Natural Resources Defense Council, Inc. v. Russell E. Train, in His Official Capacity as Administrator, Environmental Protection Agency

NATURAL RESOURCES DEFENSE

COUNCIL, INC.

v. TRAIN,

Russell E. capaci- his official ty administrator, environmental protection agency, al., Appellants. et

No. 74-1433.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 1974.

Decided Dec.

As Modified Mar. C., brief,

Washington, D. was on appellee. ROBB, LEVENTHAL and Cir

Before NICHOLS,* Judge, Judges, and cuit Court of Claims. States United LEVENTHAL, Judge: Circuit The Natural Resources Defense Coun- (NRDC) brought cil an action federal against court district Environmental (EPA) Agency and its Admin- Protection Fri, (then now Robert W. Russell istrator Train), seeking compel publica- E. of effluent limitation 304(b)(1)(A) by called for of the- Act Federal Water Pollution Control appeal Amendments of 1972.1 This from the District of Court’s orders November granting sought 15 and relief questions by presents pertaining NRDC2 imposed the duty upon the Adminis- by operation trator that section and the provisions the citizen suits of the Act. of (Pertinent provisions the of Act are A.) gathered Appendix Act, enacted on October debate, extensive consideration and comprehensive program establishes a de- signed “to restore and maintain the chemical, biological integri- physical, and pursuit of the waters” in of ty Nation’s goal discharge “national the of a navigable the pollutants into waters be 1985.”3 by Although eliminated multipronged statute launches attack problem pollution,4 of water it on Shearer, Atty., Dept, Lawrence E. primarily permit program on a for relies Justice, C., Washington, D. with whom the achievement effluent limitations— Strass, Justice, Atty., Dept, Carl pollutants quantity on the restrictions C., brief, Washington, D. onwas for discharged into nation’s appellants. Johnson, Wallace H. Asst. goals. its waters —to attain Gen., Atty. appearance also entered an provisions of the of the A brief sketch appellants. for im- relating to the formulation and Act Strohbehn, Jr., limitations Edward L. Wash- of the effluent plementation C., ington, relationship par- Speth, D. with whom J. indicate the G. will * in sec- limitations the effluent pursuant by designation addition Sitting to 28 U.S.C. In 4. employs includ- measures 301(b), Act 293(a). § new for performance standards ing national 1972). (Supp. II 1314(b)(1)(A) pol- § 1. 33 U.S.C. 306), for (section toxic standards sources 307), pretreatment standards (section (D.D.C.1973). lutants 6 ERC 2. (section works publicly treatment owned for Act; 101(a)(1) 33 U.S.C. (section quality standards 307) and water 1251(a)(1) 1972). (Supp. II 1312, 1316, 1311(b), 302). §§ id. See ticular working charger applies permit súbsection issue to the for within the 301(b) of the Act. Section sets forth two day period. Until December stages of effluent limitations which pendency are application to be achieved intermediate steps in permit containing necessary infor- pursuit objective. of the 1985 The first processing mation for of the application step requires conformity not later than prevent will a polluter being from July 1977,with effluent limitations for permit violation requirement.10 point sources other than publicly 31, 1974, owned After December the Act con- treatment require works that shall templates discharges that all point from application practicable of the best con- sources shall be made conformity technology currently trol available.5 permit. permits may The a by issued stage, second to be completed no later approved the states under programs or July than contemplates the re- by Administrator in the absence of a duction the discharge of pollutants to program.11 The state Act vests the Ad- an effluent limitation by level attainable ministrator with final review authority application permits best available for issued the states.12 technology economically achievable for The effluent incorporated limitations categories such classes and permit conditions are to be based sources.6 regulations published under section the Act primary A means created 304(b) providing guidelines “[f]or achieving limitations the effluent purpose of adopting or revising effluent 301(b) deadlines contained in section limitations.”13 (1) Subsection of that Discharge Pollutant is the National provision deals with guidelines for the (NPDES) System established Elimination by effluent limitations to be achieved by 402.7 dates forth in section After set 1, 1977, July limitations based on use of section, per- person that must obtain the best practicable control technology comply with its terms'in order mit currently available. provision The in- discharge any pollutant.8 to The condi- volved in appeal, section any permit tions of the must assure 304(b)(1)(A), requires the identification discharge complies applicable with the the “degree of of effluent reduction at- requirements of numerous in- sections tainable through the application” of that cluding the of effluent limitations sec- technology to classes and categories of 301(b).9 tion point sources “in terms of amounts of permit chemical,

The timetable for issuance constituents and biological physical, and 402(k). in set forth section For the first pollutants.” characteristics of days companion after the enactment the The 180 of stat- provision, section ute, any discharge pollutant 304(b)(1)(B), the of shall calls on the Administrator set not be a violation of the Act if the to dis- forth factors for determining the 1311(b)(1). Id. pliance § 5. . . . limitations [e]ffluent under sections 301 and of 302 the Act.” 40 1311(b)(2). §Id. 6. 124.42(a)(1) (1973). § C.F.R. 402(a)(1) 7. Id. 1342. § safety contains a valve which allows discharge permits 301(a) provides to that “the Administrator issue the “such 8. Section by any necessary person pollutant shall be un- conditions carry determines are to [he] of provision prior compliance with sections the out Act” lawful” unless in 307, 318, 302, 306, “necessary implementing relating 404 of the actions” result, compliance requirements including 1311(a). As a of sections section Act. §Id. prerequisite 1342(a)(I) 1972); (Supp. permit program is a II 301. 33 U.S.C. § with the pollutants. 124.42(a)(6) (1973). discharge timetable The § see C.F.R. lawful in section permit program contained for the 1342(k) (Supp. 1972). See U.S.C. II § 10. 1342(k). 402(k). Id. § (b). 1342(a), See id. 11. §§ 402(a)(1), (b)(1)(A); 33 U.S.C. 9. See section 1342(d). 12. See id. See note 96 and accom- § 1972). (b)(1)(A) (Supp. II 1342(a)(1), The panying text infra. require that regulations under section permit apply 1314(b). and insure corn- each “NPDES Id. § practices measures and ap- control to be officials which EPA early 1973 plied point sources. imple- for agency’s plans discussed question in primary The this case is 304(b)(1)(A).16 Those section menting interpretation of the time limit im- guide- publication called plans publication regulations posed for October, 1973, groups three lines 304(b)(1)(A). section October, 1974.17 On May, pertinent part: states counsel for Speth, J. G. April McManus, Office NRDC, wrote Robert (b) . Administrator shall [T]he EPA, Counsel, protest of General publish year within one of enact- embodied in illegal course” title, “plainly regulations, pro- ment of this letter set plans.18 implementation viding guidelines for effluent limita- EPA’s understanding of NRDC’s and, forth annually at least tions thereaft- Act re- argued . er, revise, position appropriate, if regu- all publication quired regulations lations. Such shall— by October guidelines 304(b)(1)(A) (1)(A) identify . . . degree Zener, Deputy Acting V. Robert effluent reduction attainable EPA, responded on Counsel General categories . for classes and reaffirming agency’s 15, 1973, June (other point publicly than sources sup- was claiming that it position works). treatment owned legisla- and the language by the ported regulations that the NRDC claims for all provision.19 history of the tive categories point classes and sources 18, 1973, were due on October “in order filed a NRDC August On provide apply guidelines time to these District States in the United complaint through permits to all sources seek- District of Columbia Court which must be issued December the Administrator ing a declaration argues 1974.”14 EPA that section 304 sec- duty under nondiscretionary had light must be administered in the of sec- promulgate 304(b)(1)(A) to 306(b)(1)(A) provides tion 306. Section classes and for all limitation publish, shall (other than point sources categories of days 18, 90 after within October works) within treatment owned publicly 1972, enactment, date of and from time of the Act enactment of the year one revise, shall to time thereafter a list of guide- that such requiring order and and categories specifies sources. It as expeditiously promulgated be lines “shall, minimum, the list at the include: April later than in no event and possible * * * mills; pulp paper and timber 1973, 15, Judge On November 1, 1974.20 products processing.” This minimum list for motion plaintiff’s granted Green specified 27 consists of sources. EPA’s declaring that judgment, summary position guidelines is that categories for mandatory, non-dis- a have “defendants specified sources section one within publish to cretionary duty 306(b)(1)(A) required by were October Sec- the Act final enactment year of 18, 1973, agency but has discre- limitation effluent 304(b)(1)(A) tion regarding publication tion date of compre- provide to necessary guidelines regulations point for other source cate- source dis- point all coverage of hensive gories.15 sched- proposed a ordering and charges” with a guidelines publication culminated in ule for circumstances 1, 1974.21 A of October by NRDC present action deadline filing final 27, order, November issued meetings held public subsequent back relate sel, EPA, NRDC, 15, Speth, to J. G. June Appellee at 13. 14. Brief 1973, 1; App. 62. at Appellants 12-18. at Federal Brief for 15. Letter, 2; supra, App. at 60. 18. note 16. See Speth, Letter from J. G. counsel for NRDC, Letter, 17, 1-3; McManus, supra, App. to Robert note at 19. 62-64. Office of Gen. Counsel, EPA, 12, April 1973, 2; App. at 60. 27, App. 20. 42-43. 17. See Appellee 15; Brief for Letter from (D.D.C.1973). 21. 6 ERC 1033 Zener, Acting Robert V. Deputy Gen. Coun- 1973, enjoined comply the defendants to The memorandum accompanying the stay publication with detailed timetable for order sketched our tentative think- ing guidelines point that divided on the sources two issues by raised (1) EPA— I, groups Group into two corresponding whether the District Court lacked sub- — categories ject to the 27 jurisdiction of sources listed in matter because NRDC 306(b)(1)(A), II, Group give section and in- failed to days prior notice cluding all other categories classes and commencement of the (2) action and sources.22 whether That order allocated the District Court erred in find- categories ing contained in the two the Administrator had a nondis- groups among 29 publication cretionary be- duty dates to publish all section 15, 1974, ginning January on ending 304(b)(1)(A) limitation guide- 29, on November by 18, Guidelines for lines October present 1973. Our Group categories all I were due thinking on Octo- reflects the reconsideration of publication ber with Group II the issues prompted by process guidelines drafting commence on October and revision and assisted by 1974.23 The trial court supplemental established this by briefs filed parties. both timetable opinion ensure that Section The departs “[t]o from approach 304(b)(1)(A) will published but not the conclusion reached on the applied in time jurisdictional to be meaningfully in the out, issue and fills Discharge National Pollutant modifications, Elimina- some the memorandum’s permit System (NPDES) program discussion of the merits. established Section 402 of the Act.” I. JURISDICTION stay EPA’s motions Dis- The Government contends that trict pending appeal Court’s order were the District Court subject lacked matter denied May District Court on case, jurisdiction in this consequent on July court ly, that must its order be vacated. The At argument appeal oral argues that an action again stay moved for a en- order brought by a citizen to compel him to objec- tered below NRDC voiced its perform duty which is not discretion tions to this motion. October we On ary under the Act must be commenced granted motion, appellants’ part, stay- 505(a)(2)26 section under section and that ing the pertaining District Court’s order 505(b)(2) precludes an action under sub Group categories II requiring days (a)(2) “prior sixty 304(b)(1)(A) guidelines for those notice action plaintiff given has of such categories published by December Administrator.”27 Pursuant 1974.25 parties, citizenship to enforce or the (D.D.C.1973). 22. 6 ERC 1034-36 limitation, or standard or an effluent 23. Id. order, Administrator to order the an or such may duty, case or as the perform act such to 24. Id. at 1033-34. penal any appropriate be, apply civil to 1319(d) Memorandum, 1973, title. 3, 25. of this under section Oct. at 5. ties 26. The without this civil risdiction Administrator. tor there is chapter (a) Except § 33 (2) against 1365. Citizen suits — section, action district to U.S.C. ^[******] regard perform any which is not alleged on § as courts to his 1365(a)(2) provided the Administrator a failure of the Administra- the amount citizen own shall have act discretionary behalf— in Authorization; or (Supp. may subsection duty in commence jurisdiction, controversy II under this 1972). with the where (b) ju- of a 27. See II title. mediately violation of an except shall given in such manner trator, given prior (b) 1972) states: (2) prescribe No action action under Notice Brief for that 505(b)(2), to under subsection notice of such of sections sixty such under by regulation. may Federal days 33 U.S.C. action this section this subsection 1316 notification be commenced— after action to as the Administrator (a)(2) Appellants at 6-11. 1365(b)(2) the 1317(a) of this of the Adminis- plaintiff respecting a brought in this section the case shall be (Supp. has im-

