Water v. Ruckelshaus,⁶ and Brown v. Ruckelshaus.⁷

Of the twenty suits filed challenging impoundment, the [4 ELR 50110] majority of cases decided so far are in accord with City of New York v. Train,⁸ in which the D.C. Circuit Court of Appeals decided that the Administrator of EPA had a mandatory duty under the Amendments to allot the full $11 billion sum authorized by Congress. The Court relied on the none-too-clear language of §§ 205 and 207 and the legislative history of these provisions to conclude that while the legislative history showed congressional intention to allow some discretion and flexibility, this was permitted only at the obligation stage of the financing procedure. The court found no discretion on the part of the Administrator with regard to the allotments authorized by Congress.

On the other hand, one court, in Campaign Clean Water v. Ruckelshaus, found that the Administrator did have some degree of discretion even at the allotment stage. It is important to note, however, that the plaintiff in this suit agreed with the government that the Administrator had some discretion over allotments, disagreeing only as to its extent. While the district court concluded that the impoundment of 55 percent of the allotment authorized by Congress was "a violation of the spirit, intent and letter of the Act and a flagrant abuse of executive discretion,"⁹ the circuit court found that conclusion unwarranted by the evidence and remanded the action for further findings of fact.In particular, the court wished to know whether the impoundment would actively frustrate Congress' goal of improving water quality.

In Brown v. Ruckelshaus, the district court granted EPA's motion to dismiss, finding that the plaintiffs, a state representative and the city of Los Angeles, lacked standing for "failure to demonstrate that the Environmental Protection Agency's refusal to allot the full authorized sum is injuring them or will injure them in the future."¹⁰ The court went on to state, however, that even if the parties had met the standing requirements, their cause would fail on the merits. Quoting the same sections of the Act and the same portions of the Act's legislative history as cited in City of New York, the court arrived at exactly the opposite conclusion: "The legislative history simply does not require that the EPA allot every authorized dollar."¹¹ The court also ruled that it was not an abuse of discretion to allot only $5 billion of the $11 billion authorized by Congress.

An outgrowth of the impoundment issue is the still undecided case of Virginia State Water Quality Board v. Train,¹² in which the plaintiff is seeking a declaratory judgment that treatment works need not meet the § 301 requirements of secondary treatment by 1977.¹³ The ground for the postponement is the government's impoundment of funds that might otherwise be available for construction of facilities with which Virginia must meet the requirement. The case poses the question of whether a court can enforce the clear mandate of a law against a party whose ability to comply with the law is frustrated by the actions of the government.

Another category of suits under Title II includes those which challenge EPA approval of federal funding for the construction of waste treatment facilities. For instance, in City of North Miami v. Train,¹⁴ the plaintiffs sought to prevent EPA from approving applications by metropolitan Dade County for funds to construct three regional treatment facilities. The plaintiffs alleged that EPA inadequately dealt with the alternatives to the proposed ocean disposal of treated waste in its environmental impact statements required under NEPA. They also obliquely alleged failure to comply with the requirements of Title II of the FWPCA of 1972. The court granted summary judgment to EPA, finding that the impact statements were sufficiently complete and detailed and dealt with all the alternatives adequately. The court also found that the defendants had conformed to the requirements of the FWPCA.

Equipment used in waste treatment plants is the subject of an Ohio action.¹⁵ Under § 204(a) (6) the Administrator is required to determine that no specification for bids for construction of treatment facilities "be written in such a manner as to contain proprietary, exclusionary, or discriminatory requirements other than those based upon performance." In an antitrust action brought against a supplier of plug valves for waste treatment facilities by one of his competitors, the complaint charged that EPA allowed proprietary specifications to be used in plans prepared by the grantee of FWPCA construction grants. A temporary restraining order sought by the plaintiff was denied.

Regulation of Pollution

The bulk of litigation brought under the 1972 Amendments has dealt with Titles III and IV, which regulate the discharge of pollutants. The regulatory and enforcement mechanism is complex. A brief outline of its structure follows:¹⁶

(1) A permit program, National Pollutant Discharge [4 ELR 50111] Elimination System (NPDES), is set up pursuant to § 402 to be run at the federal level until a state wishing to run its own permit program obtains approval from EPA by meeting the criteria set out in § 402(b).¹⁷

(2) Under §§ 301(a) and 402(a) (1), most discharges of pollutants¹⁸ are unlawful unless pursuant to an NPDES permit. A permit will be issued upon condition that all of the following applicable criteria are met:

(a) With minor exceptions dischargers must meet applicable EPA effluent limitations; i.e., nationally uniform, technology-based limitations on the quality and character of the discharge itself at the point of discharge, as set out in § 301.By 1977, dischargers must meet effluent limitations requiring the application, according to classes and categories, of "the best practicable control technology currently available" (BPCTCA),¹⁹ a term which is to be defined by the Administrator pursuant to criteria set out in § 304(b) (1). By 1983, dischargers must meet effluent limitations requiring the application, again according to classes and categories of "the best available technology economically achievable" (BATEA),²⁰ a term which is to be defined by the Administrator pursuant to § 304(b) (2).

(b) Publicly owned waste treatment facilities must meet effluent limitations based on secondary treatment by 1977.²¹

(c) No discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste is allowed.²²

(d) After 1983, dischargers must also meet more stringent effluent limitations based on water quality standards where necessary to assure the "protection of public water supplies, agricultural and industrial uses, and the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities in and on the water," under § 302.

(e) Water quality standards promulgated pursuant to the FWPCA before the 1972 Amendments and revised in accordance with the Amendments must also be satisfied. That is, in addition to limitations based solely on the character of the discharge under §§ 301 and 302, discharges can also be regulated on the basis of the quality of the surrounding waters under § 303, if effluent limitations are not adequate to meet the applicable water quality standards.

(f) New sources are subject to effluent control according to classes and categories through "application of the best available demonstrated control technology, processes, operating methods, or other alternatives," under § 306.

(g) Dischargers of toxic pollutants are subject to effluent regulation under § 307.

(h) Those who discharge pollutants into publicly owned treatment works must meet § 307 pretreatment standards.

(i) Discharges affected by effluent limitations under §§ 301 and 306 must also meet thermal discharge standards "necessary to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water appropriate," under § 316.

(j) Inspection, monitoring, and entry criteria under § 308 must be met.

(k) Ocean discharge criteria under § 403 must also be met.

The courts enter the water pollution control scheme under the Act through one of three sections. Under § 309, an enforcement action may be commenced by the Administrator or by the state involved against a polluter who is in violation of one of the standards set under §§ 301, 302, 306, 307, or 308. Under § 505, a private citizen may bring a suit against a polluter in violation of an "effluent standard or limitation under this Act," or against the Administrator for failure to perform any nondiscretionary duty of the Act. Except in the case of a violation of § 307 (toxic pollutant section), citizen suits can be brought only after 60 days' notice to the Administrator, the state involved, and the alleged violator.Such suits are to be brought in the federal district court. Under § 509, judicial review of the Administrator's actions involving promulgation of standards and limitations pursuant to §§ 301, 302, 306, and 307, and determination regarding a state NPDES program, or the issuance or denial of a permit under § 402 can be had in the circuit court of appeals in which the challenger resides or transacts business. The appeal must be taken within 90 days from the date of the administrative action being challenged.

