Natural Resources Defense Council, Inc. v. Costle

No. 75-1873 (D.C. Cir. September 6, 1977)

The court affirms a lower court's ruling that § 208 of the Federal Water Pollution Control Act Amendments of 1972 requires the states to prepare areawide waste treatment management plans when acting as planning agencies for areas not designated by a state or locality as having substantial water quality control problems. The court notes that only about five percent of the nation's waterways are in areas that have been "designated" for local planning and that a contrary interpretation of the statutory requirements would therefore exempt 95 percent of the nation's waterways from areawide waste treatment planning. State plans must contain all the elements required by § 208(b)(2), but the intensity of the state planning effort for such areas that have few pollution problems may be less than that devoted to designated urban/industrial areas. The court rejects the contention that the lower court's decision impinges on the states' Tenth Amendment rights. The district court's order that the Environmental Protection Agency promulgate regulations for the submission of state plans under § 208, which the agency has complied with and now defends, is therefore affirmed.

Counsel for Intervening Defendant-Appellant National Forest Products Ass'n
Francis M. Shea, Richard T. Conway, David B. Beers, I. Michael Greenberger
Shea & Gardner
Walker Bldg., Washington DC 20005
(202) 737-1255

Richard Wassertstrom
National Forest Products Ass'n
1619 Massachusetts Ave. NW, Washington DC 20036
(202) 797-5800

Counsel for Plaintiff-Appellee
Daniel M. Lewis, Peter T. Grossi
Arnold & Porter
1229 19th St. NW, Washington DC 20036
(202) 872-6700

Counsel for Defendants-Appellees
Larry A. Boggs, Edmund B. Clark, Jacques B. Gelin
Department of Justice, Washington DC 20530
(202) 737-8200

Counsel for Amicus Curiae Commonwealth of Viginia
James E. Ryan, Ass't Attorney General
1101 E. Broad St., Richmond VA 23219
(804) 786-2071

Counsel for Amicus Curiae State of Washington
Theodore O. Torve, Ass't Attorney General
Temple of Justice, Olympia WA 98504
(206) 753-2550

Before: MCGOWAN, LEVENTHAL and ROBB, Circuit Judges.

[7 ELR 20702]

ROBB, Circuit Judge:

The Natural Resources Defense Council and the Environmental Defense Fund (referred to collectively as NRDC) brought an action in the District Court seeking (1) a declaratory judgment construing section 208 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1288, and (2) an order directing the Administrator of the Environmental Protection Agency (EPA) to promulgate regulations consistent with the plaintiffs' interpretation of the Act. National Forest Products Association (NFPA), an organization representing firms and local organizations engaged in the forest products industry, was permitted to intervene as a defendant. The District Court granted the plaintiffs' motion for summary judgment and ordered the EPA to promulgate regulations consistent with the court's construction of section 208. Natural Resources Defense Council v. Train, 396 F. Supp. 1386 (D.C.D.C. 1975). Both NFPA and EPA filed notices of appeal but thereafter EPA voluntarily dismissed its appeal and has now intervened as an appellee to defend the District Court's decision. The Commonwealth of Virginia and the State of Washington have filed briefs amicus curiae in support of the position taken by NFPA. We affirm.

The Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., establish "a comprehensive program designed 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters . . .'" Natural Resources Defense Council v. Train, 166 U.S. App. D.C. 312, 315, 510 F.2d 692, 695 (1974). A central feature of this attack on the problem of water pollution is section 208, 33 U.S.C. § 1281. The full text of this lengthy section is set out in the appendix to this opinion.

Section 208(a) provides that State and local agencies shall develop and implement areawide waste treatment management plans to achieve the Act's 1983 goal of fishable and swimmable waters, Section 101(a)(2), 33 U.S.C. § 1251(a)(2). Section 208(a)(1) directs the Administrator of EPA by regulation to publish guidelines for the identification of those areas having substantial water control problems. Section 208(a)(2) provides that "The Governor of each State . . . shall identify each area within the State which, as a result of urban-industrial concentrations or other factors, has substantial water quality control problems." The Governor shall then "designate (A) the boundaries of each such area, and (B) a single representative organization, including elected officials from local governments or their designees, capable of developing effective areawide waste treatment management plans for such area." In the case of an area located in two or more states the Governors of the respective states are to consult and cooperate "toward designating" theboundaries of the interstate area and "toward designating" a "representative organization" to develop effective areawide waste treatment management plans. Sec. 208(a)(3). If no designation is made by a Governor or Governors the "chief elected officials of local governments within an area may be agreement designate" an area and "a single representative organization" capable of developing the waste treatment management plan. Sec. 208(a)(4). Section 208(a)(5) provides: "Existing regional agencies may be designated under paragraphs (2), (3), and (4) of this subsection." Section 208(a)(6), upon which the controversy in this case has focused, provides: "The State shall act as a planning agency for all portions of such State which are not designated under paragraphs (2), (3), or (4) of this subsection."