699 one, require to the present Administrator (b)(2), the Ad- of subsection the directive perform nondiscretionary duty spec- to prescribed regulations has ministrator Act, by argues the but NRDC ified affording no- manner the governing it is not exclusive. NRDC relies on sec- for time on urges, EPA the first tice.28 505(e) saving pre- clause that comply NRDC’s failure appeal, jurisdiction granted serves other stat- regulations constitutes the notice with utes, jurisdiction in addition to the con- this is a jurisdictional defect.29 If fatal 505(a). ferred section question The defect, it be raised jurisdictional exclusivity 505(a)(2) section parties by the by the appeal either simply cannot be looking resolved at sponte.30 sua court plain language Act. We 505(e) NRDC claims that section of the turn legislative history. therefore Act31 allows this action brought to be citizen provision The suits of section general either the question under federal was explicitly provi- 505 “modeled on the statute, 1331, 28 U.S.C. § or the Admin- enacted sion in the Clean Air Amend- Act prior istrative Procedure without no- convenience, (For of 1970.”34 ments accept tice the Administrator.32 We pertinent of that section statute and view.33 this key legislative history elements of its are A. in set forth B of Appendix opinion.) this Provisions Suit Citizen provision emerged The citizens suits origi- as section of the Clean Air Act intention issue 505, “provide nated in the Senate citizen provision suits” “citizens participation enforcement subsec its between relationship regulations standards 505(a)(2) established (e). Section (a), (b), tions under this Act.”35 It reflects Congress’s actions, like provides plainly 1365(b) (“Notice id. App. argued 28. See under this sub- § In NRDC its 29. addition given 1973, 12, April attorney in section shall be such manner as the in letter prescribe by regulation.”); shall Office of Counsel was suffi- EPA’s General (1973). comply requirement. 40 C.F.R. § the notice cient 25-26; Letter, supra Appellee Brief for See present any jurisdic- 29. The did not disposition light 16. In of our note objections during proceedings tional in issue, jurisdictional we need not address application District Court its sufficiency question letter as stay pending appeal. Appellee See Brief for 505(b)(2) and the corre- notice 68; App. at 22 & n. 87-89. regulations. sponding See, Mansfield, g., 30. e. Coldwater & Lake noted, already following As text footnote 33. Swan, Ry. 379, 510, Mich. v. U.S. 4 S.Ct. approach set forth our modifies (1884); 28 L.Ed.2d 462 H. H. Wech- Hart & memorandum of October sler, Sys- Courts and Federal the Federal Mishkin, (2d Bator, P. tem 835-36 ed. P. D. S.Rep.No.414, Cong., 92d 1st Sess. 79 Shapiro, (1973)); Wright, H. Wechsler & C. (1971), Cong. U.S.Code & Admin.News (2d The Law Courts of Federal at 15-16 § p. reprinted Policy in Environmental Di 1970). subject concerning ed. mat- Questions Congressional vision of the Service, Reference only jurisdiction may ter be raised on direct Legislative History A of the Water Pollution See, g., review. e. Dist. v. Baxter Chicot Co. Control Act Amendments of Vol. II at Bank, 376-377, State 308 U.S. 60 S.Ct. (Senate Public Works Comm. Print (1940). 84 L.Ed. 329 1973); H.R.Rep.No.911, see Cong., 92d 2d (1972), 1972). reprinted Sess. 133 1365(e) (Supp. Legislative II His 31. 33 U.S.C. tory, supra, Compare Vol. I at 820. 33 U.S.C. restrict (e) Nothing shall in this section (Supp. 1972) 1365 II with 42 U.S.C. per- (or any person any right class of (1970). § 1857h — 2 any sons) may or common statute have under any S.Rep.No.1196, Cong., Sess., enforcement law seek 91st 2d 36 any (1970), reprinted other or to seek limitation Policy or in standard Environmental Di- against (including Administra- Congressional Service, relief vision of the relief Research agency). Legislative History A or a State tor the Clean Air 1970, (1974); Amendments of Vol. I at 436 NRDC Appellee 22-25. at for Brief 32. See 4358, 22, Sept. 1970, see Senate Debate on S. Declarato- jurisdiction under claimed also ry reprinted Legislative History, in supra, at 387 Act, 2201-2202 Judgment §§ 28 U.S.C. (remarks Cooper). of Senator Act, 28 Venue Mandamus (1970), 3, Complaint at (1970). See § 1361 U.S.C. 700 recognition “[cjitizens that can be a use- requirements specific to enforce of the

ful instrument for detecting violations and conditioned their commence- Act and bringing them to the attention provision day ment on the of a sixty enforcement agencies and courts notice to and the local designed alike.”36 It was provide agency.39 enforcement The notice re- procedure permitting citizen quirement was intended to “further en- bring directly against polluters an action courage provide agency enforce- violating performance standards and might ment” obviate the need to imposed emission restrictions resort to the courts.40 against law or the Administrator grounded discharge on his failure to his Expansion Limitation of Federal Ju- duty to against pollu- enforce statute 37 risdiction ters. remotely even familiar with

Anyone period the case law of the will discern legislative history provision steps took broad Clean Air Act Amendments reveals that facilitate the citizen’s role in the enforce- the citizen provision suits reflected a de Act, renouncing both in ment of liberate choice by Congress to widen citi concepts juris- those that make federal zen courts, access to the as a supplemen diversity dependent on of citizen- diction tal and effective assurance that the Act jurisdictional amount, ship and in implemented would be and enforced.41 barrier, hinderance, removing the or might Congress citizen suits be threatened did not fling the courts’ door challenges plaintiff’s standing.38 open. wide At As we seen, have already time, because provision the same of the obvious the new suits, citizen sec- danger public 304(a), unlimited actions was hedged by limitations— disrupt implementation might the confinement to clear-cut violations courts, by polluters and overburden the Congress Act defaults the Adminis- trator; citizen suits seeking restricted to actions and the accompaniment, set 832, (1970); L.Ed.2d 192 Data 4358, 90 S.ct. Processing 25 Sept. 21, 1970, 36. Senate Debate on S. 150, Camp, U.S. reprinted v. 397 90 Legislative History, Service supra in note (1970). 827, 35, (remarks 25 L.Ed.2d Muskie); at S.Ct. of Senator see S.Rep.No.1196, supra 35, 36-38, Legis- note at 37, 56, H.R.Rep.No.1783, supra note at 39. See History, 436-38; supra, lative at Senate Con- 35, History, 206; supra Legislative note at Report sideration of the of the Conference Debate, 36, supra reprinted note in Senate Committee, 18, 1970, reprinted Legis- Dec. in (remarks History, supra, Legislative at 280 History, supra, (remarks lative at 127 of Sen- Debate, Muskie); supra note Senate Senator Muskie). ator See also Letter from Elliot 35, History, supra, reprinted Legislative in at Richardson, Secretary HEW, to Senator Hart); (re- (remarks Senator at 387 Jennings 17, Randolph, 1970, November re- Cooper); cf. House Consid- marks of Senator printed Legislative History, supra, in at 214 Report of the Conference Com- eration (Administration’s views on citizen suits’ con- 1970, mittee, 18, reprinted Legislative in Dec. enforcement). tribution to (remarks Represent- History, supra, at 112 Staggers). S.Rep.No.1196, supra ative 35, 37. See note at 36- 39, 64-65, Legislative History, supra 35, note supra S.Rep.No.1196, note at See 436-39, 464-65; at H.R.Rep.No.1783, 91st 437; History, supra Legislative at note Cong., Sess., (1970) (Conference 2d 55-56 Re- Debates, supra reprint notes 35 & 36 Senate port), reprinted Legislative History, supra, History, supra, Legislative at ed at 205-06. Muskie). (remarks Senator standing 38. The most recent decisions had S.Rep.No.1196, supra standing been rendered in 41. See the context of the note 35 at required Legislative History, judicial supra 464; to maintain an action for note Consideration, supra 36, reprint- review of Senate determinations under sec- note Legislative History, supra ed in tion 10 of the Administrative Procedure Act. note 35 at 127 (remarks They required “injury Muskie), Debate, of Senator in fact” to an Senate interest supra “arguably reprinted Legislative within the note zone of interests to be Histo- ry, supra, protected (remarks regulated” Hart); at 355 the statutes in- of Senator Collins, 159, (remarks Cooper). at 387 volved. See Barlow v. 397 of Senator U.S.

7Q1 states, these re- 304(b), Report forth in section of a condition of Senate As the any way “affect in notice.42 not do strictions might such citizens remedies whatever law.”45 other statutory under have Saving Provision Water Pollution Law Modeled On Clean however, limita- palpably, were These Air Provisions jurisdiction expansion of tions on 304(a), and were not The same of in section chime intent contained reverberated legislative in to curtail federal halls in as restrictions 1972 when intended Con- gress jurisdiction over actions would came amend coping court the statute pollution.46 in maintainable even the ab- with water Act have been The under provi- suit special of this citizen consideration is different from the sence clean reading of provisions, the fair what air as noted margin,47 This is sion.43 intended, and it was articulat- but no Congress there difference that is conse- quential present purposes.48 ed 304(e).44 in the saving provision of § part act on the of officials to are al- failure supra. note Air Act 42. See 39 Clean sections 1497; Legislative History, supra, at leged.”) 1857h-2(a), 304(a) 304(b), 42 U.S.C. §§ 133, supra, Legislative H.R.Rep.No.911, at (1970), Appendix 2(b) forth B of are set in History, supra, saving 820. in at The clause opinion. (e) in is identical to that section subsection 304(e) supra in 43. sources cited note 41 See legislation air was of clean 45 infra. note S.Rep. to have the same effect. See intended 34, No.414, 81, supra Cong. note at U.S.Code 1857h-2(e) (set (1970) 44. U.S.C. in § 42 forth 1972, p. (“[T]he 3746 & Admin.News B). Appendix specifically preserve any rights or rem- would 65, supra S.Rep.No.1196, Legis- at 45. note 35 any law.”), Legislative other His- edies tory, History, 35, 465; supra note at lative .H.R. 34, supra at 1499. note 37, (“Other Rep.No.1783, supra note 55 at major 47. difference in the two citizen The rights to seek enforcement of standards under provisions the Clean Air Act suits provision affected.”), law other of were “any person” sought sue as to allow where right (or (“The persons per- class of 56 Pollution Control Act re- the Federal Water sons) to seek or other relief un- enforcement standing “per- “citizens” defined stricts or common law is not der statute affect- having is or an interest which sons adversely 205, ed.”); Legislative History, supra, at 206. in- which is intended to affected” history Although legislative citi- standing corporate Sierra Club v. test of provision 727, of the Water Pol- Morton, 1361, suits Federal zen 31 405 U.S. 92 S.Ct. (sec- of 1972 Act Amendments (1972). Compare lution Control 42 U.S.C. 636 L.Ed.2d 505) history as the 1857h-2(a) 1365(a), is not as extensive (1970) 33 U.S.C. § (g) 1236, 1972). S.Rep.No. 304 of the Clean Air Act Amendments (Supp. II See 92 1970, history of section (1972) (Conference it mirrors the 304 Cong., 2d 146 Re- Sess. Congress significant respects. Admin.News, 3776, p. viewed port), Cong. in all & U.S.Code provision supra in section 505 as a History, the citizen suit Legislative reprinted in note securing participation in the citizen 34, means at 329. S.Rep.No.414, Act. enforcement of the See standing provision of the The modification 79, 34, Cong. supra Ad- note at U.S.Code & compromise in struck conference reflected 3745, 1972, History, p. Legislative min.News Bill, 2770, allowing S. Senate between 1497; 34, H.R.Rep.No.911, supra su- note at Bill, “any person” House H.R. to sue 34, 132, History, pra Legislative supra note at 11896, (A) standing “(1) limiting citizen 819; on S. Debate note Senate having (B) geographic area and a direct of the History, reprinted Legislative in Nov. affected, (2) which is interest any group (remarks Cooper); supra, at of Senator actively persons which has been Re- Senate Consideration Conference process engaged and has in the administrative Legislative reprinted port, Oct. geo- thereby special interest shown a (remarks History, supra, at 221 Senator compro- controversy.” graphic area in grant Bayh). provision’s suits citizen standing adopted explicitly test set mise jurisdiction to violations was restricted handed down which was in Sierra Club forth aspects specific Act and conditioned Supreme shortly con- before the Court day S.Rep.No. giving of notice. See See their deliberations. commenced ferees Cong. supra, & Admin. at p. U.S.Code 47, supra, of Con- House Consideration note (“[T]he provision in this News 4, 1972, reprinted Leg- Report, Oct. ference carefully to actions where bill is restricted (State- History, supra 34 at note islative regulations aor of standards and violations 702 tion of practical federal courts as a matt parallel. is a clear The Act before us may er.51 That come depend on interrelationship the citizen suits Supreme whether Court sustains the the clean is the same as for provisions view of this court that the Administra limitations, in subsec- air statute. grant tive Procedure Act is a jurisdict 505, (b) (a) of section restrict tions may ion.52 It depend come to on the jurisdiction provided by expanison of instances, number of in which actions provision of sec- special citizen suits satisfy jurisdictional cannot amount 505(a), not cut back on tion and do fed- provision of 28 U.S.C. 1331.53 But § jurisdiction over that eral court actions these considerations do not add or de have been maintainable even in would tract from our discernment of the basic special of that authorization. the absence legislative intention as to the relation by saving intent is confirmed This ships (a), (b) between subsections (e).49 clause of subsection (e).54 505(g),50 which of section In the wake Precedents an person having as a a citizen