Regulations setting limitations and interpreting the Act have been rather slow in developing, a situation which is itself the subject of a lawsuit, as described below.²³ Because of this delay, only a few significant decisions interpreting the Act have been rendered. However, a large number of suits filed recently in response to EPA's issuance of effluent limitations, pretreatment standards, and new source standards, are of major consequence to the ultimate success of the Amendments in controlling and eliminating water pollution. Generally, the litigation [4 ELR 50112] falls into the following categories: (a) cases seeking to define or interpet the scope of the Amendments; (b) cases brought to force EPA to take action; (c) suits filed under § 509 for judicial review of administrative action; and (d) enforcement actions. In addition, there have been several cases dealing with oil spills (§ 311) and dredge and fill operations (§ 404). These sections have their own enforcement mechanism, which is operated jointly by EPA and the U.S. Coast Guard, in the case of oil and hazardous substances spills, and by EPA and the Army Corps of Engineers, in the case of dredge and fill operations. Litigation under these sections will be described briefly at the end of this article.

Scope Cases

A series of cases has considered the relationship of the 1972 Amendments to previous water pollution law, i.e., federal common law, the Refuse Act of 1899, and other federal statutory law prior to the 1972 FWPCA Amendments. For instance, Illinois v. City of Milwaukee²⁴ and United States v. United States Steel Corp.²⁵ both held that the Amendments were intended to "supplement and amplify any pre-existing remedies"²⁶ rather than to supplant them. These two cases, and that of United States v. Ira S. Buskey & Sons,²⁷ held that the federal common law right to abate a public nuisance in interstate or navigable waters remains in force. The courts cited §§ 101(b), 505(a), 510, and 511(a) of the Amendments in support of this conclusion. In City of Milwaukee, the Supreme Court also ruled that recently adopted regulations under the Amendments did not abrogate the federal common law.

The U.S. Steel and Bushey cases, along with United States v. Consolidated Coal Co.²⁸ and United States v. Rohm & Haas Co.,²⁹ concluded that Congress did not intend the 1972 Amendments to limit the powers of the court in actions already pending under the Refuse Act. The courts gave a variety of reasons: (1) Section 511 of the Amendments states that the Act does not limit the "authority or functions of any officer or agency under any other law or regulation not inconsistent with this law," and the Refuse Act is not an inconsistent law;³⁰ (2) the Refuse Act was not repealed by the Amendments;³¹ and (3) the Savings Clause of § 4 is applicable, even though that section does not specifically refer to the Refuse Act.³²

In a similar vein, Montgomery Environmental Coalition v. Fri³³ dealt with the relationship of the Amendments to the FWPCA as constituted before the 1972 Amendments. This suit, brought under the citizen suit provision (§ 505),³⁴ asked for an injunction against further sewer hookups on the grounds that such hookups would cause a violation of water quality standards promulgated under the Water Quality Act of 1965, and thus contravene § 301 of the Amendments. The court found that "water quality standards promulgated pursuant to the 1965 Act are to constitute a floor level of quality until the stiffer effluent limitations of the 1972 Act can be implemented. Consequently, the discharge of a pollutant which contributes to the violation of an existing water quality standard is clearly a violation of 33 U.S.C. § 1311(a) [§ 301 of the Amendments]."³⁵ The case is significant in that it allows water quality enforcement actions under the citizen suit provision of the Amendments to continue pending full implementation and enforcement of effluent limitations.

Two of the most important cases to be decided so far under the Amendments are United States v. Holland³⁶ and United States v. Ashland Oil and Transportation Co.³⁷ Though neither case deals specifically with an NPDES discharge (Ashland Oil concerns an oil spill under § 311, and Holland involves a dredge and fill operation under § 404³⁸), the cases interpret an ambiguous provision which is applicable to all sections of the Amendments.³⁹ The result of the two decisions is to expand the courts' jurisdiction over water pollution cases by ruling that the Amendments have removed the traditional jurisdictional requirement that the waters in question must be navigable. Federal water pollution control prior to the 1972 Amendments was generally limited to interstate waters,⁴⁰ but in the case of oil spills or vessel sewage extended to "the navigable waters of the United States."⁴¹ Control under the Refuse Act of 1899 applied only to "the navigable waters of the United States" and tributaries thereof.⁴² The language of the 1972 Amendments hedged the issue of the navigability requirement following a dispute in the [4 ELR 50113] Conference Committee. As the result of a compromise, § 502(12) defines "discharge of pollutants" to include pollution from point sources into navigable waters. "Navigable waters" is simply defined in § 502(7) as "the waters of the United States, including territorial seas."

After "engaging in verbal acrobatics,"⁴³ both the Ashland Oil and Holland courts concluded that Congress intended to broaden federal jurisdiction under the Act by removing the requirement of navigability, and that the Commerce Clause authorized such action, since "water pollution has a serious effect on interstate commerce."⁴⁴ The language of Ashland Oil, and possibly of Holland as well, is broad enough to cover all waters of the United States without restriction, matching the expansive interpretation given to the § 502(7) definition of navigable waters by EPA.⁴⁵ A recent criminal action against a violator of an NPDES permit, United States v. American Beef Packers,⁴⁶ agreed that the FWPCA is not limited to navigable waters in the traditional sense of that term.

The issue is not yet fully settled, however, and continues to arise, especially in the context of dredge and fill operations under § 404. For instance, in Vermont Natural Resources Council v. Brinegar,⁴⁷ a case now on appeal to the First Circuit, plaintiffs challenged the failure of the Department of Transportation to obtain a permit under § 404 for the channelization of the Sleepers River, a non-navigable tributary of the Passumpsic River. The district court dismissed the case for lack of jurisdiction because the waters in question were not navigable. Likewise, in Conservation Council of North Carolina v. Costanzo,⁴⁸ plaintiffs attacked the construction of a marina on wetlands above the high water mark (traditionally the cut-off line for navigability under Corps guidelines) without a § 404 permit from the Corps. The district court accepted the defendants' contention that the wetlands were non-navigable and thus not governed by the FWPCA. Plaintiffs are now appealing. The issue remains alive because of the Corps' continuing assertion that they have no authority over non-navigable waters,⁴⁹ despite assertions to the contrary from EPA and the court decisions cited above. This limited interpretation of statutory authority is also the subject of a recently filed suit, Natural Resources Defense Council v. Callaway (NRDC I).⁵⁰

Colorado Public Interest Research Group, Inc. v. Train⁵¹ is also an important case in defining the scope of the Amendments. COPIRG charged that an agreement between EPA and the AEC, which placed regulation of the discharge of radioactive byproduct, source materials, and special nuclear materials from nuclear power plants within the exclusive jurisdiction of the AEC, was invalid as inconsistent with the 1972 Amendments. The court, relying primarily on the familiar rationale of "the peculiar and extreme expertise" of the two agencies involved,⁵² upheld the agreement between EPA and the AEC, despite the fact that traditional rules of statutory construction (notably the plain meaning doctrine), would seem to demand the opposite result. "Pollutant" is defined in § 502(6) to include "radioactive materials" among other listed substances. Exceptions to the broad definition of "pollutants" in this section are expressly listed in Subsections (A) and (B) of 502(6); no exception or qualification of the term "radioactive materials" is present in this section, indicating that there is no qualification to the term in the statute.Yet the court chose to limit the term by backing the AEC's and EPA's agreement, thus reading into the statute an exemption for radioactive byproduct, source material, and special nuclear material. Neither the statutory language nor the legislative history supports such a construction of the 1972 Amendments.