Section 208(b)(1) provides that not later than one year "after the date of designation of any organization" under section 208(a) "such organization shall have in operation a continuing areawide waste treatment management planning process". Section 208(b)(2) in turn specifies the required elements of a proper waste treatment plan. Section 208(b)(2) (A)-(E) applies to the establishment of long-term preventive point source regulatory programs and section 208(b)(2)(F)-(K) relates to programs for identifying and controlling non-point source pollution from agriculture, silviculture, mining, construction and other similar activities. The waste treatment management plans are to be certified annually by [7 ELR 20703] the Governors and submitted to the Administrator for his approval. Sec. 208(b)(3). The Administrator is directed to "make grants to any agency designated under subsection (a) of this section [208] for payment of the reasonable costs of developing and operating" the waste treatment planning processes "under subsection (b) of this section." Sec. 308(f)(1). These grants shall be 100% of the costs for each of the three fiscal years beginning June 30, 1973, and not more than 75% of such costs in each succeeding fiscal year. Sec. 208(f)(2).

As we have said, section 208(a)(1) of the Act provides that the Administrator of EPA shall by regulation publish guidelines for the identification of those areas having substantial water quality control problems. After some delay EPA promulgated such regulations. 40 C.F.R., Part 126, 38 Fed. Reg. 25,681 (Sept. 14, 1973). At this time EPA took the position that the State when acting as a "planning agency" under section 208(b)(6) was not required to develop a section 208 plan for all areas of the State which had not been "designated". In a subsequent regulation promulgated June 3, 1974, 40 C.F.R., Parts 130 and 131, 39 Fed. Reg. 19,634, EPA suggested that a State could fulfill its section 208 planning requirements for undesignated areas by planning under section 303(e) of the Act. 33 U.S.C. § 1313(e).Planning under section 303(e) includes some, but not all the elements required by section 208 plans.

It appears that only about 5% of the nation's waterways were in areas "designated" for local planning. Thus, if the EPA's original interpretation of the statute was correct, 95% of the country's area was not subject to section 208 planning. In particular the long-term preventive programs of section 208(b)(2)(F)-(K), for identifying and controlling non-point source pollution from agriculture, silviculture, mining, construction and other similar activities, were not required or were limited to areas in which they could have little or no effect.

Responding to the EPA regulations NRDC notified the Administrator of its intention to file an action for a declaratory judgment that (1) section 208(a)(6) requires the same type of planning in local and State planning areas, and (2) so far as they were inconsistent with that requirement the EPA regulations were invalid. As a result, at a conference with counsel for NRDC on August 29, 1974 EPA's associate general counsel provided counsel for NRDC with an EPA memorandum of law which indicated substantial agreement with NRDC's position. This memorandum, dated August 26, 1974, stated in part:

Section 208 appears to require the State to act in the same capacity as the designated organizations and therefore it should apply all of the criteria listed in § 208(b)(2) in the nondesignated areas. However, this does not mean that the same level of planning or implementation of each of those elements is required for every area of the State. The State has flexibility to apply varying degrees of planning, depending on factors such as the amount of development, present water quality, and existing review procedures, which are consistent with the successful implementation of § 208 for any particular area where it is operating as a planning agency.

(J.A. 13)

* * *

This means that plans developed by State agencies in non-designated areas also must implement the requirements of § 208(b)(2) (A)-(K). That is in agreement with the position taken by NRDC in this matter.

We do not believe, however, that this conclusion requires States to employ the same sophisticated, comprehensive planning approach throughout the State regardless of the need or the water quality conditions of the area where the planning is to be done.

(J.A. 14)

Although EPA had signified this agreement with NRDC, regulations implementing the agreement were not forthcoming. Accordingly, NRDC filed its complaint for a declaratory judgment construing section 208(a)(6) and for an order directing EPA to promulgate appropriate regulations. After some skirmishing during which EPA averred that it intended to promulgate such regulations but was not required to do so, NRDC filed its motion for summary judgment. At this stage of the case our appellant National Forest Products Association intervened. NFPA contended, and argues before us, that section 208(a)(6) does not require statewide planning and that any such planning in areas which have not been "designated" for local planning is a matter for State discretion.