defines adversely is or Ours is apparently interest a case of first im- affected, provision pression the circuit court level. The jurisdic- 505(a)(2) may little to the District add Court rulings are in disarray,55 Representative Jones), (re- controversy, ment 249-50 the elimination of the amount in Representative Dingell). controversy requirement 505(a)(2) marks of The con- in section ferees made no mention of expanding that decision’s not have the effect of impact interworking 505(a) opportunity against of sections for suits the Administra- 505(e) gave perform and standing no nondiscretionary indication that tor for failure to change duty upheld. modification towas the in- if our view of the APA is See tent, expressed supra. in both the Senate and House cases cited at note 52 reports, supra, see note 46 that citizen suits supra. 54. See notes 46 and 48 achieving serve as an additional means goal “public participation Act’s velopment, in the de- 55. Two cases decided under the Clean Air Act revision, and enforcement of coming found that actions within the have standard, limitation, regulation, plan, subject analogue matter of that statute’s program established . . . under this 505(a) brought could not be 101(e) Act, Act.” Section 33 U.S.C. Pinkney jurisdictional statutes. See v. other 1251(e) (Supp. 1972). § II EPA, (N.D.Ohio 1974) F.Supp. 305 Ohio (reading 375 (e) applying subsection as to suits supra; 49. See notes 31 and 46 cf. note 45 and Act”); under “laws other than the Clean Air accompanying supra. text Ruckelshaus, 1728, Riverside v. 4 ERC 1730 1972). 1365(g) (Supp. § 50. 33 U.S.C. II (concluding provisions (C.D.Cal.1972) case, (e) apply in “do not of subsection “adversely language While the affected” . . covered since this is a suit precludes philosophical a vindication of mere contrast, By (a)(2).”). two courts subsection holds, 727, (as values Sierra Club 405 U.S. rejected claim that subsection have EPA’s 740, 1361, (1972)), 92 S.Ct. 31 L.Ed.2d 636 it jurisdiction (a)(2) the exclusive source of is hospitable is to actions citizens whose seeking compel discharge of a for suits shared, injury very widely of factual is claim nondiscretionary duty by the Administrator. indeed, appears from United States v. Train, Highland F.Supp. Park v. 374 758 669, See SCRAP, 688, 2405, 412 U.S. 93 37 S.Ct. (N.D.Ill.1974) (finding (e) subsection is (1973). L.Ed.2d 254 “apparent saving and that clause” an See, g., Independent e. Broker-Dealers’ allegation complaint’s the Administrator SEC, U.S.App.D.C. Ass’n v. 142 Trade “clearly bring promulgate regulations failed denied, 442 F.2d cert. 404 U.S. 92 complaint purview gen within the (1971); L.Ed.2d 57 S.Ct. oratories, 30 Scanwell Lab statute.”); question NRDC v. eral Quarles, federal Shaffer, U.S.App.D.C. Inc. v. (D.D.C., 1974) 1629-73 Feb. No. (1970). 424 F.2d 859 For a more com (“An unnecessary extensive discussion plete discussion of the conflict in circuits re jurisdiction of 28 since exists virtue U.S.C. garding this see this court’s recent deci (1970).”). Parole, U.S.App. in Pickus v. Board sion addition, In a number of district courts 1107 (1974). 507 F.2d D.C. jurisdiction subject matter have found 53. Since this court has found the Admin- alleging that the Administrator failed to suits perform independent Act istrative Procedure nondiscretionary duty under sec jurisdiction regardless source of of amount in 205 of the Federal Water Pollution Con of exhaustion of administrative ment appreciate while we the efforts of provision The notice remedies. was de- judges given the involved and have con- judicial signed to obviate need opinions, their sideration to we have by affording agency able, recourse with the benefit of been full briefs alleged act research, “opportunity to on the viola- and our own adduce a more discretion tion.”58 Sound bids a court ample perspective for the issue. We stay upon petition by its hand the Ad- may add that if the Government’s it where has reason to be- ministrator present contention is sound the “im- agency lieve that further consideration cases—which poundment” sustained a dispute charge may resolve the and obviate the nondiscretionary of a violation of judicial further action. duty in the failure need for ever, How- of the Administrator jurisdiction may the court has to make an allotment of authorized maintain the action on its docket in a pursuant to sections funds 205 and 207 status, grant even suspense tempo- of the Act—could not have been main- 505(e) rary relief.59 And court tained under but would have had brought 505(a)(2).56 promptly proceed to merits of the to be under im- it poundment litigation action when is confident or becomes illustrates the dan- agency futile, ger that a confident that recourse is reading 505(a)(2) broad as agency’s position as where the is firm. exclusive would sweep into that subsec- tion far more Congress really than had

in mind. Considerations pertaining to ex haustion of juris remedies and primary B. diction have little relevance when raised of Administrative Exhaustion Notice and for the first time agency appeal Remedies ing from a court order. We are present where, ease, ed with this no evidence that Even de 505(b)(2) is sires to reassess plans section its implement provision notice ing 304(b)(1)(A) section prerequisite,57 and the jurisdictional course of the present clearly effect to action give may properly indicates that courts underlying agency’s position the notice regard with salutary purpose to its doctrines discretion under that firmly to familiar section is by resort provision require- rooted. underpinning as those 1285, Act, brought to allot all funds 57. This § trol 33 U.S.C. case was under 5 U.S.C. 701-706, by Congress 1331, 1361, appropriated for construction of §§ and 28 U.S.C. §§ Fri, plants. 505(a)(2) See Texas v. 5 treatment 2201-2202 rather than waste under section (no jurisdictional (W.D.Tex.1973) supra. 2021 the Act. See note 32 ERC opinion); allegation Minne mentioned S.Rep.No.414, 34, supra 80, See note at EPA, (ju (D.Minn.1973) 1586 sota v. 5 ERC Cong. 1972, 3745, U.S.Code p. & Admin.News 702(a), alleged 28 under 5 U.S.C. risdiction Legislative History, supra 34, 1498; note 1331, 1361); Campaign Clean U.S.C. §§ Report Senate Consideration of the Ruckelshaus, (E.D. F.Supp. 689 361 Water v. Committee, supra 46, Conference note re- directions, Va.), 492 489 F.2d remanded printed Legislative History, supra, at 179 969, Cir.), (4th granted, 94 416 U.S. cert. (exhibit prepared Muskie); Senator (jurisdiction 1991, (1974) 40 L.Ed.2d 557 S.Ct. supra. sources cited at note 40 1331, 1361); alleged New under 28 U.S.C. § stays Even where the court Ruckelshaus, its hand as to F.Supp. City 358 669 York v. merits, grant determination 114, it U.S.App.D.C. aff’d, (D.D.C.1973), 161 pendente safeguard relief plaintiff’s lite to 969, granted, 416 U.S. 94 494 F.2d cert. rights irreparable injury during from (1974) (jurisdiction 557 S.Ct. 40 L.Ed.2d pendency Act, administrative review. See 505(e) alleged [as under section Chafee, U.S.App.D.C. Wheelabrator 238, 248-249, v. 147 appears corrective District Court’s from the 455 F.2d dated, 17, 1973], 1316-1317 May 701- §§ 5 U.S.C. order 706, (1971); Seamans, M. Steinthal & Co. v. 1361). 147 and 28 U.S.C. §§ U.S.App.D.C. 455 F.2d Ruckelshaus, supra City note 56. New York v. (1971). 505(e), brought but the section was under opinions either section do not mention other 505(a) 505(e). or section II. groups.61 MERITS sources into two point gories of challenges con- The Administrator clusion, One-year A. Deadline discretion that he has urging point within 1. As to sources guidelines publication the date over categories sources con- categories for those Group II order.62 tained in controversy presented in this case the interpretation focuses on of the Ad- categories of sources As to the duty publish ministrator’s order, Group I of the contained limitation 306(b)(1)(A) in section of are all listed 304(b)(1)(A) provision of the Act. That Act, duty has a the EPA concedes that it reads as follows: promulgate to effluent under the Act year within one of guidelines limitation (b) purpose adopting For the of of the statute.63 The Dis the enactment effluent revising limitations under this publication requiring order shall, trict Court’s chapter the Administrator point for those sources in guidelines of with appropriate consultation Federal prescribed its timetable conformity with agencies other and State interest- jurisdiction exercise un proper was a of published persons, year ed within one 505(a)(2) perform 18, compel der section to 1972, regulations, pro- of October statutory has been duty ance of a viding guidelines for effluent limita- and, delayed. unreasonably at annually thereafter, tions least revise, appropriate, if regulations. The District Court acted rea regulations Such shall— sonably using a publication schedule (1)(A) identify, terms of as a means of implementing its order. of amounts constituents and chemi- 18, 1973, statutory The October deadline cal, physical, biological charac- passed had publication without the of a of pollutants, degree teristics the single guideline. effluent limitation In effluent reduction attainable light of the failure of the to through application the of the best meet acknowledged duty its under the practicable technology control cur- Act,64the District Court’s decision to in

rently available for classes and cate- corporate a timetable into order con (other gories point sources than step stituted a reasonable to facilitate works); publicly owned treatment supervision decree and to assure The early District Court the delinquent held that efforts defend imposed “mandatory, discharge a ant eventual nondiscretionary toward its duty to publish year statutory responsibility. princi within one of enact- Sound ples ment type counsel resort to a structured Act final 304(b)(1)(A) guide- compel effluent of order where the court seeks to limitation necessary provide completion lines to a task comprehensive which will necessar ily coverage period.65 extend all source over substantial discharges.”60 Requiring It the courts rely ordered Adminis- to mere publish trator by guidelines expedition all exhortation to move with to 29, 1974, compliance November in accordance ward within a “reasonable with a schedule ability which time” would undercut their divided cate- 1973, NRDC, 60. (D.D.C.1973). 6 June (granting ERC 1033 Speth, sum- counsel mary judgment plaintiff). 1-2; App. 62-63. (order enforcing 61. judgment EPA, Id. at 1033-35. See v. U.S.App.D.C. NRDC 154 15, 1973). 386-388, of Nov. 475 F.2d (1973); 970-972 cf. United v. Montgomery Cty. States Bd. of Appellants 62. Brief for Federal at 12-18. Educ., 225, 232-235, 395 U.S. 89 S.Ct. Id. at 12-13. 23 (1969); L.Ed.2d County Green v. Sch. Bd„ U.S. 88 S.Ct. Id.; Zener, 64. See V. Letter from Robert Act (1968). L.Ed.2d 716 ing Deputy General of EPA to J. Counsel G. to render the defendants ent from spur reticent that announced District plaintiff Although recognize we performance Court. that sub- authority to set entitled. stantial public support are can be marshalled for ulti- both of an position deadlines all 304(b)(1)(A) enforceable nature is intermediate and an were due on mate October for exercise procedure contrary we believe that indications appropriate powers vindicate equity legislative history, the Act’s court’s combined agency’s with the due the public interest.66. deference in- statute, terpretation require us tc employed in formulat procedure the portion vacate of the District Court’s Group I timetable ing applying dealing order nonsection proper exercise of the represented also 306(b)(1)(A) point categories. source The District discretion. District Court’s upon parties Initially, reliance Judge’s language note that the we timetable provided proposed disputed draft a provision does not foreclose order assurance that reading given measure either the it NRDC or In to this addition be workable.67 espoused by would the Administrator. Al- the of the receptivity to views though requires guide- initial statute a will court demonstrated parties, categories point lines for classes and of by objections to accommodate ingness sources published shall be within one publica amici curiae certain EPA and it year, guidelines state does not for modifying the timetab by tion deadlines categories all classes and shall be com- April 18 modifica light of Moreover, le.68 In pleted period. within that amici,69 urging we at the of granted language tion 304(b)(1)(A) of section resem- “the 14 statement March view the that employed 307(a)(1) bles in section delays no further Court will countenance parties interpret which both as affording a expressing same” as requests for nor over the Administrator discretion expeditious compli listing firm commitment time of of the toxic pol- some rigid a that would than bar regulated ance rather lutants under merito of future foreclose consideration section.71 that re for modifications petitions rious The Administrator contends that al- prompt perform essence of tained the though the Act publication mandates of adjustments in ance, proposed and guidelines 18, some 1973, October it detail.70 provides him with discretion over the de- cat- within other point 2. sources As to point categories termination of source egories beyond the 27 listed in section Group 306(b)(1)(A) II publication respect and over the With of guidelines a conclusion differ- we reach for those additional categories, classes relationship comply and its with a court order Co., Holding 66. Cf. Porter v. Warner 328 U.S. requests and enforcement for modification 395, 398, 1086, (1946). 66 S.Ct. 90 L.Ed. 1332 accompany- orders. notes 89-97 of See ing text infra. (D.D.C.1973); for Brief 6 ERC 67. See Appellee 19-20. at NRDC, al., Appellants 71. See Brief for et at granted EPA’s 36-37, Train, has twice (D.C.Cir., District Court 68. The 74-1538 NRDC v. No. 27, the November May 28, of 1974); Appellee for modification filed for motions Brief EPA 1974, App. Order, 20-21, Train, (D.C. Jan. See order. at Cir., No. 74-1538 1973 13-14; NRDC v. Order, App. On 18-21. 28, 1974). May Mar. filed steam granted modification April 18 it 307(a)(1) that “[t]he states Admin- Allegha- the behest of powerplants at electric shall, ninety days istrator within after Inc., power com- System, and other ny Power title, publish (and of date enactment of this App. 23- appearing amici curiae. panies revise) from time thereafter to time list any pollutant includes toxic combi- pollutants supra. nation of which an ef- note See fluent . will be standard established App. 18. Order, March 70. See 1317(a)(1) this section.” 33 U.S.C. briefly examine opinion we shall in Later (Supp. 1972). II inability of a defendant problem categories. charged statute the men House Public Report responsibility setting Works with the its Committee on the amend- motion, machinery making ments bill links section 304(b)(1)(A) and 306(b)(1)(A) efficiently parts smoothly work indicates the discretion they yet while are untried and new.” regard to non- section 306 source categories. It states: interpretation This section required As 304(b)(1)(A), 304(b)(1)(A) in this case was neither an Administrator, by regulations, is to afterthought practice of counsel nor a so identify degree of effluent reduc- as to raise doubts whether informal it tion attainable application reflectively pas- was deliberated. This practicable best control technology sage Report upon in the House is relied currently available for classes and cat- in the June letter from EPA’s egories point By sources. this the Acting Deputy General Counsel which expects Committee that the Adminis- disposition by key was a considered on, trator will concentrate but not be agency’s good officials. The to, limited categories those congressional faith reliance on the intent sources enumerated section underlying 304(b)(1)(A) is entitled