On the other hand, the court in Scenic Hudson Preservation Council v. Callaway⁵³ concluded that the "unique control over the production of hydroelectric power"⁵⁴ by the Federal Power Commission must give way to the FWPCA in the field of water quality control. The court found the following arguments persuasive in ruling that Consolidated Edison must obtain a § 404 permit before dredging the Hudson River for construction of the Storm King hydroelectric project: (1) the Federal Power Act⁵⁵ contains no provision which would require the FPC to satisfy the environmental criteria laid out in § 404; (2) it is not plausible that Congress would establish such an "all-inclusive" law, yet "intend to establish an unmentioned exception of the scale suggested here [exception of all Corps dredging operations for projects under the Federal Power Act];"⁵⁶ and (3) the Corps' regulations,⁵⁷ which are accorded great weight, state that dredge and fill operations for construction of hydroelectric projects under the Power Act require a § 404 permit. COPIRG and Scenic Hudson are obviously at odds in their respective conclusions concerning the intersection of the FWPCA and other regulatory schemes in the federal control of water [4 ELR 50114] pollution. Beside the fact that issues dealing with atomic energy are treated with special care, a distinguishing feature between the two cases is that in COPIRG there was an agreement in existence between two agencies as to their respective roles with regard to water pollution control. This would make the plaintiff's burden in asserting the supremacy of regulation under the FWPCA much more difficult than in Scenic Hudson, where the agencies were still in partial disagreement as to their roles in the control of water pollution.

Cape Henry Bird Club v. Laird⁵⁸ is a case in which the language of the Amendments was strictly construed by the court. Section 102(b) (1) calls for consideration of storage of water for regulation of streamflow "in the survey or planning of a reservoir." Section 102(b) (3) requires the Administrator to determine the value of storage for water quality control and to report his views to Congress when Congress is "proposing authorization or construction of any reservoir including storage." The court ruled that since the dam in question, already under construction, was "neither in the survey or planning stage, nor … before Congress for authorization of construction,"⁵⁹ the FWPCA was not applicable, despite the stated view of the EPA Administrator that the 1972 Amendments were applicable.⁶⁰

In addition to cases which interpret the substantive scope of the Act, there is also litigation which deals with its procedural requirements. For instance, in Smoke Rise, Inc. v. Washington Suburban Sanitary Comm'n,⁶¹ the court gave a narrow reading to the citizen suit provision of § 505(b) (2), which requires 60 days' notice of violation by the plaintiff to the Administrator before commencement of an action. A case brought previously under a similar provision of the Clean Air Act⁶² had held that the notice requirement was satisfied when more than 60 days had lapsed from the date of filing of the petition to the date of hearing.⁶³ This view was rejected in Smoke Rise, and the plaintiff's action, challenging a sewer hook-up moratorium, was dismissed on sovereign immunity grounds for failure to meet the notice requirements of the citizen suit provision.

In Natural Resources Defense Council v. Quarles (NRDC II),⁶⁴ a case still pending on the substantive issue of EPA's interpretation of the NPDES mechanism, the citizen suit provision was again considered. The defendant filed a motion to dismiss, claiming, among other things, that the court lacked jurisdiction because the plaintiff had failed to comply with the 60-day notice requirement of § 505(b) (2). The plaintiff in response argued that the requirement had been met substantively (though not procedurally⁶⁵) by a letter detailing NRDC's opposition to EPA's interpretation of § 402, sent to EPA 60 days before filing suit, and that in any event, the court still had jurisdiction under § 10 of the Administrative Procedure Act,⁶⁶ the Declaratory Judgment Act,⁶⁷ the federal question statute,⁶⁸ and the mandamus statute.⁶⁹ The court agreed with the latter argument and denied the defendant's motion to dismiss, ruling simply that it had jurisdiction under the federal question statute.

The same question is at issue in Natural Resources Defense Council v. Train (NRDC III),⁷⁰ where NRDC filed suit in the district court challenging EPA's tardiness in meeting deadlines in promulgating effluent limitations under § 301 and 304.⁷¹ The suit was brought not under the citizen suit provision of § 505, but under the provisions granting federal jurisdiction alleged in NRDC II. At the district court level, the defendant did not challenge the plaintiff's right to bring the action, but on appeal, asserted that NRDC had to bring suit under § 505, so as to prevent unnecessary litigation. NRDC responded that § 505 is not the exclusive means for an interested third party to challenge the actions of a government official, citing the language of § 505(e): "Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency." The government contended, however, that Subsection 505(e) pertains only to actions brought under statutes other than the FWPCA, and that acceptance of NRDC's argument would effectively eliminate the 60-day notice requirement.

The notice requirement was again an issue in Vermont Natural Resources Council v. Brinegar.⁷² The district court dismissed the plaintiff's cause of action under § 404 on the grounds that the 60-day notice requirement was not satisfied. NRDC, as intervenor on appeal, asserted that § 505 of the FWPCA is not the exclusive remedy for relief [4 ELR 50115] under the Act, citing, as in NRDC III, § 505(e). In addition, NRDC's brief cited the court's order in NRDC II and the Scenic Hudson case,⁷³ which, though notbrought under § 505, interpreted § 404 of the Amendments. The plaintiffs also relied on City of Highland Park v. Train,⁷⁴ a case under the Clean Air Act, which has a citizen suit provision essentially identical to that of the FWPCA, for its holding that despite plaintiff's lack of compliance with the statute's notice requirement, the court still had jurisdiction under the federal question and mandamus statutes. NRDC also contended that even if the 60-day notice requirement were relevant and necessary, it should not bar immediate action in the form of a preliminary injunction where necessary, as in this case, to prevent irreparable harm. NRDC noted that "the central objective of the 60-day notice provision is to promote expeditious action to half violations of the Act."⁷⁵

Another § 404 case, Save Our Sound Fisheries Ass'n v. Callaway,⁷⁶ also interpreted a section of the Amendments (as well as other environmental law provisions), but did not use the § 505 citizen suit provision. Though the plaintiff had alleged jurisdiction under § 505, the APA, and the federal question statute, the court ruled that it had jurisdiction under the latter two provisions and did not reach the question of the applicability of § 505. The court noted that compliance with statutory procedures for obtaining a permit "is simply too important to justify a restrictive view of judicial power in this realm, and thus the court finds jurisdiction under the APA and 28 U.S.C. § 1331 [federal question], even absent jurisdiction under the 'citizen suit' provision of the FWPCA and the MPRSA [Marine Protection, Research and Sanctuaries Act]"⁷⁷

An unfortunate facet of the lack-of-notice cases is that though the plaintiff may circumvent the notice requirement of the citizen suit provision by obtaining jurisdiction through some other provision of federal law, it may then be impossible to recover attorneys' fees as allowed under § 505(d), but otherwise prohibited unless expressly authorized.⁷⁸

In addition, several cases have construed the intervention clause in § 505. Subsection (b) (1) (B) states that no citizen suit shall be commenced "if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter or right." In Stream Pollution Control Board v. United States Steel,⁷⁹ a citizen tried to intervene by using this § 505 provision in an action by a state board against U.S. Steel for violating a state limit (pre-FWPCA) on the discharge of cyanide. The court found that there was no right of intervention under § 505 for cases not based upon effluent standards or limitations promulgated pursuant to the 1972 Amendments. This decision is in direct opposition to the court's finding in a non-intervention suit, Montgomery Environmental Coalition v. Fri,⁸¹ that state water quality standards promulgated pursuant to the 1965 Water Quality Act can be enforced via the citizen suit provision of § 505.