The District Court granted NRDC's motion for summary judgment. Natural Resources Defense Council v. Train, supra. Emphasizing that section 208 must be read "in the context of the entire Act so that its purpose together with the intent of the whole Act may be effectuated", the court held that section 208 is a "critical provision in a broad, far-reaching Act" which requires comprehensive statewide planning:

[Section 208] contains unique authority to control water pollution from point sources (e.g., factory or pipe discharge) . . . and from nonpoint sources (e.g., mining or agricultural runoff). Its implementation features distinguish it from Section 303(e) of the Act, which emphasizes ongoing State planning and limits State efforts to stationary sources of pollution. The Section is also intended to coordinate and integrate other planning, construction, and discharge permit provisions of the Act. Section 208 charts a course not only for the cleaning up of polluted waters but also for the prevention of future pollution by identifying problem sources, regulating construction of certain industrial facilities, and developing processes to control runoff sources of pollution. While Section 208 focuses on "urban-industrial" areas with substantial water quality control difficulties, it also directs attention to other geographical locations with water pollution problems, such as forests, mining areas, farms, and salt water inlets. As a "bottom line" for the Section 208 waste treatment management activities, the Act prescribes a 1983 goal of clean waterways. Id. at 1389. [Citations omitted]

The District Court stressed the critical importance of section 208(a)(6) as "the residual clause in the areawide waste treatment management planning provisions". Id. at 1390. The court explained that:

[Section 208(a)(6)] deals with the non-designated or "leftover" portions of the State. . . . The plain implication is that [Section 208(a)(6)] empowers the State to achieve what other [designated] planning organizations . . . are directed to achieve. . . . It would be illogical for Congress to set forth a detailed scheme for State, interstate, and local water pollution planning — and then to lump the remainder of [7 ELR 20704] State territory into a residuary provision with veiled instructions to the state, to do as it saw fit regarding waste treatment control. . . .

There are presently only about 85 designated problem areas in the United States, leaving an estimated 95% of the nation's waterways non-designated. . . . Surely the Congress did not intend Section 208 planning to be the exception rather than the rule. . . . Id. at 1390.

The court recognized that the intensity of planning might not be as great in the state planning portions of a State:

As [NRDC and Environmental Defense Fund] have stressed on numerous occasions, the subsection (a)(6) regulations will not call for rigorous planning where no pollution problems exist. Rural areas need not implement safeguards for urban pollution problems, and vice versa; planning can be tailored to a region's peculiar problems. . . . A State may certify large portions of its territory as pollution-free and concentrate on preventive measures for these portions as well as on abatement measures for the substantial problem areas. Id. at 1391-92.

The court agreed with NRDC, however, that the States should be advised promptly of their important residual responsibilities:

EPA's regulations have positively misled the States in regard to subsection (a)(6) responsibilities. This is not "partial guidance" of the States. It is an impermissible misconstruction of the Act which must be cured swiftly so that the States can understand and fulfill their total planning responsibilities. . . . [P]lanning requirements and directives should precede the actual planning by States lest disorder and inefficiency reduce State efforts to naught. Id. at 1391.

The court therefore held (1) that section 208(a)(6) requires that the States implement full section 208 planning in all areas which are not locally designated, (2) that such planning must include the same elements required by section 208(b)(2) for designated areas, (3) that construction grants under Title II and discharge permits under Title IV must be consistent with such State plans, and (4) that under section 208(f) federal funding must be made equally available to State and local planning agencies. Id. at 1392.

The court did not attempt to formulate specific regulations implementing its decision but rather directed that EPA do so:

It is not for this Court . . . to define or promulgate the subsection (a)(6) regulations. Hopefully, EPA's draft regulations already address the complexities of a State's subsection (a)(6) planning role and delineate the need for State and local cooperation. In any event, a full and prompt rulemaking proceeding will enable interested parties including the States to offer further comments to EPA with reference to the content of the proposed guidelines. Id. at 1392.

On July 16 and September 8, 1975, EPA published proposed revised regulations, 40 Fed. Reg. 29,882 and 41,644, and on November 28, 1975 it published final regulations implementing the District Court's order. 40 C.F.R., Parts 130 and 131, 40 Fed. Reg. 55,321 (Nov. 28, 1976).

We have referred at length to the District Court's opinion because we agree with its conclusions and substantially agree with its reasoning. We think, as did the District Court, that section 208 sets up a comprehensive scheme for the elimination of water pollution in all areas of a State, both urban-industrial areas and agricultural and forest areas. We think it unreasonable to believe that the Congress intended to exempt from this scheme 95% of the State's areas. We need to consider only briefly the specific arguments to the contrary pressed upon us by NFPA.

NFPA argues first that the "plain language of § 208 [demonstrates] that the § 208(b)(2) planning requirements are only required in those areas, and by those organizations, 'designated' under §§ 208(a)(2)-(4)." In support of this argument NFPA engages in a microscopic scrutiny of the words used in section 208. Thus counsel argues (NFPA Br. P. 15):

Under the terms of § 208(b)(1), the full § 208(b)(2) planning process only becomes operative within "one year after the date of designation of any organization under" § 208(a). (Emphasis added.) At that time the "continuing areawide waste treatment management planning process" must be developed and be made "applicable to all wastes generated within the areas." § 208(b)(1). (Emphasis added.) Four critical terms in § 208(b)(1), "date of designation," "organization," "areawide," and "area," can only refer to the "areawide" planning "organization[s]" "designated" by Governors and elected officials under §§ 208(a) (2)-(4) for "areas" with "substantial" water problems — and thus not to the State.