306(b)(1)(A) which the Admin- scales, weight and under the might istrator add to that list.72 present in circumstances this case that weight is decisive. We find that the Act This passage indicates that the 27 cate- require publication does not in- gories set forth in section 306 were guidelines 306(b)(1)(A) for nonsection tended to form the nucleus categories year within one en- its sources for which would be nondiscretionary impera- actment as a developed under The Ad- section 304. tive. quite properly ministrator could conclude Congress intended these items to for- priority guideline receive first B. Primary Duty To Publish Guide- process mulation and that the discretion lines for A11 Categories of Point provided delineating him additional By SI, Sources December 1974 point publication sources to the extended The Administrator contends that guidelines date sources. for those 304(b)(1)(A) “Section grants [him] Supreme Court decisions counsel authority and discretion to determine “great us to show deference inter which classes categories of point pretation given by the statute the offi source discharges require the publication cers charged with its adminis guidelines and when guidelines those 73 The deference owed the

tration.” should be issued.”75 While we agree meaning placed on an act the adminis with the Administrator that he has some body heightened trative when the case latitude concerning the publica date of involves the a new construction of statute tion of for Group II catego by its implementing agency. ries, we do not accept the position that this discretion is at large. It is our view when due respect Particularly is this the Act legislative and its history at stake practice administrative reign in the Administrator’s discretion. construc- contemporaneous “involves 1529, (1961), 34, 107, 408, quot i, H.R.Rep.No. supra 72. 6 L.Ed.2d 924 91 note 81 S.Ct. Norwegian Nitrogen Legislative History, ing v. Unit supra Products Co. 34 at 794. note 350, 294, 315, States, 77 53 S.Ct. 288 U.S. ed Tallman, 1, 16, 73. Udall v. 85 380 U.S. S.Ct. Accord, (1933). g., e. United States 796 L.Ed. 792, 801, Accord, (1965). 13 L.Ed.2d 616 e. 96, 671, Zucca, 351 U.S. S.Ct. v. 168, 192, g., Allen, Zuber v. 90 S.Ct. 396 U.S. (1956); v. American United States L.Ed. 964 (1969); 24 L.Ed.2d United States v. Ass’ns, supra Trucking note 73. Ass’ns, 534, 549, Trucking American 310 U.S. (1940). 60 S.Ct. 84 L.Ed. 1345 Supp. 75. Brief Appellants Federal at 9. Development Power Reactor Co. v. Inter- Electricians, national Union of 367 U.S. The interrelationship of 301(b), sections 301(b) ment of section limitations that 304(b), establishes that the Ad- provide uniformity will in the permit ministrator has a primary duty pub- imposed conditions on similar sources lish section 304(b)(1)(A) guidelines by category by within the same diverse December permit state and federal authorities.79 The Act relies on effluent limitations The timetable governing operation point on individual sources as the “basis these sections is controlled pollution prevention schedule for the issuance permits un- elimination.”76 The achievement of section 301(a) der 402. Section depends these limitations on coordination prohibits discharge Act any pollu- played of the different .by roles sections unless compliance tant there is with the 301(b), 304(b), and 402 in the formulation other sections listed therein.80 key implementation of the effluent limi- provision referred to in 301(a) section 301(b) tations. Section contains a broad pertains to the crea- description phase phase one and pollution tion of the national discharge limitations, two effluent to be achieved' 1, 1983, system elimination and the issuance of 1, 1977, by July July and. respec- permits thereunder.81 402(k) tively. The limitations established under makes December a critical date. 301(b) imposed upon are to be then, Until the pendency of a permit point through permits individual sources application prevent will finding of vio- issued under the National Pollutant Dis- lation of section 301.82 After December charge System (NPDES) Elimination es- 31, 1974, however, persons discharging tablished section 402.77 per- Those pollutants must have obtained permit mits are to contain schedules which will legal in order to have a defense against phased assure compliance with the ef- prosecution. Obviously, Congress con- fluent limitations no later than final templated that the task of evaluating dates 301(b).78 set forth in section Sec- permit applications issuing permits 304(b) calls publication for the completed by would be that date.83 regulations containing guidelines for ef- fluent limitations catego- for classes and legislative The Act’s text and its histo- ries of sources. These guidelines ry general make clear that as a matter 304(b)(1) guidelines are intended to the section assist the establish- and the 414, 34, 8; poration compliance S.Rep.No. supra note at of 76. schedules in See section 1972, 3675; permits p. Cong. 402 Admin.News are set out at 40 & C.F.R. § U.S.Code 124.44 34, (1973). History, supra Legislative 1426. note at 34, 42, 90, 89, 414, S.Rep.No. supra accompa- at 79. See notes 98 note and 99 and 77. See 1972, nying p. Cong. text infra. 3709 & Admin.News U.S.Code (“The proposed by program this Section [301] 1311(a) (Supp. 1972). 80. 33 U.S.C. II § The permits implemented through issued be will 301(a) other sections listed in section are sec- 44, 402.”), (“[E]ffluent limi- 51 in Section and 302, 306, 307, 318, tions 402 and 404. reflecting section 301 the mandate of tations 81. Id. 1342. § imposed of be as conditions will 1342(k). 402.’’), Legisla- 82. Id. permits issued under section 1460, 1462, 34, History, supra and tive note at 83. See Senate Consideration of the Confer- 34, 1469; 911, H.R.Rep.No. supra at 157 note 46, Report, supra reprinted Leg- note ence in by (“Effluent required limitations 34, History, supra (“The islative note at 176 applied to all would be established and agreed Conferees also there should be no by discharges the Act sources of covered enforcement action taken for failure to have a IV.”), permits under Title means of the issued 31, 1974, permit until December in order to History, supra, Legislative at 844. provide adequate opportunity for the Ad- 140, 1236, 47, ministrator to review and issue or S.Rep.No. supra not issue at 78. See note permits 3776, applications 1972, Cong. p. pending for the that are Admin.News U.S.Code & 323; 34, pending History, supra on date of enactment or will Legislative be note at as a expansion program.” (Exhibit of result of Re- of the Conference Senate Consideration Muskie); 46, supra reprinted Legislative of Senator House port, Consideration of note 4, 1972, Report, History, (exhibit the Conference October supra, re- of Senator at 174 printed Legislative History, supra, Muskie). regulations requiring at 274 the incor- The (remarks Clark). Representative of tion 304 in section permit provi- 402’s 301(b)(1) limitations section were authorization, sions and to the per- section prior to issuance of developed 402(a)(1), permits prior of the issuance 402(a) 402(b) require of mits. Sections implementation of numerous sections permits issued the Administrator including section 301.87 compliance states assure report trator, section tion 402.”85 Another ate conditions the effluent this section limitations pendence publish guidelines Senate Report within one states that 301, Report reflecting ^[304] indicates the three limitations which will permits requires the year confirms the interde- “[sjubsection (b) portion issued under sec- the mandate of provisions. of section 301.84 setting at imposed of the Sen- enactment, Adminis- least 30 Report: effluent That revising effluent they do refer tablishes tion guidelines limitations is primary means lines are “for do While section 304(b)’s refer limitations.88 section 304 in'shaping the section statement made clear in the expressly to section to section 301. And sec- 402’s limitations,” plainly es- purpose implementing guidelines permit provisions The role of the adopting the sec- as Senate guide- 301(b) 304, required lead time is months to afford guidelines These 304(b)] [section an opportunity complete industries to. identify would what constituted the necessary construction modifications practicable “best control technology comply phase with the one effluent currently available” and the “best limitation deadline.86 Under the final available control measures prac- Act, version of the limitations tices,” degree and the of effluent re- permits required by would be De- duction attainable through the applica- 31, 1974, provide pol- cember in order to Thus, tion of each. these July luters 30 months to comply with would define the effluent limitations 1, 1977, deadline. required by the first phas- and second es of impor- program play down the seeks established EPA under 304(b)(1)(A) guidelines tance section 301.89 sys- implementation permit in the tem, materiality As and hence the Senator succinctly Muskie stated: timing “The date in information December 304(b) to to be agency points applied guidelines. in setting

those effluent limita- mention sec- tions.” Congress failure 51, 1342(a), (Supp. 34, (b) II S.Rep.No.414, supra 84. See 33 U.S.C. at §§ 89. note U.S. 1972, 1972). 3717, Cong. p. Code Legislative & Admin.News 34, History, supra note at 1469. S.Rep.No. supra U.S. note p. Cong. Senate S.2770, & Debate Admin.News Code Legislative Nov. reprinted 34, History, supra Legislative at in note 1469. History, supra note 34, 1391; at As put Senator Bentsen it “the 44, 34, supra at note S.Rep.No.414, regulations 86. See anticipate which we the Adminis- 1972, 3668, p. Cong. Admin.News & trator pursuant U.S.Code Legislative shall issue to section 301 and 34, supra History, at 1462. note section 304” general elaborate the target of by permits issued report to be for 301(b) calls The section to achieve effluent reductions expiring period month the 30 based application mid-1973 on the of practi- the “best 1, the date January Act sets 1976. on cable control technology currently available” phase one effluent by of the July 1, 1977, for the achievement phase one deadline. Id. eighteen than the later months limitations at 1283. See also Senate Consideration of S.Rep.No. See bill. Senate deadline Report, supra Conference in (The 46, reprinted note 120, 47, Legislative Histo- 1236, supra at Legislative note History, supra 34, note at 171 34, ry, supra 303. at precise note requirements treatment spe- cific time schedules contained in the section Appellants at Supp. Federal Brief for See 87. guidelines 402 are to upon be “based the time 4-5. of elements Section guidelines 301 and the 1972). 304.”) (Supp. (exhibit Section 1314(b) II § Muskie). U.S.C. Senator 33 88.

709 dis- issuing permits den of to individual correctly EPA notes that under section chargers.95 of a With the 402(a) establishment EPA may issue permits upon— program, qualified state EPA duties “such conditions Administrator to that assuring were to be restricted necessary are carry determines to out procedural guide- provisions the state followed prior this to tak Act” — reviewing permits lines and to individual ing implementing regard action with to major significance.96 including listed sections section 301.91 Although Congress contemplated that permit The decentralization permit program would begun be be envisioned section issuing authority fore the establishment of the section 301 prompted that industrial 402 concerns limitations, we effluent believe it intend in areas where pollu threats to relocate that EPA ed formulate effluent limita less tion controls were restrictive would great point tions bulk of source adopting permit coerce states into lax categories prior completing to the permit requirements.97 The effluent limitation process for existing polluters.92 304(b) in guidelines contained section designed give corresponding to and the limita 402 was re-

Section issuing permits promulgated tions to be under section to states sponsibility 301(b) conforming safeguard were intended to program established a that pressures by guidelines against to be industrial establish procedural issued ing of the “minimal level of control days within 60 enactment of a uniform EPA category within a sought expe- imposed on all sources Congress statute.93 guidelines emphasized Muskie procedural these to en- class.”98 Senator dite guidelines per- pro the function of in qualify the states to to issue able uniformity. He stated pas- moting after possible as soon as mits expected be It believed Administrator sage of the Act.94 “[t]he so as primary precise bur- in his to assure would shoulder states 1342(a)(1) 1972). only (Supp. As of June II 15 § 91. See 33 U.S.C. states had been permits. authorized to issue See BNA Env. provision in 92. discussion Rep. Laws, (1974). Water 601:0101 Í1 —State Congress Report intend- House indicates S.Rep.No.414, 96. permit program supra 34, 71, See ed the initiation note at Cong. postponed 1972, 3668, U.S.Code Legislative p. until the listed should sec- & Admin.News supra implemented History, 34, were that Administra- tions note at 1489. 402(c)(3) empowers tor’s determination of conditions was to form the Administrator during peri- approval permits withdraw programs the “interim the basis of state promulgation regula- requirements prior of the other deviate from the od” 34, supra opportunity Act H.R.Rep.No.911, note at notice and tions. See to take cor- 126, History, 34, supra 402(d)(2) Legislative rective action. Section note at authorizes per- Administrator review individual granted by mits the states. Such review 93. See 1314(h) permit (Supp. application, U.S.C. waived as to 1972); II under note 95 402(d)(3), infra. regulation waiving particular review for classes of sources S.Rep.No.414, 94. See supra 34, 54, note at 402(e). Congress expected Cong. U.S.Code 1972, & Admin.News p. only to review a limited num- Legislative History, supra 1472; note at permits major importance. ber of id. See House Consideration of the Conference Re- port, supra 11896, supra reprinted note Legislative H.R. Debate See House History, supra, (remarks History, at su- Legislative Represent- reprinted in note Wright). Rep- ative 452-53, (remarks of pra note (statement of Reuss), resentative 95. See House Consideration of the Conference Anderson); De- Senate B. Wendell Governor Report, supra 83, reprinted note Legislative reprinted S.2770, supra note bate on History, 34, supra (remarks note at 262 of (remarks supra, 1405 History, at Legislative Representative (remarks Wright), 274 Rep- of Muskie). of Senator Clark); resentative House Debate on H.R. 11896, 28, 1972, reprinted March Legisla- 98. See in Senate Consideration of the Confer- History, supra, 46, (remarks Report, tive supra Repre- reprinted at ence Leg- 580 note of Terry); S.Rep.No.414, History, supra supra (exhibit sentative 34, islative note note at 170 Muskie). Legislative History, supra, of Senator at 1489. 710 similar point sources with similar

that by date which exist- December characteristics, regardless their loca of polluters permits. must obtain The ing into or the nature of the water tion Congress of was general expectation made, will discharge is meet would define that the Administrator 99 Prior to effluent limitations.” similar categories point of sources classes limitations promulgation of effluent guidelines prior to the publish and would of a the director state permits. individual The of the issuance merely impose is instructed program duty the Administrator’s contours of permit terms and conditions in each such 304(b)(1)(A) to section respect necessary carry he determines are as by the purposes revealed guidelines are provisions out of the Act.100 Once designed guidelines were which those effluent established, limitation how serve. ever, the state director regional and the EPA administrator are required to apply December C. Deadline and specified, uniform effluent limita Possibility Exceptions of tions, modified only necessary to take may be a There number of mar of account fundamentally different fac point of ginal containing classes sources pertaining tors particular point of dischargers a limited number diverse given sources within a category. class or guidelines for which class would serve Any variation in the uniform limitations purpose. little or no The Administrator adopted specific dischargers must be that he duty establish has no approved by the Administrator.101 publish guidelines specific for a class of The point by showing interrelationship sources sections 301(b), 304(b), not be guidelines pro and 402 would needed to underscores contemplation uniformity permit Congress mote the Ad- conditions Congress. sought by statutory ministrator has a The primary responsibility publish tightly effluent not so guidelines framework is drawn limitation as to the great require guidelines every bulk for each of the classes categories point category point class and prior sources source re- Train, F.Supp. (W.D. v. ours & Co. emphasized Id. 99. at 172. Senator Muskie Va., 1974) (involving guide- uniformity effluent limitation was one the “three essen- production sulfuric acid lines for the subcate- elements” of the tial Senate bill. inorganic gory of the chemicals manufactur- uniformity finality As far as are con- category, ing point source 40 C.F.R. 415.212 § cerned, agreement provides the conference (1974)). polluter category that each within a required of industrial class sources will present practice Our discussion of EPA’s nationally to achieve limi- uniform effluent merely played to illustrate intended the role practicable” based tations on “best technol- 304(b) guidelines achieving the section ogy July 1, no later than statutory goal of uniform effluent limitations History, Legislative supra at 162. note point for “similar sources with similar charac- 124.42(b) (1973). accompanying See 40 § C.F.R. teristics.” See note 99 and text supra. propriety not rule on We do of the adopted approach promul- 101. EPA has regulations implementing Administrator’s sec- gating single regulations incorpo- set of validity tions 301 and or on the 301(b) part the section rate limitations as form, format, any particular or content of ef- 304(b) guide- limitation previously pro- fluent mulgated by or limitations specified lines. limitations are for subca- ques- Such EPA. matters involve point tegories within the relevant source class beyond go present tions that our focus on the applied are to to individual contemplated by publi- time limits the Act for issuing authority permit unless the sources 304(b)(1)(A) cation of section effluent limita- particular polluters present determines that guidelines. “fundamentally factors which are different” formulating reg- paragraph foregoing those considered in from added to was our See, g., e. Limitation opinion, ulations. Effluent of March amendment Dairy Products, curiae, response and Standards for Guidelines Subpart motion filed amicus to a Receiving Subcategory, al., Stations Institute et Petroleum to avoid American A— (1974). approach any possible misinterpretation scope 40 C.F.R. 405.12 This recently upheld ruling. was in E.l. DuPont De Nem- our