In Brown v. Callaway, the Sixth Circuit allowed intervention by affected property owners, conservation groups, and even contractors concerned over possible termination of their contracts, in a suit to stop construction of a dam.⁸² Reversing the district court, the circuit court agreed with the state of Ohio that the failure of the Corps of Engineers to obtain a determination from the EPA Administrator, under § 102 of the Amendments, as to the need for water storage and its probable impact on water quality control was a serious enough issue to allow Ohio's intervention under § 505.

Action-forcing Cases

Though the Amendments themselves are lengthy and intricate, many definitions and guidelines are left to the discretion of the Administrator of EPA for development within a definite — usually fairly short — time. EPA has failed to meet many deadlines and has promulgated definitions and guidelines, which, according to the Natural Resources Defense Council, are often inconsistent with the language of the Act. NRDC's Project on Clean Water has brought a series of suits designed to correct this situation. When finally decided, they will help clarify the scope of the Administrator's discretion under the Act, an area far from clear at present.

In a consent decree in Natural Resources Defense Council v. Fri (NRDC IV),⁸³ NRDC and EPA agreed on substitute deadlines to replace some 14 deadlines already or about to be missed. NRDC had argued that schedules established by the Act were interrelated, so that failure to meet early deadlines would jeopardize the entire scheme of the Act.

In a similar vein, the district court in Natural Resources Defense Council v. Train (NRDC III)⁸⁴ spurred EPA into [4 ELR 50116] action by substituting a new set of deadlines, in place of those about to be missed, for defining "best practicable control technology currently available" (BPCTCA) under § 304(b) (1) (A) for all classes and categories of discharges. These definitions are important, since they are the basis of effluent limitations to be issued under § 301.

The case, now on appeal to the D.C. Circuit, is also significant in that it forced EPA to increase the number of classes and categories it had originally intended to cover in its definitional guidelines and to promulgate regulations accordingly. On appeal, EPA did not contest the court's setting of new deadlines, but challenged that portion of the court's order which expanded the number of classes and categories of dischargers to be covered. The agency argued that Congress expected the Administrator to exercise his discretion in selecting classes and categories subject to regulation under § 304, and that the Administrator was obligated to formulate definitions of "best practicable control technology currently available" only for the 27 categories of point sources listed under § 306 (standards for new sources). EPA also asserted that formulation of guidelines for categories of point sources not listed under § 306 is discretionary and that the district court, by ordering promulgation of guidelines for additional classes and categories, substituted its judgment for the Administrator's and thereby infringed on his discretionary powers. EPA further contended that the task of publishing effluent guidelines for all the additional classes and categories in the district court's order would pose an overwhelming administrative burden.

In response, NRDC quoted § 301(e), which provides that effluent limitations "shall be applied to all point sources of discharge of pollutants [emphasis added]." Thus, if guidelines are formulated for some categories, but not for all, the Administrator will be required to formulate effluent limitations for each discharger on a case-by-case basis, rather than by guidelines applicable to the entire class of dischargers. This task would appear far more burdensome than formulating guidelines for the additional classes.

EPA's action concerning toxic substances is at issue in Natural Resources Defense Council v. Train (NRDC V).⁸⁵ Under § 307(a) of the Act, EPA is required to publish a list of toxic substances for which special effluent limitations are then to be formulated. When the list was finally published, it included only nine substances out of 80 originally proposed by an EPA team. NRDC pointed out that the list did not include such widely known toxic substances as lead, arsenic, chromium, zinc, and asbestos. NRDC objected to the selection criteria used by EPA in formulating the list, alleging that the published criteria were vague and ambiguous and did not conform to the legislative purposes of the Act. NRDC further charged that toxic substances were excluded from the list without any reason being given, though in fact because the agency wished to avoid further administrative burdens and to prevent potential adverse economic consequences. (The toxic pollutant section, unlike other sections of the Amendments, does not provide a balancing mechanism to take into account adverse economic effects in setting limitations.) The district court, in granting EPA's motion to dismiss, found that there was no abuse of discretion on the part of EPA in including only nine substances on the list, stating that "the Agency employed a practical mechanism to narrow the toxic list to manageable proportions and to accomplish its allotted task."⁸⁶ The case is now pending in the D.C. Circuit, following oral arguments on September 24, 1974.

In Natural Resources Defense Council v. Quarles (NRDC II),⁸⁷ NRDC again challenged the Administrator's statutory interpretation of the Amendments. Specifically, the plaintiff questioned the validity of regulations promulgated by EPA under § 402 in setting up the National Pollution Discharge Elimination System (NPDES). The regulations excluded virtually all agricultural and silvicultural point sources and runoff from separate urban storm sewers. NRDC asked for a declaratory judgment that discharge from a point source is unlawful under both the 1972 Amendments (§§ 301 and 402) and the Refuse Act of 1899, unless a permit has been granted, and that EPA cannot lawfully exempt from NPDES regulation any discharge from a point source. Predictably, EPA replied that it was within the agency's discretion to exclude certain categories from NPDES regulations. EPA's brief declared that the Administrator "exempted from the requirement of obtaining permits discharges from sources which are not in the industrial or municipal waste categories and which would represent an administrative load that would overwhelm the permitting machinery." The agency also claimed that though the sources would be exempt from the permit system, they would still be required to comply with the effluent limitations of §§ 301, 302, 306, 307, and 308.

NRDC's position, as summarized in its brief supporting its motion for summary judgment, was that Congress intended NPDES to cover all point sources and did not give EPA discretion to change the scope of the permit system. In addition, NRDC contended that if EPA properly drew the line between point sources and nonpoint sources for feedlot, agricultural, silvicultural, and separate storm sewer discharges, as it had for mining discharges, the alleged overwhelming administrative burden would not occur.

Section 509 Actions

Under § 509, a person (including a corporation) has 90 days in which to petition the appropriate circuit court of [4 ELR 50117] appeals for judicial review of administrative action taken under §§ 301, 302, 306, 307, or 402. Thus, many actions have been filed in response to the recent issuance of effluent limitations and to recent actions taken regarding permits and permit programs.

Probably the most important of these suits was the Second Circuit case of Natural Resources Defense Council v. EPA (NRDC VI),⁸⁸ in which the structure of the entire limitation-setting and enforcement mechanism was at issue. The plaintiff challenged EPA's inclusion of a variance clause in effluent limitations for various classes and categories of point sources, charging that this exceeded the Administrator's discretionary powers.

All but the earliest regulations provide: "An individual discharger or other interested person may submit evidence to the Regional Administrator (or the State, if the State has authority to issue NPDES permits) that factors relating to the equipment involved, the process applied, or other such factors related to such discharger are fundamentally different from the factors considered in the establishment of the guidelines." If the fundamentally different factors exist, the Regional Administrator (or State) shall establish different effluent limitations, either more or less stringent than the present ones. The Administrator must approve the new guidelines, however.

The variance provision is not statutorily mandated and will undercut to some degree the Act's stated objective of nationally uniform standards, all the more so because the decision whether to modify the established limitation is to be made initially by the state involved, or, if the state has no approved NPDES program, by the Regional Administrator. Though this decision is subject to final approval by the Administrator in the central EPA office, the original decision with its presumption of validity rests with local administrators who are more likely to be sympathetic to local dischargers. Additionally, the potential administrative burden on EPA entailed in allowing requests for a variance seems considerable.