NFPA then turns to section 208(a)(6) which provides that the State "shall act as a planning agency for all portions of such State which are not designated under paragraphs (2), (3), or (4) of this subsection." Because this section does not refer to a State as an "organization" nor is the State "designated" by an elected official or required to plan for "designated areas" NFPA concludes that a State is not within the scope of section 208(b)(1) and therefore need not engage in the section 208(b)(2) planning process for non-designated regions.

We are not persuaded by this exercise in semantics. We think the statute must be given a reasonable interpretation, not parsed and dissected with the meticulous technicality applied in testing a common law indictment or deed creating an estate in fee-tail. It is plain to us on the face of section 208 that Congress itself has "designated" the State to act as the entity charged with developing waste treatment management plans under section 208(b)(2) for non-designated regions. We think it is not significant that the State is referred to as an "agency" rather than an "organization". Reasonably interpreted, the word "agency" in section 208(a)(6) is the equivalent of the word "organization" in the preceding paragraphs. This conclusion is fortified by section 208(a)(5) which provides that "regional agencies" may be designated as planning organizations under paragraphs 2, 3 and 4 of the subsection. As for NFPA's objection that the State is not required under section 208(a)(6) to act through a body that includes elected officials, as is the case with organizations designated under sections 208(a)(2), (3) and (4), we need say only that every State government of course includes elected officials. We are not impressed by NFPA's suggestion (Br. P. 16 n.9) that there is significance in the use of the word "portions" instead of "areas" in section 208(a)(6). NFPA does not explain why this variance has significance and we think it has none.

[7 ELR 20705]

NFPA notes that under section 208(b)(2)(F), (G) and (I) control programs for agriculture, silviculture, mining and salt water non-point pollution are to be pursued only "if appropriate". NFPA says the words "if appropriate" in this context are intended to apply to planning in urban-industrial areas where section 208(b)(2)(F), (G) and (I) planning might be inappropriate. We think a more reasonable interpretation however is that Congress believed that any one area, whether urban-industrial or not, might not be subject to agricultural, silvicultural, salt water and mining pollution.

Having scrutinized the words of the statute NFPA turns to its legislative history and argues that this history demonstrates that Congress did not intend to require 208(b) planning for portions of a State not "designated" under sections 208(a)(2)-(4). We have carefully considered this legislative history and NFPA's somewhat involved argument but are not persuaded. Briefly, the theme of the argument is that the House did not intend the States to be responsible for section 208 planning in non-designated areas, and this intention was reflected in the House bill which contained no provision comparable to section 208(a)(6). NFPA argues that section 208(a)(6) as it now stands is a compromise between the Senate version of this section and the House bill's omission of such a section. There is nothing in the legislative history however indicating that section 208(a)(6) is a compromise, intended to weaken the Senate version. Specifically, no such indication appears in the conference report. Although there were changes in the language of the Senate version, the gist of it remained the same.

Finally, NFPA argues that as construed by the District Court section 208 violates the Tenth Amendment by compelling the States to expend their own funds and to exercise their own sovereign powers in carrying out a federal regulatory program established by Congress. In response the government says this argument is not properly before us because it was not raised in the District Court and because NFPA has no standing to assert the rights of the States under the Tenth Amendment.

We hold that NFPA is entitled to make its constitutional argument in support of its proposed construction of the statute. It is of course familiar doctrine that a statute should if possible be construed so as to avoid constitutional infirmities, and NFPA is entitled to argue that its construction will eliminate the infirmities it perceives in section 208 as construed by EPA and the District Court. Turning to the merits of the argument however we reject it. The District Court's order merely directs EPA to promulgate regulations for the submission of State section 208 plans. As NFPA concedes in its brief (P. 40) the Act contains no provision for enforcement of any obligation that may be imposed upon a State under section 208. In the absence of any provision for sanctions the EPA may of course employ the accepted and traditional means of gaining State compliance by withholding funds under section 208(f), but that method of stimulation would not violate the Tenth Amendment. See District of Columbia v. Train, 172 U.S. App. D.C. 311, 333, 521 F.2d 971, 993 (1975).

The judgment of the District Court is

Affirmed.

[Appendix, containing text of § 208 of the Federal Water Pollution Control Act, is omitted. For text of FWPCA, see ELR STAT. & REG. 41101. — Ed.]