7H gardless guide- of the need for uniform non-section 306 categories. source Al- guidelines lines or to that all mandate be though some lead time between guide- published by regardless December 31 of publication, line pro- limitation the quality their or burden that task mulgation, permit and issuance is desira- place would the upon agency. to ble facilitate the use of limitations permit in the formulation of conditions, However,' general contemplation the' possible statutory objective it is that the guidelines precede that would individual accomplished by can be coordination permits guidelines that serving indicates agency processes within the pro- as both objectives pub- the Act be of are to together ceed toward finalization by and prior lished to December unless proposed the use of guidelines and limi- justification Administrator offers a prior tations to their effective date.102 delay, for demonstrating abstention event, In provide Act does not that discharge he has failed not to his a when, us with benchmark gauging for general duty respect with to section prior to December the Administrator 304(b)(1)(A)guidelines. duty a to regulations had issue pertain- ing any particular point to we source have cate- Since concluded that guidelines bulk Where there been no viola- gory.103 has are be pub to lished a we think the statutory duty, December tion of we find no present on ourselves to a part proper failure course is to confine of the Ad Congress ministrator to meet his the intent responsibility declaration to issue effluent latitude to ex- guidelines give limitation for to repeatedly 553(b) permits agency dispense urged NRDC has that the sec- to all 304(b)(1)(A) guidelines proposed making tion point cover all notice agency rule “when the must 301(e) requires good sources because section for cause finds . . . public procedure point applied effluent limitations be all notice practicable, unnecessary, thereon are im- 29; contrary Appellee Appel- sources. See Brief for to the at 553(d) Reply Supp. permits Appel- public lee’s Brief interest.” And for Federal publication proposed at lants 5. We do not of a rule to less believe that the statute requires guidelines covering days prior point to effective date if so all sources. than 30 First, “provided agency good point there well be for cause found isolated sources category published with that do not come within a the rule.” class or and thus are not included in the section “escape” preclude ruling These clauses 304(b)(1)(A) requirement guidelines for authority that the is without to issue categories point classes sources. (and permits on rule December 31 the same Second, prohibit pro- the statute does not day) however difficult be for a mulgation of effluent limitations for court to visualize. guidelines; sources in the absence of rather it only interject contemplates spirit that the use of It fair to set limi- majority intention that there tations in the vast guidelines the Senate Committee’s cases which public opportunity comment would for serve assure nationwide uni- require formity. accompanying been seem to that if a rule has issued See note text supra. affording opportunity, the rule without whereby provision contain a itself should 103. We are not unaware that November agency will undertake to consider and act the latest 1974-—which is date set in the Dis- upon petitions for reconsideration that are publication Group for trict Court’s order aof provide oppor- promptly, and hence will filed least, guideline ordinarily, II at be the —will (/. tunity for the rules e. the correction before contemplated by Congress pub- latest date for they guidelines) are set so cannot hard Congress lication. The reason is that contem- reconsideration, prompt be unmolded. This plated regulation containing guidelines that a days petitions filed no more than subject requirements “will be to the normal issuance, meaningful correc- would be more apply regulations, Federal such as statutory general contemplation tion than publication Register in the Federal and availa- ” annual revisions. for bility public comment . Senate Report, public proposed Consideration of Conference Comm. The need for comment on 4, 1972, Legislative History, supra guidelines prior taking October p. to their effect is miti- requirement pub- gated 172. The “normal” EPA’s extensive efforts to secure proposed technological developed lication rule of a than 30 data less comments prior rule, days prior proposed guide- effective date of the formulation 553(d). However, See 5 See U.S.C. lines. note 105 infra. may ercise This run the risk shaping imple- his discretion in of overstimulating the the organism, palliative but mentation of the Act. We to this measures adhere may taken regard be despite specific view to the Administrator’s default categories if meeting indicated at later the October date. deadline for section 306 source categories. This is However, looming the December law, question and once the law has deadline, judicial of a and the dread been judicially interpreted agency the overdose, suggests the to need address expected can be to shoulder the task of problem by ourselves identified compliance. guidance agency, the for the future accept were to Even if we NRDC’s Court. The the District record before us had a position that the Administrator contain data to does not sufficient evalu duty publish guide- to nondiscretionary potential might ate the difficulties that source point categories, lines for all we publication guidelines the preclude to acknowledge still have need would the categories by the December specific leeway for for some modification The Act contemplates that the deadline. deadline cir- December when guidelines agency’s will be defensible if preclude the cumstances formulation by polluters seeking attacked to avoid adequate guidelines by that Al- date. We perceive the effluent limitations. though guidelines we that cover- believe types might of constraints which two de ing categories most source should adequate lay guide the formulation of date, by we be readied that do not read categories lines some few of point statutory the scheme as categorically beyond the source deadline established mandating guidelines all publish- be First, by possible Act. it by ed time. budgetary manpower commitments and present time, required

At say complete guide we cannot demands apprehension beyond that EPA’s December it will not lines 31 are publish great agency’s capacity unduly be able to or majority jeop would guidelines by implementation the December ardize the of other es broadly Second, deadline is a valid concern EPA programs. may sential generally applied when to non-section to conduct unable sufficient evaluation 306(b)(1)(A) point categories. technology source The of available control to deter guidelines required by practicable limitation mine which is the best 304(b)(1)(A) problems are determining to be based on confront practicable technology particular the “best components control industrial currently agency’s discharges. available.”104 The responsi courts cannot identify point catego- bly guideline task is to source mandate flat deadlines ries, pol- to determine nature when the Administrator demonstrates discharged, lutants best necessary ascertain the that additional time is to in practicable technology guidelines available for dis- sure that are rooted in an control, and charge understanding the ef- calculate the relative merits of fluent through ap- reduction achievable control technologies. available The de plication give meaningful of that technology. Although lay required to consider cumbersome, steps may these prom even technical intricacies of ation awesome, they may well ising be within the well speed control mechanisms agency’s grasp, at least generally. goal pollution achievement injunction court’s by obviating should ad- serve like abatement need for renalin, to heighten response time-consuming and to corrective measures at a stimulate the fullest use of later resources. date.105 guidelines. limitation Instead of 1314(b)(1)(A) (Supp. its effluent II 104. See 33 U.S.C. parties relying on comments interested 1972). guidelines, proposed has made great care to maximize 105. EPA has taken person interested the techni- available analysis of the the amount of comment prepared private analysis of con- cal issues reasoning underlying technological basis equity The sound discretion of an court Should con through not embrace enforcement does that manpower clude methodological party’s of a contempt duty comply constraints threaten to delay an that calls him “to do an with order particular categories beyond Decem 109 31, impossibility.” may he attempt ber to demonstrate to the courts that require such conditions apply Similar considerations an extension of the for specific deadline after the issuance of an order when the categories.106 relating Contentions petitions defendant for modification or particular point source categories are to the court considers the propriety of re presented as an initial matter before sorting contempt compli coerce the District Court charged supervi ance. “Flexibility rather rigidity than sion and enforcement of this court’s or distinguished” has equity der. The will, essence, District Court in jurisprudence.110 It would be unreason- called separate on to justifications unjust able and to hold in contempt a grounded in purposes of the Act defendant who demonstrated that he from footdragging of a efforts delin powerless was to comply.111 equity An quent agency. court can never exclude claims of inabili- ty to render absolute performance, but it A federal court equity may must scrutinize such claims carefully its exercise discretion to give withhold since officials may seize on a remedy in public its mandate furtherance of the made available for extreme illness and interest, including specifically inter promote it into the daily bread of conve- effectuating in the congressional est ob nience. incorporated jective regulatory legislat may ion.107 We think the court fore Although this case has been given ex- bear issuance of an pedited order those court, consideration this our where cases it is. convinced the offi declaration pri- Administrator’s good involved that cial he has in faith mary duty under section 304(b)(1)(A) is- employed the diligence utmost in dis sues on eve per- deadline for charging his statutory responsibilities.108 formance. We have molded our order to injunc- continuing (“A decree of (1932) category 999 for each source sultants subject to come to events developed. guidelines being directed tion are EPA’s shape adaptation as events states, always to of comments from federal solicitation agencies, need.”). groups, environmental industri- preliminary al associations on the technical Co., Holding See, g., v. Warner Porter e. 107. analyses provides agency with time to 1086, L.Ed. 398, 90 395, S.Ct. 66 328 U.S. give close consideration raised in to matters 321, Bowles, U.S. 321 v. (1946); Hecht 1332 comments and enables to iso- (1944); 587, 754 L.Ed. 88 329-330, S.Ct. 64 issues which deserve further examination late 40, Ry. No. System Ry. Fed’n v. Virginian proposed guidelines the time when are 552, 515, 57 Dept., U.S. 300 550 — Employees two-stage published. We believe that (1937). 592, 789 81 L.Ed. S.Ct. employed process in the formulation of ef- Bowles, 107. supra note v.Co. See Hecht 108. guidelines fluent limitation underscores EPA’s 56, development Zeitz, of sound commitment S.Ct. 68 U.S. Maggio 333 v. See guidelines. See Effluent Limitations Guide- (1948). 401, 476 L.Ed. 92 Sources, and Standards for Ad- lines New Procedures, Notice of Public 38 vance Fed.Reg. Review Bowles, 107, supra 110. Hecht Co. v. note 321 (1973). 21202-06 329, U.S. at 64 S.Ct. at 592. Maggio Zeitz, 109, supra 91, 111. See v. Ry. note 333 Em System No. Federation See 6, 401; 647, U.S. at 72-73 and n. 68 S.Ct. cf. 642, S.Ct. 81 Wright, 364 U.S. ployees v. Brotherhood gor Locomotive Firemen v. Ban (“There (1961) is also 368, 371, 349 5 L.Ed.2d R.R., U.S.App.D.C. & Aroostook 127 judicial discretion dispute sound that a but no 570, 582, denied, 380 F.2d cert. 389 U.S. the terms of modification for the call (1967). 88 S.Ct. 19 L.Ed.2d 560 See circumstances injunctive if decree an Contempt (1964); also 17 Am.Jur.2d 42 have changed, ones new have Injunctions Co., (1969). Am.Jur.2d § 340 & arisen.”); Swift v. States United since L.Ed. 106, 114, 52 S.Ct. U.S. of this take account unusual situation in lines for nonsection 306 categories source justice attempt to do under the cir- by December comes within the of this case.112 cumstances Our order nondiscretionary duties covered sec- to this. The amounts Administrator is 505(a)(2) of the Act or ap- is more 304(b)(1)(A) publish propriately subject to court challenge by December 1974. In the event that under the Administrative Procedure Act that, he makes a determination as an abuse of discretion or an agency principles set forth in this opinion, a action unreasonably delayed. The dis- guideline published should not be for a tinction between approaches these tends particular category (or categories), or al- conceptual. be abstract and In light ternatively guideline determines that a is of our jurisdictional resolution of the is- appropriate it but that is not feasible to sue part opinion, I of this we will deadline, meet the December 1974 he leave parsing out of the sepa- lines may petition the District Court for a rating approaches these to a later case in modification of the mandate and for a stay, pending disposition question which the fully briefed and petition its resolution required. modification, of for the December 31 part Reversed in and remanded for categories deadline for involved. further consistent with this proceedings Our mandate contemplates any such opinion. stay granted motion for will be pending merits,

the decision on the of the modifi- APPENDIX A request. ruling cation This reflects our Federal Water Pollution Control Act awareness of the need for administrative Amendments of 1972 protection pending the determination of petition modification, and our 301(a)&(b), Section 1311 33 U.S.C. §§ confidence that the Administrator will (a)&(b) good amake faith effort to discharge his primary duty petition will and for modi- 1311. Effluent Illegali- § limitations— only genuine fication in cases of need. ty pollutant discharges except in com- We take into account the Administra- pliance with law compliance tor’s substantial with the publication

timetable for Group I with this (a) Except compliance as in guidelines. We contemplate 1312, 1316, 1317, also and sections section any ruling petition title, on a modification and 1344 of this delay will its effective by any person date two weeks to discharge any pollutant permit petition to this court for extraor- be unlawful. shall dinary relief. Timetable for objectives achievement of court, granted by If relief is (b) In carry order to objective out the any performance issue of shortfall chapter of this there shall be achieved— will become a matter for dis- (1)(A) not 1, 1977, later than July pertinent cussion within the committees sources, effluent limitations for legislature. and bodies of the The court other than publicly owned treatment legislature will have done all that works, (i) which require shall the ap- fairly contemplated could have from the plication practicable of the best control judicial assuring function of executive technology currently available legislative with man- compliance defined pursuant date.113 1314(b) title, (ii) section of this or discharge the case of a into a publicly whether the not determine We need owned treatment works which meets duty guide- general publish Laundry and 113. See National Automatic (1970). 2106 § 112. See 28 U.S.C. Shultz, U.S.App.D.C. Cleaning v. Council 274, 281, (1971). 443 F.2d