It seems likely that EPA never intended to promulgate a uniform system of effluent limitations. Even before issuing the regulations in dispute, an EPA official wrote: "[T]he degree of uniformity in the national effluent standards that Congress apparently en visaged may simply not be possible, at least for some industries."⁸⁹ In reply to NRDC, EPA contended that a variance clause represents a good faith effort to set as uniform a standards as possible for the various classes and categories as well as to provide some flexibility in the process. The agency further asserted that "it is unlikely that there will be very many instances where the procedure will have to be invoked."⁹⁰

The variance clause is a hedge against pressure from both political and industrial interests in opposition to uniform system. It is also a protection against judicial actions challenging limitations set incorrectly on the basis of faulty reports. In this respect, the variance provision heeds the admonition of the court in Portland Cement Ass'n v. Ruckelshaus⁹¹ that "a regulatory system which allows flexibility, and a lessening of firm proscriptions in a proper case, can lend strength to the system as a whole."⁹² It should be remembered that the variance clause provides for establishing more stringent guidelines as well as looser ones. In theory, an interested person, armed with the right data, could insist on a zero-discharge guideline for certain industries which were rumored prepared to implement a zero-discharge system on their own until they succumbed to industry pressure not to set so high a standard.

The intervention of a third party, Celanese Corporation, representing industry, shifted the focus of this case and made it even more significant. Celanese took the position that both EPA and NRDC are wrong in their interpretation of the limitation-setting mechanism. It challenged the authority of EPA even to issue effluent limitations under §§ 301 and 304, arguing that the statute allows effluent limitations to be promulgated only pursuant to the issuance of a permit under § 402. According to Celanese, regulations under § 304 are to serve only as guidelines in the broadest sense for setting effluent limitations in each permit. This means that effluent limitations would be set individually for every discharger through issuance of the NPDES permit.

Celanese cited the following reasons to justify its position: (1) Section 301 states only that effluent limitations "shall be achieved," not that they shall be established, (2) Section 304 very specifically calls for the development of "regulations, providing guidelines for effluent limitations [emphasis added]," and (3) maximum state participation, as guaranteed in § 101, can only be accomplished if effluent limitations are set individually in a permit proceeding at the state level rather than through nationally uniform standards. Because of the loose drafting of the statute, some disinterested commentators have also questioned whether § 304 mandates the promulgation of guidelines or limitations.⁹³ EPA did not clarify the matter when it issued the effluent limitations pursuant to both §§ 301 and 304.⁹⁴

Collaterally, Celanese also argued that review should not be in the circuit court of appeals, but in the district [4 ELR 50118] court, since § 509, which mandates review of administrative action under specific sections, mentions only § 301, not § 304. The company contended that for these reasons, the regulations are not limitations issued pursuant to § 301, but merely guidelines under § 304.Since § 304 is not listed in § 509, review of administrative action must be taken in the district courts, as provided by § 10 of the Administrative Procedure Act. EPA replied that this insistence on district court jurisdiction is nothing more than a tactic calculated to infuse delay and disorder into the regulatory mechanism.⁹⁵

Clearly the outcome of this case will determine the effectiveness of the regulation of the discharge of pollutants under the FWPCA. Uniformity of standards was the goal of Congress in enacting this legislation for two reasons: to facilitate enforcement and to prevent economic backmailing of the states by industry (i.e. an industry moving or threatening to move to a state with less stringent water pollution control standards). If effluent limitations can only be set in individual permit proceedings, there will be no national uniformity of standards at any level. EPA's plan lessens the degree of uniformity, but still preserves some semblance of coherent national standards.

In addition, there have been more than 100 suits filed by industry challenging effluent limitations,⁹⁶ new source standards, and pretreatment standards. All of the suits challenging effluent limitations raise the same jurisdictional question raised by Celanese in NRDC V. Two of these were filed in the district court, the rest in the appropriate circuit court. The two district court cases have already rejected industry's argument for jurisdiction in the district court. In American Paper Institute v. Train,⁹⁷ the district court found that it lacked jurisdiction to hear the plaintiffs' case, noting that if the regulations in question were properly limitations under § 301, as EPA contended, they were reviewable in the circuit court as designated in § 509. If, on the other hand, they were merely guidelines for later issuance of limitations in the permit proceeding, as the plaintiff argued, the plaintiff could not yet be said to be "adversely affected or aggrieved" as required by Section 10 of the APA.

The district court opinion in E.I. DuPont de Nemours & Co. v. Train,⁹⁸ was much more definitive regarding substantive issues. The court made three findings. (1) The Administrator was authorized to promulgate the effluent limitations in question pursuant to § 301. The court arrived at the conclusion that "effluent limitations were intended to be promulgated as regulations apart From § 402 permit proceedings,"⁹⁹ by looking at the Act as a whole and reading several sections together rather than in isolation. (2) The requirements of § 304(b) to specify factors to be taken into account in arriving at the guidelines, such as plant age, size, manufacturing process, raw materials, other environmental demands, etc. were met. EPA had argued that through the subcategorization of classes of dischargers its regulations constituted guidelines under § 304 distinct from limitations under § 301. The court found that this subcategorization process indicated that the § 304(b) factors were taken into account in promulgation of the effluent limitations. (3) Based on the above reasoning, the court found that the regulations in question were limitations issued pursuant to § 301 and thus reviewable under § 509 only in the court of appeals.

The issue is not yet settled, however, since appeal of these two cases is expected. Furthermore, all of the cases originally filed in the circuit court also raised this issue, asking the appellate courts to find that they lack jurisdiction. These § 509 review cases also disputed the validity of the regulations (for new source standards and pretreatment standards, as well as for effluent limitations) on scientific and technical grounds. They challenged the methodology used in formulating the effluent limitations as scientifcally invalid, alleging, for example, that representative samples of plants were not always used in formulating the guidelines. The plaintiffs' briefs also alleged that the technical information and statistics upon which the limitations were based were often inaccurate.

There have also been at least 15 suits filed by dischargers challenging the terms of permits issued to them. It should be noted at this point that EPA and states with their own NPDES program have been issuing some permits for the discharge of pollutants without the benefit of effluent guidelines or limitations. Section 402(a) (1) authorizes the Administrator to issue permits "prior to the taking of necessary implementing actions." In addition, § 402(a) (5) allowed EPA to authorize states to issue permits for discharges into state waters on an interim basis from the date of enactment of the Amendments till 90 days after publication of requirements for permit authorization under § 403(h), or until the state received approval to operate its own permit program.¹⁰⁰ EPA [4 ELR 50119] authorized some 18 states to issue permits on this interim basis, some of which still do not have an approved NPDES program.¹⁰¹ As of June 30, 1974, 1250 permits had been granted to major polluters (45 percent of the total of all major polluters) and 6500 to minor polluters (26 percent of the total of all minor polluters).¹⁰² These permits are good for up to the five-year term allowed by § 402 and are not subject to modification by effluent limitations subsequently issued.¹⁰³ An additional category of litigation consists of suits by various states and interested third parties (mostly environmental groups) challenging approval or nonapproval of a particular state's NPDES program.

Enforcement Actions

Because the whole enforcement program was so slow in getting started, few reportable enforcement actions have been taken thus far under the Amendments themselves. According to available information, EPA has filed only 10 cases against polluters.¹⁰⁴ Most cases are civil actions; only a few are criminal prosecutions. In some instances, compliance was achieved upon the filing of a complaint against the violator. Many more cases of water pollution are still under investigation.In addition, approximately 200 enforcement orders have been issued by EPA.¹⁰⁵ The alleged violations in these enforcement actions include failure to file for a permit, discharging without a permit, or discharging in violation of the terms of a permit.

Oil and Hazardous Substances Spills

In terms of enforcement actions, § 311, the oil and hazardous substance spill section, has been the most widely used of all FWPCA sections.In 1973 alone, there were approximately 350 actions pending or under consideration against violators of § 311.¹⁰⁶ Perhaps one explanation for this is the fact that many of the requirements of this section, especially those pertaining to oil spills, were in existence and operation under the 1970 version of the FWPCA.¹⁰⁷ All of the cases so far have dealt with spills of oil, as opposed to those of hazardous substances, since no final definition of hazardous substance has yet been formulated as mandated under § 311(b) (2).¹⁰⁸ Subsection (b) (1) states that there shall be no discharge of oil or hazardous substances into navigable waters, and (b) (5) requires a violator to report any spill which has occurred. Failure to report a spill carries a maximum $10,000 criminal penalty. In addition, a discharger is subject to a civil penalty of up to $5,000 for the spill itself, to be assessed by the Coast Guard under Subsection (b) (6). The discharger is also liable for the cost of cleaning up the spill, subject to certain monetary limitations enumerated under Subsection (f). The following discussion analyzes the most common issues in these cases.

United States v. Ashland Oil and Transportation Co.,¹⁰⁹ cited above for its discussion of the navigability issue,¹¹⁰ also considered the reporting requirement. Under § 311(b) (5) notice of a spill given as required "shall not be used against any person in a criminal case, except a prosecution for perjury or for giving a false statement." In Ashland Oil the defendant moved to suppress evidence of the spill obtained from what defendant claimed was notification pursuant to (b) (5). The court, however, ruled that since the notification of the spill was not immediate, it was not made pursuant to § 311(b) (5) and therefore was not subject to suppression. Ashland Oil was subsequently found guilty of violating Subsection (b) (6), the civil penalty section.

This civil penalty section was further interpreted in United States. v. W. B. Enterprises.¹¹¹ In opposition to imposition of a civil penalty of $500 by the Coast Guard, the defendant argued that since it had contained and cleaned up the spill, there was no violation of the Subsection (b) (3) prohibition against spills and thus no grounds for imposition of a penalty under Subsection (b) (6). The court ruled that (b) (6) was "aimed at preventing any discharges, rather than preventing only those discharges not removed,"¹¹² so that liability attaches at the time of the [4 ELR 50120] spill and is not affected by the clean-up operation. In response to the defendant's further contention that the $500 assessment was not a civil penalty and therefore illegal because it exceeded the cost of compensatory damages and removal of the oil, the court ruled: "The penalty assessed in this case was clearly a civil, remedial penalty designed to compensate the government for this harm. It does not matter that the quantum of damage is incapable of precise measurement."¹¹³

State authority to regulate oil spills was dealt with in Portland Pipe Line Corp. v. Environmental Protection Comm'n,¹¹⁴ a case in which the defendant claimed the state's powers to take such action had been pre-empted by the FWPCA. The court examined § 311(o) (2) and concluded that it was broad enough "to allow the State to impose liability in instances where liability is not imposed by the federal law."¹¹⁵ The court added that the FWPCA "left the states free to devise whatever standards of liability were necessary to realize the State's objectives."¹¹⁶ This is similar to the finding of the Supreme Court in Askew v. American Waterways Operations, Inc.¹¹⁷ that the Florida Oil Spill Prevention and Pollution Control Act was not pre-empted by the oil spill section of the Water Quality Improvement Act of 1970.¹¹⁸

Dredge and Fill Operations

Dredge and fill operations are dealt with under § 404. Under the section, permits for the discharge of dredge of fill material are to be issued by the Army Corps of Engineers. Discharge or fill material without such a permit violates § 301's basic prohibition against the discharge of pollutants without a permit. The only statutory guidance for the issuance of § 404 permits is that the Secretary of the Army is authorized to deny a permit if, after opportunity for a public hearing, he finds that the "discharge of such materials into such area will have an unacceptable adverse effect in municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas."¹¹⁹

Save Our Sound Fisheries Ass'n v. Callaway¹²⁰ was the first decision interpreting § 404 and apparently was the case which convinced the Army Corps of Engineers that a § 404 permit is necessary for their dredge and fill operations. The Corps was engaged in dredging the Providence River in Rhode Island and had planned to dump the dredged spoil off the coast in a fisheries area until a local environmental group successfully sought injunctive relief against the dumping. Among other grounds for issuing the injunction, the court ruled that the Corps had violated § 404 of the FWPCA by not applying for a permit and holding the attendant public hearing. The Corps contended it was exempt from § 404 requirements, relying on § 511, which states that the Act shall not be construed as "affecting or impairing the authority of the Secretary of the Army (A) to maintain navigation." The court found that Congress could not have intended such a broad exemption to be created in that section and noted as well that the permit requirement in no way limited the Secretary's authority to maintain navigation. The court likewise rejected the defendant's argument that regulations issued under §§ 402 and 405,¹²¹ exempting the discharge of dredge and fill materials from NPDES requirements, were applicable to § 404 permit requirements only.

In River Defense Committee v. Thierman,¹²² the defendant was enjoined by the district court from depositing rock and fill on his property in an estuary on the Hudson River. The permit that he had received from the Corps of Engineers was declared void, because, among other things, the Corps failed to hold a public hearing prior to issuance of the permit as required under § 404. The court added that "continued granting of permits similar to Mr. Thierman's by the Corps of Engineers without a thorough evaluation of their effect will cause serious and irreparable injury to the Hudson River estuary,"¹²³ an important spawning and nursery ground for many fish.

In a similar vein, in Scenic Hudson Preservation Conference v. Callaway,¹²⁴ the district court, later affirmed in all respects by the circuit court, ruled that a § 404 permit was necessary for the construction of the proposed Storm King hydroelectric facility, since the project "will entail the discharge of a large quantity of dredged or fill material into the Hudson."¹²⁵ The court rejected outright Consolidated Edison's contention that § 404, like § 10 of the Refuse Act, applied only to dredge and fill discharges resulting from the dredging of ship channels in navigable waters. Much more troulesome to the court was Con Ed's contention that § 404 was not meant to apply to hydroelectric power plants because of the comprehensive scheme of regulation for such facilities under the Federal Power Act. As discussed more fully above,¹²⁶ the court finally concluded that the Federal Power Act did not preempt [4 ELR 50121] the regulation of water pollution under the Amendments.