7X5 (B) subparagraph requirements 1314(b)(2) title, to section of this (ii) require which shall paragraph, in the case of this of the introduction of a pre- any applicable pollutant compliance into a publicly owned treat- any re- requirements and ment works which treatment meets the require- of this section 1317 quirements (B) ments of subparagraph of this title; paragraph, shall require compliance with any applicable pretreatment re- (B) for publicly owned treatment quirements any requirement other 1, 1977, July works in existence on title; under section 1317 of this approved pursuant to section 1283 of (B) 1, 1983, not later July than com- title prior (for to June pliance by all publicly owned treat- which construction must be completed ment requirements works with the set years approval), within four ef- forth in 1281(g)(2)(A) of this upon fluent limitations based second- title. ary treatment as defined the Ad- ministrator pursuant 304(b), 1314(b) U.S.C. § 1314(d)(1) title; or, of this

(C) July later than Information guidelines— Criteria stringent limitation, development more including publication ’ those necessary to meet quality water Effluent limitation standards, standards, treatment or (b) purpose For the of adopting or re- compliance, schedules of established vising effluent pursuant limitations under any State law or regula- chapter shall, the Administrator (under tions authority preserved by consultation with appropriate Federal title) section 1370 of this other agencies and State and other interested regulation, required Federal law or persons, published year within one of implement any Oc- applicable water 18, 1972, regulations, tober quality providing standard pursuant established guidelines for effluent chapter. and, to this limitations annually thereafter, least revise, if (2)(A) not later than July appropriate, regulations. such reg- Such effluent categories limitations for and ulations shall— point sources, classes of other than (1)(A) identify, in publicly terms of amounts works, owned treatment chemical, of (i) physical, constituents and require which shall application of biological and characteristics pollu- the best of technology available econom- tants, degree of ically achievable for such reduction category or through attainable class, application which will of result in reasonable practicable the best control progress technology further toward national currently available for classes goal eliminating of and cat- discharge of all egories point (other of pollutants, sources than as determined in accord- publicly works); owned treatment and regulations ance with issued pursuant Administrator to section (B) specify factors to be taken into 1314(b)(2) title, of this which such ef- account in determining the control fluent require limitations shall practices measures and applica- to be elimination discharges of of all pollu- point (other ble to sources public- than finds, tants if the Administrator ly works) owned treatment within basis information available to categories such or classes. Factors re- (including him developed information- lating to the assessment practi- of best pursuant title), to section 1325 of this technology cable control currently technologically such elimination is comply available to with subsection economically and achievable for a cate- (b)(1) of section 1311 of this title shall gory or point class of sources as deter- include consideration of the total cost mined in regulations accordance with application technology relation pursuant issued the Administrator to the effluent reduction benefits to be and application, from achieved Section 306(b)(1)(A), 33 U.S.C. § age account into also take shall 1216(b)(1)(A) involved, the and facilities equipment Categories sources; Federal engineering as- employed, process performance standards of various application pects new sources process techniques, control types (b)(1)(A) The shall, environ- quality changes, non-water ninety within days after October energy (including re- impact mental quirements), 1972, publish (and from time to time factors as such other and thereafter revise) shall a list of catego- appropriate; deems the Administrator sources, ries of shall, at the mini- mum, include: (2)(A) identify, in terms of amounts mills; paper pulp and of constituents and chemical, physical, paper board and paperboard, builders and biological characteristics pollu- mills; tants, idegree of effluent reduction rendering process- product and meat attainable through the application of ing; the best control measures prac- dairy product processing; tices achievable including treatment grain mills; techniques, process procedure in- vege- preserved novations, fruits canned operating methods, and oth- processing; er tables alternatives for classes and catego- proc- preserved ries canned seafood (other sources pub- than licly essing ; owned treatment works); and

sugar processing; mills; textile (B) specify factors to be taken into manufacturing; cement in determining account the best meas- feedlots; practices comply ures and available to electroplating; (b)(2) with subsection of section 1311 manufacturing; organic applicable of this title to be chemicals any manufacturing; inorganic point (other source publicly than chemicals synthetic works) plastic owned treatment manu- within such and materials ; categories facturing relating classes. Factors manufacturing; detergent to the assessment of soap best available and technology shall take into account manufacturing; fertilizer age equipment of refining; and facilities in- petroleum volved, process employed, engi- manufacturing; iron and steel neering aspects application of manufacturing; nonferrous metals types various techniques, control manufacturing; phosphate process changes, achieving the cost of powerplants; steam electric reduction, such effluent non-water ferroalloy manufacturing; quality impact (includ- environmental tanning finishing; leather and ing energy requirements), and such glass manufacturing; asbestos and other factors as the Administrator processing; rubber and appropriate; deems and products processing. timber and (3) identify control measures 402, 33 U.S.C. § the dis- available to eliminate practices pollutant 1342. National discharge categories from charge pollutants system elimination for dis- —Permits sources, taking classes pollutants. charge of achieving such the cost of into account discharge pollu- (a)(1) Except provided as sections elimination title, 1328 and 1344 of this the Adminis- tants. ministrator exercise the authority opportunity public for may, trator granted him the preceding discharge sentence hearing, permit issue a for the only during period begins pollu- any pollutant, or combination of of tants, notwithstanding 18, 1972, October and ends 1311(a) either on the day ninetieth after the date of the title, first upon condition that such dis- this promulgation required by charge applicable will meet either all re- 1314(h)(2) title, of this or the quirements under sections approval by date of 1316, 1317, 1318, title, Administrator of program permit for such State under taking necessary imple- prior to the (b) section,, subsection of this whichever relating menting actions to all such re- occurs, first date and no such authoriza- quirements, conditions as the Ad- to a State shall beyond tion extend necessary determines are ministrator .the day last of such period. per- Each such carry provisions out the chapter. of this shall subject mit to such conditions as (2) prescribe The Administrator shall the Administrator determines are neces- permits conditions for such to assure sary carry provisions out the of this compliance requirements with the chapter. permit No such shall issue if (1) paragraph subsection, of this includ- objects to such is- ing conditions on data and information suance. collection, reporting, and such other re- quirements appropriate. as he deems permit State programs (3) permit program of the Admin- (1) istrator under paragraph of this sub- (b) At time after the promulga- section, permits thereunder, issued guidelines required by tion of the subsec- terms, subject shall be to the same con- (h)(2) title, tion of section 1314 of this ditions, requirements apply to a the Governor of each desiring State permit program permits State issued administer its permit program own (b) thereunder subsection of this discharges navigable into within waters section. jurisdiction its may submit to the Ad- (4) permits All discharges into the complete descrip- ministrator a full and navigable pursuant waters issued to sec- of the program it proposes to estab- title, tion 407 of this shall be deemed to lish and administer under State law or permits title, issued under this and under an compact. interstate In addi- permits issued under this title shall be tion, such State shall submit a statement permits deemed to be issued under sec- general (or from the attorney the attor- title, tion 407 of this and shall continue ney pollution for those State water con- in force and effect for their term unless agencies independent trol which have le- revoked, modified, suspended or in ac- counsel), gal legal or from the chief offi- cordance with provisions of this cer in agency, the case of an interstate chapter. State, that the or the inter- laws such be, compact, pro- state as the case (5) discharge into the permit No for a adequate authority carry vide out the under navigable shall be issued waters program. The described Administrator title after October section 407 of this approve pro- shall each such submitted permit a un- application 1972. Each for gram adequate unless he determines title, on pending this der section 407 of authority does not exist: be be deemed to shall October (1) permits To issue which— this permit a application an for shall autho- section. The Administrator (A) apply, and compliance insure State, has the which he determines rize a with, any applicable requirements of permit pro- administering a capability 1311, sections 1316, 1317, and objective carry will out gram which title; 1343 of this permits for dis- chapter, to issue of this (B) within charges navigable waters into are for fixed terms not exceed- ing jurisdiction of such Ad- years; State. five navigable (C) waters substantially can terminated or modified would be impaired to, thereby; including, for but not cause limited following: (7) permit To abate violations of the (i) any violation of condition of permit program, including civil or the permit; other penalties ways and criminal enforcement; and means (ii) obtaining permit misrep- resentation, or failure to disclose (8) any permit To insure that for a facts; fully all relevant discharge from a publicly owned treat- (iii) change any condition that ment works includes conditions to re- requires temporary per- either a or quire adequate notice permitting manent reduction or elimination of (A) agency of new introductions into permitted discharge; pollutants any such works of from source (D) disposal pollutants control the which would be a new as source defined wells; into section 1316 this title if such source discharging (B) pollutants, were new in- (2)(A) apply, which permits To issue pollutants troductions of into such works with, applica- compliance all and insure subject from a source which would be of this requirements ble of section 1318 section 1311 of this title if it were dis- title, or charging pollutants, (C) such a sub- monitor, enter, (B) and re- inspect, To change stantial in volume or character of extent quire reports to at least the same pollutants being introduced into such title; required in section 1318 of introducing pollutants works a source (3) To insure public, that the any into such works at the time of issuance other State the waters of which permit. notice Such shall include affected, receive notice of applica- each quality information on the quantity permit tion for a provide and to op- to be introduced into such portunity public hearing before a rul- any treatment works and pact anticipated im- ing on each such application; change of such quantity quality of effluent discharged to be from (4) To insure publicly works; such owned treatment (in- application of each notice receives thereof) permit; copy cluding (9) any To insure that industrial user (other (5) To insure that State any publicly owned treatment works State), waters whose permitting than the comply 1284(b), will with sections of a by the issuance may be affected and 1318 of this title. recommenda- written permit may submit (and the permitting State tions to the Administrator) Suspension of federal program upon sub- any per- respect to program; with- mission of. State and, any part of such application if mit approval of State drawal accept- are not written recommendations program State, per- permitting ed .that (c)(1) ninety days Not later than affected mitting notify will State date a State has submitted writing (and Administrator) in State (or thereof) program a revision pursuant accept such recom- its failure to so of (b) section, to subsection of this the Ad- reasons for together with its mendations suspend ministrator shall the issuance of doing; so (a) permits under subsection of this sec- navigable as to those subject tion waters will be (6) permit no To insure that program to such unless he determines if, of the Secre- judgment issued permit program the that State does not through acting tary Army of (b) requirements meet the of subsection consultation Engineers, of Chief of this section or does not conform to the in department Secretary of with the guidelines 1314(h)(2) issued an- under section operating, is Guard which the Coast this title. any the of If the of of Administrator so chorage navigation of this section 1314 title the determines, Administra- notify he shall of State tor is authorized to waive require- any necessary revisions or modifications (d) ments of subsection of this section at requirements such to conform to or approves the time he a program pur- guidelines. (b) suant to subsection of this section for (2) Any permit program under State any category (including class, any type, this section shall all times be in ac- or category) size within such point guidelines with this section and cordance sources within the State submitting such pursuant promulgated program. 1314(h)(2)of this title. (3) deter- Whenever Administrator Point categories source public hearing mines after that a State (f) The Administrator shall promul- administering program approved is not regulations gate establishing categories section in under this accordance re- point sources which he determines section, of this he quirements shall so subject shall not be requirements and, notify appropriate if the State cor- (d) of subsection of this section in any action is not taken within a rective rea- program with a approved pursuant State time, ninety days, sonable not to exceed (b) to subsection of this section. The ap- the Administrator shall withdraw Administrator distinguish among program. proval of such The Adminis- classes, types, and any sizes within cate- not approval trator shall withdraw gory sources. program any such unless he shall first State, public, have notified and made writing,

in reasons for such with- regulations Other transporta- safe drawal. tion, handling, carriage, storage, stowage pollutants Notification of Administrator (g) Any permit issued under this sec- (d)(1) Each shall State transmit to the tion for the discharge of pollutants into copy of each permit ap- the navigable waters from a vessel or plication pro- received such State and other floating subject craft shall be every notice to the Administrator of vide any applicable regulations promulgated action related to consideration of by the Secretary department in permit application, including each which the Coast operating, Guard is es- permit to be issued proposed such tablishing specifications for safe trans- State. portation, handling, carriage, storage,

(2) permit (A) shall issue if stowage No pollutants. days ninety Administrator within conditions; restric- permit Violation date of his notification under subsection upon introduction prohibition (b)(5) objects writing of this section previously pollutant by source of utilizing (B) permit, the issuance of such if the works treatment ninety days of Administrator within proposed per- date of transmittal of the (h) any In the event condition of objects writing mit State discharges from a treatment permit for permit being the issuance of such out- this (as works in section 1292 of defined requirements side violated, title) publicly which is owned chapter. program approved with a a State (3) may, The Administrator as to (b) or the Ad- of this section subsection ministrator, (2) permit application, paragraph waive program no where State of this subsection. a court of may proceed approved, pro- competent jurisdiction to restrict or requirement Waiver of notification any pollutant hibit introduction (e) pro- by a source In accordance with into such treatment works mulgated pursuant (h)(2) prior utilizing to subsection treatment works such finding that such condition was to the 33 U.S.C. § violated. Authorization; Citizen suits— jurisdiction not limited enforcement Federal (a) Except provided as in subsection (i) Nothing in this section shall be con- (b) section, of this any citizen com- authority to of the Ad- strued limit mence a civil action on his own behalf— pursuant take action ministrator to to (1) against any person (including (i) section 1319 this title. States, (ii) the United any other governmental instrumentality agen- or Public information cy permitted to the extent the elev- enth amendment to the Constitution) (j) copy permit A of each application alleged who is to (A) be in violation of permit and each issued under this section an effluent standard or limitation un- shall be available public. to the Such chapter (B) der this or an order issued permit application or permit, portion or by the Administrator or a State with thereof, shall further be available on re- respect to such standard or limita- quest for purpose of reproduction. tion, or (2) against the Administrator where Compliance permits with alleged there is a failure of the Ad- any perform ministrator to act duty or (k) Compliance permit awith issued chapter this which is not discre- pursuant to this section shall be deemed tionary with the Administrator. purposes compliance, for of sections 1319 jurisdic- district courts shall have title, and 1365 of this sections tion, regard without to the amount in 1312, 1316, title, and 1343 of this controversy citizenship par- or the imposed except any standard under sec- ties, enforce such an effluent standard pollu- tion 1317 of this title for toxic limitation, order, or or such or injurious tant to human health. Until order perform the Administrator to such 31, 1974, any December case where a duty, may be, act or as the case and to permit discharge for been applied has apply any appropriate penalties civil un- section, but pursuant to this final admin- der 1319(d) section of this title. disposition of such application istrative made, discharge has not been such shall Notice (1) not be violation of section (b) No action be commenced— title, (2) or 1342 or (1) (a)(1) under subsection of this title, 407 of this unless the Administrator section— plaintiff proves or ad- other final (A) prior disposition applica- sixty days ministrative of such after the plaintiff given has has not because of the notice been made of the al- leged (i) violation applicant failure of the infor- to the furnish Administra- tor, (ii) requested reasonably required mation or State which the alleged occurs, violation application. (iii) For process order to any alleged standard, violator 180-day period beginning on October limitation, order, or any point source in the case of discharging pollutant or combination any (B) if the Administrator or State immediately prior to such pollutants has commenced is diligently source is not of enactment which date prosecuting a civil or criminal action title, subject 407 of this to section in a court States, of the United or a discharge by source shall not be a require State compliance with the source chapter violation if such a of this standard, limitation, order, but in discharge applies pur- permit for a any such action in a court of 180-day suant to this within such United States citizen may inter- period. right. vene a matter (a)(2) of this (1) subsection (2) chapter” under this means effective der sixty days 1, 1973, prior July

section an unlawful act under sub- ac- notice of such given title; has plaintiff (a) of section 1311 of this section (2) Administrator, tion an effluent limitation or other limita- under section 1311 or tion this brought may be such action except that title; (3) performance standard of under in notification immediately after such title; (4) prohibition, 1316 of this under this section of an action the case pretreatment or effluent standard stand- of sections 1316 a violation respecting title; (5) under section 1317 of ards this under 1317(a) Notice of this title. under section certification title; 1341 of this such given in shall subsection this (6) permit or a or condition thereof pre- shall as the Administrator manner title, under section 1342 of this issued regulation. scribe chapter under (in- is in effect this which Venue; by Administrator intervention cluding requirement a applicable by rea- (c)(1) Any respecting action a violation title). section 1323 of this son of discharge of an a source or or re- standard limitation an order Citizen specting standard or limitation purposes For the (g) of this section brought under only this “citizen” person the term means a or judicial district in which such source is having an interest persons which is or located. adversely may be affected. section, (2) In such action this Administrator, party, may not a if action Civil State Governors as right. intervene a matter of (h) A of a Governor State com- a civil (a) mence action under subsection Litigation costs section, without regard of this court, (d) issuing any or- final (b) of subsection limitations of this sec- any brought pursuant action der to tion, against the Administrator where section, may litiga- award costs of this alleged a there failure of the Adminis- (including attorney tion reasonable to enforce an effluent trator standard or fees) any expert party, witness when- chapter under this limitation the viola- ever the court determines such award is occurring which is another appropriate. may, tempo- if court causing and is an adverse effect on State rary restraining preliminary order or in- State, health public or welfare in his junction sought, require filing of a causing any or is violation of water equivalent security bond or in accord- requirement in quality his State. June ance Federal Rules of Civil Pro- 30, 1948, 758, V, 505, c. Title added § cedure. 92-500, Pub.L. Oct. Stat. § Statutory or rights common law not restricted APPENDIX B

(e) Nothing in this section shall re- Clear Air any right Amendments of any person (or strict persons) may any class of have under 1. Section 42 U.S.C. 1857h-2 statute or common law to seek enforce- 1857h-2. Citizen suits—Establish- any ment of effluent standard or limita- right ment to bring suit any tion or to seek other (including relief against relief or a (a) Except as provided in subsection agency). State (b) section, of this any person may com- mence civil action on his own behalf— Effluent limitation standard (1) against any person (i) (including (f) section, purposes States, For (ii) the United other term standard or governmental “effluent limitation un- agen- instrumentality given this subsection shall be in such permitted by the to the extent cy pre- manner as Administrator shall the Constitu- Amendment to Eleventh by regulation. scribe tion) alleged be in violation who is to (A) or limita- an. emission standard Venue; intervention Administrator (B) chapter or an this order tion under (c)(1) Any respecting action a violation or a State issued statutory aby source of an emission or respect such a standard lim- to with standard or limitation or an re- order itation, or specting such standard or may limitation where (2) against the Administrator brought only judicial district in alleged a failure of the Ad- there which such source is located. any duty act or perform to ministrator (2) section, In such action under this chapter which is discre- under this Administrator, if not a party, may tionary with Administrator. right. as a intervene matter jurisdic- have courts shall The district tion, regard without to the amount in costs; Award of security controversy citizenship of the par- or the (d) court, issuing any final or- ties, emission such an stand- to enforce any brought pursuant der in action to limitation, order, or or such an or to ard section, (a) subsection of this may award perform the Administrator to order litigation (including costs of reasonable duty, as the case be. act or attorney expert fees) any witness to Notice party, whenever the court determines

(b) No action be commenced— is appropriate. such award The court may, temporary if a restraining order or (1) (a)(1) of under subsection this injunction sought, preliminary require section— filing equivalent of a bond or securi- (A) prior days to after ty in accordance with the Federal Rules given has notice of vio- plaintiff of Civil Procedure. Administrator, (i) (ii) lation in which the the State curs, violation oc- (iii) rights of other any alleged Non-restriction violator standard, limitation, order, or (e) Nothing in re- this section shall

or (or right any any person strict (B) if the Administrator or State any may have under persons) class of has is diligently commenced and law to seek statute or common enforce- a prosecuting a civil action in court limita- any ment emission standard or United States or a State to (including relief any tion or to seek other require compliance stand- or a against relief the Administrator ard, limitation, order, or but in agency). State such action in a court of the United any person may intervene as States Definition right. a matter of section, (f) purposes of this For or limitation term “emission standard (a)(2) this (2) subsection under chapter” under this means— days to 60 prior (1) schedule or timetable of com- a of such ac- given notice has plaintiff pliance, limitation, emission standard Administrator, standard, of performance or emission brought may be action that such except or notification after such immediately prohibition respect- (2) a control or this section action under case of an ing motor fuel or fuel addi- vehicle 1857c- of section violation respecting tive, title an order issued 7(c)(1)(B) of this pursuant (in- chapter effect under this which is in by the Administrator requirement application by Notice under 1857c-8(a) cluding title. of this title) courts’ discretionary section 1857f authority reason costs, award plan. applicable implementation provided the Senate amendment, is retained. In addition the History Legislative Courts’ discretionary authority require filing of bond if a temporary restraining REPORT CONFERENCE order or preliminary injunction is sought 55-56; 91-1783, Legisla- H.R.Rep.No. is noted. History at 205-06. tive The right persons (or of per- class sons) to seek enforcement or other relief CITIZEN SUITS SECTION under any statute or common law is not a provi- The did not include House bill affected. citizen suits. The Senate sion for authorized citizen suits amendment SENATE COMMITTEE REPORT violators, agencies, against government S.Rep.No. 39; 91—1196at Legislative to seek the Administrator abatement and 36— History at 436-39. or violations for enforcement of such provisions of the Act. Notice of SECTION 304. CITIZEN SUITS except days required in cer- thirty was The Committee has a pro- established authority Discretionary tain instances. vision in bill provide that would citi- provided grant the court to rea- was to participation zen in the enforcement of attorney expert and witness sonable regulations and standards established rights to seek fees. Other enforcement under this Act. The provision in the provision under other of standards proposed carefully bill is restricted to ac- were not affected. law tions where violations of standards and pro- retains The conference substitute or regulations part a failure on the with limi- visions for citizen suits certain alleged. officials to act are against tations. Suits the Administrator Section would not substitute a alleged perform limited to failure are mandatory court-developed “common law” of defini- performed by be functions to quality. alleged air An violation violators, including against him. Suits standard, anof emission control emission government and the United States other requirement, provision or a imple- in an permitted agencies by extent plan, require mentation would not reana- Constitution, also be authorized. would lysis of technological or other considera- commencing action in the Prior to tions at stage. the enforcement These courts, plaintiff must have district matters would have been settled in the violator, the Administrator provided procedure leading administrative to an sixty days’ with notice. If State implementation plan or emission control pending action is an abatement Therefore, provision. objective an evi- pursued a being diligently in United dentiary standard would have be to met court, such action cannot or State States brings citizen who an action un- any party commenced but in interest be der this section. right. as matter of intervene seeking Government initiative in en- forcement under the Clean Act Air has delay following required No notice is Authorizing been restrained. citizens to where alleged there an violation aof bring suits violations of standards hazardous emission standard ofor an or- governmental agencies should motivate der of the Administrator. The confer- charged responsibility with to bring provides ence substitute also that actions enforcement and proceedings. abatement respecting stationary violations sources are to brought be in the district In order to further encourage pro- which the source is located and estab- enforcement, agency vide for the Com- that, action, in any lishes the Adminis- requirement mittee added a pri- has trator intervene as a matter petition court, filing with the right. group citizen or citizens would first immediate, be that cit- provisions control notice of intent to file have to serve bring izens should be unconstrained to pol- air Federal and State action on the actions, these and that the courts should alleged control lution them. not hesitate consider group citizen or pollutor. Each would provide include facts such notice in 304 would have to that a citi- regulations prescribed might zen enforcement action accordance Secretary. Secretary brought against should individual or a pos- regulations agency. recognized as soon as As prescribe government un- enactment, bill, regulá- and such 118 of sible after der section Federal facili- simplicity, clarity, pollution. reflect air generate tions should ties considerable regulations agencies standardized form. Federal have been Since notori- require places ously laggard abating pollution notice that im- should and in unnecessary requesting possible appropriations burdens on citi- develop con- measures, important provide zens but rather should confined to it is trol seek, necessary give information to can requiring through that citizens the courts, expedite government per- a clear indication citizens’ intent. the regulations might require specifically These infor- formance directed under sec- regarding identity mation the loca- alleged pollutor, a descrip-

tion of brief The standards for which enforcement activity alleged tion of the tion, to be in viola- sought would be either under adminis- provision and the of law alleged to through trative enforcement or citizen be violated. procedures are enforcement the same. provided The a period Committee has participation The of citizens in the notice of time after before a citizen seeking courts enforcement of air quality file an action. The time between notice standards should not result in inconsist- filing of the give action should the policy. The Air ent Clean Act should op- administrative enforcement office an objective against achieve standards portunity alleged to act on the violation. quality. which to measure air There emphasized inconsistency It no should if the should be the en- agency not pro- had initiated abatement forcement of such standards. Whether ceedings following by notice sought agency or if the citizen abatement were citizen, by agency by believed efforts initiated the a there would be a considera- inadequate, record might any citizen ble available to the courts in case, proceeding resulting choose to file the action. In such enforcement from expected the courts would be to consider the Federal and State administrative petition against background standard-setting procedures. Conse- quently, action and could determine the factual basis enforce- adequate that such action would be of standards would ment be available at dismissal, justify suspension, sought, or consoli- the time enforcement is petition. of the citizen dation On issue before courts would be a factu- hand, compli- other if the court agen- viewed the al one of whether there had been inadequate, cy action as it would have ance. jurisdiction to consider the citizen action disclosure and other information The notwithstanding any pending agency ac- the bill throughout required obligations tion. operation important are emphasizes The that if the Committee a Secretary would have The provision. alleged comply violation is a failure to infor- meaningful make duty special an administrative enforcement or-

.with available sources emitting on mation der, per- a standard of violation of timely basis. public on formance, prohibition or a or emission standard, waiting no pe- there would be prob- is drawn to avoid provision following riod notice. It Commit- provision raised class action lems tee’s intent that enforcement of these Procedure, Rules of Civil the Federal by Rule specifically 23. Section 304 does may litigation expenses award borne ' Instead, authorize a “class action.” plaintiffs prosecuting such actions. private would authorize a it action pollution Enforcement of regulations acting citizen or citizens on their is not beyond a technical matter Questions respect behalf. with own to competence of the courts. The citizen “class” actions traditional often involve: provision suit is consistent princi- (1) identifying group people whose ples underlying Act, the Clean Air damaged; (2) interests have been identi- is the development identifiable stand- total fying damage amount of to ards of air quality and control measures jurisdiction qualification; determine implement such standards. Such (3) allocating any damages recovered. provide standards manageable pre- points appropriate of these None in cise benchmarks for enforcement. citizen suits seeking abatement of viola- provide Committee bill would quality tions of air standards. There the citizen provision suit will actions jurisdictional' be no would amount re- against lie Secretary for failure to quired in section nor is there any Act, exercise his duties under the includ- provision recovery for the property ing his enforcement duties. The Com- personal damages. noted, It should be expects mittee many citizen suits however, that the specifi- section would nature, would be of this since such suits preserve cally any rights or remedies un- would reduce the ultimate burden Thus, any other der law. if damages going citizen of forward with the entire shown, could be other remedies would action. Compliance remain available. standards under Act this would not be a Report, Senate Committee Section a defense to common pol- law action for 91-1196, Analysis S.Rep.No. Section at damages.

lution 64-65; Legislative History at 464-65. expressed that some law- Section 304 was

Concern bring 304 to would use section friv- yers provides jurisdiction This new section harassing actions. The Com- olous courts, in the Federal district without key pro- element in has added a mittee regard citizenship to the of the parties or may viding that the courts award costs the controversy, amount of to hear and litigation, including reasonable attor- decide civil actions instituted citi- any fees, expert witness whenever ney zen or class citizen to enforce or re- such action court determines that the quire provisions enforcement of certain public The court could interest. Act, including: ap- of the Clean Air any litigation award costs of defend- thus to plicable compli- schedule or timetable obviously where the was litigation ants ance, requirement, emission standard of or This harassing. frivolous should have performance, standard, pro- emission or discouraging effect of abuse of this the hibition established under the Act. The while at same time encour- provision, the may brought against actions any per- be quality the actions that will aging son, as that term defined in section brought. be 302(e) Act, where there is an al- leged any provisions, violation of of its recognize The Courts in should against Secretary or where he fails bringing legitimate actions under to enforce standards or orders estab- performing citizens be a would or compel lished under the Act him to service and in such instances the public imposed any duty exercise on him litigation should courts award costs the Act. party. plain- extend such This should not, however, The section does affect in actions which result in successful tiffs any way in whatever remedies citi- but reach a do not verdict. abatement might zens or class of citizens un- have instance, if of a citizen result For law, statutory der or other it nor does issued, a verdict is and before proceeding provide damage or nuisance actions. violation, the court a defendant abated judicial instituting system. a citizen our As was Before action to tions for violation, however, petition action abate a the case in the consumers class Secretary, bill, with an area of give must notice to the his this section deals representative, any, appropriate if function which is under governmental agency, and the jurisdiction violator of the of that committee. State violation and allow days least 30 which con- I am aware of situation permit them to thereafter abate the go We want to home to cam- fronts us. violation. sentative, If Secretary, repre- his paign. get We want to out of the Sen- pro- or a does State institute adjourn sine die before ate and either ceedings time, they abate within this return after the election. the election or prosecute good them must faith and appeal I understand emotional speed with deliberate to meet this notice intent. I know all I know of its bill. requirement citizen is free to ini- things are true. But if in the these tiate his action. Actions to abate a vio- process taking might action which lation of an specified order certain ill-advised and would result in some of provisions may be instituted without backlash, it, might as we call such notice. If Secretary is not a was foretold and forecast for us party proceeding, he inter- I if it case S. wonder would vene. slowly. better make haste litiga-