In another case, Vermont Natural Resources Council v. Brinegar,¹²⁷ the plaintiff is appealing the decision of the district court that it lacked jurisdiction to hear the suit because the plaintiff had not met the 60-day notice requirement of § 505 discussed above.¹²⁸ The district court did not consider the merits of the plaintiff's claim that § 404 required the issuance of a permit before channelization of a stream. NRDC, which has a similar action pending in Natural Resources Defense Council v. Grant (NRDC VII),¹²⁹ has filed an amicus brief in this action. Both suits claim that the dredging of part of the sleepers River in Vermont and the Chicod Creek in North Carolina, as well as the filling in of other parts with rock and dirt, constitutes dredge and fill operations under § 404. The plaintiffs contend that the channelization projects violate the § 301 prohibition against the "discharge of any pollutant" without a permit. Section 502(12) (a) defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source [emphasis added]." The plaintiffs in the two actions argue that all three elements of the definition are met. That is, "pollutant" is defined broadly in § 502(6) to include dredged soil, solid waste, rock, and sand — precisely the type of materials that would be used in the fill operation. Likewise, "point source" is broadly defined in § 502(14) to include: "any discernible, confined and discrete conveyance." It is the position of the plaintiffs, as well as of EPA,¹³⁰ that this phrase is broad enough to include dump trucks, drag lines, bulldozers, and other earth-moving equipment used in the fill operation. And, of course, it is the plaintiff's position, again supported by EPA, that the waterways in question would meet the new broader definition of navigable waters promulgated under the FWPCA, as discussed above.¹³¹

Conclusion

The following is a brief summary of the litigation which has arisen under the 1972 Amendments to the FWPCA. The decisions to date demonstrate that of the most critical issues involved in interpreting the Act, more remain unresolved than are settled. The impoundment issue, for example, awaits decision by the Supreme Court this term; though lower courts have in general ruled against the Executive Branch claims of total discretion in impoundments, the statute itself is sufficiently ambiguous to make the final outcome difficult to predict. The crucial jurisdictional question of navigability is also unresolved. Most courts have ruled that navigability is no longer a jurisdictional requirement in the federal control of water pollution, but the Corps of Engineers and at least one district court maintain the contrary. The question of the notice requirement for citizen suits is still in doubt, as is the issue of whether the citizen suit provision is the exclusive means for suit under the Act. In a variety of contexts, the degree of discretion which the Administrator enjoys under the Act is the subject of litigation. The important question of whether effluent limitations may be issued for classes and categories of sources rather than individually in a permit proceeding is still pending in the circuit courts, following two district court decisions which rejected industry's attempt to place effluent limitations on an individual basis. Almost the only area in which the courts may be said to have resolved an ambiguity conclusively is that of whether the FWPCA Amendments of 1972 were intended to supplement or supplant existing law. Led by the Supreme Court, the courts are in agreement that the Amendments did not repeal prior federal law relating to water pollution control.

The role of the courts in the federal control of water pollution is certain to expand; the FWPCA of 1972 has been described as a piece of legislation which will be litigated to death. The Amendments, even in their present infancy, show promise of fulfilling that forecast.

Though the courts have so far had little to do in enforcing the provisions of the Act, they have been increasingly active in reviewing administrative action, with the recent filing of over 100 actions under § 509.¹³² The courts' ability to deal with the multitude of technical questions presented by these challenges with precision and dispatch is an important factor in determining the Act's viability.

Perhaps the most important function of the courts under the Amendments is in their role of making law. The statute which emerged from Conference Committee was ambiguous in sections — sometimes intentionally so.For example, the impoundment,¹³³ the navigability,¹³⁴ and the effluent limitations¹³⁵ issues all seem the product of deliberate omission or obfuscation. The courts have thus been put in the position of making law to fill in the gaps left by Congress. At the same time, EPA's interpretation of the statute is likewise the springboard for the courts' role of making law. The courts' setting of new deadlines for EPA,¹³⁶ their possible sanctioning of EPA's [4 ELR 50122] inclusion of a variance clause in effluent limitations,¹³⁷ and their exclusion of certain point sources from NPDES regulation¹³⁸ (none of which is statutorily mandated) all place the courts in a quasi-legislative position.

Ironically, a great deal of the cost of filling in these gaps and ambiguities will rest with the private sector. The Natural Resources Defense Council has been the source of most of the litigation raising these issues and has played a very important part in the timely and effective implementation of the FWPCA. But because of the 60-day notice requirement of § 505, NRDC may not be able to collect attorneys' fees and may end up financing their part in the resolution of these issues themselves.

On the whole, the cases decided so far seem favorable from an environmentalist's point of view. The courts have generally interpreted the ambiguities and filled in the gaps in keeping with Mr. Justice Douglas' exhortation in United States v. Standard Oil¹³⁹ to avoid a narrow, cramped reading of environmental legislation. None of the important issues has been conclusively resolved yet, so no final analysis of the courts' roles is possible. The only certainty is that much more litigation of the Amendments can be expected.

1. Federal Water Pollution Control Act § 101(a) (1), 33 U.S.C. § 1251(a) (1) (Supp. 1974).

2. Id., § 202.

3. City of New York v. Train, 4 ELR 20188, 20189 (D.C. Cir., Jan. 23, 1974).

4. Letter from the President to Mr. William Ruckelshaus, Nov. 22, 1972.

5. 4 ELR 20188 (D.C. Cir., Jan. 23, 1974).

6. 4 ELR 20124 (4th Cir. 1973).

7. 3 ELR 20834 (C.D. Cal. 1973).

8. See, e.g., Martin-Trigona v. Ruckelshaus, 5 ERC 1665 (N.D. Ill. 1973); Minnesota v. EPA, 5 ERC 1586 (D. Minn. 1973); and Texas v. Fri, 5 ERC 2021 (W.D. Tex. 1973).

9. Campaign Clean Water v. Ruckelshaus, 3 ELR 20602 (E.D. Va. 1973).

10. 3 ELR at 20836.

11. Id. at 20838.

12. No. 74-0328-R (E.D. Va., filed July 19, 1974).

13. See text accompanying n.21, infra.

14. No. 74-714-Civ-WM (S.D. Fla., June 28, 1974).

15. McLaughlin & Assoc., Co. v. Floyd G. Browne & Assoc., Ltd., No. C74-596 (N.D. Ohio, TRO denied July 2, 1974).

16. For a fuller exposition of this complex mechanism and its ambiguities, see, Zener, The Federal Law of Water Pollution in Federal Environmental Law (Dolgin & Guilbert eds. 1974) 682.

17. See n.101, infra for list of states with approved NPDES programs.

18. Under § 402(a) (1), discharges into approved aquaculture projects (§ 318) and discharges of dredged or fill material (§ 404) have their own permit programs. In addition, spills of oil or hazardous substances (§ 311) and marine vessels (§ 312) have their own enforcement mechanism.

19. § 301(b) (1) (A).

20. § 301(b) (2) (A). For an explanation of these two terms, see Zener, n. 16, supra at 705-706.

21. § 301(b) (1) (B).

22. § 301(f).

23. See text accompanying nn. 83-86, infra.

24. 4 ELR 20045 (N.D. Ill. 1973).

25. 3 ELR 20204 (N.D. Ill. 1973).

26. Id.

27. 4 ELR 20071 (D. Vt. 1973).

28. 3 ELR 20425 (N.D. W. Va. 1973).

29. 4 ELR 20738 (5th Cir. Sept. 9, 1974).

30. United States v. Ira S. Bushey & Sons, 4 ELR 20071, 20074.

31. United States v. United States Steel Corp., 3 ELR 20204, 20205.

32. United States v. Rohm & Haas Co., 4 ELR 20738.

33. 4 ELR 20182 (D.D.C. 1973).

34. See text accompanying nn. 61-78, infra.

35. 4 ELR at 20183.

36. 4 ELR 20710 (M.D. Fla. March 15, 1974).

37. 4 ELR 20185 (W.D. Ky. 1973).

38. See text accompanying nn. 107-131, infra.

39. See, Zener, supra, n. 16 at 689-91.

40. 33 U.S.C. § 1160 (1970).

41. 33 U.S.C. §§ 1161, 1163 (1970).

42. 33 U.S.C. § 407 (1970).