The court What is matter with that section? award costs of party I have here memorandum that was tion to either whenever the court my a member staff. handed to me pub- determines such award is objections of the basic regard lic interest without to the out- It outlines some objections litigation. that lie as to section 304. come of the way: The memorandum starts out this Debates History at 127. [Mr. Muskie] # s{; Dec. ¤ 18, 1970, Legislative ^[*] sf: ^[*] S. 4358—THE CLEAN Citizens Suits AIR ACT A. proposal The unprecedented is concept public The bill extended the in history. American participation process. to the enforcement proposal 1. The predicated The citizen suits is authorized on the [Sec. 304] erroneous legislation important assumption apply would that officials of the Executive pressure. Although the did not Branch of Senate the United way these States Government will perform advocate suits as the best not enforcement, carry out responsibilities achieve was clear that their it they duties under the should be an effective tool. Clean Air Act. Nev- er before in history of the United 21, 1970, Sept. Legislative History at Spates Congress has the proceeded on assumption that the Executive President, Mr. Hruska. Mr. it is not Branch will carry not out the Congres- my get purpose position into mandate, hence, sional private citizens Frankly, would be obstructive. inas- shall given specific be statutory au- my much as this matter came to atten- thority compel such officials to do tion first time not than 6 for the more so. ago,

hours it is a little difficult to order 2. The Hearings the Public thoughts one’s and to decide the best Works Committee do provide ei- course of action to follow. legal ther a factual or basis which timely Had there been notice that this justify would the adoption of this far- bill, perhaps section was some reaching and procedure novel wherein would have asked that the Senators bill private citizens challenge virtual- referred to the Committee on the Ju- be ly every decision made the officials diciary implica- for consideration of the of the Executive Branch in the carry- Congress deliberately or not— complex out the numerous in'g —whether continually repeatedly refused to responsibilities imposed duties provide the manpower funds and neces- Air Act. the Clean sary the provisions to enforce of that President, only involves not Mr. act. every decision but also lack of a every Notwithstanding the capability lack of decision, Secretary may en- act, to enforce this suit after suit after purpose implementing gage for the brought. suit could be The functioning this act. department could interfered memorandum further states: with, and its time and resources frittered adoption 304 will B. The of Section away by responding to these lawsuits. multiplicity of suits which result The limited can resources we will afford with Executive’s ca- will interfere implementation be needed for the actual pability carrying out its duties and of the act. responsibilities. Sept. Legislative History at provides Air Act Clean 280-81. agencies ample powers regulatory Mr. Muskie. formulate standards and to secure regula- President, enforcement Mr. I it effective think is important delegate need to tions. There no to note the limitations written into this powers, indirect, provision direct or enforcement of the bill by the committee private citizens. are noted in section of the com- report mittee which I just have inserted open 304 is an invitation 2. Section in the record. Suits— institution Citizens encouraged awarding litiga- all, First of pre- the section does not “including expense reasonable at- sume there will be a good lack of ” expert good . . torney and witness fees. will faith or dedication on the (b)) (Section part This award of those administering provi- granted even in a case where ac- sions the law in doing so. in successful tions “result abatement What we are seeking to establish is a (Report do verdict” p. but not reach a policy. nationwide National ambient air 38). multiplicity A of actions are sure implemented by plans standards devel- the enactment of to follow oped at the State and local level create regardless regulatory of how well the potentially enormous prob- enforcement agencies perform their and re- duties State, local, lems regional sponsibilities. governments, as well as for the National Government. I think it too much to I, President, Mr. might add that that, presume well however staffed or agency might not be at fault it if does well agen- intentioned these enforcement promptly not act or does not enforce the cies, they will be able to monitor the act as comprehensively and as thorough- potential violations of requirements the ly it as would like to do. of Some its implementation contained in all the capabilities depend on the wisdom of the plans act, will be filed under this all appropriations process of Congress. this act, requirements the other the of It would not be the first time that a responses of the enforcement officers regulatory act would not have pro- been to their duties. vided with sufficient funds and manpow- Citizens can a be useful instrument for get er job done. detecting violations bringing them to the attention of the very recent, I enforcement only need refer agencies and courts alike. have up So we example brought classic in the case of provided pro- this restrictive suit citizen Stockyard the class action Packer Act of purpose. vision for that We testi- took provisions where for decades the of mony subject. on this was strongly It capable enforcement, the act were not of supported by legal scholars and several Senate, light tion of the organizations. provision, finally as by distinguished remarks made sena- bill, considerably written into the cut points tor from Nebraska. Other are proposals down from some of the by covered the section of the committee were advanced. It is not a class-action report which I have asked to be included provision. in the Record. might

These features be of interest: Sept. 22, Legislative History at all, First citizen suit can be 355-57. brought only provisions to enforce the President, Mr. Hart. Mr. I like would requirements the act or the that are es- myself address this time to section operations tablished as a result of the provision S. citizen suit words, the act. In other a citizen suit is regard provision of the bill. I this right limited to the to seek the enforce- one of the most attractive features of provisions ment of the of the act. the bill and am therefore by disturbed Second, suit, bringing before there is a criticism of it which has been offered requirement provision in this within and both without this Chamber. citizen bring bring his intention to suit argument provision for the The basic to the attention of the local enforcement simply plain: namely, the Government agency, thought being might that he to take court action trigger equipped get administrative action is not legis- violations of against the numerous might relief he otherwise seek in the likely to are type courts. lation of be- testifying a similar bill In on occur. citizens, I they think most if were able Ener- Subcommittee fore Senate trigger action, such administrative Environ- and the Natural Resources gy, would having be satisfied with done so. Ramsey ment, Attorney General former Thus, they nothing would have done this inevita- spoke convincingly of Clark is, anticipates more than the act —that Mr. stated: incapability. Clark ble the full and effective enforcement of the impossible government will be provisions of law. It significant to control all enforcement In those instances where enforcement . . . The exten- pollution acts of is, triggered, was not enforcement . right . private sion of action the administrative was di- persons for the sanctions effective triggered, not then it seemed to us the will be rectly affected or concerned ought citizen pursue to be able to if vital interests are to essential judicial remedy. in areas of experience protected. Our The Senator from Nebraska raised the discrimination, unlawful racial massive question possible harassing suits schooling, employment, and as in attempted citizens. This the committee hard it that however housing tells us discourage by providing that the costs will never have try, government might litigation including counsel fees-— — techniques, manpower, be awarded the courts to the enforce the necessary to awareness cases, defendants in such so that the citi- enforcement for all. Private law brings harassing zen who suit is sub- the individ- only way laws is those ject only to the loss his own costs can- rights that the assured ual can be litigation, but to the burden of bear- impunity. violated with not be ing parties against the costs is another control Pollution brought whom he has the suit in the really serious about we are area. If first instance. environ- controlling quality the of our very I doubt much that individual citi- quality destroys it ment before lightly engage possibili- zens would this lives, give the individuals we must our ty- pollu- or concerned about by, affected life, stop -to power in his tions These are some of points it seemed through legal process. them ought to me brought to be to the atten- risking an inhibiting Far undue or from this bill on the courts is one that interference Government enforce- it must gladly assume.

ment, powerful provide supple- it will may judicial system be our It that . . . mentary enforcement expanded provide to for this must be prod an effective and desirable to offi- be, may Or it as Mr. caseload. Clark duty. to their cials do states, may adjust we have to that priorities system. within however, that time argued, It has been that con- major has to take to ferring perhaps come action rights additional on the citizen adjustment. that It is in may compel part I unduly. burden courts would some have suggest- for that reason that argue provision that the citizen suit of S. procedur- of threshold carefully has been ed the elimination pre- drafted to al that consume a court’s time consequence vent this defenses arising. from all, it be enroute to its examination First should noted that merits part is in provision bill makes no of cases. And it that rea- damages suggested son some have the individual. that end provides It therefore no principle monopolizes the fault that so protect incentives to suit other than to litiga- much time automobile accident the health and suing welfare those tion. similarly and others situated. It will be rare, ordinary, per-

the son, rather than the argued It been has that even if who, I suspect, hope with no of fi- courts can meet the burden of cases aris- gain very prospect nancial and the real bill, ing under this defendants be loss, will of financial initiate court action unduly frivolous suits which harassed For part, only bill. the most brought. The be bill defends this in the case where is crying there need by providing criticism that the court for action will action in fact likely. be “may litigation, including award costs cases, I argue In such would that action attorney expert reasonable witness public be must in the interest. fees, whenever the court determines public such action is in the interest.” The bill provides also for a notice re- escalating attorneys Given costs quirement to State pollution and Federal today, I it to imagine fees find difficult agencies prior to the bringing suit. many engage frivolity will 304(a)(3)] requirement, This [Sec. it is appears so worrisome to some. expected, will have the prod- effect of ding agencies these Yesterday, distinguished to act. In Senator many cases, hoped, Hruska) it is they (Mr. will referred from Nebraska able act without resorting to about Burger’s Chief Justice remarks courts. providing inherent in additional dangers litigation Even if is in expanded fact in Federal rights of action enforceable bill, under this it must still be contended courts. expansion that such justifiable. is As Ramsey Clark also stated at the hearings I am aware of the Chief Justice’s cau- previously referred to: area, tion in this and I believe it soundly However, based. I re- would question There no justice my colleagues mind of another denied layed, caution- in America because it is de- ary remark to which he referred in one and court backlogs are serious opinions, namely, his problem Office of Com- for society from every stand- munication of United point. Church of Christ v. society But has to priori- have FCC, U.S.App.D.C. 359 F.2d ties and [123 survival 328] should a be. pretty (1966). In opinion high referring priority. Survival depends upon right of citizens to appear before the protection environment, of our FCC, approval he cited with a statement I think legal redress in America will Cahn, of the late Edmond which reads: major be a method of protecting that environment. imposition of any bread; Some consumers need others additional caseload might follow Shakespeare; need others need their charges particular provi- violations of society— in the national rightful place brought by act act- sions of the citizens of law processors need they all what ing originally own As in their behalf. needs people’s the consider who will proposed provision the troubled me with administrative than significant more impact its respect to on administrative convenience. and, course, on enforcement efforts we and those my that both hope It is During the courts. its consideration the judicial system will administratively our particular committee made efforts to continue to advice and heed of that take provision draft a that would reduce not guided by it. the en- effectiveness of administrative President, the I off floor was Mr. forcement, and cause the not abuse of Kentucky from made the when Senator pre- courts while at the same time still may responding I not be remarks and his serving right of citizens en- to such what was said. to forcement act. however, re- point, this would make I provision The citizen suit [Sec. 304] now before specific to issue lative has developed pro- a context of other the Senate. posals authorizing citizen access to this we will find legislation type, In courts for environmental remedies at in num- likely noncompliance which very both the State and Federal level. capaci- beyond far degree are ber or respond to to. ty of Government ROBB, Judge (dissenting): Circuit the frustrations. is one of This Although quarrel I do not to on commis- do have serve We able discussion and resolution of the the Commission Civil such as sions majority opinion merits in the I believe anything else to Violence or Disorders or the District Court have should dismissed across frustrations know that one jurisdiction. this for want of action increasing number of country is this 505 of Section the Federal Water Pol- Congress has who feel that citizens our Act, pro- lution Control U.S.C. 1365 promise, that there are them a but made vides: obtaining delivery on that means of no promise. § 1365. Citizen suits—Authoriza- tion; jurisdiction Department of Jus-

The burden on great is so that the cannot tice (a) Except as provided subsection the citizen the respond section, to it. To allow (b) of this citizen may in- right to sue on his own behalf commence a civil action on own his on the Federal increase the burden deed behalf— adequate is not an re- But this courts. to frustrated citizen who

sponse right. seeks (2) against the Administrator where alleged there is a failure of the Ad- feel, bear I is to obligation, Our perform any duty ministrator to act or capacity expanding the burden chapter this which is under not discre- system respond frustrat- court tionary with the Administrator. ed citizens. >}: ^{[*] [*]} % sfc sf: ^{[*] [*] [*]} 5k ^{[*] [*]} Notice Legislative Cooper] Sept. [Mr. History at 387. (b) action No commenced— breaks new bill also committee extending public participation, ground act, throughout (a)(2)

an essential element subsection (2) In proceedings. days sixty enforcement prior jurisdic- proposes grant ac- given the bill notice of such plaintiff has Administrator, courts hear to the Federal district tion required give the notice did NRDC statute; argument oral indeed at by the stated counsel for NRDC court

in this give notice did not they purposely would have giving of notice

because delay.

entailed requirement plain notice case, but applies to this

unequivocal and reads it opinion in effect majority I cannot con- In this of the statute.

out

cur.

Leonard DAVIS

v. SCHUCHAT, Appellant.

Theodor

No. 72-1799.

United States Court of Appeals,

District of Columbia Circuit.

Argued Feb.

Decided Jan.

Case Details

Case Name: Natural Resources Defense Council, Inc. v. Russell E. Train, in His Official Capacity as Administrator, Environmental Protection Agency

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 10, 1975

Citation: 510 F.2d 692

Docket Number: 74--1433

Court Abbreviation: D.C. Cir.