43. United States v. Holland, 4 ELR at 20713.

44. Id. at 20714.

45. See 4 ELR 46318.

46. Crim. No. 74-0-30 (D. Neb. April 25, 1974).

47. No. 74-2168 (2nd Cir. filed 1974).

48. No. 74-1881 (4th Cir. filed 1974).

49. 39 Fed. Reg. 12115 (1974).

50. Civ. No. 74-1242 (D.D.C. filed Aug. 16, 1974).

51. 4 ELR 20307 (D. Colo. Feb. 15, 1974).

52. Id.

53. 370 F. Supp. 162 (S.D.N.Y. 1973), aff'd 499 F.2d 127 (2d Cir. 1974).

54. Id. at 170.

55. 16 U.S.C. § 825 (1970).

56. 370 F. Supp. at 170.

57. 33 C.F.R. § 209.120.

58. 3 ELR 20786 (4th Cir. 1973), aff'g 3 ELR 20571 (E.D. Va. 1973).

59. Id. at 20787.

60. Letter from William D. Ruckelshaus to Major General Morris, March 12, 1973.

61. 4 ELR 20427 (D. Md. Apr. 10, 1974).

62. 42 U.S.C. § 1857h-2 (1970).

63. Riverside v. Ruckelshaus, 3 ELR 20043 (S.D. Cal. 1972).

64. Civ. No. 1629-73 (D.D.C., filed Aug. 1973). See text accompanying n. 86, infra.

65. See 4 ELR 46317.

66. 5 U.S.C. §§ 701-706 (1970).

67. 28 U.S.C. §§ 2201-2202 (1970).

68. 28 U.S.C. § 1331 (1970).

69. 28 U.S.C. § 1361 (1970).

70. 4 ELR 20108 (D.D.C. 1973), appeal pending, No. 74-1433 (D.C. Cir.)

71. See text accompanying n. 83, infra.

72. No. 74-2168 (2nd Cir. Filed 1974).

73. 370 F. Supp. 162 (S.D.N.Y. 1973), aff'd 499 F.2d 127 (2d Cir. 1974). See text accompanying nn. 53-57, supra.

74. 4 ELR 20677 (N.D. Ill., Mar. 15 and 25, 1974).

75. Brief for Intervenor at 16.

76. 4 ELR 20437 (D.R.I. Mar. 5, 1974). See text accompanying nn. 120-121, infra.

77. Id. at 20439.

78. 28 U.S.C. § 2412 (1970).

79. 62 F.R.D. 31 (N.D. Ill. 1974).

81. 4 ELR 20182. See text accompanying nn. 33-35, supra.

82. 497 F.2d 1235 (6th Cir. 1974).

83. 497 F.2d 1235 (6th Cir. 1974).

84. 4 ELR 20108 (D.D.C. 1973), appeal pending, No. 74-1433 (D.C. Cir.).

85. 6 ERC 1702 (D.D.C. May 23, 1974), appeal pending, No. 74-1538 (D.C. Cir.).

86. Id. at 1703.

87. Civ. No. 1629-73 (D.D.C. filed Aug. 1973).

88. No. 74-1258 (2d Cir. filed Feb. 22, 1974).

89. Zener, supra, n. 16 at 702.

90. Defendant's brief at 43.

91. 3 ELR 20642 (D.C. Cir. 1973).

92. Id. at 20654.

93. See, e.g., Davis, The Discharge Permit Program under the Federal Water Pollution Control Act of 1972 — Improvement of Water Quality through the Regulation of Discharges from Industrial Facilities, 2 FORD. URB. L.J. 179, 210 (1974).

94. See, e.g., effluent limitations issued for the inorganic chemical manufacturing category, 39 Fed. Reg. 9612 (March 12, 1974).

95. Defendant's brief at 19. See Anaconda Co. v. Ruckelshaus, 482 F.2d 1301, 1304 (10th Cir. 1973) for rejection of a similar tactic under the Clean Air Act.

96. List of FWPCA actions from Office of the General Counsel and Enforcement, Environmental Protection Agency, Washington, D.C.

97. Civ. No. 74-814 (D.D.C. Sep. 24, 1974).

98. No. 74-57 (W.D. Va., Sept. 27, 1974).

99. Id. at 10.

100. In Ohio v. Republic Steel Corp., 311 N.E.2d 911 (Canton Mun. Ct. Ohio, 1973), this interim authority was interpreted. Defendant, charged with discharging pollutants without a state permit, claimed that the authority of the state to issue permits was pre-empted by the FWPCA. Defendant had an application pending with EPA for a permit. The court, noting that Ohio had received interim authority from EPA to issue permits found the defendant guilty and stated: "It is inconceivable that the authority of Ohio to control the discharge of pollutants in its waters would be suspended during the period in which a comprehensive program is being established under the Federal Water Pollution Control Act Amendments of 1972." Id. at 912.

101. Interim authority to issue permits was granted to California, Connecticut, Georgia, Hawaii, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Ohio, Oregon, South Carolina, Virginia, Washington, Wisconsin, and American Samoa. The following states have received approval of their NPDES program: California, Connecticut, Delaware, Georgia, Kansas, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, Ohio, Oregon, Vermont, Washington, and Wisconsin.

102. EPA Meeting with Environmentalists, June 13, 1974.

103. EPA feels that such unconditional permit requirements are necessary to assure that dischargers will move forward with abatement programs required under the permits. National Journal, Mar. 17, 1973 at 371.

104. List of enforcement actions from the Compliance Branch, Office of Water Enforcement, Environmental Protection Agency, Washington, D.C.

105. Id.

106. Id.

107. See 33 U.S.C. §§ 1161 and 1162 (1970).

108. EPA has, however, published a proposed list of hazardous substances recently. 39 Fed. Reg. 30465. (August 22, 1974).

109. 4 ELR 20185 (W.D. Ky. 1973).

110. See text accompanying nn. 36-45, supra.

111. 378 F. Supp. 420 (S.D.N.Y. 1974).

112. Id. at 422.

113. Id.

114. 307 A.2d 1 (1973).

115. Id. at 4.

116. Id.

117. 3 ELR 20362 (U.S. 1973).

118. 33 U.S.C. § 1161 (1970).

119. § 404(c).

120. 4 ELR 20437 (D.R.I. Mar. 5, 1974).

121. 38 Fed. Reg. 13530 (May 22, 1973).

122. 4 ELR 20687 (S.D.N.Y. July 3 and 16, 1974).

123. Id. at 20688.

124. 370 F. Supp. 162 (S.D. N.Y. 1973), aff'd 499 F.2d 127 (2d Cir. 1974).

125. Id. at 169.

126. See text accompanying nn. 53-57, supra.

127. No. 74-2168 (2d Cir. filed 1974).

128. See text accompanying nn. 47-48, supra.

129. Civ. No. 754 (E.D. N.C. 1973).

130. Letter from Alan G. Kirk II, Assistant Administrator for Enforcement and General Counsel for Mr. Kenneth Grant, Administrator, U.S. Soil Conservation Service, Aug. 23, 1974.

131. See text accompanying nn. 36-50, supra.

132. See text accompanying nn. 89-96, supra.

133. See text accompanying nn. 2-11, supra.

134. See text accompanying nn. 36-50, supra.

135. See text accompanying nn. 88-100, supra.

136. See text accompanying nn. 83-84, supra.

137. See text accompanying nn. 89-92, supra.

138. See text accompanying nn. 87-88, supra.

139. 384 U.S. 224 (1966).

4 ELR 50109 | Environmental Law Reporter | copyright © 1974 | All rights reserved